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.
Bob Esq:
“No, you said the bill “would have made it much harder for people with a history of mental illness to get [guns].””
Bob, tell me how a bill that would require background checks at gun shows and on the internet wouldn’t make it harder for people with mental illness to get guns?
“just so you could throw out some inflammatory rhetoric against republicans.”
I don’t need to make stuff up to do that, Bob. I have all kinds of facts, like last night’s medicinal marijuana vote, when 78% of Republicans voted to let the Feds torture medicinal marijuana patients by denying them the medicine their state has made legal for them. Only 9% of Democrats voted that way.
That’s about as inflammatory as it gets, and it’s the truth. So, I don’t need to act like Rush to make my points.
That kind of behavior is for people who have to overcome people’s propensity to believe facts.
“Let the Feds torture” those are inflammatory words. And somehow you don’t think you act like Rush? You are clearly in denial.
Jim, you asked me what my problem with your statements is…
“It’s not the Rep’s fault that the President couldn’t convince his progressive crap to get a majority.”
What is this? I’m a progressive, who like many progressives, criticize this president all the time on matters like the Patriot Act.
But if you vote Republican, you need to realize that 70% of Republicans voted to renew the Patriot Act, and only 14% of Democrats did.
So, if you want to protect your civil liberties, this would suggest you’re voting for the wrong party if you vote Republican.
Further, as you can see, the President didn’t have to convince progressives to vote against the Patriot Act. First, he’s for it. Second, Progressives are already against it. And the BIG MAJORITY of Democrats voted against it.
The Republicans, and this hawkish president, voted for it. They are the ones to blame. Not the Progressives.
Take the late night vote on medicinal marijuana, as another example of liberty crushing Republicans: 78% of Republicans voted to let the Feds keep busting medicinal marijuana patients and producers. Only 9% of Democrats did.
“The damage of this administration has already been done and it isn’t reversible.”
What damage? The recovery from the Little Bush Depression? Getting us out of wars? Not lying us into new wars that cost $2 trillion and kill a half a million people?
“You have close to 50% sucking on the working class and you own the press. ”
And this just happened? In the last few years? Under this President? You are aware that the safety net has to expand when someone like GW Bush drives the economy into a free fall?
“I can guarantee that if Hillary runs she will win.”
I’d bet on it.
“Anyone who opposes her will be labeled and destroyed.”
Hyperbole. I will oppose her for someone less hawkish in the primary. And since she probably won’t need my vote in NY, I’ll probably vote Green. I won’t be destroyed. And neither will other people who oppose her.
But the Republicans, I bet, will probably run someone even MORE HAWKISH than Hillary, in which case I will most certainly advise my friends in swing states to vote for her as the lesser of two evils.
“The conservative message will always lose since it requires effort by the people.”
The conservative message will lose because it’s been taken over by warmongering neocons and upwardly redistributing free market riggers.
“It’s much easier to sell victimhood.”
Who’s selling that? The war mongers who want to keep us scared, like McCain? Progressives want to sell investment in America, like putting people to work fixing our crumbling infrastructure.
If terrorists were killing as many Americans as our crumbling infrastructure, how much would the GOP borrow and spend to invade the wrong country?
No one is less evil than Hillary. Does not make any difference who runs. A vote for Hillary is a vote for evil incarnate.
Scot: “What I said was that this bill would have made it harder for people like this kid to get a gun. It would have. Just because this kid didn’t get his gun through a gun show or the internet doesn’t mean the Toomey bill wouldn’t have made it harder for kids like him to get guns.”
No, you said the bill “would have made it much harder for people with a history of mental illness to get [guns].”
You made the bill out to be more than it actually was; just so you could throw out some inflammatory rhetoric against republicans.
It was a Rush Limbaugh maneuver.
Jim22:
“I would also think that biology would suggest that at conception, a human cell is created and that it is unique and not just some wart growing inside of her.”
You might like to think that, but you’d be wrong. And if we pass a personhood amendment, there’d be no exceptions.
You said the far left and the far right disgust you. Let me fill you in on a little secret: the far right is running the GOP, and far left is NOT running the Dems. In fact, the far left is such a small contingent that it’s amazing that it’s existence in large numbers is still posited by supposedly mainstream pundits.
As Annie said, no one likes abortion. It’s a hard choice that religious fanatics and authoritarians best stay out of.
“As for people not liking abortion, judging by the abortion rate statistics of just over 1 million/year, I would have to disagree with you.”
Wow. That’s a really big number. I find it’s best to put big numbers in context.
For example, you know about 25,000 American women get pregnant from rape or incest each year?
Look up the other interesting statistics here. How many of those abortions were for medical reasons that would threaten the health of the mother, or lead to a baby that lives in agony for a few hours and dies.
And then look up the woman that the State of Nebraska tortured for 10 days, because of their 20 week ban.
Also, your one million number should have a little context, eh?
http://www.washingtonpost.com/national/health-science/study-abortion-rate-at-lowest-point-since-1973/2014/02/02/8dea007c-8a9b-11e3-833c-33098f9e5267_story.html
> The abortion rate in the United States dropped to its lowest point since the Supreme Court legalized the procedure in all 50 states, according to a study suggesting that new, long-acting contraceptive methods are having a significant impact in reducing unwanted pregnancies.
“I know I will not change yours or anyone’s mind on this issue. I believe life begins at conception, you don’t. I believe choice should exist, I just wish that men and women would make the right choice.”
So, you think life begins at conception, but you’re OK with the law saying we can kill those “people”?
Where are you getting that 25000 a year pregnant by rape or incest?
Annie: “Until the baby is viable outside her body and depends on her womb for its existence, it is part of her and she is rightfully entitled to do with her body as she sees fit.”
Viability is not a function of birth. To say that a 27 week old fetus is not viable is factually and legally false. Accordingly, the woman is not simply “entitled to do with her body as she sees fit” at such time of viability.
Jim22: “I wonder why you [draw] the line at the first trimester?”
Because the social compact necessitates a window; else the state exercises a property interest in the female — thereby making the social compact void.
There is no viability until after the 21st week. All I’m saying is that at a bare minimum the social compact’s very existence necessitates that first 21 week window for abortions.
Jim22: “Human life is human life to me. Does the fetus not have any self-ownership?”
That’s just it, without viability there is no being “born into a state of nature.”
Bob, Esq.:
“The choice MUST exist for at least the first trimester. ”
Do you support government intruding between a woman and her doctor after the first trimester?
Bob, Esq.
“Of course it’s impossible for Republicans to be as culpable as Elliot Rodger; it’s impossible to blame them at all. That’s why I found what you wrote so intentionally inflammatory and bereft of facts.”
You really are having a problem here, aren’t you? I squarely laid the blame for this particular rampage on this kid. Just as I lay most of the blame for any blood spilled by shooters on the shooters. But, like I said, there’s a lot of blood, Bob. This is what you ignore since you have a little bone to chew on now.
“(Note how Scott clearly [suggests] 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].”)”
I did not clearly suggest that the Republicans are as culpable, Bob. You’re lying. I clearly suggested exactly the opposite. What I said was that this bill would have made it harder for people like this kid to get a gun. It would have. Just because this kid didn’t get his gun through a gun show or the internet doesn’t mean the Toomey bill wouldn’t have made it harder for kids like him to get guns.
Are you suggesting that no one who has ever used the gun show or internet loophole has ever killed someone with a gun?
Should I have made myself more clear on this point? Sure, Bob, you got me there…
But let’s look at the bigger picture, which you, of course, want to leave behind.
The Toomey bill would have closed the loophole on background checks at gun shows and through the internet. Do you oppose this bill? Why? Why do you think crazy people should be allowed to buy guns?
Of course, the biggest problem here is the state of our mental health system. Even with better background checks, if the system that labels people a danger is a failure, then the background checks won’t help.
I wonder what you and your NRA buddies are doing about that?
Indeed, leejcaroll.
As long as the choice is yours?
Like it or not a fetus is a parasite until viable. The word is harsh but it relies completely upon the host. This believe that the moment of conception should take away choice is the slope upon which we are already sliding, from the repubs and zealous right to lifers at all costs. Soon a woman will not be allowed to smoke, drink, take medication or anything else that might conceivably cause harm to a fetus and she will be seen as the incubator the one woman was already forced to be only a few months back
Annie,
I would also think that biology would suggest that at conception, a human cell is created and that it is unique and not just some wart growing inside of her.
As for people not liking abortion, judging by the abortion rate statistics of just over 1 million/year, I would have to disagree with you.
I know I will not change yours or anyone’s mind on this issue. I believe life begins at conception, you don’t. I believe choice should exist, I just wish that men and women would make the right choice.
Biology has dictated that it is woman that carries and gives birth. Until the baby is viable outside her body and depends on her womb for its existence, it is part of her and she is rightfully entitled to do with her body as she sees fit. No one likes abortion, but it’s not our right to force a woman to carry and give birth. We haven’t yet become the dystopian future of “A Handmaid’s Tale”. So for you men who don’t want women to have autonomy over her own body, sorry, but that’s just the way it is until men can carry and give birth.
Bob,
I agree for the most part but I wonder why you dry the line at the first trimester? Human life is human life to me. Does the fetus not have any self-ownership? Again, I believe in choice, i just hope people don’t execute it (Bad pun?).
Mark,
At least you didn’t get your point across in an inflammatory way like that liberal version of Rush Limbaugh & Sean Hannity seen round these parts recently.
Jim22: “Just curious, what is the reason that a healthy women and man, should not be forced to have a baby instead of killing it?”
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.
“Though the earth, and all inferior creatures, be common to all [individuals], yet [everyone] has a property in his own person: this no body has any right to but himself.” [Kantian translation] of Locke
“AS usurpation is the exercise of power, which another hath a right to; so tyranny is the exercise of power beyond right, which no body can have a right to.” — Locke
Exercising power over an individual’s inalienable right of self-ownership is a breach of the social compact rendering it void.
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.
The woman, like any other individual, must be treated as a citizen of the United States; not property of the United States.
Jim22: “My personal feelings on abortion is, I’m against it, but believe the choice should exist just like I believe I should be able to choose to not have health insurance, what light bulbs to use or toilet to buy.”
The choice MUST exist for at least the first trimester. The existence of the social compact necessitates it.
From an earlier post of mine:
===
“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.”
===
So I’m with you on that. But I also believe in the need for a safety net for those having trouble standing on their own two feet.
It’s not as if Eisenhower felt compelled to undo all the work FDR did in creating a safety net for Americans.
Youre right, in re reading I see you did not specify the gender but the fact is way too often the man just washed his hands of it and there is very little way to make them accountable.
First of all the debate is about when a fetus becomes viable. It is more a religious argument when one calls a fetus a baby. And forcing someone to have a baby may often be a terrible choice for the ultimate baby. (How many kids are out there who cannot find adoptive families but instead languish in the system?)
True pre existing? Insurance barred those with cancer, and other disorders, illnesses. If you got care for something it was often called pre existing even if it had been years ago and sometimes even only a one time occurance. I could not get insurance from a number of companies before the ACA because they called my chronic pain disorder a pre existing condition, (despite the fact that I get very little medical care for it costing my insurance company little while I pay, paid them a lot.
At the end of the day before the ACA we all got socked with the costs by higher premiums, higher hospital and medical costs to cover those who were uninsured. Now millions who were not able to get coverage are now covered. It is a shame that the ACA did not go far enough, by becoming a medicare type system, single payer. Instead because it is thru the private companies it is still a for profit enterprise and more expensive then need be,
leejcaroll,
Show me where I said the man has no responsibility. I believe men are just as responsible.
Just curious, what is the reason that a healthy women and man, should not be forced to have a baby instead of killing it?
I’m not sure I understand you insurance angle. It sounds like you had insurance and as you describe it, it worked like it should. You didn’t get it for free did you? as for the rest of it, we had a system that took care of the uninsured. But there needs to be a true litmus test for it. I have no problem paying for true pre-existing conditions and the truly needy since they are a very small percentage of the population.
The system does not allow you to just die if you seek help (from an ER0 and have no insurance. All who had insurance, and have it now, pay for each other. When I was using a lot of services the well who paid their premiums for my company paid for my care and now that I am not using a lot of services my premiums pay for those who need/are getting care. The working poor should not have to die because they cannot afford insurance, nor should the poor, disabled, seniors, etc who cannot afford insurance as it was before the ACA. Those with pre existing conditions, including children, should not have to forgo insurance because insurance companies don’t want to bother with them. and so on and so forth.
As for contraception etc.your sister did something wonderful but sadly she is the exception not the rule.
No woman should be forced to go ahead with a pregnancy that was not her intention, whether, rape, incest, or failed contraception. Health of the mother should not be ignored so a fetus can be carried to term (and then to heck with it if the mother had chosen t forgo insurance.)
You seem to think that failed contraception should be on the woman, she should have to carry a pregnancy to term no matter what. When the man has to come to the table and take 50% of the responsibility since he is 50% of the pregnancy, you will have a valid argument.
leejcaroll,
The question that I was asked was if I don’t have insurance and can’t pay for it should I die, I answered yes to that. If I made the choice, I should live or die with that decision. But, even if we have a system like we had, there was no reason for the govt. to act like they own us and force us to buy a product.
I never said rape victims view pregnancy as a choice. I knew you would go here because it’s the only argument you really have (I do wonder what percentage of abortions are due to rape/defect/emergency vs. a form of birth control). I also never said that rape victims shouldn’t be allowed to have an abortion since I already stated that I believe that the choice should be there. I have personal experience with a person born from a rape and God bless his mother that she decided to have him. He has only brought joy to her life and I’m sure he is happy that she made the decision she did. My sister also has an adopted son with autism. Sure there were tough times but he is now 15 and on the school track team. I’m sure if you were to ask him he is glad that his but mother didn’t kill him too.
As for the stats on birth control, I honestly really don’t care. If someone decides to use it, buy it yourself and learn the odds and deal with the consequences for your recreational sex. And when you have your kid(s) don’t ask the govt for money to raise them. Acting responsible is a bitch, I know.
I don’t ask for the govt. to pay for my gym membership or the recreational sports I play. It benefits everyone that I stay healthy, but I’m not Sandra Fluke asking for people to pay for my personal choices.