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, it is cruel and unusual. We don’t let patients languish in pain.
http://www.anapsid.org/cnd/pain/painelderabuse.html
Doctor found guilty of elder abuse. Jury verdict awards 1.5 million for undertreatment. Treating pain has improved since then, I’m sure many doctors sat up and took notice.
Annie – I am Jesuit trained, semantics is everything.
http://www.dailymail.co.uk/news/article-2161869/Top-doctors-chilling-claim-The-NHS-kills-130-000-elderly-patients-year.html
*Anti inflammatories*
Paul,
Federalist 84 is a self evident truth regarding the power of the government and the rights of individuals.
And I wouldn’t simply dispose of the Federalist papers, since the Supreme Court refers to them routinely.
Paul, then you do not have intractable pain. IF you did you would not have made such a comment about other’s pain. I’m lucky, I don’t need to take pain meds daily, I do take a LOT of antii inflammatries and occasionally a muscle relaxers for severe painful muscle spasms in my legs from hip to toe, unremitting electric jolt like pain. With it comes muscle spasms that do not stop spasming for hours without muscle relaxers. One does NOT soldier through that.
Annie – I said I had chronic pain. If you have intractable pain then you have this
pain that is not relieved by ordinary medical, surgical, and nursing measures. The pain is often chronic and persistent and can be psychogenic in nature
According to the article you should be pretty much bedridden.
“Laws provide, as much as is possible, that the goods and health of subjects be not injured by the fraud and violence of others; they do not guard them from the negligence or ill-husbandry of the possessors themselves.”
Paul,
When it comes to imprisoning people for pot use, I’m afraid you don’t have any of the Founders on your side.
John Locke (the guy Jefferson plagiarized in the Declaration of Independence):
“We have already proved that the care of souls does not belong to the magistrate. Not a magisterial care, I mean (if I may so call it), which consists in prescribing by laws and compelling by punishments. But a charitable care, which consists in teaching, admonishing, and persuading, cannot be denied unto any man. The care, therefore, of every man’s soul belongs unto himself and is to be left unto himself. But what if he neglect the care of his soul? I answer: What if he neglect the care of his health or of his estate, which things are nearlier related to the government of the magistrate than the other? Will the magistrate provide by an express law that such a one shall not become poor or sick? Laws provide, as much as is possible, that the goods and health of subjects be not injured by the fraud and violence of others; they do not guard them from the negligence or ill-husbandry of the possessors themselves. No man can be forced to be rich or healthful whether he will or no. Nay, God Himself will not save men against their wills. Let us suppose, however, that some prince were desirous to force his subjects to accumulate riches, or to preserve the health and strength of their bodies. Shall it be provided by law that they must consult none but Roman physicians, and shall everyone be bound to live according to their prescriptions? What, shall no potion, no broth, be taken, but what is prepared either in the Vatican, suppose, or in a Geneva shop?” (A Letter Concerning Toleration, John Locke, 1689)
Bob, Esq – I would posit it does not rise to the level of logic.
Annie – yes I did. I soldier through mine.
“Torture is anyone who tells my doctor that he can’t prescribe the best medicine for me. As Annie said, if someone is in pain and a Dr. doesn’t give them pain meds, they can lose their license. The TORTURE IS IN DENYING THE MEDICINE.”
Whenever a doctor withholds pain medication is torture?
What a ridiculous principle.
The only thing tortured here is your logic.
Leejcaroll, Paul told me once I should just “soldier” through my pain.
http://www.anapsid.org/cnd/pain/sciamerican.html
Leejcaroll, you are correct. Addiction doesn’t usually happen in chronic intractable pain. BUT to hell with addiction if the pain is unbearable, life isn’t livable and people actually commit suicide because their pain hasn’t adequately been treated.
Paul, when you go to the doctor and I do hope you are in an area where you have someone who specializes in chronic pain, does the doctor say “What is the level of your torture today?” Or does the doctor say “What is the level of your pain today?” I don’t know if you thought you were being funny but if so you aren’t’ (Thank you Nick for your comments about my situation and Nick also knows chronic pain)
It is interesting when you wrote the definition you left out what I and others had written, that is the full definition which included what you wrote AND for the pleasure of the person inflicting the pain. Refusing to let those in pain, and other disorders, not be able to have this drug which has been repeatedly proven to help with chronic pain is for either the pleasure or the pocketbook of those inflicting the pain, ie not legalizing it. and when it is bipartisan in this congress that has lost the meaning of the word that is aying something.
Paul, I have had 13 brain surgeries in order to try and help/stop my pain, the last one was 100% experimental. Better I incur high risks and high medical costs that all share in paying then be afforded the ability to try this medication that could even potentially get me back to work and paying taxes,
(and by the way studies also show that addiction rarely occurs in the chronic pain population, When it does it most often is associated with a past history/family history of abuse/addiction,
Paul, LOL and GREAT analysis! Just like Rush. Ironic.
leejcaroll – send me a link that show that your pain would be removed by smoking pot? If you are at the point of having brain surgery to stop the pain you are beyond most common pain medications, so I hardly see how medical pot is going to help.
Now, let it be known far and wide that I support medical marijuana, but not the legalization of pot. I voted for it twice in Arizona and was proud to do so. I would not use it myself, but I would not prevent others from using it. However, my godson, who has NO physical disabilities to speak of, has a medical marijuana card. His doctor must be handing them out like candy.
Paul: “you are asking two different questions. One, what right am I given by the Constitution and the other would I have the right without the Constitution? Which do you want me to answer? I think I answered the one.”
Paul,
I asked two questions pertaining to the source of rights.
The constitution confers no rights whatsoever; it is a mechanism by which the rights of the people confer specifically enumerated powers to the government.
The Bill of Rights merely set forth greater detail as to how those powers would be restricted; e.g. “congress shall make no law…”
Rights confer power; not vice versa. All rights exist prior to any government; thus the formation of the social compact.
Asking where the right of self ownership is mentioned in the constitution misses the point entirely.
See Federalist 84
Bob, Esq – when I was teaching I used to refer to The Federalist Papers as The Selling of the Constitution. The changed as the wind changed in the different states. They even contradict each other. I constantly exercise my right under amendment II; e.g. the right of the people to keep and bear arms, etc.
“Tons of doctors.” I used to use the slang “tons of” a lot when I was in middle school. Nostalgic to hear that used again. 4000/6000lbs. of doctors! Must be some real lard asses.
Friday massacre, Shinseki and Carney resign. Is Holder next?
Schulte:
“Annie – keeping the Feds off your back is secondary to treating chronic pain. Ask any doctor who treats patients with chronic pain. Ask the pharmacy where they have the prescriptions filled.”
I have asked TONS of doctors who treat chronic pain. Until they can replace the lower lumbar, they have all agreed that weed is best, and that in states where it’s illegal, they’re not even supposed to tell me that.
So, what the heck are you talking about? The law makes the best treatment for my pain illegal, just as it made the best treatment for that woman in Nebraska illegal.
Why do you ignore this?
Are you doctor shopping?
Spinelli:
“As I said, a Republican wrote the appropriation bill. Leej suffers from chronic pain and unfortunately lives in a state where cannabis is not legal. ”
Hey, 22% of the GOP voted the right way on this. I’ll give you that. 91% of Democrats, and 22% of Republicans. Good for all of them. And good for the Republican congressman from So Cal who’s always been good on this issue, his whole career. Quite consistent, I believe.
I have many problems stemming from my accidents. Not the least of which is shooting pain in my feet from the compressed nerves in my back. Feels like a railroad tie shooting through my foot about 20 times a day.
Every Dr I ever had told me told me that pot was best. But because I left LA and moved to New “Rockefeller Drug Laws just got repealed” York, my doctors cannot be named as saying these things or they could lose their license.
The Norco has acetaminophen (liver trouble if you take it for too long) and all the synthetic opiates are highly addictive and make me itch.
I’ve been living this way for 6 years. Ruined a good career. I’m making a third of what I used to make. That’s torture enough. To have someone tell me that being denied this medicine isn’t torture is enough to make me want to break the civility policy.
“I read about the little girl, seems she had a bucket full of problems. Cannot say if the marijuana oil would have solved them.”
Are you a Doctor? Her Doctor says is would help. A growing body of research says this is a wonderful medicine that is classified schedule one, making it worse than cocaine. It’s insane. And if the AG reclassified it tomorrow, I’d really enjoy listening to you guys scream about it.
Of course, the fact that this White House is afraid of the blowback if they did reschedule without congress is the main reason I think this AG is a wuss, not a thug. A real thug from my side of the fence would just reschedule the drug and end this madness.
C’mon. Are you really THAT married to the hippie punching?
Annie:
” I’ve taken care of cancer patients in extreme pain and to deny pain meds would put medical professionals’ licensure at risk, besides being inhumane and despicable.”
Schulte:
“I am going with my perception on the pain thing.”
What does that even mean? Are you suggesting that your perception tells you that you have the right to a federal government that gets between people and their Doctors?
Oh, right. At a minimum, 3000 forced births per year under a Personhood Amendment, or court decision that gives newly conceived cells 14th amendment rights.
Further, I would argue that denying people a relatively inexpensive natural drug that they can grow right in their backyards is the epitome of a rigged market, not a free one.
“Your majority is when you reach age 21. Prior to that is your minority, when you are a minor.”
Thank you. I was quite confused by that.
I’m not sure hippies will ever cease to exist as long as the basic ideals apply. I’m a free market progressive who thinks rigged markets and cost shifting negative externalities is morally wrong.
I also think that not letting the free market and a person’s doctor determine what the best medicine for them is morally wrong.
Same for forcing at least 3000 women per year to give birth to rape babies.
And you still haven’t told me if you support parental rights for rapists.
“when you go to the doctor and I do hope you are in an area where you have someone who specializes in chronic pain, does the doctor say “What is the level of your torture today?” Or does the doctor say “What is the level of your pain today?”
Why do you continue to ignore the points I’ve made on this already?
Torture is anyone who tells my doctor that he can’t prescribe the best medicine for me. As Annie said, if someone is in pain and a Dr. doesn’t give them pain meds, they can lose their license.
The TORTURE IS IN DENYING THE MEDICINE.
The pain would be gone if the medicine was in the system.
How many other ways do I have to say this before you will acknowledge it? Or are you just going to continue with the same misconception?
” the act of causing severe physical pain”
Here’s the thing: that pain would be gone if that person could have the medicine. The withholding of the medicine IS the torture. Just like water boarding.
Allowing pain by denying meds is a recognized form of torture. Your attempts to torture the definition don’t even come close to my daily pain.
The woman who was in agony for 10 days to watch a baby live in agony for few minutes and then die, THAT was torture by the State of Nebraska. Did you read the link? The woman was in agony that could have been relieved by an abortion, which was denied to her.
This is a horrific act and the fact that you’re defending it is one of the reasons I have so little hope for the human race.
Heck, here’s good ol’ Pat Buchanan himself talking about withholding pain meds from a terrorist.
http://crooksandliars.com/john-amato/pat-buchanan-torture-american-style-wit
—
Buchanan: …frankly if that means you have to deny him pain medication because he’s badly burned, I think you go ahead and do that. I’m not arguing for torture, but I am…
Spencer: You just did.
—-
First of all, you have not proved to me you are a hippie. Second of all, what make you think that I would punch you if you were a hippie. Third of all, have I ever physically threatened anyone on here, much less you? Fourth of all, withholding medication is not the same as waterboarding.
Now this is real torture. You have to admit the CIA does not screw around.
http://www.dailymail.co.uk/news/article-2601380/CIA-used-Red-Hot-Chilli-Peppers-songs-TORTURE-terrorism-suspects.html?ITO=1490&ns_mchannel=rss&ns_campaign=1490