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.
Friday Massacre, Shinseki and Carney resign.
The vote is not for or against medical marijuana, but over DEA money for interference.
Paul S
The bill defunded the DEA from interference with med marijuana.
Yes vote means the DEA will not get any money to interfere with med marijuana
No vote meant the DEA should interfere with med. marijuana.
A no vote is a vote against med marijuana.
I’m afraid you do not understand
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However, you do have a point regarding federal prosecutors. They often do make their own rules and don’t follow DOJ policy. If that happens in this case, those prosecutors are more likely to be Republicans – authoritarians.
http://nypost.com/2014/05/29/we-know-whats-best/
Just for you.
Feynman, I have deleted another comment that was entirely an insult directed at another poster in violation of our civility rule.
Paul S
Can you clarify your comments?
No one is less evil than Hillary.
Hillary is evil incarnate.
__________________________
Which one is it that you wish for us to believe? Or did you mean to say ….
No one is More evil than Hillary.
So, you are saying you cannot solve the Hillary conundrum on your own?
Spinelli:
“The bill was introduced by a Republican, Rohrbacher of Ca., so there’s that.”
There’s what?
I’m going to say it again, since you apparently missed it: 78% of Republicans voted against medicinal pot, only 9% of Democrats did.
As for your completely unfounded assertion that this AG will *thugishly* ignore this law (assuming your Republican friends let it through the Senate), why are you making stuff up?
http://www.washingtonpost.com/wp-dyn/content/article/2009/10/19/AR2009101903638.html
> Attorney General Eric H. Holder Jr. directed federal prosecutors Monday to back away from pursuing cases against medical marijuana patients, signaling a broad policy shift that drug reform advocates interpret as the first step toward legalization of the drug.
> The government’s top lawyer said that in 14 states with some provisions for medical marijuana use, federal prosecutors should focus only on cases involving higher-level drug traffickers, money launderers or people who use the state laws as a cover.
You really don’t understand government do you? A vote against this bill was not a vote against medical marijuana. And Holder sent out a memo, but they do not have to follow it. It was discretionary.
I have been a patient for 5 years.
Nick,
You may have fallen victim of Democrataphobia. Perhaps medical marijuana would help.
My fear is our thuggish AG will ignore this enlightened new law like he does many others.
Scott
Yesterday the House voted to end funding for the DEA to interfere with medical marijuana businesses..
Exerpt
Early this morning, by a vote of 219 to 189, the House of Representatives approved an amendment aimed at stopping federal interference with state laws that “authorize the use, distribution, possession, or cultivation of medical marijuana.” If it is included in the appropriations bill passed by the Senate and signed by the president, the amendment would prohibit the Justice Department, which includes the Drug Enforcement Administration (DEA), from spending taxpayers’ money on dispensary raids or other attempts to stop medical use of marijuana in the 22 states that allow it.
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http://www.forbes.com/sites/jacobsullum/2014/05/30/anti-pot-republicans-forsake-federalism-in-medical-marijuana-vote/
The bill was introduced by a Republican, Rohrbacher of Ca., so there’s that.
Spinelli:
“I ran into the Rush mentality big time last night. ”
Did you see how 78% of Republicans voted to torture sick people who need marijuana last night?
Did you see that only 9% of Democrats did?
Put that in Rush’s crack pipe and smoke it.
“It’s like playing chess w/ a chicken.”
You said you like to bet. So do I. How much do you want to bet the Democrats hold the Senate?
Why don’t you see how good you are against me here:
http://amciv.com/contest
I’ve come in second twice now.
Oh how I miss Intrade.
Bob, Esq.:
“Attempting to argue with a “Rush” mentality, e.g. that would rather keep prevaricating than simply admit to being wrong”
Who’s prevaricating? Or were you talking about Schulte?
http://jonathanturley.org/2014/05/27/the-great-excuse-obama-blames-the-constitution-for-his-disadvantage-and-the-need-to-circumvent-congress/#comment-1151800
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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?
——-
And…
http://jonathanturley.org/2014/05/27/the-great-excuse-obama-blames-the-constitution-for-his-disadvantage-and-the-need-to-circumvent-congress/#comment-1151760
—
“Should I have made myself more clear on this point? Sure, Bob, you got me there…”
—
Unanswered:
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?
Bob, Esq. You have the patience of Job. I ran into the Rush mentality big time last night. It’s like playing chess w/ a chicken.
Annie:
“Scott, OF COURSE medical emergencies and exceptions should be made.”
And herein lies the problem with bans. They are absolute…
But if you think it’s human life at conception, or after 20 weeks, and you make exceptions, they you’re saying it’s OK to kill some people.
Once you’ve done that, your whole argument for protection of those “people” under the 14th is shot to hell.
Feynman,
Attempting to argue with a “Rush” mentality, e.g. that would rather keep prevaricating than simply admit to being wrong, is like getting marital help from a salmon.
http://www.theonion.com/articles/ask-a-salmon,12245/
Bob, Esq
What is your objection when I said I thought Paul’s comment about Hillary was inflammatory and Rush-like?
No matter…
It does not solve my problem of understanding just how Paul S feels about Hillary. If no one is less evil than Hillary, that means everyone is more evil than Hillary. And yet Hillary is evil incarnate. It’s all pretty confusing.
Unless, of course, Paul S, meant to say that no one is MORE evil than Hillary…
But it’s very hard to follow a guy who posts an Onion article as a source, who believes the people of DC don’t pay fed taxes, and some crazy story about JFK’s service in the Pacific.
Who here did not know it was an Onion article? Raise your hands and keep them up, we want a full count.
Scott, OF COURSE medical emergencies and exceptions should be made. That’s why I said absolutism is dangerous.
I really wanted to get back to this disingenuousness:
Schulte:
“So the statement that there are 25000 pregnancies by rape and incest a year is ‘half-true’ even by your account.”
I gave you a Google search. Within the results of that search were many links you could have gone to supporting various numbers of women who get pregnant from rape each year.
You chose the Politifact one, which suggest that there are indeed many thousands of women who get pregnant from rape each year.
It is not MY account. It’s Politifact’s.
As I said, I would argue Politifact isn’t properly weighing the argument that it’s more than 25,000. But even if they’re right, and it’s somewhat less, it’s not that many less.
So, Schulte, at the risk of sounding inflammatory (but not fabulistic), how many women are you comfortable with forcing to give birth to rape babies?
And do you support parental rights for the rapists, as about 30 states currently do?
Oh that’s strange, I thought only a link would show up.
http://www.amazon.com/When-Abortion-Was-Crime-1867-1973-ebook/dp/B007GMRIG4/ref=sr_1_1?ie=UTF8&qid=1401469870&sr=8-1&keywords=When+abortion+was+a+crime
“When Abortion Was A Crime”
When the fetus is viable outside of the woman’s body, it’s no longer is a part of her. Her right to her own body is maintained in anortion before the 21st week, or induced birth therafter. Absolutism in anything is dangerous. Shades of gray, lots of them when it comes to a human life.