The greatest deliberative body?

The Senate was established by the Founding Fathers as the chamber of Congress that would carefully deliberate on the business of the Republic, providing balance to the more brash "people's" House. In that vein, the Senate has prided itself on being "the greatest deliberative body in the world." The filibuster and, beginning in the twentieth century, the cloture vote have long been used in the Senate to ensure legislation was not ram-rodded through, to ensure everyone's voice was heard and considered.

Over the course of the twentieth century, however, these tools have been "reshaped" in the name of efficiency, civility, and streamlining debate that they remain in name only. Once upon a time, a senator or group of senators would have really had to talk continuously to stall a bill. The committed minority could prevent closure of debate so long as they kept talking, but once they stopped (whether they stopped due to compromise with the majority, or by sheer exhaustion), the business of the Senate could resume. Now all that is needed is the threat of a filibuster for a small minority to stall a bill they don't like. The so-called "gentleman's filibuster" seeks to retain the goal of the old-time filibuster while removing all the pain and unpleasantness. After all, why should anyone be inconvenienced by all-night sessions or risk their health by talking themselves to exhaustion?

In order to prevent the minority from completely abusing the filibuster, the Senate in the 1960's lowered the bar on the number of senators needed to cut off debate to three-fifths (sixty of one-hundred). But even this is too high of a requirement for ordinary business. The filibuster and cloture vote are now used by minority parties (rarely does the majority have 60 or more Senate seats) to kill legislation it doesn't like. The intent was to slow legislation, not allow the minority to thwart the will of the majority.

The majority party colludes with the minority by withdrawing legislation that fails the cloture vote. This is right in line with, and indeed governed by, our "fast-food" culture - if we can't get something right now, we don't think it's worth working towards. Senators worry that the public will see them as wasting time if they are camped on one issue for weeks on end, but sometimes this is exactly what is called for. For compromise to work, it needs time, discomfort and close proximity to form and solidify. If a committed minority wants to stall legislation, they should have every right in the Senate to do so for as long as they can. But this means they are actively working - by talking through continuous, all-day, all-night, and all-weekend sessions - until they are no longer willing or able to do so. Then the Senate holds an up-or-down vote on the question at hand.

I was sympathetic to the Republicans' frustration over the Democrats' use of filibusters to stall the consideration of President Bush's judicial nominees back in 2005. But if the nuclear option was good then, why not now that the Democrats are the majority? But cloture votes and nuclear options would not be necessary if the Senate would simply make a filibuster a filibuster. If debate was allowed to take as long as it needed to play itself out, the Senate would once again be the world's greatest deliberative body.

What Price Loyalty?

Politics has always been a game. The majority of changes have been the players and the stakes. For over two centuries there have been two teams of lasting consequence. In a place where power and money are readily available and in large quantities, it is almost inevitable that there would come a time when somebody breaks the rules so blatantly that they deserve to have their head served up on a platter. What is amazing is that the guilty party still will have defenders regardless of the crime. The common cry is "It's a political witch-hunt!". While that may be true, let's examine those cases where the person is actually deserving of getting kicked out of town.

The most recent example is Attorney General Gonzales. His claim is that visiting John Ashcroft at his bedside in the hospital was not for the reason the then Acting AG Comey claim it was. Regardless of the actual reason, Gonzales is on shaky ground to claim any reason to visit Ashcroft, since Ashcroft no longer held the authority of the office of AG. Any action or decision taken based upon Ashcroft's approval would have been null and void as a matter of law, otherwise why bother with the formality of signing over the AG's powers to Comey?

Where am I going with this? What amazes me the most is when loyalty trumps common sense. With the innumerable blunders made by AG Gonzales, I start to ask why more Republicans have not withdrawn their support of him. I understand the desire to be loyal to one of their own party, but loyalty taken to that extreme can easily become blinders that keep the wearer from seeing the sunshine of the truth.

A politician who is willing to make excuses for the ineptitude of others -- Gonzales just being a current example -- has put politics before doing what is right.

What each political party could use is someone who is considered one of their own but who can still intercede in matters before members become so galvanized in their partisan trenches that they cease to see the damage they do to the party as a whole.

Professional sports leagues have commissioners that are hired by the owners to look out for the integrity of the game. In doing so, he can confront bad behavior, however legal it may be, with an eye for the broader prospective of the entire organization. He is entrusted make the unpleasant decisions that he can make because he doesn't represent an individual player or club. It is the highest expression of teamwork when teams themselves submit to a higher authority in the interest of the game itself.


When will the Republicans and Democrats realize that they need a Commissioner?

The problem with Roe and the Theory of the Governance Imperative

With Roe, the courts acted before the abortion issue was ripe. The Supreme Court felt the issue was in Stage 4 long enough among enough people that they felt it was time to act to release the public pressure. A counter example might be the Child Online Protection Act (COPA). When they declared the law unconstitutional, the courts (rightly or wrongly) were doing what they are constitutionally mandated to do - invalidating laws that are unfair applications of power. But Congress reacted as if the issue of indecent content was in Stage 4 when the issue had not achieved a critical mass among the population. Because of this, it appeared that Congress was embroiled in partisan politics.

Another thing can be said about this. Almost all highly-charged partisan battlefields might be around issues that are in this same state, where one of the branches is out of sync with the people. If the branch lags the people as the Supreme Court did with segregation, you get the Civil Rights Movement. If the branch is ahead of the people, you get Roe (in the case of the Supreme Court) or COPA (in the case of Congress).

True judicial activism is not to be found in decisions like Lawrence or the flag burning decisions. Judicial activism is to be found in decisions like Plessy and Roe where the courts begin bleeding into the domain of the legislature and created rights that were not mentioned in the Constitution. Contrast this with the Terri Shiavo case. Although the judicial activism term was thrown around quite readily, the courts were very measured in their response. They never created law out of thin air, while Congress tried to become the arbiter of what the law meant under the guise of changing the law. What is surprising is that no one accused Congress of violating the Constitutional ban on ex post facto laws. This is congressional activism.

So this all leaves us asking a few questions:

• Has this governance imperative theory been discussed before? If so, has it been limited to the intelligentsia in the Ivory Tower?


• Are we really the first ones who have uncovered the relationships here? Are we the first to ask the question "What's the underlying cause behind the charge of judicial activism?" Either the people don't understand the role of the courts, or the courts really are out of sync.

Live and let Die

Craig and I have had many discussions about whether the death penalty is appropriate and how it should be implemented.

Pro-Death penalty advocates claim that having capital punishment serves as a deterrent to crime.
Pro-Life advocates claim that all life is sacred and that we don't have the right to end anyone's life no matter how cold-blooded they might be.

A recurring argument is that the justice system allows too many truly innocent people be executed. This is one reason some State Governors have suspended capital punishment in their States pending further review.

Add to all this the times the Supreme Court of the United States (SCOTUS) has weighed in to determined whether capital punishment violates the "cruel or unusual punishment" clause in the Constitution. What is a pragmatic citizen to do?

How does the State choose between the principles of Justice and the Sanctity of Life? There will never be peace while the majority imposes the primacy of one over the other. I could write an in-depth treatise on this subject, and hopefully one day I will do just that, but for now, what action remains?

I suggest an Amendment to the U.S. Constitution that reflects the following intent:

States shall not impose Capital punishment without the testimony of two credible individuals who identify the accused as responsible for the death of another person, including by bearing false witness.

The idea is by having this in the Constitution, States have more leeway around 'cruel and unusual punishment' on one hand. On the other hand, by setting the legal bar very high, requiring two witnesses to the crime (mirroring the current constitutional bar for finding a person guilty of treason), we take away the vast majority of cases where the potential to execute the innocent exists.

Thus, our society will be saying that we believe in Capital punishment as well has 'innocent until proven guilty' and define the interaction explicitly. If two people conspire to frame someone for a capital crime there is only so much the State can do to protect society from those evil few who would bend the State's power do their personal bidding. When these false-witnesses are revealed, the State still will have the possibility of extracting Justice for the innocent. By explicitly giving the States the power to impose Capital punishment, we allow those States that so desire the option to use Capital punishment while allowing the People of any State the power to renounce it as they will.

This is just the sort of approach that seems to be right at home in the design of our framework for governance.

Proposed Amendment #4: Congressional Power Amendment

The Text:

Section 1. Congress shall have the power to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of Legislation from individual States.

Section 2. The spending of monies levied among the several States shall not be spent in such a way as to benefit a single State or small number of States.

Section 3. Every law, or resolution having the force of law, shall relate to but one subject, and that shall be expressed in the title.

Section 4. No law shall be revised or amended by reference to its title; but in such case the act revised, or section amended, shall be re-enacted and published at length.

Section 5. Congress shall pass no law that does not contain a concise and definite statement of the constitutional authority relied upon for the enactment of each portion of that law.

Section 6. No person who has been convicted of a felony (unless pardoned) in their State of residence shall be eligible to hold office as a senator or representative, and any sitting senator or representative convicted of a felony in their State of residence shall not be allowed to continue in their office. Senators or representatives who have been indicted of a felony shall not have the right to vote on any business before the House to which they belong. Indictments that do not result in a conviction shall restore the member's voting rights.

The Problem:
Our federal government was designed by the Founding Fathers to be one of limited, delegated powers, operating in spheres of life that rarely effected the day-to-day lives of the American citizenry. The federal government was there to coordinate foreign affairs, defend the Union from foreign attack and insurrection, and regulate interstate commerce. This list is a broad-brushed summary of the areas of responsibility given to the Congress in Article I, Section 8, but it is duly representative to be considered complete.

James Madison lays out this vision in no. 38 of The Federalist Papers:

But if the Government be national with regard to the operation of its powers, it changes its aspect again when we contemplate it in relation to the extent of its powers. The idea of a national Government involves in it, not only an authority over the individual citizens; but an indefinite supremacy over all persons and things, so far as they are objects of lawful Government. Among a people consolidated into one nation, this supremacy is compleatly vested in the national Legislature. Among communities united for particular purposes, it is vested partly in the general, and partly in the municipal Legislatures. In the former case, all local authorities are subordinate to the supreme; and may be controuled, directed or abolished by it at pleasure. In the latter the local or municipal authorities form distinct and independent portions of the supremacy, no more subject within their respective spheres to the general authority, than the general authority is subject to them, within its own sphere. In this relation then the proposed Government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects. It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general Government. But this does not change the principle of the case. The decision is to be impartially made, according to the rules of the Constitution; and all the usual and most effectual precautions are taken to secure this impartiality. Some such tribunal is clearly essential to prevent an appeal to the sword, and a dissolution of the compact; and that it ought to be established under the general, rather than under the local Governments; or to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated.

And again, in The Federalist no. 45, James Madison writes:

The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negociation, and foreign commerce; with which last the power of taxation will for the most part be connected. The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State.

The operations of the Federal Government will be most extensive and important in times of war and danger; those of the State Governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State Governments will here enjoy another advantage over the Federal Government. The more adequate indeed the federal powers may be rendered to the national defence, the less frequent will be those scenes of danger which might favour their ascendency over the governments of the particular States.

Due to the contingencies of history and the convenience of the moment brought on by various national crises or challenges, the powers of the national government were incrementally expanded until they encompassed every sphere of everyday life. Even the regulation of water flow in our houses is not beyond the reach of the federal government. And all without one word being added to the U.S. Constitution!

The reality of what the federal government is versus what it is delegated by the federal Constitution are sorely out of line, and while most do not see it as any big deal, it will one day come back to haunt us if we do not bring the two back in line. Since reducing the federal government back down to the size envisioned by the Constitution, we are proposing an amendment to bring the Constitution in line with the realities of the day. It must be noted that while we would not have, all things being equal, advocated the current proposed amendment, but all things are not equal, the nation is where it is, and it is our view that less damage will be done in the long run if we amend the Constitution to reflect this fact.

The Explanation
Section 1. Congress shall have the power to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of Legislation from individual States.
Rather than continually trying to amend the Constitution to keep up with the ever-changing and evolving needs of the country through lists of explicitly-delegated congressional powers, this section would recognize what Congress has become: the sovereign law-making body is all spheres of American political and economic life. The wording of this proposed amendment is taken from wording originally posed by the Constitution's Framers themselves.

There is still a threshhold here that would be intended to protect the competent jurisdictions of the States, but the standard is less rigid that the current one set forth by Article I, Section 8. The realm of the Congress would still be problems or questions of an interstate and/or national scope. When combined with the Tenth Amendment and the proposed amendment to Repeal the Seventeenth Amendment, this would allow the flexibility and practicality of politics to determine the appropriate line between federal and state jurisdiction for whatever specific questions face the country at any given point of time.

This section would also remove any uncertainty regarding the proper scope of congressional power and legitimize the expanded role Congress has taken over the past 100 years. The original list of delegated powers has been stretched beyond recognition, so there is no reason to suspect that a newly updated list would fare any better in restricting congressional power. What is needed is built-in checks and balances, pitting the jealousies of each of the branches and the States between each other.

Section 2. The spending of monies levied among the several States shall not be spent in such a way as to benefit a single State or small number of States.
Since Section 1 would potentially open the doors of congressional power to any and every kind of problem, procedural checks will be important to help States or groups provide a counter-weight to Congress. While the Framers limited the powers of Congress to those listed in Article 1, Section 8 as one means to check congressional overreach, this list has proven to be nothing more than a "parchment barrier" (to use Madison's turn of phrase) as the necessary and proper clause of the Constitution has been used to stretch the originally-delegated congressional powers beyond any recognized shape.

This section would provide one such procedural check to the misapplication of congressional power by prohibiting the spending of money in ways that do not benefit the nation (or a broader group of States) as a whole. This would also have the added benefit of killing much of the present-day "pork barrel" spending that plagues federal budgets. If this provision were violated by the Congress, the States or interest groups would be able to sue the Federal Government is court in order to prevent the spending of the monies that were budgeted in violation of this section.

Section 3. Every law, or resolution having the force of law, shall relate to but one subject, and that shall be expressed in the title.
Section 3 is an adaptation from similar clauses in state constitutions that regulates how the Congress considers bills, adding another procedural check to protect against an enthusiastic Congress. Too many laws are passed that cover a wide-range of subjects, many having nothing to do with the main purpose of the bill. Every bill that is considered should relate to one and only one topic, and the topic that is considered by the bill should be easily understood and communicated.

Section 4. No law shall be revised or amended by reference to its title; but in such case the act revised, or section amended, shall be re-enacted and published at length.
This section carries forward the spirit of Section 3, regulating the revision and amendment of existing laws by Congress. The goal, again, is to bring clarity to what it is the Congress is considering and passing.

Section 5. Congress shall pass no law that does not contain a concise and definite statement of the constitutional authority relied upon for the enactment of each portion of that law.
While this might seem an obvious requirement and has been largely adhered until the recent past (for example, Congress and the Roosevelt Administration went to great pains to lay out the constitutional grounds for the Social Security Act), this would formalize the practice and ensure, at a minimum, that Congress at least gives a passing thought to the Constitution when considering legislation.

Section 6. No person who has been convicted of a felony (unless pardoned) in their State of residence shall be eligible to hold office as a senator or representative, and any sitting senator or representative convicted of a felony in their State of residence shall not be allowed to continue in their office. Senators or representatives who have been indicted of a felony shall not have the right to vote on any business before the House to which they belong. Indictments that do not result in a conviction shall restore the member's voting rights.
Section 6 is in some respects a rider to the amendment, but one we think is necessary to restore confidence in Congress. Currently, the onus is on the House and Senate to vote to remove one of their members convicted of a felony. This section will make mandatory the removal of a member of the House or Senate that has been convicted of a felony.

In addition, too many representatives and senators have wielded too much power while a cloud of suspicion hangs over them. While we wish to respect the American principle of "innocent until proven guilty," the proceedings of Congress must be preserved from the stain on credibility that even an indictment can bring. We recognize that this provision could easily be abused by a rogue district attorney in the senator's or representative's home state, so we would be open to tailoring this section to include protections against such possibilities (e.g., restricting the area covered by this provision to the home district, in the case of a representative).