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.
Karen, another Republican who thinks she knows more about pain management than my doctors…
“I do not believe there is a lot of data yet for chronic pain.”
Science doesn’t care about your beliefs.
Just search for “data on marijuana relieving chronic pain”
” I do not consider the difficult path to find legal relief to be actual legal torture and an abuse of human rights. ”
Denial of medical care is torture. I provided the citations. If the best pain medicine for me, according to my doctor, is weed, then the government has no business telling him he can’t prescribe it to me. Since I cannot use other forms of pain relief, I am being denied the proper medical care.
“you should just move to a state where it’s legal.”
I always love this argument that states have the right to do things, like deny me medical care, or Jim Crow, and if you don’t like it, move.
Moving is expensive. I moved here because of family and affordability. I’m not about to move. I’m going to keep pushing the politicians, especially the Republicans, in Albany, to pass the medicinal pot law, and I’m going to keep voting for Democrats to send to Washington so we can get more votes like this one and hopefully get the weed rescheduled.
And the money out of politics.
Schulte:
“Could it be that someone is not getting their pain meds and is feeling tortured? I know wading through these rants is torturing me.”
Direct attack on me, nothing to do with the points at hand, and if you don’t like having the truth put in your face, don’t read it. But when you avoid commenting on my points, you show that you don’t care about the truth.
Many years ago, the new director of the BBC was asked about whether he was concerned if a certain program would be insulting to people. He said ‘Some people deserve to be insulted.”
Thanks Darren, I was relying on memory rather then double checking. How can they no it has no recognized benefit, if 1) they ignore all the studies proving it does and 2) have it scheduled so it cannot be studied here?
Many years ago when it was in vogue I had a neurologist give me cocaine solution on a Q-tip put in the nostril to get to the sphenopalatine ganglion It did not help, hurt like a you now what and made me feel horrible. (Doc kept coming to my hospital room and saying “Are you high yet? Are you high yet?)
Comment eaten…
Karen, another Republican who thinks she knows more about pain management than my doctors…
“I do not believe there is a lot of data yet for chronic pain.”
http://bit.ly/1kXyMVI
Science doesn’t care about your beliefs.
” I do not consider the difficult path to find legal relief to be actual legal torture and an abuse of human rights. ”
Denial of medical care is torture. I provided the citations. If the best pain medicine for me, according to my doctor, is weed, then the government has no business telling him he can’t prescribe it to me. Since I cannot use other forms of pain relief, I am being denied the proper medical care.
Just like the woman in Nebraska who was tortured by not giving her an abortion. For 10 days.
“you should just move to a state where it’s legal.”
I always love this argument that states have the right to do things, like deny me medical care, or Jim Crow, and if you don’t like it, move.
Moving is expensive. I moved here because of family and affordability. I’m not about to move. I’m going to keep pushing the politicians, especially the Republicans, in Albany, to pass the medicinal pot law, and I’m going to keep voting for Democrats to send to Washington so we can get more votes like this one and hopefully get the weed rescheduled.
And the money out of politics.
Scott, I retrieved your comment
Folks, Scott’s comment is above at 8:30
I know this will come as a shock to you, but the government has every right to dictate to you what your doctor can and cannot prescribe to you. One the state level there is some type of medical licensing board which oversees the doctors, they exert some control. On the Federal level, they regulate which drugs are approved for use by the medical profession (this is a progressive organization, originally the Pure Food and Drug Act). So, if you want to complain about not getting a particular drug or procedure, your first stop is the Progressives who wrote the darn law.
We know that some doctors over prescribe medications and some under prescribe. This is especially true for controversial medications.
Paul, I retrieved your comment.
Paul’s comment is above at 8:15
Thanks Scott.
Thanks Karen, It is a catch 22 because studies have shown benefit but they are not permitted to study it here because it is a schedule 1(?) (always forget which is the higher level) on a par with heroin and cocaine. So they refuse to legalize it because they say not enough studies but then make sure it cannot be studied.
Until I became desperate, since my last surgery failed, I as on the sidelines about it for medical use. still am on the fence about full legalization although what I read about it shows the problems potentially associated are less then what one sees with alcohol, for DUI, for instance.
Leejcaroll
Schedule 1 is the highest level. In WA, and I suppose federally, this is what essentially defines a Schedule 1 drug.
(1) has high potential for abuse;
(2) has no currently accepted medical use in treatment in the United States; and
(3) lacks accepted safety for use in treatment under medical supervision.
I can only reference WA law since it is what I am most familiar with.
Heroin and marijuana are schedule 1, Cocaine is schedule 2.
Having marijuana on schedule 1 is meritless in my book because schedule 1 requires it to have no medically recognized benefit and or highly addictive. This is utterly false. What also is unreasonable is how marijuana is scheduled as more dangerous than cocaine. Cocaine can be used in some medical situations, I read some time ago it has a use as a topical analgesic, or maybe it was for some eye treatment, I don’t remember. Still, it is far worse a substance than marijuana.
Here are a couple links to WA’s UCSA for reference:
http://apps.leg.wa.gov/RCW/default.aspx?cite=69.50.204
http://apps.leg.wa.gov/RCW/default.aspx?cite=69.50.206
leejcaroll, you got that right. However, it is nice to have their intransigence on the record.
Hang in there.
Also, my Doctor showed me a study about using video games to keep your mind off your pain. I play a few hours a day, mostly at night, when the pain gets worse.
http://psychcentral.com/news/2010/05/10/video-games-help-relieve-pain/13660.html
Biofeedback and comedy have been found to alleviate pain.
But I do think that the reality is that not all pain meds are on formulary, some doctors never find the right match to treat chronic pain or cancer pain, and although pot might help, it’s not a panacea.
The patient might feel like he’s in hell, being tortured, but I do not consider the difficult path to find legal relief to be actual legal torture and an abuse of human rights. For example, heroin might provide relief to some situations, but no one says it is “torture” to not legalize heroin. Instead, they are just supremely frustrated because there is inconsistency in pot’s legal status and the Feds can’t seem to make up their mind about it.
If you have tried pot and it actually provided relief for your condition, where nothing else did, then I agree that you should just move to a state where it’s legal. Because who knows how long it will take to wrangle out the pot issue between feds and states.
Hi Lee:
I’m sorry you suffer from chronic pain. Nerve pain can be debilitating.
As for the Great Pot Debate: On the one hand, there are those like you, for which little seems to help. Long term pain meds damage the liver, but unrelieved pain is hard to live with. When someone has low quality of life, they just want something that works. Pot not only seems to be an analgesic but it’s also a sedative, which might help the constant stress.
On the other hand, pain meds prescriptions jumped starting in 1996 after intense lobbying from the major drug companies. Many were promoted for chronic pain with very little evidence for their effectiveness in that category. In fact, long term use of pain meds can actually increase pain. They dampen the pain receptors, which then jangle when the medication is withdrawn. They are associated with depression. And prescription drug addiction rates are climbing higher than cocaine and heroin.
Those who oppose medical marijuana fear the US will eventually turn into another Amsterdam. They rightly point out that medical marijuana prescriptions are given out like candy. Basically anyone who lives in a legalized state can find a doctor to prescribe it.
There are some studies on pot benefitting cancer patients, but I do not believe there is a lot of data yet for chronic pain. I am sure since its legalization that there must be studies ongoing as we speak. Unfortunately, there are also some risks associated with long term pot use, including lowering IQ and cancer. But, again, the last time I checked (which was a few years, might be outdated now) there was not a lot of peer reviewed studies.
http://www.medpagetoday.com/PainManagement/PainManagement/33014
http://www.drugabuse.gov/publications/topics-in-brief/prescription-drug-abuse
Clearly opiods are not effective on chronic pain, as I believe was your experience. Very little is. There are some interesting studies on fibromyalgia and other chronic pain. I’m so frustrated that I can’t remember more details, and I can’t find the papers yet, but there are theories that some could be a subset of a mitochondrial disorder that affects the nerves. I remember one used nerve growth hormone. Until they figure out the root cause they’re just chasing symptoms. All you can do is keep trying different things to dull the pain, keep checking your liver enzymes, and make sure you’re not deficient in any vitamins (like Vitamin D) that could be exacerbating the condition.
Nerve damage from surgery is so hard, because it can takes years to improve, and sometimes never does. I do support legitimate medical marijuana but it’s definitely not being limited to true medical need. I haven’t decided yet how I feel about straight legalization.
Thank you Darren.
There are certain people who, no matter what poof you bring them, no matter what personal experience, no matter what resources you quote, will refuse to budge from their preconceived prejudices and notions.
I am afraid no matter what is posted here re medical marijuana, pain treatment and torture it will make n difference to those who cannot see that pain and the treatment of it is indeed a human rights issue.
And I’m waiting for anyone to tell me denying that woman in Nebraska an abortion wasn’t torture.
–
http://ehln.org/?p=14787#sthash.x7iuKQS1.dpbs
“Denying medical treatment to detainees, especially victims of torture and prisoners with serious illnesses, can constitute cruel and inhumane treatment, says a United Nations independent expert on torture.”
—
http://www.icrc.org/eng/resources/documents/misc/57jq32.htm
“Denial of assistance could also constitute an “outrage upon personal dignity, in particular humiliating and degrading treatment”, an act prohibited under the Geneva Conventions and their Protocols [48 ] , and an international crime also in internal armed conflicts, as the Statutes of the ICTR and the ICC now clearly confirm. [49 ]”
And…
“In the Delalic case the Trial Chamber held that the “creation and maintenance of an atmosphere of terror in the Celebici prison camp, by itself and a fortiori , together with the deprivation of adequate food, water, sleeping and toilet facilities and medical care, constitutes the offence of cruel treatment under Article 3 of the Statute, and wilfully causing great suffering or serious injury to body or health under Article 2 of the Statute””
—
ifhhro.org/news-a-events/478-iran-denying-medical-treatment-to-political-prisoners
“The group of UN human rights experts consisted of the UN Special Rapporteurs on Iran, on the right to health, on torture, on freedom of expression, and on freedom of religion. They reminded the Iranian Government of its obligations under international standards to respect the prisoners’ right to health and to ensure humane treatment…”
—
physiciansforhumanrights.org/library/statements/recently-released-video-appears-to-show-evidence-of-torture-at-hands-of-syrias-medical-professionals.html
“Physicians for Human Rights (PHR) has documented the Syrian government’s assault on the country’s medical community and its patients, which has included denying medical treatment for injured civilians”
—
I can get more if you want it Bob. Withholding medical treatment, especially when it results in severe pain, is torture.
But I suppose the Eight only applies to prisoners?
That’s why I brought up Buchanan’s argument, which you all refuse to address.
If a terrorist prisoner is in the burn unit with severe burns, would denying him pain medication be torture or not?
Scott,
Your comment at 7:45 went into moderation because it contained more than two hyperlinks. WordPress will snag comments having three or more. I dereferenced the latter hyperlinks so it would work and be seen. If you would like to show the readers more than two links, just create additional comments with the extras.
“The US is a signatory to international treaties that recognize the withholding of pain meds as torture.”
Still waiting for a cite; other than Scott’s imagination.
leejcaroll – and Mendez does not mention cannabis.
leejcaroll – you will notice that nowhere does Mendez say it is torture. And the question itself is on torture. Mendez dances around the issue. You have no case here.
Paul: http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session22/A.HRC.22.53_English.pdf
UN General Assembly
Report of the Special Rapporteur on torture and
other cruel, inhuman or degrading treatment or
punishment, Juan E. Méndez
“In a statement issued jointly with the Special Rapporteur on the right to health, the Special Rapporteur on the question of torture reaffirmed that the failure to ensure access to controlled medicines for the relief of pain and suffering threatens fundamental rights to health and to protection against cruel, inhuman and degrading treatment. Governments must guarantee essential medicines – which include, among others, opioid analgesics – as part of their minimum core obligations under the right to health, and take measures to protect people under their jurisdiction from inhuman and degrading treatment.73”
Bob, to use a phrase from the other thread… “your lack of familiarity with an argument is not determinative as to its soundness.”
Withholding pain meds is considered torture. I provided a citation as you suggested.
I gave you Pat Buchanan’s thought exercise. You refuse to participate.
So…
“Again, to make outrageous statements like “withholding pain meds is torture” just makes life more difficult for those who want to be taken seriously on the subject.”
It is not an outrageous statement. Torture is the infliction of pain. When the pain can be removed by a drug, but the drug is withheld, the pain is being inflicted.
Just like the woman in Nebraska that no one wants to talk about who was tortured for 10 days by the state because she couldn’t get an abortion…
Pain
Bob, to use a phrase from the other thread… “your lack of familiarity with an argument is not determinative as to its soundness.”
Witholding pain meds is considered torture. I provided a citation as you suggested.
I gave you Pat Buchanan’s thought exercise. You refuse to participate.
So…
“Again, to make outrageous statements like “withholding pain meds is torture” just makes life more difficult for those who want to be taken seriously on the subject.”
It is not an outrageous statement. Torture is the infliction of pain. When the pain can be removed by a drug, but the drug is withheld, the pain is being inflicted.
Just like the woman in Nebraska that no one wants to talk about who was tortured for 10 days by the state because she couldn’t get an abortion…
Bob, to use a phrase from the other thread… “your lack of familiarity with an argument is not determinative as to its soundness.”
Witholding pain meds is considered torture. I provided a citation as you suggested.
I gave you Pat Buchanan’s thought exercise. You refuse to participate.
So…
“Again, to make outrageous statements like “withholding pain meds is torture” just makes life more difficult for those who want to be taken seriously on the subject.”
It is not an outrageous statement. Torture is the infliction of pain. When the pain can be removed by a drug, but the drug is withheld, the pain is being inflicted.
Just like the woman in Nebraska that no one wants to talk about who was tortured for 10 days by the state because she couldn’t get an abortion…
By your reasoning, withholding a medical procedure that would end the pain is not torture…
I’d like to see you tell that woman and her husband that to their faces.
Could it be that someone is not getting their pain meds and is feeling tortured? I know wading through these rants is torturing me.
Me: “So all those commercials talking about “inadequate pain relief” are talking about torturers?”
Scott: “Disingenuous and specious.”
No. Again, to make outrageous statements like “withholding pain meds is torture” just makes life more difficult for those who want to be taken seriously on the subject.
My 4:04 comment is directed to Paul.
“So all those commercials talking about “inadequate pain relief” are talking about torturers?”
Disingenuous and specious.
Here’s the example from the Buchanan interview by Spencer Ackerman… A terrorist is badly burned and in the hospital. Buchanan wants to deny him pain meds to get him to talk.
And that’s not torture to you?
And how about the woman in Nebraska tortured for 10 days because the state outlaws any abortion after 20 weeks? She was also denied the medical care that would have eased her pain. The state of Nebraska tortured that woman by denying the medical care.
For 10 days.