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.
Anniie,
It takes all the fun away if we can actually see which comments are judged uncivil. Much better to remain in the dark.
Paul C. Schulte
Dredd – I know you are attempting to be clever and humorous, but, please do not give up your day job.
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Too late.
The lawd god of Descartes sent me over here (“thou shalt proceed to jonny b. goode’s blog and pound upon the pineal gland of all the indoctrinated“) to exorcise the animal spirits that are twerking their pineal gland.
You will have to ask Descartes or davidm2575 what pineal means.
I am not at liberty to disclose that information.
Just a time stamp of the offending comment, please?
Dredd, we need some transparency!
Annie
I’m not missing any comments, so I assume I wasn’t included in this deletion round. I wish we could see which comments were deleted, perhaps we could learn from our mistakes by seeing the actual words or phrases that violate the civility rule.
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Civility is classified.
I’m not missing any comments, so I assume I wasn’t included in this deletion round. I wish we could see which comments were deleted, perhaps we could learn from our mistakes by seeing the actual words or phrases that violate the civility rule.
on 1, June 1, 2014 at 3:49 pmJohn said…
“Previously on this thread you indicated that America was established as a one man, one vote democracy.”
I believe I said…
on 1, May 27, 2014 at 10:36 amAnnie
““While we have a representative democracy…” it’s good to hear this terminology again, so many want to claim its a republic.”
Where did I indicate that it was “established as a one man, one vote democracy”. I was quoting Professor Turley, he said “While we have a representative democracy”.
John said,
“When this nation began the vote was, quite reasonably restricted, for example, 21 years of age and an estate of 50lbs. Sterling or 50 acres. Imagine, the derelict homeless man with no visible means of support votes equally with Bill Gates and Warren Buffet. That dudn’t make any sense.”
That was reasonable John? Seriously? The derelict is an American. He gets to vote on equal standing with a billionaire.
Yep, John. The ‘good old days”, right?
Annie,
Previously on this thread you indicated that America was established as a one man, one vote democracy. When this nation began the vote was, quite reasonably restricted, for example, 21 years of age and an estate of 50lbs. Sterling or 50 acres. Imagine, the derelict homeless man with no visible means of support votes equally with Bill Gates and Warren Buffet. That dudn’t make any sense. I believe most Americans can hum along to the “Battle Hymn of the Republic.” And the following quotes Ben Franklin when slaves were owned and no sane citizen would utter the words welfare, food stamps, social services, Medicare, affirmative action, rent control, discrimination, civil rights, unemployment extensions, IRS, HHS, HUD, Labor, public school teacher union strikes, etc., etc. :
“At the close of the Constitutional Convention in Philadelphia on September 18, 1787, a Mrs. Powel anxiously awaited the results, and as Benjamin Franklin emerged from the long task now finished, asked him directly: “Well Doctor, what have we got, a republic or a monarchy?” “A republic if you can keep it” responded Franklin.”
De Tocqueville dismissed and admonished against a broad, voting “democracy” that would devolve to voting itself largess.
Please take a moment and explain your statement.
on 1, June 1, 2014 at 2:15 pmScott Supak (@ssupak)
Bob said…
“When a doctor withholds pain medication, for reasons deemed medically necessary, we do not accuse him of torture.”
Scott replied…
“This is not what we’re talking about. We’re talking about the state’s “outdated and unnecessarily restrictive drug control laws.””
******************
Bob has clearly twisted the meaning of our complaint to fit his narrative. The complaint as Scott points out is that the torture, cruel and unusual treatment comes into play when the doctor or state witholds pain meds for reasons OTHER than what is deemed medically necessary. He may have a variety of reasons, but if they reflect his incompetence, or prejudice or ignorance Or he is following state law, he and the state is engaging in what could be considered torture by the standards of torture that so many of out links outlined.
Help! I lost a post again. Darren – do you feel like going fishing again?
That link to torture and CIDT was from Liberal Human Rights Watch. From the article: “Human Rights Watch has reported on a wide range of abuses against patients and individuals under medical supervision, including the practice of forcible anal and vaginal exams, female genital mutilation, and the failure to provide life-saving abortion, palliative care, and treatment for drug dependency. While these abuses are sometimes understood as torture or CIDT, too often the denial of care resulting in torture or CIDT is understood more narrowly-both by the human rights community and the medical community-as abuses interfering with the “right to health.”‘
Also in the article they admitted a definition of torture that does follow the Geneva Convention, as being deliberate to coerce a confession or for punishment. Cruel Inhumane Demeaning Treatment (if I remember the acronym right) is a newer phrase that also includes unintentional torture if there was no medical basis for it.
Further on in the article, they declare that any outright ban on abortion, including to save the life of the mother, equates to CIDT. They put it in the same category as female genital mutilation.
There are many international organizations and clubs that seek to increase health and humane standards around the world. China even belongs to some (while they imprison and torture dissidents routinely). But we are not talking about the Geneva Convention.
I read their article, and it did not seem as it was presented. It rather stated its own opinion on CIDT, and admitted that it is actually viewed more narrowing by most international organizations.
I do support many of these organizations, especially those battling to end female genital mutilation. But I do not confuse them with the Geneva Convention.
Karen, I retrieved your comment.
Karen’s comment is above at 2:34
He purposefully misses the point. Some folks are just oppositional for the heck of it.
See what I mean about Bob’s reliance on semantics to prove his point?
Annie: “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.”
Arguing is reason giving.
Reasons are justifications or support for claims.
Rationality is the ability to engage in reason giving.
The alternative to reason giving is to accept or reject claims on whim or command.
Posting links, without providing any context or doing any work for the reader, and saying you’re right and somebody else is wrong because of “semantics” is NOT an argument.
“To call the withholding of pain medication per se “torture” is simply offensive.”
Bob’s offended by the UN special rapporteur on torture, maybe because Bob thinks he knows more about torture than the UN special rapporteur on torture.
“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.”
“When a doctor withholds pain medication, for reasons deemed medically necessary, we do not accuse him of torture.”
This is not what we’re talking about. We’re talking about the state’s “outdated and unnecessarily restrictive drug control laws.”
If a Doctor withholds certain types of meds for medical reasons, that’s quite different. However, if there are no legitimate reasons, say, in the case of the woman denied an abortion by the state of Nebraska, then it’s torture.
While my last three links deal with prisoners, those of us who suffer with chronic pain and aren’t incarcerated, deserve the same right.
When this argument started, before I even made a reference to any treaties, I stated that denying proper palliative care was torture, and Bob disagreed.
Since then, we have provided plenty of evidence that the denial of medical care (proper pain management is considered medical care) is torture.
Bob, however, is still chewing on his rubber “treaty” bone.
I’m more interested in the big picture, which, of course, Bob isn’t. For some reason.
Wikipedia:
“Torture is the act of deliberately inflicting severe physical or psychological pain and possibly injury to a person (or animal)”
Deny pain meds to a guy in the burn ward? Torture.
“1. the act of inflicting excruciating pain, as punishment or revenge, as a means of getting a confession or information, or for sheer cruelty”
Sheer cruelty. No need to get the victim to DO SOMETHING in order to define it as torture.
Google definition:
verb
“inflict severe pain on.”
No mention of getting the victim to do anything.
“cause great mental suffering or anxiety to”
No mention of getting them to do anything.
18 U.S. Code § 2340:
(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
Nope, nothing about wanting them to DO SOMETHING.
So, I ask again… Why use the argument from fallacy against me on the treaty thing? What’s the bigger picture point?
I find the continued repetition of your fallacious argument to be ‘inflicting severe psychological pain’ on me and therefore constitutes torture. I will be notifying all parties that the United States is a signatory with, to stop this torturous behavior.
Feynman,
To say that
“The US is a signatory to international treaties that recognize the withholding of pain meds as torture.”
is completely false; as I’ve shown.
When a doctor withholds pain medication, for reasons deemed medically necessary, we do not accuse him of torture.
To call the withholding of pain medication per se “torture” is simply offensive.
Louis C.K.: “Some people say ‘I’m starving. That’s offensive, don’t say that.” You never see a little kid in Africa with his ribs showing saying, ‘I’m starving right now,’ ‘I’m like literally starving to death, it’s like annoying,’”
http://www3.law.columbia.edu/hrlr/JLM/Chapter_23.pdf
Your RIGHT to adequate medical care.
http://www.nursinglaw.com/emergencyroomcivilrights2.pdf
Cruel and unusual treatment, prohibited under the 8th Amendment.