Nuclear blast or a blast of sanity?

The Democrats in the Senate this past week voted to restrict the use of the filibuster by the minority Party in consideration of presidential executive and non-SCOTUS judicial nominees. As this blog has called for since 2007, this is a move whose time is past due, especially given the increasing partisanship of Congress and Washington DC and the increased difficulty to move anything legislative along.

What is disappointing, however, is the hypocrisy demonstrated by both Parties on this matter. In 2005, Republicans were decrying the use of the filibuster to stymie President Bush's nominations while the Democrate were clutching to the sacred tool of the minority to defeat the designs of an "imperialist President." Even Senator Obama himself called for the respect of the voice of the minority party. Now that the designs of their own (imperialist? - no more so or less than Bush was) president have been thwarted by the Republicans in the Senate (who now love the filibuster as much as the Democrats in 2005), the Democrats can not believe how unfair and antiquated the filibuster is so moved to change it. "Enough is enough," as President Obama proclaimed.

Well then, fair enough as well. I trust the Democrats will be as faithful to their principled stand today when they next stand as the Senate Minority Party.

 

American Localism

American Localism

In his book Timely Renewal, James W. Lucas makes a particularly effective case for decentralization of government power and placing governance as close to the people, in geographic terms, as possible. Arguing that large federal government (and its associated suffocating regulations and debt) and large corporations (and their anti-competitive monopolies) have brought declining creativity, productivity and standards of living, Lucas argues for a return of "American localism." Large-scale nationalism and mercantilism have killed the spirits of entrepreneurism and local community. The natural relationships among humans have been severed as integration at greater and ever larger scales abstract us from one another at ever increasing levels, leading to dysfunction and dehumanization. Is it any wonder Congress is so polarized and entrenched?

Politics and economics "as if people matter" demands decentralization and devolution of power. Lucas writes:

Progressive, anti-globalization activist David Korten considers it "to be a near-universal truth that diversity is the foundation of developmental progress in complex systems, and uniformity is the foundation of stagnation and decay.... Our challenge is to create a locally rooted planetary system biased toward the small, the local, the cooperative, the resource-conserving, the long-term, and the needs of everyone." Strong local economies "encourage the rich, flourishing diversity of robust local cultures and generate the variety of experience and learning that is essential to the enrichment of the whole." (David C. Korten. When Corporations Rule the World, second edition. San Francisco: Berret-Koehler Publishers, Inc. and Kumarian Press, 200-, pp. 240-241.) A key principle in achieving these ends is that "governance authority and responsibility are

located in the smallest, most local system unit possible to maximize opportunity for direct, participatory democracy." Such communities are strongest when they have strong social capital, for which locally owned businesses are a key element. (Korten, pp. 245, 251.)

The author quotes another historian William Appleman Williams, who proposed replacing the institutions of "American empire" with a federation of regional communities. "The price of liberty is not so much vigilance as involvement. If you want to rest, vote for a dictator. The crucial arena for such citizen groups is and will remain the states. That is where social movements have to be build."

(Lucas, pp. 60-61)

Lucas reminds us that simple arithmetic shows that states are more representative of and responsive to citizen needs than the federal government. "The 435 members of the national House of Representatives have on average more than 700,000 constituents in each of their districts.... In contrast, the more than 7,000 state legislators represent on average just over 50,000 constituents each."

Those who pine for government activism should return their efforts to the States. The federal bureaucracy has become so bloated and the Congress so plodding that change at the federal level takes decades of tireless lobbying, advertising, politicking, and horse-trading. It took 100 years to pass so-called "universal health-care." However, the states are close to the people, both in heart and geography, and there are less people across a state for which to account in the eventual compromise, making conversation more natural and participation for the average citizen possible (big money campaigns at the local level are not of concern). Change can be tried with greater ease and nimbleness, and any potential failure is contained in its scope to the state at hand. Success of experimentation is then rewarded by other states seeking to emulate the model, latching onto the successful government involvement.

Those who love freedom and limited government clamor for a more vibrant federal-state balance as well. Jefferson said, "unless the mass retains sufficient control over those entrusted with the powers of their government, these will be perverted in their own oppression, and to the perpetuation of wealth and power in the individuals and families selected for the trust." Remembering that the federal government was put in place for continental defense and cooperation, the balance of an energetic federalism has the added benefit of diffusing power across a broad number of institutions, separated by thousands of miles, making coordination difficult, even in this age of the Internet (state governments cannot coordinate to call a federal Constitutional Convention, it seems, never mind some effort more complex).

In his book, Lucas does a fantastic job of tracing the rise of federal involvement, control, and centralization. While his book is more focused on proposing constitutional amendments that would allow the People to take control of that document and reduce the tendency of the Supreme Court to continue sitting as a perpetual constitutional convention, Timely Renewal has highlighted the root of the current problems. I will look at some of those in the blog posts ahead, but first I'd like to take a sidebar to examine what this blog has repeatedly called out as the source of the modern-day federal-state imbalance of power - the Seventeenth Amendment.

Liberty's call: messy and the stuff of life

Our Consolation must be this, my dear, that Cities may be rebuilt, and a People reduced to Poverty, may acquire fresh Property: But a Constitution of Government once changed from Freedom, can never be restored. Liberty once lost is lost forever.

--John Adams

Regarding the siege of Boston; Letter to Abigail Adams - Philadelphia [July 7th, 1775]

I am for a government rigorously frugal and simple, applying all the possible savings of the public revenue to the discharge of the national debt; and not for a multiplication of officers and salaries merely to make partisans, and for increasing by every device the public debt on the principle of its being a public blessing.

--Thomas Jefferson

Letter to Elbridge Gerry (statesman and diplomat) [1799]

Democracy is messy business because humans are messy. We hear continued lamentations over how antiquated our Constitution is (although it was good enough to rise up the most powerful and prosperous nation in history) and how dysfunctional our Congress is, yet somehow we continue to govern ourselves in freedom and respect for the law. We have seen compromise win out time and again over the past ten years, in this time of supposed hyper-partisanship and "extremists" of each Party acting as terrorists (Biden's words, not mine). The debt ceiling / deficit reduction compromise is the latest case in point. It is by no means perfect, but no compromise is. No one likes it, because every side had to give up something they desperately believe in. And it is only the first step in a very painful and protracted journey to get our financial house in order. But none of this changes the fact that our Constitution and, even if somewhat belatedly, Congress works as designed (or amended - see Repeal the Seventeenth Amendment).

If the federal government's spending spree of the past ten years (and, truth be told, of the past fifty) proves anything about our Constitution, it's not how antiquated it is. The lesson to be drawn, to those with eyes to see past their own petty paradigms and presumptions, is just how right the Founding Fathers were and how relevant their counsel still is. The Constitution in Article 1, Section 8 lays out the parameters of federal power, and the specifics were limited in their application to the whole (through the general welfare clause) so that Congressmen could not play favoritism. It is our excursions beyond the bounds of the Constitution that have gotten us into financial trouble:

• Social Security
• Medicare / Medicaid / Universal health care
• The Department of Education / No Child Left Behind
• The Department of Energy

These behemoth social welfare programs have squeezed our spending for the business the federal government should be about according to the Constitution:

• Defense
• Regulation of interstate commerce
• International affairs
• Scientific exploration
• The Post Office (and, by extension of the principle, building out and supporting the interstate infrastructure)

We have strayed from the Constitution's bounds, but it still provides the governing superstructure for us to successfully resolve our differences in a peaceful way. The fact that our political process has become more slow and more prone to gridlock is indicative only of the many different areas of governance that Congress has stuck its nose in over the years that cannot be managed on such a large level. Regulation, the police power, health care, education - these are matters for the states because these are the things people are most passionate about. These are the things that impact their lives most day-to-day and the need for decision-makers to be close to the people is real. Also, these are areas where people with different worldviews (metanarratives) most violently disagree, so providing options among states is important. If people don't like what one state is doing, they can fairly easily move to other states. It is easier to gain consensus and move into action at the state level. The machinery is more nimble and smaller scale.

The scale of the federal government is needed on matters of collective, continental interest.

To adapt the famous Chesterton quote from its original Christian context: the Constitution has not been tried and found wanting; it has been found difficult and not tried.

 

 

On paradoxes: the mixing up of conservatives and liberals. Or Why the U.S. Can't deal with it's current debt crisis

Current uses of the words "conservative" and "liberal" have nothing to do with their traditional meaning. Well, that is not exactly true. They have, perhaps, too much to do with their traditional meaning given the fact that they seem to mean the same on the surface, but the animating spirit is completely different. Two hundred years ago, liberals believed in moving beyond personal government, in the form of the monarchy, to impersonal government, typically defined as what was then known as republican government. Conservatives sought to use the power of government to maintain the status quo and prop up existing power structures. There was not, however, any disagreement over the nature of man - that he needs restraint - or the proper role of that good government can play.

Over the course of the past one hundred years or so, these definitions were turned on their heads within the American context. Liberals became those who believed in the fundamental goodness of man for whom government could be used to advance the plight of man, and conservatives were those who, in the best spirit of the old Liberals, believed in the original sin of man who needed boundaries and hedges to keep an ordered society, those in government being no different (hence, separation of powers and checks and balances). The conservative commitment to republican values was, at heart, a commitment to the constitutional values that had made the experience of government a successful one, even if inefficient and unwieldy.

Over the past fifteen years, however, a phenomenal and dangerous blurring has occurred. The conservative paradigm has been petrified to the point that government itself is seen as the root of all problems. Rather than a properly-formed government being seen as a barrier against the more destructive inclinations of men, government of any kind is now seen as the barrier to all the good inclinations of men. It's some strange hibrid of the American-liberal vision in the goodness of men and the danger inherent in the original conservative perspective that the government that governs best is the one that rises the boat of the guilded interests. The rallying cry of the day is "No new taxes!"

On the other hand, the liberal paradigm has petrified to believe that government is the source of all goodness and the only savior of humanity. Because people are not to be trusted to conduct their affairs in honorable and virtuous ways, government regulates every possible area of life. Religion is banished from the public square, conviction is seen as the sign of a fanatic, so we are left with the only moral compass available to a society whose only remaining binding institution is the government: a thing must be deemed constitutional before it can be deemed moral. And since the ever-growing government has crowded out all room for virtue and compassion, welfare and social justice must be the business of federal agencies who, ironically, deliver the exact opposite of social security and medicare. It's some strange hibrid of the American-conservative vision in the evil of men and the danger inherent in the original liberal position that the government that governs best is impersonal. The plaintive cry of the day is "If we just spent more..."

These petrifications are racing toward each other over the current debate over whether to raise the federal debt limit and threaten to spectacularly collide with one another. The resulting wreck would have far-reaching consequences for us all, as the federal government's inability to pay its bills will lead to a default on the debt, the ruining of Treasury bills as a safe-haven for investments, and the meltdown of the financial sectors all around the world. This is serious business, and it is long past time for Congressional leaders and the President to come off their respective high-horses and do what is right for the country. A mixture of spending cuts, some tax increases, and more spending cuts will be necessary to fix the country's short-term debt problems. In the longer term, our fixation with debt will only be addressed through readdressing the boundaries of the federal government and reigning its activities back within its constitutionally-prescribed mandates.

The world indeed has been turned on its head.

Amar's Bill of Rights

Akhil Reed Amar's book The Bill of Rights: Creation and Reconstruction is a fascinating walk, first, through the first ten amendments of the Constitution and, second, the Bill of Rights as recast through the prism of the 14th Amendment. Through this series of posts, I want to look at some of the perspectives Amar brings to each of the first ten amendments - first as the Founders would have expected each amendment to be interpreted after ratification in 1787 and, second, through their refinement by the Radical Republicans in 1866 through the 14th Amendment.

In our world in which the Bill of Rights is viewed as a bulwark of protection for minority rights against over-aggressive majorities, we have lost sight of the fact that the Founding generation was more concerned about protecting their liberties against an over-aggressive central government and standing army. Having just fought and won a Revolution against the British Empire because of the onerous policies and taxes passed by Parliament, the first twelve amendments proposed by James Madison in the First Congress were designed to shore up the structure of the federal government through strengthening the structures of federalism, localism, and majoritarian control of government.

This perspective was skewed by the experiences of slavery, the oppression that State governments practiced on their people in their defense of that sorry institution, and the stabilizing role that the Union Army played in preserving both liberty and union. We live under a Constitution that was nationalized by the Fourteenth Amendment, but we cannot understand what this means until we understand how the first ten amendments of the Constitution functioned before the Civil War.

Balanced Government: the one, the few, and the many

Part of the purpose of this blog is to occasionally look at the foundational principles upon which our constitutional government is based. This essay looks at the principle of the one, the few, and the many and how their representation in the government leads to balanced government.

Contemplations on government in the Western tradition go as far back as Greek philosopher Aristotle. In his discourse On Politics, government for Aristotle is for the well-being of the community and the good-life of its citizens. One of Aristotle's first exercises in identifying the principles of a well-ordered community is to understand the various interests in any community: the one, the few and the many. In Book 3, Chapter VII, Aristotle writes:

Having determined these points, we have next to consider how many forms of government there are, and what they are; and in the first place what are the true forms, for when they are determined the perversions of them will at once be apparent. The words constitution and government have the same meaning, and the government, which is the supreme authority in states, must be in the hands of one, or of a few, or of the many. The true forms of government, therefore, are those in which the one, or the few, or the many, govern with a view to the common interest; but governments which rule with a view to the private interest, whether of the one or of the few, or of the many, are perversions. For the members of a state, if they are truly citizens, ought to participate in its advantages. Of forms of government in which one rules, we call that which regards the common interests, kingship or royalty; that in which more than one, but not many, rule, aristocracy; and it is so called, either because the rulers are the best men, or because they have at heart the best interests of the state and of the citizens. But when the citizens at large administer the state for the common interest, the government is called by the generic name- a constitution. And there is a reason for this use of language. One man or a few may excel in virtue; but as the number increases it becomes more difficult for them to attain perfection in every kind of virtue, though they may in military virtue, for this is found in the masses. Hence in a constitutional government the fighting-men have the supreme power, and those who possess arms are the citizens.

Of the above-mentioned forms, the perversions are as follows: of royalty, tyranny; of aristocracy, oligarchy; of constitutional government, democracy. For tyranny is a kind of monarchy which has in view the interest of the monarch only; oligarchy has in view the interest of the wealthy; democracy, of the needy: none of them the common good of all.

In order to give a society the best chance of stability and peace, Aristotle recommends that the "poor majority" (the many) and the "rich minority" (the few) be given roughly equal amounts of power in the government. Besides the fact that the poor and middle class are more in numbers, the many, collectively in assembly, says Aristotle, are better suited for holding magistrates accountable:

That inferior persons should have authority in greater matters than the good would appear to be a strange thing, yet the election and calling to account of the magistrates is the greatest of all. And these, as I was saying, are functions which in some states are assigned to the people, for the assembly is supreme in all such matters. Yet persons of any age, and having but a small property qualification, sit in the assembly and deliberate and judge, although for the great officers of state, such as treasurers and generals, a high qualification is required. This difficulty may be solved in the same manner as the preceding, and the present practice of democracies may be really defensible. For the power does not reside in the dicast, or senator, or ecclesiast, but in the court, and the senate, and the assembly, of which individual senators, or ecclesiasts, or dicasts, are only parts or members. And for this reason the many may claim to have a higher authority than the few; for the people, and the senate, and the courts consist of many persons, and their property collectively is greater than the property of one or of a few individuals holding great offices. [Book 3, Part XI]

The few have an interest in having representation in the government in order to protect their property and business interests. The segment of society which generates the bulk of the economic activity must have a say in the government of the state. Aristotle astutely observes that constitutions are generally changed or disposed by a large, dissatisfied faction, so preservation of a constitution is generally best accomplished through moderation, education and inclusiveness. [1]

All men have a claim in a certain sense, as I have already admitted, but all have not an absolute claim. The rich claim because they have a greater share in the land, and land is the common element of the state; also they are generally more trustworthy in contracts. The free claim under the same tide as the noble; for they are nearly akin. For the noble are citizens in a truer sense than the ignoble, and good birth is always valued in a man's own home and country. Another reason is, that those who are sprung from better ancestors are likely to be better men, for nobility is excellence of race. Virtue, too, may be truly said to have a claim, for justice has been acknowledged by us to be a social virtue, and it implies all others. [Book 3, Part XIII]

These principles were fully known by the Founding Fathers and were built into the U.S. Constitution, and John Adams, the nation's second president and an ardent philosopher-thinker, picks up where Aristotle left off. He writes in his tome which defends the Constitution, In Defence of the Constitutions of the United States:

The generation and corruption of governments, which may, in other words, be called the progress and course of human passions in society, are subjects which have engaged the attention of the greatest writers; and whether the essays they have left us were copied from history, or wrought out of their own conjectures and reasonings, they are very much to our purpose, to show the utility and necessity of different orders of men, and of an equilibrium of powers and privileges. They demonstrate the corruptibility of every species of simple government, by which I mean a power without a check, whether in one, a few, or many.

The Founders built upon the concept of the one, the few, and the many that had evolved in Western political theory and had been applied specifically to the governing institutions that had evolved in Great Britain. The one was embodied by the monarch. The few were seated in the House of Lords. And the many were represented in the House of Commons. Each segment of society was present in the government of the British nation, even if not all provinces of that vast empire were so represented.

The writers of the Constitution added further layers of checks and balances to the U.S. system of governance. The president, the one, represents the interests of society at large and has, as Aristotle describes, the royal powers of war. However, these powers of war are checked by the requirement of congressional authorization of any war in which the United States enters.

The Senate, the few, represents the interests of the States and, even more so today since the passage of the Seventeenth Amendment, the interests of the rich minority (to use Aristotle's phrase). The Senate acts as a buffer to the passions of the people through extended debate and the power of individual senators provides insurances that minority interests will at least have a voice. This body also has a say in the the composition of the executive branch through advice and consent, ensuring the few (the States and the wealthy) are adequately confident in the day-to-day administration of the country. However, the Senate must act with the House to pass legislation, ensuring that the rich will not be able to trample the rights of the poor majority.

The House of Representatives, the many, represents the masses of society, ensuring their interests are given voice in the formulation of policy. The constitutional requirement that appropriation bills originate in the House gives the many the power of the purse. However, the Senate must give its approval to all spending measures, ensuring the many will not raid or trample on the property of the wealthy few. And to round out the checks and balances, the presidential veto power means that the House and Senate must act in cooperation with the president to ensure the interests of society at large are considered.

So the one, the few, and the many working together and, indeed, against each other to ensure the proper functioning of the government for the good of all society. Nevertheless, the constitutional design is only as strong as our adherence and dedication to its principles.

[1]SparkNotes summary of Aristotle's On Politics

America in Decline?

I like to listen to podcasts of The Diane Rehm Show every now and then. It provides a calmer, more detailed analysis than one can generally glean from Cable News shows.

This week I was listening to a podcast of one of last week's shows - "America in Decline?" Diane Rehm started off with a story that one of the country's professional organizations of engineers gave America's infrastructure the grade of "C" 20 years ago. A recent analysis by the same group updated America's infrastructure grade to "D", warning that certain parts of our infrastructure were in such disrepair that they were in imminent danger of collapse. It would take $2.2 trillion (with a "t") to bring our infrastructure up to date.

Rehm used this as a springboard to ask her guests the broader question - "Is America in decline and, if so, what do we need to be doing as a society to turn things around?" The concern was entirely focused on infrastructure - the flight control system, roads and bridges in the Northeast (especially older ones built in the 19th century), our relatively slow and spotty mobile networks, our clogged sea ports, and the declining capacity of our power grid and refining capabilities. The argument made by the guests was that American society is good at reinventing itself when it comes to business and local issues, but when it comes to large-scale systems that require national / federal coordination, it fails miserably because of our "antiquated political institutions" (read Congress).

This continues a theme among left-leaning folk that I that, frankly, baffles me. The story they are wanting to promulgate seems to be that the federal government coordinated national responses to truly national problems well through year 19XX (e.g., Eisenhower's National Highway System, Sputnik, and Arpanet research that led to the Internet). Then Corporatism, Oligarch-ism, Elitism, or some other -ism took hold 25-30 years ago, broke the consensus over the proper role of the federal government, and the U.S. has progressively developed more brittle and patch-worked responses to national issues ever since.

It seems to me, however, that this is too simple of a story. The United States is a truly federal system, and any problem that has been met with a federal response has generally been one that is defense in nature (e.g., the National Highway System and Sputnik were driven by Cold War concerns) or is so ripe that a true national consensus has formed to move Congress to action (e.g., Social Security). But these have been the exception, rather than the rule. Health care, the power grid, and the majority of the national roads and highways, among others, have always been patchwork systems, cobbled together by the states or by regional cooperative action. And it's not easy to patch or totally remake patchwork systems from the top down.

The liberals' story, I think, misses the point. They readily acknowledge that America's culture is still vibrant and the most inventive in the world. They point to the inventiveness and initiative of American citizens. But they bemoan the fact that the "antiquated" federal systems of governance were designed to stop things. They see this as a bad thing, but it is, in truth, what has been at the root of America's ability to prosper and grow for over 200 years. The traditional American view has been that government should do a few things well - defend its citizens and create a stable space within which they can chase liberty and happiness. Other than this, government should get out of the way. Let the citizens do the rest.

If any consensus has been broken over the past 25-30 years, it has been the liberal vision of an "efficient" national government. For 30 years after the 1930's, the New Deal Coalition ran the federal government more as a national government than a federal one, in which one-size-fits-all solutions were imposed upon the nation (the minimum wage law in American Somoa impacts the local population differently than in New York. Roe v. Wade is received differently in San Francisco than the Bible Belt.

The U.S. is a big, diverse Union. Rather than exposing the nature of our federal institutions as somehow problematic, perhaps the issues we are now faced with are testimony to the fact that the federal government is not the mechanism through which to deal with these types of problems.

Whence the compromise?

The passing of Senator Ted Kennedy this past week has elicited much commentary on the apparent passing of the old political skill of Compromise. The standard refrain is something like this:

Senator Kennedy was from an old era of Senate politics, an era that engendered bipartisan deals and encouraged the art of compromise, dominated by moderate senators from both parties. Over the past twenty to thirty years, radicals from both parties have increasingly dominated the ranks of the Senate, leaving moderates to fill only about 10% of the chamber. As a result, the Opposition party seeks only to delay and obstruct and the Majority party pushes through its legislation on party-line votes.

Professor Sandy Levinson even go on to blame this state of affairs on our "undemocratic Constitution," pointing out statistics like the six senators on the Senate Finance Committee negotiating health care reform (an illustrative irony in itself - many who have lameted the loss of compromise have been the same ones impatiently demanding that the Senate Finance Committee drop its negotiations and "just approve a plan") represent a mere 2.77% of the U.S. population. This charge, however, seems to miss the point. The Senate was never meant to represent the American population as a whole, rather Senators represent their individual states. Besides this, the Constitution has governed the United States for well over 200 years and the Senate has been considered "the world's most deliberative body" for much of that time, admired by many around the world as one of the most august legislative chambers in history.

So if we have indeed lost the art of compromise in our politics and assuming our Constitution is not to blame (indeed, we have argued here that the Constitution engenders compromise), what has caused our supposed decline in bipartisan bills facilitated by compromise? It seems to me that this decline correlates with the rise of conservatives in the Republican Party during and following the time of President Reagan and the disappearance of that strange politician truly of a bygone era, the Southern Democrat. The Republican Party has become much more monolithic, dominated completely by the conservative movement, while the Democrats have been all over the map between moderate to liberal (or progressive to use the current label of choice).

Nevertheless, the Republican and Democratic Parties were both largely dominated by moderate and liberal politicians prior to the last generation's rise of conservatives. President Nixon, who fought for universal health care and Employer Mandates and instituted wage and price controls, was hardly a conservative by today's standards (or any era's standards, for that matter). President Ford nominated John Paul Stevens to the Supreme Court, one of the most liberal justices in the history of the Court. Conservatives had no voice in the government prior to Reagan's election to the presidency, so they were effectively locked out of the debate and ignored.

So when one side is completely sidelined, how is the resulting federal legislation the result of compromise? One side (liberals) and moderates agreeing among themselves might be compromise, but not to the degree that these fellows pining for the good old days would like to believe. For all their acrimony, true compromises were struck in the 1990's between President Clinton and the Republican Congress time and time again: the 1996 welfare reform law, the 1996 Telecommunications Act, the balanced budgets in 1997 and onward, to name a few.

The process of compromise is always ugly when one is in the middle of it, and it never looks like compromise (remember the cries of deadlock and obstructionism when Speaker of the House Newt Gingrich and the House Republicans forced a shut down of the federal government in 1995?). But given the time for the political process to work itself out, the end result is ALWAYS better than a partisan wish-list crammed down the collective throats of the electorate. Voters might swallow the bitter pill of such a legislative maneuver, but the majority party will be short-lived in their majority status. Americans have longer memories than Talking Heads give them credit for.

Things are not always as they seem

When I first heard of the Honduran military's disposition of Honduras' President Manuel Zelaya, I assumed it was a typical, Third World-style coup d'etat and that the reaction of President Obama and the OAS calling for immediate reinstatement of President Zelaya was the right and proper response. However, after having researched the chain of events behind the removal of Zelaya, it is obvious that the Honduran governmental institutions and civil society were actually defending the Honduran constitution from the hatchet-work of Zelaya.

Many Americans do not realize that in Latin American countries, the military is the national police force. U.S. law does not allow the military to enforce laws. This is why we have civilian organizations like the Coast Guard and the FBI. Whereas the FBI in the U.S. would arrest officials accused of a crime, the military performs those actions in South America. If it was the military acting under its own initiative in disposing the President, then that is obviously unconstitutional. But the Supreme Court of Honduras and the Congress both approved this action and followed Honduran constitutional procedures in appointing a presidential successor.

The Obama Administration needs to wake up and begin to defend principled positions on the world stage. Dialogue with tin-pot dictators is fine, but actively supporting their positions only serves to degrade our own moral authority. As we have said on this blog in the past in the context of the excesses of the Bush Administration, constitutional fidelity is more than just blindly following your leaders, even if those leaders were duly elected. Extra-constitutional maneuvering can never be allowed to stand, especially on the part of a President, who is charged to faithfully execute the duly-enacted laws.

UPDATE 10/12/2009: Negotiations on Honduras Continue

The three-fifths Clause

Akhil Reed Amar provides a "biography" of the U.S. Constitution in his book America's Constitution. The book is an honest look at the Constitution, praising the Founders for the visionary and revolutionary aspects of the document, along with biting criticism of those constitutional provisions that perpetuated the Union's addiction to slavery. There are three clauses that Amar lists under this latter category:

• the three-fifths clause


• the fugitive slave clause


• the slave-trade clause of Article I, Section 9, which restricts Congress's ability to outlaw the importation of slave into the United States until 1808.
  

Amar argues these three clauses worked together to make the Constitution a pro-slavery document. While the effects of the second two provisions are more obvious, the impact of the three-fifths clause was more insidious, catching many of the Framers themselves by surprise (at least those from the Northern States). Allowing the Southern States to count slaves as three-fifths of a person for purposes of representation in the House of Representatives gave the slavocracy more Representatives than their numbers warranted because the South did not allow slaves to vote. Not only were slave owners rewarded with greater representation as they increased their numbers of slaves, they were given a higher ratio in the electoral college because each State's representation in that body is the number of representatives in the House plus its two Senators. This meant the slave States had a greater weight in electing the President than their numbers of free people warranted. Four out of the first five Presidents were from slave states or slave state sympathizers, and this effected the nominations of judges to the federal bench. Hence, the atrocious, extraconstitutional decision of the Dred Scott case. So the three-fifths clause ended up embedding incentives for the expansion of the "peculiar institution" within the structure of the federal government itself.

This clause is generally defended as a necessary compromise between the North and South to enable all thirteen States to adopt the proposed Constitution, but Amar thinks otherwise:

The three-fifths clause offered one solution. But in 1787 there may have existed at least one other plausible solution that could have satisfied both slavery interests and anitslavery institutions. Imagine, for example, that Gouverneur Morris had proposed that slaves should count as four-fifths in the first decennial census in 1790, three-fifths in 1800, two-fifths in 1810, one-fifth in 1820, and zero-fifths thereafter. Such a sliding-scale approach would have addressed the South's concerns about is immediate prospects as a legislative minority while ensuring a gradual transition away from a rotten ratio, with plenty of time for slaveholders to make adjustments. Because most Southerners expected their region's population to grow much faster than the North's, they could have anticipated that their rising share of free citizens within the union would tend to offset the effect of the declining rate at which they could count slaves.

Such a sliding-scale compromise would not have ended slavery per se, but at least the South would not have been incentivized by the constitutional structure itself to increase its dependence on slavery. Many in the South were leaning towards abolition in the 1780s as it was, so the absence of enabling rewards for maintaining and expanding the inhumane practice would have gone a long way to its eventual peaceful extinction.

We must remember that as great as the Constitution of the Founding Fathers was, the seeds of our greatest conflict, the Civil War, were sown within its words. As with any human endeavor, it should not be made into an idol by an unthinking, uninformed citizenry.

Thinking About Torture

Damon Linker at The New Republic has an insightful piece entitled Thinking About Torture. He gives expression to many of the thoughts that I have been struggling with around this topic - the fundamental belief that torture is wrong, but burdened with a nagging wonder about the extreme case of existential threat. Over the past seven years, the debate has been overly simplistic and polemic on both sides.

I've pondered for years what to say about the Bush administration's use of torture in the years after 9/11. So far I've remained quiet about the issue because I'm so uneasy about it -- not just about what the United States has done, but also about the reactions of nearly everyone who has commented on it.

Linker looks for guidance in this issue from Leo Strauss, author of Natural Rights and History, as the thinker who "is strongest in discussing what he called the 'permanent problems' of politics."

Under normal circumstances, the two parts of political morality cohere enough that the tensions between them rarely show themselves. But in extreme situations -- situations in which (in Strauss's words) "the very existence or independence of a society is at stake" -- there may be "conflicts between what the self-preservation of society requires and the requirements of commutative and distributive justice. In such situations, and only in such situations, it can justly be said that the public safety is the highest law."

I think, however, that the Bush Administration's downfall, and the inherent danger their course of action posed, was in its secrecy. "Executive privilege" and making decisions behind closed doors for reasons of "national security" are the watch words and cloak of every tyrant and imperial power in world history. Liberty and freedom flourish in the fresh air of the open daylight, so if a policy of torture is required for the self-preservation of society, then that is a discussion that the Bush Administration should have taken to Congress so that an open debate could have ensued. The few are not competent to decide for society if such extreme measures are required. The society in whose name the Government is asking to be able to commit such acts should have the right and obligation to authorize their use.

Everyone could have taken part in the conversation and we could have avoided all of the the Monday-morning quarterbacking we see going on now on "a bright, sunny, safe day in April 2009" -- as Director of National Intelligence, Dennis Blair, has put it. After the proper hearings and investigations, Congress could have made an informed decision to amend the law. The CIA could have then remained in the bounds of the law as they did what they needed to do, and field agents would now not be worrying if politics will drive their prosecution, after previous OLC assurances that they were acting legally. In addition, if walking into such dark territory is required, leaders are less apt to let the power go to their heads if they are being watched by society and Congress.

Bush Administration defenders will undoubtedly say that we would have had no time for a debate in the aftermath of 9/11 or that such a discussion would have tipped our hand to our enemies. But according to reports, the Government did not begin exploring "harsh interrogations techniques" until well into 2002. That would have given us several weeks (or months) to have this conversation. And even is the Administration needed to have more latitude more quickly, constitutional principles do not change just because they become inconvenient. Besides, Congress has shown it can work with speed in cases of national emergency. FDR received a declaration of war against Japan on the same day as the attack on Pearl Harbor. After 9/11, Congress passed the Authorization for Use of Force Resolution within three days. And if the United States had published such a policy change with the full support of the U.S. Congress (the representatives of the American people), then it would have undoubtedly worked to our advantage to strike fear in the hearts of al-Qaeda.

In the end, such an approach would have allowed America to head into the ugly days ahead with our eyes wide open, and no one would have been able to claim innocence or ignorance. It is all too easy to cry for the hides of those who kept us safe when we can claim blissful ignorance, even if that ignorance was willful at the time.

The Great Debate: liberty or death?

I have been listening to a course from The Teaching Company on the debate over the proposed Constitution between the Federalists and the Anti-Federalists. Professsor Thomas L. Pangle (University of Texas at Austin) teaches the course, The Great Debate: Advocates and Opponents of the American Constitution , which does an outstanding job of framing the debate between the two sides in its historical context and presenting the give-and-take discussion. The Federalist Papers are often presented as a self-contained treatise on the Constitution, but they were, in reality, part of a broader conversation, reacting to accusations and questions from the Anti-Federalists and lodging accusations and questions on behalf of Hamilton, Madison, and Jay (their authors).

The Anti-Federalists also presented some salient concerns in their opposition to the proposed Constitution. Among them:

• the proposed Constitution would lead to the establishment of a military industrial complex (not their words, of course), which would lead to America drawing unto itself the trappings of empire and shedding her commitment to republican virtue;


• juries would lose their right to interpret the law under the proposed Constitution and the federal judiciary would become an unaccountable aristocracy; and


• the states would eventually become mere administrative subdivisions of the federal government because states do not have an effective constitutional check against the federal government (Madison pointed to the fact that the states appointed senators under the design of the proposed Constitution, but this effective check was removed with the passage of the Seventeenth Amendment).

The Federalists consistently seek to recast Anti-Federalist concerns by focusing on the need for a strong central government to protect the national security of the United States. Whereas the Anti-Federalists were concerned to protect the classical republican freedom of the United States, which called for small communities governed by like-minded, virtuous citizens, the Federalists called for society to include a broader, more diverse territory whose sheer size would draw in competing interests (factions, to use Madison's term) to protect republican freedom at home and from attack from abroad.

I will spend a few upcoming blog posts looking at these debates in more detail, but what intrigues me from a birds'-eye view is the same basic question that we still deal with today, most recently in the days since 9/11. The Bush Administration thought it was necessary to engage in torture to protect America from further terrorist attacks after 9/11. While there is some circumstantial evidence that this policy protected the U.S. from further attacks, the brutality and dehumanizing consequences of these "enhanced interrogation techniques" are highlighted by Mark Danner in his piece US Torture: Voices from the Black Sites. Now the Obama Administration has prohibited these techniques from being used by U.S. governmental agencies because, as the new president has said, they violate America's core principles of liberty and commitment to human rights. But the President has said he'll do what is necessary to protect the United States, so one wonders what that would mean if another terrorist attack should befall the U.S.

So the question becomes - can a love and commitment of freedom and liberty coexist with institutions required to defend and make war? In the spirit of the Governance Imperative, these are two competing principles that must be balanced, but can the balance truly be maintained without detriment to either principle? Peace and security can be easily maintained through the use of excessive force, but freedom and liberty will suffer and be snuffed out. Witness Nazi Germany, Soviet Russia, Iran and North Korea. Liberty and openness can flourish, but society is then left vulnerable to attack and domination from the outside. Witness the classical Greek city-states, the Roman Republic, and the medieval Italian cities. In the latter cases, the republics were only able to save themselves by giving up liberty for ever more powerful militaries and dictators. Patrick Henry insisted on being given liberty or death, but most people will take security and peace over anything.

Whatever the prescient warnings of the Anti-Federalists, the Constitution has enabled the United States to strike an uneasy, if ever-correcting, balance between liberty and security. The ability of Americans to maintain this balance will be directly dependent on our continued fidelity to republican principles and the constitutional order.

To Appoint or Not To Appoint? That is the question.

Gubernatorial appointments to the Senate have not gone very smoothly as of late. Anyone who has paid a modicum amount of attention to the news over the past four months is well versed in the sad displays surrounding the appointment of Rolland Burris to the Senate by then-Illinois Governor Rod Blagojevich and the short-lived bid of Caroline Kennedy to take Hillary Clinton's New York Senate seat. These pathetic spectacles would be comical if the issue were not so serious. They surely do not bring dignity or legitimacy to the United States Senate!

To correct a process that is so obviously broken, California Senator Russ Feingold has introduced a proposed constitutional amendment that would mandate special elections to fill open Senate seats. This would bring the filling of Senate vacancies into line with the process ordained by the original Constitution for the filling of House vacancies and remove any doubt or question around senatorial successions. Where the people vote in open, free and fair elections, there is no question regarding who their legitimate representatives are.

If you haven't noticed by now, one of my hobbies is to consider the pros and cons of proposed amendments. Since the Senate and House Judiciary subcommittees will hold a joint hearing on this proposed amendment today, now seems as good a time as any to evaluate this amendment.

Feingold's proposed constitutional amendment reads as follows:

IN THE SENATE OF THE UNITED STATES

January 29, 2009

Mr. FEINGOLD (for himself, Mr. BEGICH, and Mr. MCCAIN) introduced the following joint resolution; which was read twice and referred to the Committee on the Judiciary

JOINT RESOLUTION

Proposing an amendment to the Constitution of the United States relative to the election of Senators.

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years after the date of its submission by the Congress:

`Article --

`Section 1. No person shall be a Senator from a State unless such person has been elected by the people thereof. When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies.

`Section 2. This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as a part of the Constitution.'.

I have stated a preference for repealing the Seventeenth Amendment and going back to the original constitutional design where State Legislatures filled their State's two Senate seats. My support for a constitutional change to mandate special elections to fill open Senate seats might seem contradictory to this stated preference, but I also realize we live in a world in which the Seventeenth Amendment will not be repealed any time soon. Elections are the ultimate process that governs our country, and of all of our governing institutions, elections are, next to the Constitution itself, the most foundational and legitimate.

In addition, appointment by one man (the Governor) as opposed to appointment by a State's Legislature is a difference of kind and hardly comparable. The original constitutional senatorial selection mechanism was part of a broader scheme of federalism that the Founders put in place (the other components of federalism being the electoral college, state militias, the Second Amendment, juries, courts, and the constitutional convention process). When all of these parts worked together, they served to maintain a federal / state balance. Many of these components of the Founders' federalism have either vanished or fundamentally changed however, and senatorial appointments by Governors do nothing to move us towards a federalism re-balance.

The most prolific objection I have heard against Feingold's proposed amendment is the terrorism question - "What if terrorism or some other calamity killed every member of Congress? At least Senators could currently be appointed, but Representatives have to be elected. Mandating senatorial special elections would make it impossible to quickly reconstitute the Senate, just as it is currently impossible to reconstitute the House."

Honestly, if this is the best the opposition has, then this amendment should easily pass. In over 200 years of history, a desperate Revolutionary War that the Congress led, a War with the British that saw Washington D.C. burned to the ground, a devastating Civil War that tore the country apart, two World Wars, multiple economic crises, a Cold War fraught with the very real possibility of nuclear annihilation, and the terrorist attacks of 9/11/2001, are we *so* afraid of some theoretical event that has very little real chance of succeeding in the first place? Do we design our normative, fundamental constitutional principles around the most extreme of statistical possibilities?

Even in the unlikely event that such an attack did take place *and* was successful in completely destroying the Congress, special elections could be held within two to three months and voila la! You suddenly have a reconstituted Congress that is untainted by questions of legitimacy and free of suspicion over who it speaks for - special interests or the People. Even in the most dire of circumstances that threatened our nation's survival, President Lincoln prosecuted the War against the Confederacy for months before Congress convened in the summer of 1861. Elections are *not* a luxury that we suddenly throw out the window when we think they are no longer convenient. They help define who we are as a people and how we come together in consensus, particularly in tough times. If we want efficiency to inform our fundamental design of governance, might I suggest Machiavelli's The Prince?

So Feingold's constitutional amendment is a much needed corrective to a major defect in the Seventeenth Amendment. If we are going to keep direct elections of Senators as our preferred method of selection, we are better off applying that method in all cases, especially where emergencies are concerned.

The Moral Instinct

The Moral Instinct is an intriguing article in The Times Magazine from back in January. The author argues that studying the "moral sense" of human beings can help us "see through the illusions that evolution and culture have saddled us with and to focus on goals we can share and defend." While there is much for me to quibble with in this article, it does bring out some helpful perspectives that would advance societal debates and relations in this country, along with how Americans see other cultures around the world.

For all the different moral concerns and perspectives found around the world, the article argues there are five themes that are common across all cultures: harm, fairness, community (or group loyalty), authority and purity. The differences in morality can be reduced to the emphasis placed on each of these themes by each culture.

The five moral spheres are universal, a legacy of evolution. But how they are ranked in importance, and which is brought in to moralize which area of social life — sex, government, commerce, religion, diet and so on — depends on the culture. Many of the flabbergasting practices in faraway places become more intelligible when you recognize that the same moralizing impulse that Western elites channel toward violations of harm and fairness (our moral obsessions) is channeled elsewhere to violations in the other spheres. Think of the Japanese fear of nonconformity (community), the holy ablutions and dietary restrictions of Hindus and Orthodox Jews (purity), the outrage at insulting the Prophet among Muslims (authority). In the West, we believe that in business and government, fairness should trump community and try to root out nepotism and cronyism. In other parts of the world this is incomprehensible — what heartless creep would favor a perfect stranger over his own brother?

Of course, harm and fairness are the moral themes that dominate the United States: both historically and in the present day. While we don't completely ignore the other three (indeed, community, authority, and purity are much more important themes among more conservative-leaning and religious Americans), these two themes inform our collective sense of morality to the point that they guide our sense of Government's role in our lives, i.e., that the Government should enforce laws equally (fairness) and defend us from attack (harm). These are also the competing themes that tear us apart in the abortion debate: protecting innocent life from harm versus treating women fairly. If we don't realize this, it is all too easy to see "the Opposition" as amoral and unprincipled.

We wrote the Governance Imperative thesis three years ago, and our moral categorization (what is right vs. what is fair) differs from that of this article. However, the important distinction is present in both categorizations. There are competing moral themes that we must consider as we approach any major societal question, and the Founders were well aware of these competing moral themes when they wrote the Constitution.

Bush's Final Report Card

Bush Wins and Losses

Stem Cell Research - L
Intelligence plane over China incident - W
9/11 - W
Afganistan - W
WMD - L
Iraq - L
The Surge - W
Mission Accomplished banner - L
Plamegate - L
No pardon for 'Scooter' Libby - W
Abu Graib(sp) - L
Guantanamo Bay - L
Torture/waterboarding - L
Supreme Court Nominees - no decision
Katrina - L
Head of FEMA nomination - L
Stimulus package 1 - L
Stimulus package 2 - L
SEC oversight - L
Financial industry oversight - L
Darth Chaney - L
unitary executive theory - L
VP part of the legislative branch - L
Politization of science policy - L
Firing of 8 Federal Procecutors - L
Keeping Rumsfeld too long - L
'Axis of Evil' - L
North Korea - W
Iran - L
Canning Kyoto - no decision
“Enhanced interrogation of terrorists.” - L
Rebuilding presidential authority - L
Mid-east policy - L
No Child Left Behind - L
Medicare prescription drug benefits - L
Better relations with east Asian democracies - W
Compasionate Conservatism - L
Global Gag Rule - L
Terri Shiavo - L
Extraordinary Renditions - L
Relations with Russia - L
Relations with Europe - L
Relations with South America - L
Genocide in Africa - L

I'll add more to this as I think of them.

The Commerce Clause

Part Two in the series analyzing certain aspects of Akhil Reed Amar book America’s Constitution: A Biography.

Amar takes to task the recent Supreme Court decisions of United States v. Lopez and United States v. Morrison for endorsing a more limited reading of the Commerce Clause that authorizes congressional regulation only on interstate economic interactions. Since the New Deal Court, the federal judiciary has interpreted the Commerce Clause as granting Congress a wide berth of powers in regulating activity and behavior if that activity or behavior has even a tangential effect on interstate commerce. The classic example is that of the local restaurant that serves anyone who travels across state lines (and who does not travel across state lines anymore?). With the two cases mentioned above, however, the Supreme Court has said that the Commerce Clause does impose real limits on the power of Congress to regulate local activity. Not every activity or behavior can be tied to interstate commerce, specifically the regulation of handguns in local school zones in Lopez and the regulation of violence against women in Morrison.

Amar, however, advocates a much broader reading of the Commerce Clause than even the Supreme Court allowed before Lopez and Morrison. Arguing that "commerce" in the Founding Era was a reference to any activity of life (not just economic activity), Amar effectively argues that the Commerce Clause was the final constitutional wording that embodied the Founder's principle that Congress should have power to legislate in all cases in 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" (wording as embodied in the Virginia Plan presented to the Philadelphia Constitutional Convention). Although the Plan's power to veto any state law (a power which British colonial governors and the Privy Council had possessed and a congressional power for which Madison himself passionately advocated) was rejected (Amar, 109), Amar points out that the Founder's were very interested in giving Congress wide berth to act on problems that the political consensus had deemed were continental (national) in nature.

As evidence of the usage of the word "commerce" in the late eighteenth-century, Amar offers the following:

• "Bolingbroke's famous mid-eighteenth century tract, The Idea of a Patriot King, spoke of the 'free and easy commerce of social life...' "(Amar, 107)


• "...and other contemporary texts referred to 'domestic animals which have the greatest Commerce with mankind.' "(Amar, 107)


• Congressional power to regulate all interactions with the Indian tribes was folded in to the Commerce Clause. Draft language at the Convention had earlier referenced Congress' power to "regulate affairs with the Indians", so it is clear that the Founders meant for Congress to have plenary authority over this area of law. (Amar, 107)

Amar suggests a renaming of this clause of Article I, Section 8 to "the international-and-interstate clause" or the "with-and-among clause." (Amar, 108) Amar wraps up his argument:

Without a broad reading of "Commerce" in this clause, it is not entirely clear whence the federal government would derive its power to deal with noneconomic international incidents -- or for that matter to address the entire range of vexing nonmercantile interactions and altercations that might arise among the states.(Amar, 107-108)

Personally, I appreciate Amar's more honest, straight-forward reading of the Commerce Clause when compared to the federal judiciary's convoluted, confused stretching of the Clause to reduce every aspect of life to interstate economic commerce. It seems to me there has been a genuine need since the 1930's for such a broad provision in the Constitution. The problem, however, is that nineteenth and early-twentieth century jurisprudence does not support Amar's broadest-possible reading of the Commerce Clause, largely restricting congressional power under the Clause to activity that genuinely and facially affected interstate economic activity, for example trade. To change the generally-accepted reading of the Constitution's grant of enumerated congressional powers, it would have been far-preferable to exercise the Article V provisions to actually amend the Constitution to specifically grant Congress the powers that the nation felt (and still feels today) that Congress genuinely should be able to exercise.

I have long toyed with what an such amendment to the Constitution would look like. An alternative approach would be to pass more specific grants of power along the way, as the need arose. The argument against this is that the Article V process is too cumbersome, slow and unwieldy to effectively employ during times of national crisis, but where a true consensus for federal action exists, I submit that passage and ratification of constitutional amendments would not take all that long. And the benefit going forward is clarity and well-defined boundaries around congressional power, thereby preserving the Founding concepts of freedom, fundamental rights, and limited government.

If the United States had acted diligently to amend the Constitution along the way, the following is just one possible listing of the kinds of provisions that might today be found within the enumerated powers of Congress:

To facilitate transportation and communications between the several States;

To establish and administer medical care, retirement-pension, social insurance, and welfare systems concurrently with the several States;

To provide for financial aid and coordinated disaster relief in areas of the Union for which the President may declare an emergency;

To set minimum standards of cleanliness for the air and waterways of the United States, from which military bases and other federal installations shall not be granted exemptions, and to establish standards for emissions of chemicals and pollutants;

To establish and provide for a system of national parks;

To provide for the regulation of the production, distribution, and use of nuclear, oil, natural gas, solar, wind, hydro-electric, and other energy sources;

To provide for the licensing of frequencies of the electromagnetic wave spectrum;

To provide for the exploration of space;

The Privileges and Immunities Clause

This is an interesting article on the Privileges and Immunities Clause of the Fourteenth Amendment and the incorporation of Second Amendment rights to State and local governments. It is a delicious irony that the best constitutional text to increase gun rights across the country also is the best constitutional argument for a right to abortion.

The Privileges and Immunities Clause does not apply to a right to abortion because abortion is not a "fundamental" right, as understood at the time of the adoption of the Fourteenth Amendment. That's not to say that a right to abortion could not grow into a fundamental right, but that could only happen over a large swath of time after consensus has been reached on the subject. Then, by definition, the courts would be fulfilling their role to enforce the right.

The Great GOP Waffle

The GOP wants to have their cake and eat it too. This summer, the GOP employed the filibuster in the Senate to forestall a vote on a medicare bill. The Republicans hailed a win in Georgia because it prevents the Democrats from having a filibuster-proof majority. Sarah Palin said,

"This election is that important, and I know come tomorrow night, Georgians are going to speak, and Georgia's going to speak with a loud and clear voice. We want to make sure we have at least 41 Republicans in the United States Senate to make sure that we shape bad[sic] legislation, or kill bad legislation."

Her flub about shaping bad legislation aside, it's obvious the GOP values the power that the filibuster grants to a minority party.

If you have some syrup, now is the time to get it out. The waffle that needs addressed is that this is the same party which was considering changing the Senate rules to essentially remove the filibuster from the hands of the minority party.

I would like to hear Craig's thoughts on this matter. Are they now implicitly admitting that the Nuclear Option was a bad idea? Normally when a politician changes his position they are accused of 'waffling' so why haven't I heard those charges? I admit that I don't read that extensively so take the previous question at face value and not as me trying to push any buttons.

Craig?

A more perfect union

In America’s Constitution: A Biography, author Akhil Reed Amar undertakes the daunting task of analyzing what the Constitution says and why it says what it says, in light of its late eighteenth century context. In a series of posts that will span over the next several weeks (possibly months, depending on time constraints), I will focus on some of the more notable and pertinent constitutional interpretations that Amar presents.

The first purpose provided by the Founders in the Preamble for establishing and ordaining the Constitution is to “form a more perfect union.” Like President Lincoln did during the debate leading up to the South’s secession and the Civil War, Akhil Amar keys in on this phrase to provide constitutional reasoning for rejecting a right of secession from the Union. Lincoln proposed that the southern States could not leave the Union because the states owed their very existence to the Union. For the sixteenth president of the United States, there was never a time that the United States did not exist, and, as such, the states were never independent nation-states. Since the aim of the Constitution was created to perfect the Union, secession was unconstitutional since it would by definition lead to a less perfect Union.

I’ve always found Lincoln’s argument to be problematic because it seems quite obvious to even the most casual student of history that there was a time when the states were free and independent states. The Declaration of Independence declares them so, and the Revolutionary War made them so. And whatever else the United States was under the Articles of Confederation, it was surely a different beast than it was under the Constitution of 1787. Amar agrees with this assessment:

Contrary to what Lincoln said, it is doubtful that a new, indivisible nation – as opposed to thirteen nation-states in a classic confederacy – sprang into existence in July 1776, four score and seven years before the battle of Gettysburg. In fairness to Lincoln, perhaps we should say that vis-avis the rest of the world, a new (confederate) nation was born in 1776. But the United States did not become an indivisible nation prohibiting unilateral state secession – the crux of the Gettysburg contest – until 1788. Lincoln also stumbled in claiming that none of the thirteen original states had ever been truly sovereign. If the issue were somehow unclear from 1776 and 1788, surely “sovereign” is the right word to describe North Carolina and Rhode Island in April 1789. [America’s Constitution, pp. 38-39]

However, the real question in the 1860’s – and for present-day interpretation – is whether states retained the right to unilateral secession after joining the Union. Amar continues:

On that question, Lincoln properly insisted that the Constitution’s more perfect union did not permit unilateral secession. Even though Jefferson Davis rightly read his name-sake’s Declaration, he wrongly read his country’s constitution. The fact that a new nation was lawfully formed in the 1780s by secession from the old confederacy did not mean that a new confederacy could be lawfully formed in the 1860s by secession from the old union. [America’s Constitution, p. 39]

The point of it all hinges on the type of arrangement the Articles of Confederation were as compared to the type of arrangement established by the Constitution of 1787. Under the old Articles, the United States truly was a confederation, a loose alliance of sovereign states. Under this scheme, members are bound by treaty and, as with any treaty, members can withdraw from the pact at any point they feel the treaty obligations are no longer being honored by other treaty members. In comparison, the United States under the Constitution of 1787 was a true nation. The Constitution set itself (along with subsequent federal laws and treaties passed under its authority) up as the supreme law of the land and rested true sovereignty with the People of the United States. The power of the United States under the 1787 Constitution flows from the People, rather than the States, and the states shifted from being sovereign members of a treaty pact to being constituent members of a federal republic, which was by nature a mixture between a federation and a traditional nation-state, governance being divided between the federal Congress and the several States. Protection of states’ rights and prerogatives would flow from the structure of the federal institutions themselves, rather than some right to unilaterally dissolve the Union reserved by the States:

State borders and state-law electoral qualifications would shape the House of Representatives, state legislatures would elect a Senate in which each state would have equal weight; state-chosen electors ballot for president; a Senate sensitive to states’ rights would confirm federal judges; each state’s borders and republican form of government would be guaranteed; and states would help propose and ratify federal constitutional amendments. [America’s Constitution, p. 36]

To seal the case for this interpretation of the Constitution and the absence of a right to secession, Amar points to the “bookend” of the Preamble – Article V, the article which sets forth the process for proposing and ratifying amendments to the Constitution. In this process, only three-fourths of the states need approve a proposed constitutional amendment for it to become effective on all states of the Union. This is in contradiction to the unanimous requirement set forth in the Articles of Confederation to change the fundamental charter. The Article V process is the one put in place to alter the nature of the relationship between the States and the federal government, as was done in the case of the Seventeenth Amendment. Dissolution of the Union must be a decision made by the whole (i.e., three-fourths of the States in accordance with Article V amendment process), not individual states who may, in their own limited parochial judgment, may have legitimate grievances.

A forceful Roe dissent based on the GI imperative

Yale Law School Professor of Constitutional Law and the First Amendment Jack Balkin (also creator of the law blog Balkinization edited a book in 2003 called What Roe v. Wade Should Have Said. The book is an interesting exercise in constitutional interpretation as modern-day lawyers and professors give their best shot at "rewriting" Justice Blackmun's Roe v. Wade opinion turned abortion into a constitutional right. Professor Balkin wrote the majority opinion (for the Court, as represented by the book's contributers) and the other authors of the book write their own concurring or dissenting opinions.

Overwhelmingly supporters of the women's right to abortion, most of the book's contributers go out of their way to criticize the flimsy reasoning and sloppiness of Justice Blackmun's original opinion. Recognizing the opinion's weaknesses, the book is mostly an exercise to look for a constitutional right to abortion based on more sound constitutional reasoning. Having read the book myself, I must say that most of the book's contributers do a modestly better job than Justice Blackmun did (for they at least start with the Constitution's text), but all the opinions written in favor of a right to abortion fall extremely short of the mark, in many cases twisting the text of the Constitution and its history beyond all recongition.

Michael Stokes Paulsen delivers one of three dissenting opinions and is by far the most effective in revealing the weaknesses of the majority's decision and reasoning. After rebutting most of the arguments of the right-to-abortion majority in turn, Paulsen ends his opinion by reminding us of the proper role of the judiciary, as appliers of the law. Matters of justice are for the the People to sort out through the legislative and executive branches. This is very similar to our own Governance Imperative thesis - that the legislature is commissioned by the Constitution to determine the law based on what is right (as defined by the majority through elections), within the bounds established by the Constitution, and the courts were established by the Constitution to ensure the laws were passed and applied fairness, enforcing the structural boundaries erected by the Constitution to enable an atmosphere for political compromises.

The opening of the second section of Paulsen's opinion sums his case up well:

No opinion rejecting appellants' claims in this case would be complete without some comment on the human implications -- of my colleague's creation of a constitutional right to abortion. There is a danger in this, to be sure, for thr question of law -- the meaning of the Constitution's commands, prohibitions, and empowerments of democracy -- is distinct from the question of justice, which is whether those provisions are used, by the people possessing powers and rights under them, for good or evil. The Court's power is only with respect to law. If, under the Constitution, constitutional powers are used to produce unjust ends, that problem of justice is (for better or worse) not for the courts. It is for the People, and for their chosen representatives. I fear that my colleagues have lost sight of this, and twisted the law, beyond recognition, to produce results they desire. They apperantly feel that these results are just, and so they violate their oaths in order to achieve them.
--Michael Stokes Paulsen, What Roe v. Wade Should Have Said, Jack M. Balkin, ed, p. 211