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.
“Ted Stevens deserves to be insulting.” – Hairy Churchman
Dredd – I know you are attempting to be clever and humorous, but, please do not give up your day job.
Animal spirits run WordMess, according to Ted Stevens Research, Inc:
“The pineal gland played an important role in Descartes’ account because it was involved in sensation, imagination, memory and the causation of bodily movements … Descartes thought that the pineal gland is full of animal spirits … Descartes described these animal spirits as “a very fine wind, or rather a very lively and pure flame” … and as “a certain very fine air or wind” … In Descartes’ description … the animal spirits flow from the pineal gland … The nerves are hollow tubes filled with animal spirits.” (Stanford University, “Descartes and the Pineal Gland”). That explains WordMess.
Help Help Help the God of the Machine has eaten my comment.
I have again deleted a series of comments on both sides on this thread for violation of our civility rule.
Help! I lost a post down the Vortex of Doom. I think it was too long.
Karen – there was some discussion earlier that the Vortex of Doom is actually a jealous God who wreaks havoc randomly;
I’m oversimplifying, but here is a very basic list of the problems with marijuana that the medical community has:
1) Marinol only has THC and none of the other components. Marijuana’s long history of native use as medicine, as well as here in the US until the 1940s, was for the whole herb. Marinol has been approved for nausea, vomiting, and weight gain.
2) Many physicians oppose prescribing an herbal medicine that has to be smoked, exposing the patient to carcinogenic/harmful vapors. It contains 2000 chemicals – some may be good some may be bad. They want a standardized medication where there is an exact dose. Levels of THC and other chemicals vary from plant to plant based on individual plant characteristics, growing conditions, fertilizer. Who knows what your getting – something organically grown, coated with pesticide, or bred to be extremely intense? Studies stated the need for a more perfect delivery system of marijuana-based medicine.
3) Usefulness for pain is different for usefulness for chronic pain, nerve pain, fibromyalgia, etc. There is a 2007 study that indicates it had benefits for pain management. As has been stated, the studies have been for the whole herb smoked, vaporized, or there’s Marinol, but we’re still waiting for them to develop a better, standardized marijuana drug, let alone conduct an FDA trial and then use it in long term studies.
4) There is a huge prescription drug problem. Doctors are liable for over-prescribing, such as for what is essentially recreational use. As has been pointed out, it’s being given out like candy, and that could have legal implications for the prescribing doctors once things settle down. Being able to differentiate a real medical case, like Lee’s, from someone who just wants to smoke pot, can be a legal headache for doctors, where wrong decisions may jeopardize their medical license.
http://www.webmd.com/fibromyalgia/guide/fibromyalgia-and-medical-marijuana
Personally, I support studying marijuana as a medical drug, and legalizing it for medical use. But I have not decided yet about full legalization, and so I can understand the problem of it already being over-prescribed. It is not a vitamin.
But here is my problem with the Great Pot Debate. As in so many issues today, if you flat out oppose it, or have concerns, Liberals label you as a Bad Person who hates sick patients and want them to die. As per usual, people go right past “let’s discuss our points of view” and go to the figurative poop throwing. Dare to voice the slightest concern and you get the label “You Torture Patients” or “You Are a Human Rights Abuser”. Seriously. Because you might not think legalizing pot is a good thing to do.
It is not a sin to have a different opinion. I fully understand the concerns that it is begin overprescribed, especially in light of my earlier link from a government website about skyrocketing prescription drug abuse. I understand people who don’t want to encourage more recreational drug use. There are concerns about data that show it causes permanent changes in the brain and cancer. There are concerns that we may end up harming people if it turns out the cancer risk from smoking it is high. This could end up being another Big Tobacco, which was ALSO used for thousands of years. Tobacco also has medicinal uses. These are valid concerns. It will take years to develop a portfolio of standardized marijuana-based medications, and then take them through FDA trials, and use them in peer-reviewed studies. But it will happen, and then we’ll know for sure. Until then, we’re kind of feeling our way, and there will be a lot of different opinions out there.
Karen, I retrieved your comment.
Folks, Karen’s comment is above at 11:26
Jim:
I was writing because someone, I don’t recall who, stated that a fetus is a parasite until it becomes viable. I explained that a fetus actually depends on the mother’s body until birth, not just until viability. That’s all.
If you are going to convict someone of torture, you need to clearly define the term.
you = your
^ Erk… Not John Woo, sorry. John Yoo.
“biofeedback and comedy have found effective for pain relief.”
I don’t know about biofeedback, but I have almost hurt myself laughing at you.
What’s funny is that you said “no case here”, I showed you you were wrong, I even cited the ICRC’s citation of the Delalic case, and you reply with snark.
Your definition of torture is almost as torturous as John Woo’s.
Scott Supak, I have deleted a couple comments on different threads that were in violation of our civility rule. I have left most of your comments including your view that “civility is overrated.” Perhaps but not on this blog. Your comments continue to make personal attacks against other posters. If you cannot comply, I ask that you not use or comment section.
“some reason to purposely inflict pain and suffering.”
Sadism isn’t reason enough? How about racism? Maybe hippie punchingism?
Authoritarian arguments for torture always depend on an extremely narrow definition, don’t they?
Glad to take you mind off your pain. You should be thanking me.
Bob, I have a long list of citations up there. Did you miss them?
“Where are these “international treaties,” establishing as supreme law of the land, that the withholding of pain medication is defined as torture?”
It’s right up there, Bob. I’m no lawyer, but I’m pretty sure we signed on to the Geneva conventions.
I’m still waiting for you to tell me if Pat Buchanan is right that withholding pain meds from a terrorist in the burn unit isn’t torture.
I’m also waiting for someone to admit the woman in Nebraska who was denied an abortion was tortured by the state.
Or do you think denying her medical care that would end her pain isn’t torture?
Ask a woman close to you, if you have one, if forcing someone to stay in labor for 10 days would be torture. Ask her to her face.
We did sign the Geneva Convention, however terrorist are in a special category.
Schulte:
> 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.”
I agree. Contact me on twitter for more information.
Chuck – you are just being silly now. You and I both know that both biofeedback and comedy have found effective for pain relief.
“Biofeedback and comedy have been found to alleviate pain.”
************************************
So does aspirin and ibuprofen. Tell it to the anesthesiologist next time you need a hip replacement or cancer surgery. Or a root canal.
“The US is a signatory to international treaties that recognize the withholding of pain meds as torture.”
If that’s true, then Article VI applies.
to wit:
“This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land;”
Scott,
Where are these “international treaties,” establishing as supreme law of the land, that the withholding of pain medication is defined as torture?
When did the U.S. enter into these treaties?
What other countries are signatories with the U.S.?
What doctors have been prosecuted for torture, i.e. withholding pain meds, under these treaties?
Still waiting for a cite; other than your imagination.
Bob – all the stuff I have seen is pretty squishy on the torture. They do not go out on a limb to call anything like withholding meds torture. As best I can suss out, it cannot be torture unless there some reason to purposely inflict pain and suffering.
leejcaroll – “KarenS a fertilized egg relies on the woman’s body to give it nutrients and what it needs to live. It is not only after viability.”
A new born baby relies on others for nutrients as well. So what’s your point? Seems you draw an arbitrary line.
Karen here are 10 Pharmaceutical Drugs Based on Cannabis. Only 2 are even legal here. http://medicalmarijuana.procon.org/view.resource.php?resourceID=000883
As someone tried on Marinol it did nothing for me. That does not mean that marijuana would not. Your argument that there are prescriptive meds so therefore no need for another medication proven to be of benefit should be ignored/illegal to be prescribed is akin to saying we have penicillin so therefore we have no need of Keflex, amoxicillin, etc.
re fibro and med. marijuana : http://www.cnn.com/2010/HEALTH/02/22/medical.marijuana/
Only 2 links per so more below re med. marijuana and illness
Still waiting for Schulte to address all the other citations I gave…
“You have no case here.”
Wrong again.
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””
The other citations are up there.
Further, you have yet to respond to the torture of the woman in NE who was tortured by the state when they denied her an abortion.
Further, you have failed to address the argument put forth by Pat Buchanan that denying pain meds to a terrorist in a burn unit isn’t torture.
It is.
Darren, apparently the AG could reschedule marijuana tomorrow, with the stroke of a pen, and this madness would be over. But can you imagine the uproar from the right?
That’s one of the reasons I think Holder’s not a thug. A real thug wouldn’t care about getting it rescheduled through the legislative. He’d just use his pen. Both he and Obama have said they want the legislature to do it.
Darren,
Cocaine is an anesthetic. Break your nose, and it is likely the surgeon will pack your nostrils with cocaine soaked gauze pads before he tries to set it. Sigmund Freud discovered the antidepressant qualities of cocaine when he was a young neurologist doing brain research. Another doctor of that era, Carl Koller, used it as a painkiller. The harmful side effects were not known at that time. Obviously, people can get to liking it too much.
Marijuana–or more precisely THC, the active ingredient–is known to be effective in the treatment of glaucoma, among other things. It is also known to keep nausea and vomiting under control for cancer patients receiving chemotherapy or radiation therapies. As an anxiolytic, it is helpful to the terminally ill.