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.healthcentral.com/migraine/support-410585-5.html
Witholding Migraine treatment, cruel and unusual.
Bob Esq doesn’t want to call it torture. I wonder if he would call it cruel and inhuman? I’d settle for that.
I really wonder why the definition of torture is so limited in Bob’s mind…
“A doctor withholding pain medication does not fit the definition of torture; especially since the doctor is neither punishing nor coercing the patient do do ANYTHING.”
So, when a serial killer is just cutting someone up while they’re alive, since they don’t want the victim to DO anything, it’s not torture?
So, when a woman in NE is forced to withstand 10 days of agony because the state’s abortion ban won’t let her get the procedure that would end the pain, since they didn’t want her to DO anything, it’s not torture?
Please.
Bob, YOU aren’t the professor here in this ‘classroom’ who is in the possession of the ‘correct’ answer. You may have Esq. behind your name, but without seeing your credentials I can’t give you credit for knowing what you are talking about. So we are all on equal footing here when we attempt to prove our points.
Bob:
“it makes no mention of withholding pain medication constituting torture.”
I find this similar to Schulte’s argument that the constitution doesn’t give us a right to smoke weed.
Pain medication = medical care
denying pain medication = denying medical care
denying medical care = denying humanitarian assistance
Denying humanitarian assistance = torture
Ergo: denying pain medication = torture
“The Geneva Conventions applies to matters of war”
Are you arguing that withholding pain meds, then, is only torture in war?
Are you also arguing that the 8th only applies to prisoners?
“Further, it is not an international treaty.”
Huh? The Geneva conventions aren’t a treaty?
OK, I’m not a lawyer, so, maybe you got me there.
“The fact that you feel no remorse or shame for repeating such a misrepresentation simply diminishes your credibility.”
Argument from fallacy.
The larger picture, which your hang up on my apparent mis-use of the term “treaty” is making you miss, is that we have provided clear evidence that all kinds of conventions, human rights instruments, covenants, and various other UN and international agreements, all clearly state that denying medical care to those in need is torture. Further, we have provided evidence that medical experts and international lawyers regard it as torture.
Again, from Annie’s link you continue to ignore:
> The UN special rapporteur on torture recently recognized that outdated and unnecessarily restrictive drug control laws contribute to widespread failures of states to provide pain relief to patients in moderate and severe pain. The special rapporteur further categorized the “de facto denial of access to pain relief, where it causes severe pain and suffering” as CIDT, saying that “all measures should be taken to ensure full access and to overcome current regulatory, educational and attitudinal obstacles to ensure full access to palliative care.”
So, yeah, Bob, once again, you got me. As with the gun debate, I should have been more clear. The UN, which the US is a member of, clearly sees that withholding pain meds is torture.
Is that better? Or do you still want to nit pick about little things and ignore the big picture?
Is it more important to you to prove that I shouldn’t have said treaties than it is for you to address the larger issue here?
Withholding pain meds from a terrorist in a burn unit, despite what you and Pat Buchanan say, is torture.
Refusing to provide an abortion for the woman in Nebraska was torture.
Refusing to allow patients the only pain medication that works for them IS TORTURE.
“Semantics Bob. That is all your argument boils down to”
Semantics?
Is that what you said to your professors whenever you got a question wrong on a test or a paper?
Because if you did, and such approach worked, then you’d NEVER be wrong.
“I, Annie, declare I’m right and you’re wrong by divine right of … me.”
Semantics Bob. That is all your argument boils down to.
Annie – the law is all about semantics.
Annie,
I’ve already cited that.
The United Nations Convention against Torture
Ratified by the United States in 1994 defines torture as:
Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
— Convention Against Torture, Article 1.1
Thus the statement
“The US is a signatory to international treaties that recognize the withholding of pain meds as torture.”
is completely false.
A doctor withholding pain medication does not fit the definition of torture; especially since the doctor is neither punishing nor coercing the patient do do ANYTHING.
http://en.wikipedia.org/wiki/UN_Convention_Against_Torture
Honestly, this is so basic.
Annie – rather than the Wikipedia article, which we know could have legitimacy problem, why don’t you document and indicate where the United States is a signatory.
Scott: “In the examples that I provided, that you said I didn’t provide, and you continue to ignore, I provided evidence from the Geneva convetions. Either you missed it, or you’re ignoring it on purpose.”
The Geneva Conventions applies to matters of war. Furthermore, it makes no mention of withholding pain medication constituting torture.
There are doctors who take the Geneva Conventions oath in lieu of the Hippocratic oath, but even that does not state nor imply that the withholding of pain medication constitutes torture. Further, it is not an international treaty.
Thus, when you say:
“The US is a signatory to international treaties that recognize the withholding of pain meds as torture.”
Ei incumbit probatio qui dicit, non qui negat
Cite these “international treaties”, ratified by the United States, that “recognize the withholding of pain medication 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 medication, under these treaties?
You can’t do it because the statement is completely false.
The fact that you feel no remorse or shame for repeating such a misrepresentation simply diminishes your credibility.
Annie: “It’s easy to just pick out a paragraph that could be misconstrued as reflecting your position”
Cherry picking.
Indeed, I just copied and pasted the relative part, which Schulte ignored.
The fact that the denial of the abortion to the woman in Nebraska is clearly torture under all these definitions we’ve cited is so obvious that it’s no wonder they ignore it.
Schulte:
“if you or anyone else is having a problem with their pain meds, you need to take it up with your prescribing doctor or their oversight regulatory body.”
What makes you think we haven’t? My Doctor informs me that there is a great drug out there, that many states allow doctors to prescribe, but he’s not allowed, by law to prescribe to me.
The regulatory bodies say the same thing. In New York, I have to take it up with the legislature. I have. The bill passed the Assembly, and is in the Senate Finance committee now.
I also have to take it up with the Federal Government since the continued classification of the wicked weed smoked by “Negroes, Hispanics, Filipinos and entertainers” (Anslinger) as a schedule one drug, resulting in the possible loss of medical license by doctors who prescribe it, is, according to the UN special rapporteur on torture, an “outdated and unnecessarily restrictive drug control laws contribute to widespread failures of states to provide pain relief to patients in moderate and severe pain” that leads to CIDT.
Bob, Esq, continuing his disengenuousness:
“Thus the statement
“The US is a signatory to international treaties that recognize the withholding of pain meds as torture.”
is completely false.”
Bull.
In the examples that I provided, that you said I didn’t provide, and you continue to ignore, I provided evidence from the Geneva convetions. Either you missed it, or you’re ignoring it on purpose.
http://www.icrc.org/eng/resources/documents/misc/57jq32.htm
“If the definition of the Torture Convention is applied, the denial of humanitarian assistance can constitute torture only if it causes severe pain or suffering”
Unless you argue that prescribing or administering drugs for pain is not “humanitarian assistance” I don’t see a logical way out of that.
SO, I will ask you one more time…
If a terrorist is in the burn ward and we deny him pain meds, IS IT TORTURE?
The woman in Nebraska (you know, the one no one wanst to talk about), who was denied an abortion and lived in agony for 10 days as a result.. IS THAT TORTURE?
“the denial of humanitarian assistance can constitute torture only if it causes severe pain or suffering”
Now, back to the big picture. If a person cannot take any other pain killer, and is denied medicinal marijuana, then the denial of that assistance causes severe pain.
Were it not for the denial of the assistance, the pain would not be there.
Ergo, the pain exists due to the inaction of those in a position to end it.
When you narrow the definition of torture down to such a low bar as “intentionally inflicted on a person for such purposes as obtaining from him or a third person, information or a confession” then you leave out all the serial killers who tortured people without wanting any “information or confession.” You leave out the war criminals who deny medical care to civilians injured in conflict out of sheer cruelty or spite. You leave out the prison guards who beat prisoners for the hell of it.
Also, from Annie’s link:
“The UN special rapporteur on torture recently recognized that outdated and unnecessarily restrictive drug control laws contribute to widespread failures of states to provide pain relief to patients in moderate and severe pain. The special rapporteur further categorized the “de facto denial of access to pain relief, where it causes severe pain and suffering” as CIDT, saying that “all measures should be taken to ensure full access and to overcome current regulatory, educational and attitudinal obstacles to ensure full access to palliative care.”
Thus the statement
“The US is a signatory to international treaties that recognize the withholding of pain meds as torture.”
is completely true.
Re torture and withholding medication for pain, this is what one doctor said to me a number of years back when my trigeminal neuralgia resulted in even the slightest of touch to the affected area of my face, even just a wisp of hair or the slightest touch causing horrendous, unspeakable pain.
“This is how you do torture. Just make so all you have to do is touch them and cause horrific pain.” Withholding medication to treat that kind of pain (and other chronic pain, I would posit, is absolutely torture.
http://www.medicalnewstoday.com/articles/267161.php Chemicals in marijuana ‘protect nervous system’ against MS
http://www.medicalmarijuana.net/uses-and-treatments/chronic-pain/
Although it has not yet undergone clinical trials to establish its effectiveness and safety (necessary to obtain FDA approval), a CBD-based drug called Epidiolex™ has recently been created to treat certain forms of childhood epilepsy. Some parents of children with a severe form of epilepsy called Dravet Syndrome have reported success in using a high-CBD strain of marijuana to control seizures in their children
Many others, yyou can goole them, cancer and,glaucoma and, AIDS and etc
Read the rest of the article I linked to Paul. It’s easy to just pick out a paragraph that could be misconstrued as reflecting your position, I doesn’t.
Paul, I have absolutely no problem with what my doctor prescribes for my pain issues. Are you once again attempting to suggest that is the case? The last time you made this suggestion it was deleted, so now you think by rewording it somewhat it won’t get deleted?
Annie – glad you are keeping track of what is being deleted of mine. However, it was a general statement to those complaining that they were being tortured because they did not have the ‘right’ pain meds.
Annie – if you or anyone else is having a problem with their pain meds, you need to take it up with your prescribing doctor or their oversight regulatory body.
http://m.hrw.org/world-report-2010/abusing-patients
The witholding of pain medication IS considered torture under the ICCPR.
Paul: “As best I can suss out, it cannot be torture unless there some reason to purposely inflict pain and suffering.”
Yep.
The United Nations Convention against Torture
Ratified by the United States in 1994 defines torture as:
Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
— Convention Against Torture, Article 1.1
Thus the statement
“The US is a signatory to international treaties that recognize the withholding of pain meds as torture.”
is completely false.
Bob, Esq – this does not have to do with torture but does have to do with terrorism.
http://patterico.com/2014/05/31/obama-breaks-the-law-his-deal-with-the-taliban-directly-violates-statute/