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.
Paul, I’m fairly certain Leej knows what psychogenic pain is. When doctors can’t find a source of someone’s pain sometimes they jump to the conclusion it’s psychogenic, which is actually malpractice.
It hasn’t happened only on other blogs, it’s happened right HERE on this blog. But I understand the deletion.
Paul, don’t know where you found that, it is one of the falsehoods that makes it so hard for many in pain to be believed and get proper treatment.
I will hopefully be selling my house in the near future. I don’t want to move to NJ but may because it is legal there (and yet if I could at least try it and find out if it could help me I would not have to potentially move somewhere I don’t want to move to because a medication that may or may not help me is illegal in my state is absurd.)
I have my fingers crossed for NY. Used to live in Manhattan and if there is any way I can afford it (which is more a not then a can) I would back in a New York minute. I am sorry you too are living with chronic pain.
leejcaroll – psychogenic does not mean you do not feel the pain.
Paul S. I have deleted a comment that continues this tit-for-tat raised earlier.
Jonathan – I am engaged in a couple of tit-for-tats, so I am not sure what got deleted. 😉
Scott, lucky you!
Annie re ridiculousness of those who require one;s prove one’s pain, my last column at national pain report was about this. (and I have written a number of columns on the issue.) Those who want to think such a thing like chronic intractable pain doesn’t exist or really isn’t as bad as you say it is will never be converted to the reality of the kind of pain those with this kind of pain live with daily.
(I understand your fear. Although the disabling ye pain remains the touch induced and spontaneous pain spontaneously remitted over 15 years ago and yet I still have the fear it will return.It is one of the insidious parts of TN))
I haven’t tried it Scott and Leej, I depend on those muscle relaxers when my leg spasms hit. Maybe I should mention it to my doctor. I don’t get sleepy or ‘high’ at all when I must take muscle relaxers. I don’t like feeling high, or out of it, one of the reason I don’t like narcotics either.
Leej and Annie, after multiple surgeries, scores of pain meds I have trouble with, and years of Republican control of the New York State Senate, it looks like a med pot bill just got out of a GOP Senate committee and now has to make it through the finance committee before going to the floor of the Senate, which is still, just barely, controlled by Republicans. I have my fingers crossed.
The Assembly has already passed it, and Cuomo will sign it.
My MD is looking forward to prescribing it for me.
That is what is so ironic to me, the repubs say they are for “smaller government” and “fiscal responsibility”
Both these issues, abortion and legalizing medical marijuana fall into those categories.
As Scott said smaller government is not intruding into my body – and my doctor’s office and the medical decisions he, she makes.
“Fiscal responsibility” is not withholding a medication and instead costing the health care system thousands, millionsmore in cases where medical marijuana may help rather then surgery, and other costly treatments.
The same is true with abortion, contraception availability and coverage costs the state less then forcing women to go through with pregnancies that result in babies requiring thousands and millions in care, sometimes to only die within minutes after being born, or stillborn. then abstinence only education that leads to nintended pregnancies people are unable to go through with etc..
Leej, I do live in fear of it returning. It was increasingly intensely painful, for those of you who live with this for years and undergo surgeries, I don’t know how you do it, but I guess one must continue to live. I hope you will be able to get the medical marijuana without having to jump through hoops.
Right, Schulte, libel. Sounds like slander to me because I can almost hear your sneering while you swing away.
That’s a pitifully short definition of hippie punching. The phrase has a long and storied history. Referring to the professional left is more like a friendly tap, not a punch.
A punch is when some authoritarian right winger tells some pain sufferer that pot is the devil’s weed, so screw what your doctor and science says, you’re not getting any.
Now, about that woman who was tortured by the state of Nebraska…
Annie, I am so glad that your tn resolved. Wish that was a more common experience (Paul may jump on that since up earlier he referred to one aspect, cause of chronic pain as psychogenic. Unfortunately Paul has not done his homework but seems to be writing out of his misperceptions about the issue. That is one of the many barriers those in chronic pain have to overcome to get adequate care, treatment, and medication.)
psychogenenic was part of the definition I found, not something I jumped on. Hippie punching is a liberal slur about other liberals. You are just going to have to live with it.
Paul, you really have no idea. That’s all I will say about this.
Karen S, who wants money out of politics but votes Republican….
“Obama has had 5 YEARS and it’s only gotten worse.”
In those 5 years, we’ve added almost 3 million new vets to the system.
“This is a management problem at the VA, not a funding problem. ”
When you increase the number by 3 million, and decrease the funding, then it’s a funding problem. You’re asking an already stressed system to handle more people with worse conditions with less money.
“Get rid of government unions ”
Ah, well, union busting. That explains why you vote Republican even though you hold many positions with which they disagree with you.
“Stick with a meritocracy. Do a good job – get raises and promotions. Do a bad job, for instance cause someone’s DEATH, and get fired. Without wasting Congress’ time for staffing problems.”
This can all be done without getting rid of unions.
But, gee, I sure wish that applied to Republican politicians who lied us into the war that created so many badly injured vets (many because they didn’t have the right armor… “You go to war with the army you have…”)
Abortion…
You quote the Moonie times and Fox. It’s not the genetic fallacy for me to point out that those two publications have consistently serious problems with the truth.
“the definition of a “late term abortion” is any abortion performed from 20 weeks to birth.”
OK, fair enough, but when you say most Americans oppose late term abortions, I’m pretty sure they’re thinking last trimester.
Now, about that woman who was tortured by the State of Nebraska… Funny how none of you forced birthers want to talk about that.
“She had a horse accident and broke her teeth, but her doctor told her he literally could not prescribe pain meds for her because of her addiction.”
If her Doctor did that, he could get in trouble. It’s up to her if she wants to risk breaking her sobriety with pain meds. Not him.
“It basically legalized pot.”
And why shouldn’t we legalize it? It’s no where near as bad for you or society as alcohol. Things are going fine in CO and WA.
“The Hippocratic Oath means “Do no harm,” not “incur no cost.” It’s about ethics not finances.”
So? When the market is rigged to force us into more expensive alternatives, instead of allowing us a cheaper one, that’s just upward redistributing by big Pharma. Not a free market.
Funny how Republicans don’t really support free markets.
Annie – you expose so much of your life on this blog, I cannot see how anyone needs to ‘investigate’ you.
Scott and leej, isn’t it absolutely disgusting and frustrating to have to try to ‘prove’ one’s pain to other’s who may have aches and pains, but because they may suffer low grade pain themselves, they don’t believe or understand intractable pain that other’s suffer… Until the day it happens to them.
I have again deleted a number of comments from Annie and Scott Supak containing personal attacks and allegations against other posters, including references to fights on other blogs. This is not the place for such attacks though these other blogs may invite such exchanges. There is obviously a great desire to return to such allegations on this blog which enforces a civility rule.
Annie:
“people with the kind of neurological pain due to severely compressed nerve bundles and sciatic nerve, as I do, on occasion DO NOT get out of bed, much less walk.”
Precisely the kind of pain that the literature is telling us pot is good for.
Funny how the hippie punchers hate pot so much that they want to torture people over it.
Government so small it can fit in your Doctors office. Or your uterus.
Like the woman tortured by the state of the Nebraska because of their 20 week ban on abortion…
Funny how Schulte isn’t defending that torture.
God’s will and all.
Annie:
“Leejcaroll, Paul told me once I should just “soldier” through my pain.”
Yeah, he’s a real tough guy. I’d like to see him soldier through my pain.
Schulte, hippie punching is a phrase from the culture wars that refers to policies like withholding marijuana medication from patients who will suffer without it.
The US is a signatory to international treaties that recognize the withholding of pain meds as torture. Doctors who withhold pain meds can lose their license, or even be prosecuted. You want me to google it for you? Maybe quote from Wikipedia?
“Are you doctor shopping?”
Are you suggesting I’m breaking the law? I believe that’s slander.
I have seen many doctors to whom I’ve been referred by my GP. I had a Doctor retire. I have moved.
Are you new?
“Whenever a doctor withholds pain medication is torture? What a ridiculous principle. The only thing tortured here is your logic.”
International law recognizes it. The medical code of ethics recognizes it. The only thing torture here is your twisted mind.
“There are plenty of pain medications on the market. Pot does not have to be one of them.”
What makes you the expert? Are you a doctor? Had you been keeping up with the literature, you’d see it’s an excellent medicine. And it’s affordable.
I guess you own a bunch of big Pharma, so you want to rig the free market to keep your profits high.
“Most med schools have either modified the Hippocratic Oath or do not require it anymore.”
Says who? That’s not what my ER doctor friend just told me.
Actually, slander is verbal, libel is written. However, I asked a question based on your information.
Here is a current definition of hippie punching. You will enjoy the irony.
http://usgovinfo.about.com/od/thepoliticalsystem/a/All-About-Hippie-Punching.htm
So true leej, narcotics don’t teally touch nerve pain. I took Neurontin for sciatic pain for a while, but it I’m lucky tha the chronic low grade sciatic pain which feels like a toothache in one’s leg has pretty much dissipated, but it was replaced with the much more severe mindbogglingly painful spasms which feels like childbirth in ones legs. Only muscle relaxers work on that sort of pain and spasming. Leej sounds like you have been through the wringer when it comes to pain. I had three different bouts with what was diagnosed as trigeminal neuralgia, it was horribly intensely painful, but the weird part is that it only lasted for a few weeks each time and it’s never returned. I’m not sure what is was, but they did put me on Tegretol for it.
Nick, yes I have been on it for over 10 years. Helps with the ‘tics'” I get from the anaesthesia dolorosa but nothing for the underlying pain. (anticonvulsants are actually the first line of defense for trigeminal neuralgia, although it is not a seizure disorder)