Louis Fisher also decries congressional abdication of their responsibilities in the areas of national security, foreign policy, etc. Fisher thinks that the system would work if Congress would assert itself. Levinson thinks the whole system is irretrievably broken.

It's hard not to see the two-party system as contributing much to the problem, rather than running immediately to the conclusion that the whole structure needs to be redone. Congress just isn't a check on the Executive Branch. Sure, from time to time it performs a checking function, but not often. Yes, Congress denied Obama funding to close Gitmo. But consider the debate surrounding that decision by Congress. Was the decision taken after a substantive, careful review of policy options, underlying principles, practical details? No. The level of the discourse was pitched very, very low. "We don't those terrorists in America." It was ridiculous. The focus was on the optics. How would the decision play in the public? How would people be able to spin it and to sell it? How visceral of a reaction can we provoke by spinning and selling, so that reasoned discourse drowns in fear? Both parties do it, too.

It's difficult for me to disentangle the party system from the structural issues. I think there are structural issues. The administrative state doesn't seem to fit very well with our Constitution. I'm not advocating a roll-back to pre-New Deal days. Anyone who knows me knows I'm a giant lefty. But the rationales for the administrative state seem weak in the face of the ideas underlying constitutional structure. I don't know what to do about that, honestly.

But again, the party system only seems to exacerbate whatever underlying structural flaws exist. Maybe they just magnify what the real problems are. Maybe the party system is just a symptom, pointing to the underlying, structural causes. If so, I'd like to see that argument made more completely. Until then, I do hesitate to sign on to Sandy's program for basically calling a mulligan on the Constitution.
 

For some reason, the post on the main page is incoherent. It's fine once you click on comments, but you might want to fix the main page.

On the merits, I don't think my views will surprise anyone here. I continue to believe that Presidential power is less of a problem than weakness in Congress. That weakness stems from (IMO) the combination of several factors:

1. The unrepresentative nature of the Senate.

2. Gerrymandering at the House level.

3. The need for reasonable term limits (say, 18 years) to prevent the current sense of "ownership" in a Congressional position.

4. The need for some restrictions on the employment of former Members as post hoc bribes and for some limits on compensation and benefits for current Members.

5. The "Village" mentality of Washington, in which the rules which apply to the rest of us don't apply to their cocktail buddies.

I'd like to see us solve these problems first, because I think that the basic power already exists for Congress to exert more power over the Executive. It's just not doing so; I think some reforms would make it more likely to do its job. At least I'd try them first.

As for CA, the reforms are pretty simple: make the state an actual democracy instead of a pretend one. That means majority rule, not 2/3 requirements for budgets or tax increases.

I'll conclude by noting that the problems in CA and Washington seem at least partly opposite -- we suffer from anarchy here, but authoritarianism in DC. Somewhere in the middle of each, there's a democracy waiting to be born.
 

Mark Field, you said:

I'd like to see us solve these problems first, because I think that the basic power already exists for Congress to exert more power over the Executive.Doesn't the party system distort the structural relationship between the branches? The distortion is most evident when one party controls both. On the other hand, when control of the two branches is split, we get gridlock, and I don't think "checks and balances" = gridlock.

Do you think your suggestions would provide enough corrective for that?
 

Sandy,

You convinced me a long time ago about the constitutional dictatorship. Obama's conduct, although admittedly brief, suggests that the problem might indeed be structural rather than a matter of the proclivities of the person who happens to occupy the office. (And I must agree that his adventures in Afghanistan will undoubtedly come to grief, as anyone familiar with history and geography already knows.)

But maybe it's not the fault of the constitution, or indeed of any constitutional arrangement.

Is it conceivable that were are caught in a structural trap that is the inevitable fate of any mass society?

Whether it is the 60 million plus of England or the 300 million plus of the US, perhaps a true democracy (in the sense that people really have a say in big decisions like war or a bank bailout) is chimerical once a society and government surpass a certain BIG size. Genuine consultation beyond that point is perhaps impracticable if not impossible, and perhaps is not even useful or advisable.

If that's true--and I really don't know whether it is--then maybe we need to think about what kinds of "dictatorship" (or non-democracies) are better than others. Maybe the best we can hope for is having a reflective, intelligent dictator like Obama rather than one like Bush.

Brian
 

dmv, your question is both a good one and a fair one. Yes, I think party discipline does undermine the separation of powers checks on the Executive. What I don't know is how much that is true because of the structural deficiencies in Congress. I'd like to try getting rid of those deficiences first -- and I think they're intrinsically good anyway as a move towards a more democratic structure -- but more restrictions may be necessary.

Assuming more is necessary, I'd start with veto overrides -- limit them to 60 votes at most. I might also restate some of the Constitutional restrictions like the duty to execute (say, to add that the President has no power to dispense with or suspend the laws).
 

1) The detention of prisoners of war for the duration of a conflict is nothing novel or contrary to the "American legal tradition."

Moreover, where is the "constitutional dictatorship" here? Article I grants Congress primary power to set rules for these captures. Article II only permits the President to act independently in the absence of Congressional rules.

As you noted, your hypocritical Dem Congress has declined to act and has ceded the field to the President.

As for President Obama's argument that; ""In our constitutional system, prolonged detention should not be the decision onf any one man," this is the same fraud who also argued that some unknown value of the Constitution prohibits enhanced interrogation of foreign terrorists and then promptly renders captured terrorists to foreign intelligence agencies for enhanced interrogation...or worse.

2. No system can compel a small d democratic government to act in contravention of the will of the people. You may recall that the citizenry heavily supported most of the Bush foreign policy initiatives which you opposed and still support Gtimo and enhanced interrogation.
 

I think Brian has touched onsomething of deep importance, and it connects in my view with Mark's comment about the 'village' mentality in DC.

Most of our congress people live their lives between two villages: DC and their home state or locality. The size and complexity of our society and our government make it difficult for most of them to see nay kind of bigger picture or to feel any broader committment. The other federal officials live entirely in the DC village, mixing with the same people in changing roles, sratching one another's backs as a matter of course. About the only larger vision they have is a partisan vision - what's good for the Party.

I have no doubt that much of this follows from problems of scale. Plato, Aristotle, Rousseau, and others all argued that democracy [however they conceived it] is not manageable beyond a certain scale. It might make one sympathetic with the states' rights crowd, if not for the fact that smaller communities are often more repressive.

So, we seem to be stuck between an amorphous national society that might be most respectful of individual rights and more genuinely democratic state or regional societies that tend to favor majorities to the real detriment of minorities. Plato, Aristotle, and Rousseau seem to have been willing to opt for the latter choice.
 

Speaking of genuine constitutional dictatorships, President Obama is set to announce his nomination of Judge Sotomayor to the Supreme Court.

Sandy, in this vein, do you have any comments on Judge Sotomayor's advice expressed at Duke Law to legal defense fund applicants that "circuit courts are where policy is made" before she very lamely tried to play off her Freudian slip?

One can only pray for a similarly candid admission before the Senate during her confirmation hearings.
 

As is often the case with your constitutional complaints, I find it difficult to see the link between the decision you dislike (escalation in Afghanistan) and the alleged constitutional infirmity. I take it that you would like to see Congress debate and authorize this policy before it is implemented. But what constitutional principle would you propose to require such congressional approval? Once Congress has authorized a war or military campaign (and I assume that you are not disputing that Congress has done this with respect to Afghanistan), should Congress be required to authorize specific military strategies? Should Congress have decided whether U.S. forces should concentrate first on the Pacific or European theaters during WWII? Whether to land at Normandy or elsewhere? Whether to drop the atomic bomb?

I thought that the thrust of your constitutional criticism was that we would be better off with something more closely resembling a parliamentary system. But as your post illustrates, it is not at all clear that a parliamentary system would help matters at all. Perhaps Parliament would be required to vote on an escalation such as that proposed by Obama (although this is not at all clear to me). But even if it did, the Parliament would almost certainly “rubber stamp” the decision even if MPs generally disagreed with it (as is suggested by the John Burns piece you cite).

Lets say that Congress was required to vote on Obama’s decision. As a practical matter, it seems certain that the Congress would in fact ratify the decision at this time. There are some Democrats who are very uneasy with the decision, but Republicans are generally supportive and Democrats would have a strong political incentive to go along. Its hard to imagine Democrats taking the responsibility for defeating the new president on a key national security policy (and one on which, after all, he explicitly campaigned) which enjoys significant public support. OTOH, as the recent vote on closing Gitmo shows, Congress is capable of opposing the president when public opinion and political interest are properly aligned.

Perhaps you would argue that it would be better from the standpoint of democratic accountability if there were explicit congressional authorization. But one could also argue that such authorization would make it more difficult for Congress to take a hard look at the policy if, as we suspect, it turns out badly down the road. So the constitutional framework allows the president to make and implement decisions such as this military escalation, but leaves him subject to congressional oversight as well as accountable to the public in the next election. Is that really so bad?
 

I am extremely grateful to the discussants for raising many important points that demand further discussion. I agree, for example, that any serious discussion of our political system must confront the role played by political parties. They are obviously a vital part of our (and any) democratic political system, but it's also obvious that there are costs as well as benefits to political parties, especially the incentives generated to try to block policies of the other party that, if successful, would help them in the next election. And, of course, there is also the (non)oversight problem presented by "unitary" government. As I've suggested before, it might be valuable to look at how Germany handles this problem.

I really don't know if I believe that our "whole system is irretrievably broken." What I really do believe is that our political system is dysfunctional in important ways and that it might well be the case that the Constitution contributes to the dysfunctionality; moreover, I strongly believe that we need to be having a serious national conversation about this, including the possibility that the conclusion of the conversation will indeed be that we're best off continuing to try to muddle through with what we have.

I also think that Brian's point deserves more discussion: Perhaps Madison was simply wrong if he believed that we could have an "endlessly extended" republic. Of course, he was writing in a country of only 3 million people, and it is almost literally unimaginable that he would have been able to envision what the United States has become. But we don't have that excuse. Whatevere a "republican form of government" meant in 1787, it cannot possibly mean that today. That is why "originalism" is so foolish as a purported action-guiding approach to analysis.
 

It is not surprising that one tends to think that the other system could be able to solve problems of one's own. Thus, in my country, Germany, some like ex-chancellor and elder statesman Helmut Schmidt think that we should have a simple plurality parliamentary system as in Britain. We do have a parliamentary system where half the delegates are elecetd directly in electoral districts whereas the other half replenishes a highly over all proportional representation. The advantage of the British - as the American system - are clear cut majorities, whereas in my country coalition governments are the rule, with the smaller partner always able to hold the larger to ransom.
Personally, I thought the clear division of powers in the presidential system would enable Congress to exercise oversight far more effectively than over here. Alas, there are clear indications that the executive power has the de facto prerogative in U.S. politics, too.
I remember back when Congress after Watergate had rebalanced powers a little, the punditry rumbled about a weak president Jimmy Carter). There is a mythology of the "strong leader" in your political culture, almost a Gary Cooper archetype: the loner (executive) against the petty citizenship (Conmgress). Thus, I detect an almost built-in inclination for a dictator-king in the U.S. electorate.
I maybe too nostalgic but during the Eisenhower years with a strong majority leader (LBJ) opposite the president, the balance was maybe almost perfect.
Thus, persons do count.
I think attempts at structurally altering petrified political systems are not very promising. Given the professional demands on politicians and the general public more than happy not to be bothered, the incest of political life in the village is more or less equal in Washington, Beijing, Brasília, Delhi, London, Paris or Berlin. Even the attempts at more popular participation as the (in)famous propositions California style produce rather quixotic results.
If we don't revert the trend to a consumer attitude by voters and activate them Alinsky style, little will change.
Sure, there are differences. Parties are far more important in Europe than they are in the U.S. A Lieberman campaigning for the opposite number in Europe would be shown the door the very next minute. But we mere citizens have the feeling that "they" do whatever "they" want regardless. Thus, we entered into a vicious cycle where mostly busybodies enter party politics, and the rest of us disgustedly looks the other way, whines from time to time but does not want to get their hands dirty (full disclosure: me included).
As a European I have a hard time understanding the free speech protection for political monies, and I tend to think that some of the distortions of your politics are due to big money's considerably stronger influence. Also, we do not know gerrymandering, and there are some valuable proposals how to deal with that in your country, eg. in California. I also think that open primaries might give the citizens incentives to participate more in politics.
What I don't grasp is why politicians, and Senators in particular, use their considerable formal leverage for petty holds and other inanities while they blink when they are faced with massive executive encroachments on their prerogatives. "The Congress shall have power ... To Declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water,..." Really? Can't remember too many armed conflicts when Congress did that.
 

Bart DePalma said:

The detention of prisoners of war for the duration of a conflict is nothing novel or contrary to the "American legal tradition."

I think Torquepalma may be on to something here. If it is acceptable to detain people for the duration of an indefinite, undeclared war against a concept or idea, rather than a declared war against a country, think of all of the possibilities.

The War Against Drugs: No one selling drugs has killed more people or sold a more addicting product than the cigarette companies. We could start “disappearing” the executives of the tobacco companies. It wouldn’t be long before the tobacco companies would collapse due to lack of leadership.

The War Against Drunk Drivers:Here, it would be easiest to go against the low level warriors, that is, attorneys who specialize in defending drunk drivers. We could start by incarcerating El Barto himself, since his only goal seems to be to put drunk drivers back on the street. Without attorneys to defend them, we would soon have most of the drunk drivers in prison -- problem solved!

I’m sure I’ve only scraped the surface of the possibilities that these expansive powers would give the government to win wars, and most of all (because that is what it is all about), to keep us safe!
 

dmv wrote, It's difficult for me to disentangle the party system from the structural issues.Yes, this is a classic chicken-and-egg problem. Both of the two most basic features of our structural arrangements -- direct election of the executive and winner-take-all elections in single-member districts -- strongly reinforce a two-party system. It's difficult to envision the development of more parties while both are still in place. But more parties are an almost necessary condition for structural change. In the U.K., talk of proportional representation is reaching the front pages in the wake of the recent scandals. That's because they have three major parties, plus several significant regional ones, in spite of first-past-the-post. This results in majorities in Parliament that are totally out of line with the popular vote. (Same in Canada, incidentally, where electoral reform is also getting publicity, although not too much traction yet.)

What Mark Field refers to as the "village mentality" of legislators is, at least in part, their response to "representing" plots of ground rather than people with common political values and interests. Proportional representation would reduce this (nothing can eliminate it).

On California's two-thirds rule, it does indeed need to be eliminated. It is the wrong way to protect the political minority. Right problem, wrong solution. But those who propose getting rid of it need to propose better solutions to take its place. In any case, California's demographic shifts may render the two-thirds rule moot, as the Democrats are poised to start getting more than two-thirds of the seats on about 60% of the popular vote. I suspect that this fact is a large part of what's motivating the current push for a constitutional convention, and it may allow proportional representation to be introduced into the conversation.

Augo may well be right that the grass always looks greener on the other side of the fence. But the grass is pretty brown where I sit.
 

Hank Gillette said...
Bart DePalma said:

BD: The detention of prisoners of war for the duration of a conflict is nothing novel or contrary to the "American legal tradition."

I think Torquepalma may be on to something here. If it is acceptable to detain people for the duration of an indefinite, undeclared war against a concept or idea, rather than a declared war against a country, think of all of the possibilities.

Pursuant to the AUMF/declaration of war, the US is at war with al Qeada and its allies.

Under the laws of war, the US is also at war with any state or non state group warring against us.

The law of war has recognized for centuries the power to take and hold prisoners of war from non state enemies.

We are not and have never been in a legal state of war with an idea, despite Mr. Bush's unfortunate marketing term War on Terror to describe our war with al Qaeda and is allies.

Of course, you knew this...
 

@Brian Tamanaha

"Whether it is the 60 million plus of England or the 300 million plus of the US, perhaps a true democracy (in the sense that people really have a say in big decisions like war or a bank bailout) is chimerical once a society and government surpass a certain BIG size. Genuine consultation beyond that point is perhaps impracticable if not impossible, and perhaps is not even useful or advisable.Which is why:

1) we have representative instead of direct democracy, and

2) competitive, neo-Schumpeterian democratic theory has been so influential. There is obviously no way to consult 100 million voters. Instead they are supposed to provide retrospective ratification/ accountability in elections based on past performance.

The problem is voters aren't getting the information they need because disinformation techniques have become too effective as a result of technological revolutions in the mass media and the radicalization of the Republican party -- together with an MSM and a Congressional opposition neither of which feels compelled to fight the disinformation very strongly as long as their own careers aren't in jeopardy.
 

Does this suggest that creative destructionism of capitalism extends to politics?

" . . . competitive, neo-Schumpeterian democratic theory has been so influential . . . ."
 

Does this suggest that creative destructionism of capitalism extends to politics?Well I suppose one side gets destroyed in every election -- not always creatively -- but the key idea is circulation of elites.
 

This comment has been removed by the author.
 

The law of war has recognized for centuries the power to take and hold prisoners of war from non state enemies....

... like Big Tobacco.

It's truly amazing that these people become "prisoners of war" when rhetorical purposes suit, and then lose this distinction immediately when other considerations intrude. Humpty-Dumpty would be in awe.

That said, I'll shut up on such as per Prof. Levinson's request.

Cheers,
 

Sorry, but I saw a major typo in my post and I'm correcting it below:

I can't tell if Mr. Wittes has completely disavowed his prior statement by saying "the use of "protect the country" as a short-hand for the president's oath is only at odds with an oath whose literal language promises to protect the Constitution if one believes that the steps necessary to protect the country actually affront the Constitution."

This seems to suggest that the President can only act consistent with the Constitution. However, it may also mean that Mr. Wittes doesn't consider any of President Bush's actions unconstitutional, or that any act taken by a president to protect the country is ipso facto constitutional.

In short, Mr. Wittes seems to me to be taking advantage of ambiguity to obscure his actual beliefs.
 

"The problem is voters aren't getting the information they need because disinformation techniques have become too effective as a result of technological revolutions in the mass media and the radicalization of the Republican party --"I find the suggestion that only the Republican party engages in disinformation campaigns rather amusing.
 

*Pursuant to the AUMF/declaration of war, the US is at war with al Qeada and its allies.*

Do we have a good estimate of the number of
individuals who are members of the organization
of al Qaeda? Do we know with any degree of
accuracy who its allies are?
 

Farris W said...

BD: *Pursuant to the AUMF/declaration of war, the US is at war with al Qeada and its allies.*

Do we have a good estimate of the number of
individuals who are members of the organization
of al Qaeda?

Not that has been leaked or published by CIA or DIA to the press.

Do we know with any degree of
accuracy who its allies are?

Yes, although this list evolves as al Qaeda does. al Qaeda is in many ways a feudal organization and its allies often make public recognition of bin Laden.
 

Our resident LLB* informs us:

" . . . al Qaeda is in many ways a feudal organization and its allies often make public recognition of bin Laden."

Substitute "Republican Party" for "al Qaeda" and "Rush Limbaugh" for "bin Laden" to understand the "stalking points" of LLB*.

*Little Lisa's bro
 

The Ultimate Truthers Tool-Kit www.brandonkastning.net/truth-collection.html , please support The Free Brandon Kastning Mission. I am depending on my Brother and Sister Truthers to help set me free. Please, I am begging of you.
 

The Ultimate Truthers Tool-Kit www.brandonkastning.net/truth-collection.html , please support The Free Brandon Kastning Mission. I am depending on my Brother and Sister Truthers to help set me free. Please, I am begging of you.
 

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