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.
http://www.nolo.com/legal-encyclopedia/your-rights-after-grant-convention-against-torture-protection-withholding-removal.html
“The Convention defines torture broadly as any intentional unlawful infliction of severe pain or suffering, whether physical or mental”
If one withholds pain medications from a burn patient, for example, as Pat Buchanan has suggested, that’s inflicting pain. The pain medicine would relieve the pain, ergo, withholding the medicine causes it to be worse. The additional pain is torture.
OK, guess I have to get my wording a little more precise, Bob. Thanks.
http://www.palliativecare.org.au/Portals/46/APCC13/Concurrent%20SessionB/B7%20Colleen%20Cartwright.pdf
“The right to pain relief is inferred in the UN Universal Declaration of Human Rights and other international Covenants, e.g., sections relating to an expressed right to health and health services. However, these do not necessarily carry legal weight.”
“US Legal and Constitutional Rights: In 1997, the US Supreme Court expressed support for a constitutional right to adequate palliative care in two cases (Washington v. Glucksburg; and Vacco v. Quill). These judgments assisted doctors caring for terminally ill patients to deal with regulatory medical boards that were “ignorant or dismissive of the evidence that high-dosage prescriptions of opioids for treating pain and other distressing symptoms are safe, effective and appropriate.” (International Association for the Study of Pain, 2004; p2) “
I am a firm believer that the government must not get in between a doctor and his patient regarding quality of life choices.
But to make outrageous statements like “withholding pain meds is torture” just makes life more difficult for those who want to be taken seriously.
“the Open Society Foundations white paper is not a legal document.”
Ya think?
Annie,
Your second article didn’t do it either. It cites one letter that still doesn’t define the withholding of pain meds as torture.
From now on, if you want to prove a point, do your own research.
Don’t ask me to read the document for you.
Annie – it is nice you responded to me at 4:04, but I am not sure what the 4:04 is referring to.
Annie: “Inadequate pain relief is human rights abuse.”
Always? So all those commercials talking about “inadequate pain relief” are talking about torturers?
“The US is a signatory to international treaties that recognize the withholding of pain meds as torture.”
What treaties is Scott referring to?
The best your article could supply was an “inference”
“The right to pain relief is inferred in the UN Universal Declaration of Human Rights and other international Covenants, e.g., sections relating to an expressed right to health and health services.”
http://www.opensocietyfoundations.org/sites/default/files/pain_20090301.pdf
Human Rights Watch and pain relief.
Annie – the Open Society Foundations white paper is not a legal document.
Did I say it was?
http://www.palliativecare.org.au/Portals/46/APCC13/Concurrent%20SessionB/B7%20Colleen%20Cartwright.pdf
Inadequate pain relief is human rights abuse.
“The US is a signatory to international treaties that recognize the withholding of pain meds as torture.”
Cite?
Paul, I would not say ho hum to Scott’s comments. Don’t drag me along in your fights.
Annie – I thought you wanted credit for HO HUM?
Woman in Nebraska forced to endure agonizing pain for ten days only to then watch her baby live in agony for a few minutes before finally dying. all because authoritarians like Schulte want to dictate medicine.
Schulte’s answer: Ho Hum.
And this passes for civil on a civil libertarian’s blog.
Schulte:
“Now this is real torture. You have to admit the CIA does not screw around.”
You do realize that the Red Hot Chili Peppers are, essentially, modern day hippies, and that you just punched them?
I’d like to see you call their music torture to Anthony Kiedis’s face.
I’d also like to see you deny me pain medication to my face.
Funny how you think being forced to listen to loud music is torture, but denying pain meds isn’t. That’s quite a system of morals you’ve got there.
Meet me on twitter if you really want to have some fun.
Schulte:
“Jonathan – I am engaged in a couple of tit-for-tats, so I am not sure what got deleted.”
Yeah, same here. But at least my tits for tats reply to that which has been directed at me.
I still don’t know what the forced birthers here think about the State of Nebraska torturing that woman for 10 days.,
Schulte:
“I long ago stated my stand on water boarding and will not do it again.”
Why not? I wasn’t here to hear it? I’m pretty sure I can figure it out, though.
“I had a comment deleted today so,”
Just one? Which one? The one where you accused me of doctor shopping, or the one where you said torturing people is just fine as long as you don’t define it as such.
“Only liberals can be hippie punchers,”
Wrong again. The term comes from a label for the right. The fact that certain leftists have used it as a slur against centrist in recent history doesn’t change the original meaning of the term.
But then, I’m pretty sure you know that. So, you’re just being disingenuous.
“I cannot be a hippie puncher.”
You are a hippie puncher by trying to put your authoritarian government in between pain patients and their doctors.
“On global warming I will bet you Michael Mann’s data is a fraud.”
Sue him then. But I like to bet on things that are easy to prove, like we did at Intrade. You know, say, the GISS temp, or the HadCRUT4 temp, like Pat Michaels bet me:
http://www.drroyspencer.com/2013/09/pat-michaels-bets-on-25-years-of-no-warming/
Supak – as Annie and I both would say HO HUM>
Turley:
“comments from Annie and Scott Supak containing personal attacks and allegations against other posters”
Sure would be nice to know exactly which allegations those were. Are we not allowed to make any allegations against those who advocate for torture?
Is calling a torture advocate a torture advocate an allegation which we cannot make here?
Is pointing out that Spinelli specifically targeted me with slurs after “investigating” me considered an allegation?
Is pointing out that Schulte accused me of Doctor shopping an allegation that’s not allowed?
Seems that pointing out violations of the civility rule in a comment would be a helpful allegation to make on this blog, not harmful.
Schulte,still swinging away…
“leejcaroll – psychogenic does not mean you do not feel the pain.”
It’s mighty presumptive for you to tell leejcaroll about pain, don’t ya think?
Schulte:
“Charlton – I think that Jonathan gets to run this the way he wants, it is his blog, not yours and not anyone else’s. I saw someone else on here the other day making the same recommendation. You a supporter of theirs?”
Wow. Touchy. I take it you and Charlton S. Stanley, PhD, ABPP have a little history?
I’m astounded at how you personally attack me while ignoring the issues at hand and yet you seem to get a free pass in here.
If the professor is indeed running his blog the way he wanst to, as well he should, then he sure has a weak spot for an authoritarian like you.
The really amazing thing, though, is that advocating for torture isn’t considered uncivil. I expect more from a civil libertarian like Turley.
And if any of you guys ever want to take the gloves off, meet me on twitter.
Schulte:
“Hippie punching is a liberal slur about other liberals.”
Some on the left referred to the “professional left” comment as hippie punching. The reason they did that is because it’s an insult, comparing the person who did the punching with the conservatives for whom the phrase was developed.
http://www.urbandictionary.com/define.php?term=hippie%20punching
—-
1. The fantasy common among disaffected right-wingers of assaulting people they imagine as the embodiment of treasonous forces afflicting the nation. Rarely if ever put into practice, since in the real world the hippies either went back to real life after 1980 or turned into Silicon Valley libertarians.
2. The practice common among establishment centrists of ritualistically denigrating progressives in order to win over imaginary swing voters and David Brooks. Sometimes misinterpreted as a boneheaded political mistake, it’s actually a sign of deep and unselfish commitment to pleasing owners and professionals even at the cost of losing elections.
—-
“You are just going to have to live with it.”
You are.
Now, let’s see… You have yet to comment on the torture of the woman in Nebraska, you have not told me if you think water boarding is torture, you have punched every hippie here who needs pot for medicine because you think you know more about pain relief than doctors and those who study the science… I wonder if you want to teach creationism in schools…
I can only imagine how afraid you are to bet on global warming…
So, keep talking. I’ll wait for another swing. Maybe your buddy Spinelli will stand in the corner and punch himself for you, since you want to infringe on the rights he cherishes and he doesn’t seem to mind.
Or maybe you’ll accuse me of Doctor shopping again… That was fun.
I long ago stated my stand on water boarding and will not do it again. I had a comment deleted today so, if Prof Turley has a soft spot for me he did not show it.
Only liberals can be hippie punchers, so not being a liberal, I cannot be a hippie puncher.
On global warming I will bet you Michael Mann’s data is a fraud.
Jonathan,
I don’t think the Whack-A-Mole approach is going to work over the long run. Too much time and too much energy involved. You can’t cure cancer with a Band-Aid.
Just sayin’ :developer:
Charlton – I think that Jonathan gets to run this the way he wants, it is his blog, not yours and not anyone else’s. I saw someone else on here the other day making the same recommendation. You a supporter of theirs?
Paul, I have never had any doctor say I had psychogenic pain. Paul, I was NOT speaking about myself ( you probably knew that) but people I’ve taken care of in my 30 plus years of nursing. The source of my pain was readily easly found on MRIs. I’ve NEVER had a doctor question my pain level.