Balkinization: It may be morning in America, but we still have the same defective Constitution

It may be morning in America, but we still have the same defective Constitution

Sandy Levinson

I'm still elated by the results of the election and the fact that, at long last (and several weeks late) Barack Obama was finally inaugurated. But no one should doubt that among the problems we face in this country is a political system that is structured to create, if not out-and-out gridlock--some legislation does in fact get passed, after all--then a structured incapacity to confront serious problems head-on, especially if any proposed solutions involve serious sacrifice by one's own constituents. When Tip O'Neil so memorably said that "all politics is local," he was offering a profound statement about the polity generated by the Constitution, in which ever single member of Congress is indeed a parochial local representative when push comes to shove.

Writing in the Washington Post, E.J. Dionne notes the abject fear that is sweeping the country.

"[T]he point is not the numerical count of Republicans who vote for this or that. It's whether frightened citizens sense that government is working.
"People want the basic stuff fixed," said state Rep. Vernon Sykes, a Democrat who chairs the Finance and Appropriations Committee in the Ohio House. "They don't have a romantic notion of bipartisanship. They just want people to come together to solve problems."

But do we have a system that encourages this? Just look at the some of the absurd politics surrounding the stimulus bill, where three Republican senators, two of them from the great small state of Maine, were able to extort their own policy preferences because of the indefensible voting rule in the Senate that requires 60 votes even to bring a bill to the floor for a vote. Part of the problem, to be sure, is that Obama was insistent on demonstrating at least a modicum of "bipartisan" support, so he wasn't willing to dare Sen. Collins, Snowe, and Specter actually to join in a filibuster of the bill and demonstrate to the country the abject irresponsibility of the contemporary Republican (congressional) party. But look at the House, where Obama, who got not a single Republican vote, didn't have to worry that that affected the possibility of getting his bill through at all.

There are many bicameral systems around the world, but extremely few have adopted the American practice of giving an absolute veto to each house over legislation passed by the other. Most systems have a way of breaking deadlocks. We do not, which means that what Woodrow Wilson called "a small band of willful men [and now, glory be, women]" can hold the rest of the country hostage to their own parochial political desires. In this respect, we are no better than Israel, which is widely taken to be one of the worst political systems in the world because of the totally disproportionate power given to relatively small parties who can take advantage of their crucial importance in providing the marginally necessary votes to construct a government.

One could, of course, offer the recent unpleasantness in California as another perfect exhibit of a truly awfully designed constitution, inasmuch as it gives 1/3+1 in each house an absolute veto power over the budget. I note a fascinating article that appeared in Sunday's New York Times about the diminished enthusiasm by the U.S. for what might be termed the "international democracy project." One may or may not believe that the U.S. should strive to bring "democracy" to other countries, but it would certainly be wonderful if we adopted a more self-critical spirit and asked whether we have a truly defensible system of "democracy" here at home.

Lest any of you think that my concern is exclusively about Republican mossbacks, let me also say that I am most disturbed by the fact that "we" seem to accept, without any significant public discussion, that the decision on whether we engage in a de facto escalation of the war in Afghanistan will be made by our newly elected and inaugurated constitutional dictator. My own view is that any authorization for the initial entry into Afghanistan is now irrelevant, for there is no serious argument that Al Qaeda is threatening to take over Afghanistan and use it as a staging area. It's time for Congress to state, loudly and clearly, whether they wish to declare war on a terrible group of Islamic extremists who present little or no threat to American security interests or, with whatever degree of appropriate lament, order a withdrawal.

It's obviously not the Constitution that prevents Congress from taking real responsibility for the potential quagmire in Afghanistan, but, rather, a long train of presidential actions that have led "us" to believe that the Commander-in-Chief really has carte blanche in deciding whether or not to take the country further into war.

Posted 7:09 PM by Sandy Levinson [link]

Comments:

Sandy,

I feel your distress.

Democracy is rarely "democratic" in the sense we often think--reflecting the consent of the people (or a majority thereof).

One of the worst aspects of democracy (and it has considerable virtues) is that it licenses claims that actions by elected leaders have been "authorized," when in reality people do no such thing.

The escalation of the Afghan war is a case in point. What must be made clear is that it is Obama's war now (not "our" war, although our fellow citizens will fight it on his behalf). Electoral accountability (albeit episodic) is the the only power people have to hold leaders in check. So this action must be put on his account. (And I say this as a strong Obama supporter).

As for the escalation--how many times must outsiders be run out of this unruly land (at much cost in lives) for the message to sink in? Our presence will not be tolerated. I don't know what the Administration's plan is, but I hope it's another version of the surge--boosting the short term presence to stabilize matters before making a hasty departure. Anything more ambitious than that, I fear, will be a costly failure.

Brian

# posted by

Brian Tamanaha : 8:58 PM

Professor Levinson- welcome back. I assume that you have been on a long (and well-deserved) vacation financed by your gains from the Obama stock market rally, which you so sagely predicted on the day of his election.

While you have been gone, you will not believe what has happened. First of all, even though they had nearly three months before Obama’s inauguration, the Congress didn’t have the stimulus bill ready on January 20. The Congress is so inefficient and parochial that it took them weeks to write a simple $789 billion piece of legislation. First the House had to pass a bill. Then the Senate had to pass its own bill. Then it took them another day and half to reconcile the $50 billion difference between the two bills. And, can you believe it, after all that, some members still wanted to read the thing before they voted! Fortunately, the congressional leadership put its foot down at that point. You can only carry this democracy thing so far.

So now we have the stimulus bill, which will save or create 3.6 million jobs. Think of how many more jobs we could have saved or created, though, if the federal government wasn’t one of limited powers. Stupid Constitution.

Of course, that’s just the beginning. Obama still has to nationalize the banks, take over the health care system, bail out the auto industry, and re-write all the mortgages in the country. And for each one of those necessary actions, somebody is going to say he has to go back to Congress to get another law. Then we will have to start the whole process over again. This could take months.

Fortunately, some of our best constitutional minds have been thinking about this anachronistic Constitution, and it turns out that there are loopholes. For example, did you know that Congress can alter the constitutional structure by using its “plenary power” under the District Clause? It can. To start off, they are just going to change the composition of the House of Representatives, but there is no reason to stop there. Surely Congress could use this plenary power to, say, transfer all legislative authority to the White House. Just temporarily, of course, until the emergency is over.

Anyway, I am confident that Obama can get around all these pesky constitutional obstacles and bring us the hope and change that we deserve.

# posted by

mls : 10:37 PM

The Monkey Cage blog

http://www.themonkeycage.org/

discusses The Fifth Republic, a recent essay by Theodore Lowi that seems related to Sandy's theme. Lowi suggests that the direction may not change that much under Pres. Obama, especially as relates to continuing war.

# posted by

Shag from Brookline : 6:41 AM

But look at the House, where Obama, who got not a single Republican vote, didn't have to worry that that affected the possibility of getting his bill through at all.

Is the current House really your model of small "d" democracy?

1) Upon taking power, the House Dem leadership eliminated all the openness, debate and amendment reforms implemented by the Gingrich Congress as part of the Contract with America to make the process transparent to the public and keep party bosses from ramming bills through without meaningful review.

2) The House Porkulus Bill was drafted by the Dem leadership without hearings or input from from our representatives of either side of the aisle. The Senate Dem Leadership only secretly consulted the three RINO senators they needed to pass this thing in private meetings. The thirty pieces of policy silver demanded by the three RINOs on taxes and not building unneeded schools were all restored in a secret conference committee.

3) The Porkulus Bill was the President's in name only. The congressional Dem leadership stripped out nearly all of the tax cuts and infrastructure that the President argued to the public would provide the stimulus in this bill.

4) The actual 1200 page bill was hidden from public sight until midnight before the vote in the House. The congressional Dems were instructed by their leadership to vote for the bill without reading it out of party loyalty to the President.

You have repeatedly urged that the President should be considered a "constitutional dictator" because he alone exercises certain powers. Under this theory, would you also consider the current congressional Dem leadership to be a "constitutional Politboro" for exercising all legislative powers in secret and the rank and file to be a "constitutional Supreme Soviet" for voting on bills they have not read out of party loyalty?

# posted by

Bart DePalma : 9:34 AM

Those of us in CA certainly should be sensitive by now to what it's like to live under minority rule. That is, as Lincoln noted, impossible to justify under any theory of government. Fortunately the efforts by the Republican party to give the rest of the country the "benefits" of such rule have yet to bear fruition. They seem inclined to keep trying, though.

Ah, I fondly remember the days when elections had consequences and bipartisanship meant doing what the President wanted.

# posted by

Mark Field : 10:53 AM

One of the Republican "traitors" in the California budget crisis is from my county. He was able to get concessions--some of which seem reasonable, others less so--just by courting the opposition. The GOP has stopped short of censuring him and his compatriots, but it does bring up an interesting point.

Why does negotiation and concession necessitate a conversation about censure or withholding campaign funds? Isn't that the very job the citizens have elected these people to do?

If doing one's job gets you labeled a Judas, may we have a few hundred more Judases in Washington, please?

# posted by

PMS_CC : 11:57 AM

PMS_Chicago said...

Why does negotiation and concession necessitate a conversation about censure or withholding campaign funds? Isn't that the very job the citizens have elected these people to do?

The vast majority of voters do not pay close attention to individual political issues and vote for parties based on what basic principles they supposedly stand for.

Party discipline is meant to preserve that brand name with the electorate. Once a party brand no longer offers an alternative and the party simply becomes a pale echo of the opposition, then that party is headed toward minority irrelevance. When given the choice between a real Democrat and a RINO (or vis versa), voters will go for the real thing.

If the GOP wants to be relevant again in CA or nationally, they had better run the RINOs out of the party as they did in the early 90s and offer a real alternative. A compromise that only adds $800 billion rather than $900 billion to what is soon to become a $2 Trillion dollar national deficit or a compromise that only trims the largest tax increase in CA history to pay for the most bloated state government in history are not real alternatives.

# posted by

Bart DePalma : 12:29 PM

If the GOP wants to be relevant again in CA or nationally, they had better run the RINOs out of the party as they did in the early 90s and offer a real alternative

Sarah Palin is definitely a clear alternative to Obama. Good luck with that!

# posted by

Bartbuster : 1:01 PM

You can't blame the cloture rule on the Constitution, nor even, in its more anticipatory form, the "hold", on the Rules of the Senate. People no longer remember the fight Lyndon Johnson had to go through to get the former 2/3 vote reduced to 60% in order to get the Civil Rights bills passed. Perhaps in the future it will fall into desuetude like the House's "gag rule" against discussing slavery, but certainly not so long as the cooling saucer analogy remains the governing paradigm. Perhaps if Sandy and others keep pounding on the unrepresentativeness of the Senate as the Founders compromising priciples of equality, the second proviso of Article V will be seen as of the same damnable ilk as the first.

# posted by

Anonymous : 3:02 PM

"Islamic extremists who present little or no threat to American security interests?"

What's a few thousand Americans in the grand scheme of things?Everything just needs perspective, eh Doc?

FYI - Constituents don't want to sacrifice their liberty...even for financial security. Go figure...guess when you don't have money it means more.

# posted by

Anonymous : 3:44 PM

I'm truly mystified by Mr. Mostyn's comment. I assume that the reference to "a few thousand Americans" is intended to evoke Sept. 11, an event that can be blamed on Al Qaeda and not, in any plausible way, on the Taliban itself except inasmuch as they gave shelter to bin Laden (not altogether happily, as Larry Wright points out in his indispensable book The Looming Tower). There is no reason to believe that a Taliban restored to power, however dreadful that would be in many ways, would threaten a repetition of Sept. 11.

Or is Mr. Mostyn referring to the "few thousand Americans" who might well lose their lives as the result of Obama's decision to escalate the war? That would obviously put his comment in an entirely different perspective.

# posted by

Sandy Levinson : 5:47 PM

Sandy Levinson said...
There is no reason to believe that a Taliban restored to power, however dreadful that would be in many ways, would threaten a repetition of Sept. 11.

You mean apart from the intimate and ongoing military and political alliance between the Taliban and al Qaeda?

A couple of news items are instructive:

From the Long War Journal with multiple source links:

The three senior-most Taliban leaders in North and South Waziristan have joined forces to wage jihad against Pakistan, Afghanistan, and the US at the behest of al Qaeda leader Osama bin Laden and Taliban leader Mullah Omar. The new Taliban alliance said it openly supports Omar and bin Laden in its war against the US, Pakistan, and Afghanistan.

North Waziristan Taliban leader Hafiz Gul Bahadar and South Waziristan leaders Mullah Nazir and Baitullah Mehsud put aside differences last week and created the Council of United Mujahideen. Previously, Nazir and Bahadar had feuded with Baitullah due to tribal disputes as well as Baitullah’s rising power as the senior leader of the Pakistani Taliban.

The three leaders have had pamphlets distributed throughout North and South Waziristan to announce the formation of the Council of United Mujahideen. The Taliban leaders have “united according to the wishes of Mujahideen leaders like Mullah Muhammad Omar and Sheikh Osama bin Laden,” The Nation reported.

The Taliban alliance said it “supported Mullah Muhammad Omar and Osama bin Laden’s struggle” against the administrations of US President Barack Obama, Pakistani President Asif Ali Zardari, and Afghan President Hamid Karzai.

In return, al Qaeda is providing the Taliban with a brigade known as the "Shadow Army" to spearhead its attacks against NATO and the Afghani Army in Afghanistan and is providing propaganda support for the Taliban's assault on Pakistan.

If you want actual news from the Afghan and Pakistani fronts in the war with al Qaeda and its allies, you would be advised to lay down the NY Times and check out the miliblogs and Mideast media.

# posted by

Bart DePalma : 6:20 PM

Baghdad, how long before those Afghan tribal leaders assemble an invasion army and head for our shores?

# posted by

Bartbuster : 9:06 PM

". . . another perfect exhibit of a truly awfully designed constitution . . ."

So the U.S. Constitution was designed awfully. Hate it when that happens. This statement, coming from a learned person, is extraordinarily lacking in insight.
So many, reputedly, learned Framers who were intimately familiar with dictatorial tyranny wanted to create a system that would prevent an elected tyranny by forcing a semblance of consensus. It may not work as well as you like but I for one fear super majorities on either side of our current political spectrum because people cannot be trusted to act altruistically on a consistent basis and Congress even less so. So these nagging little design flaws that litter the Constitution reassure rather than frustrate me.

# posted by

Redlands : 9:38 AM

So the U.S. Constitution was designed awfully.

It'd be pretty hard to justify a lot of the original constitution: no bill of rights, slavery, a silly electoral college system, equal representation in the Senate, etc.

In fact, the designers knew it was defective; that's why they expected changes to it. For some reason, though, changes were ok until about 80 years ago, but since then it's become perfect. Those of us who actually live under it are fools to think we might add our own improvements.

# posted by

Mark Field : 10:28 AM

"For some reason, though, changes were ok until about 80 years ago, but since then it's become perfect."

I think it would be more accurate to say that about 80 years ago formal amendments to the Constitution largely ceased because the courts began providing the elected branches with an easier way to "change" constitutional provisions they didn't like. One which nicely avoided any prospect that the states might refuse to ratify a change the federal government wanted.

It's got nothing to do with the Constitution being perfect, which it is far from being. And everything to do with the Constitution's increasing irrelevancy to the conduct of government.

And now, Congress is seizing the power to arbitrarilly grant it's seats to non-states, an act with no constitutional basis whatsoever. What a dark day for the rule of law.

# posted by

Brett : 1:41 PM

Getting back to Levinson's first sentence, did I miss yet another attempted Oath of Office? Or does he hate the Constitution so much to think that January 20 was "several weeks late"? If anyone wants to discuss Balkin's latest screed too, let me know.

# posted by

Charles : 9:58 AM