Balkinization: Is the U.S. a "full democracy" instead of a "flawed democracy"?

Comments:

The rankings are apparently fro the Economist Intelligence Unit, not from Blow. We have a 8.2, Israel has a 7.5 (which evidently puts them in the flawed democracy category).

To figure out why, you have to go to the Economist website.

# posted by

mls : 7:33 PM

Thanks to mls for the info.

sandy

# posted by

Sandy Levinson : 9:20 PM

You are welcome. It turns out (yes, I have nothing better to do on Saturday night) that the EIU rates democracies on 5 factors (Electoral Process and Pluralism, Functioning of Government, Political Participation, Political Culture and Civil Liberties). We actually are scored very close to Israel on the first four factors (they do a little better on political participation and we do a little better on political culture). The main difference is civil liberties, where we are given a 8.53, and Israel gets a 5.29.

# posted by

mls : 9:29 PM

"whereby the Knesset is open to any party that can get more than 1-1/2% of the national vote"

Israel is not open to any party. if a party does not recognize Israel as a democracy and a Jewish state, it is not allowed to participate in the election. (see article 7aleph to the Knesset basic law.). so it blocks any party that tries to change the Jewish character of the state, even if they only want Israel to be neutral.
Israel is not a full democracy.

# posted by

Unknown : 5:48 AM

But in that respect, they're actually closer to a full democracy than the US, where ballot access laws explicitly work against any but two parties being able to put candidates on the ballot, and 'informal' arrangements usually result in those parties which mount heroic efforts to get onto the ballot anyway being omitted from campaign coverage. Hell, I've seen the vote percentages after an election actually falsified in news reports to make the Democratic and Republican votes add up to 100%!

Sandy, the Knessett has 120 members, which means one member represents 0.8% of the population. Why, then, if you're going to run a party list system, wouldn't a party getting 1.5% support from the population end up with a seat there?

Sure, a democracy runs more efficiently if you reduce the number of parties. Reduce it to one, and things run really smoothly...

Mis: Interesting ratings. The Economist must be grading on a curve, that some countries get 10's in civil liberties, given obvious deficiencies in that area. I'd love to see an explicit description of what they consider a civil liberty...

# posted by

Brett : 8:04 AM

Democracies like constitutions come in different forms. It seems that most, if not all, modern day democracies, whether full or flawed, have constitutions. While the US Constitution - the first written constitution? - served as a model, it had competition with variations that included parliamentary systems. We can all recognize that slavery seriously flawed the US Constitution. Corrections were made, sometimes resulting from force of arms, which also happened to be the source of the original US Constitution.

Assuming that the US Constitution and our democracy are flawed, what steps can be taken for corrections? Can correction of one come about without correction of the other? And similar to correcting global warming, can the US make correction(s) if only the US takes such steps? In reality, is there truly a full democracy with a full and fair constitution that could serve as a model for America and other nations?

Our Constitution and our democracy may have some flaws - and I am not against corrections - but I take to heart what Pres. Obama in his State of the Union speech about peoples of the world wanting what America offers. [Note: Others had previously made this point; but it is a good reminder to hear from time to time.] Hopefully with the exposure of the EIU rankings (thanks, mls) and Charles Blow's column, more Americans will give more thought to both our democracy and our Constitution and how to improve both from the perspective that our glass is half full. And maybe, just maybe, the message of democracy will spread to the many nations that lack democracy. With Ronald Reagan's centennial at hand, one of my most vivid memories of him preceded his presidency, when he spieled on TV for GE: "Progress is our most important product." And it has been progress that has made both our democracy and our Constitution better - but there's always room for improvement. And there will be "ups" and "downs" along the way, as I have witnessed over the past 80 years. [Right now, I'm sort of house-ice-bound with a dead battery, delayed in getting my hard copies of the NYTimes and Boston Globe. Perhaps I'll pay more attention to the TV talking heads this morning with their wisdom on what's happening in Egypt, etc., probably as slippery as my front walk and sidewalks.]

By the Bybee (^*&%^$@#) [sorry, mls], comparatives on different democracies may be interesting, but provides little comfort as America's focus should be on doing better than it has, not that its ranking is higher than democracy X.

# posted by

Shag from Brookline : 8:27 AM

Nice article, thanks.
sewa mobil jakarta

# posted by

Griya Mobil Kita : 11:56 AM

There are some interesting profiles at Global Integrity there. That site's profile of the USA is there.

The United Nations Development Programme has what it entitles a "User's Guide to Measuring Corruption", there; the latter has helpful links to international aid programs which, in turn, each have their own criteria for providing aid, typically employing preconditions like public accountability and outcome effectiveness quantification methods.

I am not sure "integrity" in the first instance, or "corruption" in the second view, are either precisely alignable with ways to measure democracy. However, terminology like benevolent despot are in disuse in the current era. So, perhaps a place to begin is a series of structural assessments like these. Yet, sometimes it has the patina of surfing, reading the news of the illicit ways subterfuges undermine ostensibly 'democratic' form, substituting something more like 'corruption' in its place.

The Global Integrity site and report linked above offers the advantage of providing a "report card" for each country; they have catalogued about 100 governments, and the report cards contain about 50 categories each, although assessments are sporadic, occurring more often in some countries than others.

# posted by

JohnLopresti : 12:29 PM

Does the Economist even evaluate democratic representation for colonial holdings? The U.S. has the largest unrepresented colonial empire on the globe, including Puerto Rico, Virgin Islands, and all the Pacific possessions, with an overall population in the millions. These are all denied any vote for the national executive and legislature, and thus have no voice in the judiciary. (D.C. has a vote for the executive, but not for the legislature, and has no voice in the confirmation of selections for the national or District judiciary).

France, by contrast, seems to accords representation to the overseas departments.

If there were a rating category for colonialism, the U.S rating would sink far below even the Former British Empire.

# posted by

Vince Treacy : 1:16 PM

Let's take a look at how the US does under the EIU democracy methodology:

I Electoral process and pluralism

1. Are elections for the national legislature and head of government free? Consider whether elections are competitive in that electors are free to vote and are offered a range of choices.

1: Essentially unrestricted conditions for the presentation of candidates (for example, no bans on major parties)

0.5: There are some restrictions on the electoral process

0: A single-party system or major impediments exist (for example, bans on a major party or candidate)

2. Are elections for the national legislature and head of government fair?

1: No major irregularities in the voting process

0.5: Significant irregularities occur (intimidation, fraud), but do not affect significantly the
overall outcome

0: Major irregularities occur and affect the outcome

3. Are municipal elections both free and fair?

1: Are free and fair

0.5: Are free but not fair

0: Are neither free nor fair

4. Is there universal suffrage for all adults? Bar generally accepted exclusions (for example, non-nationals; criminals; members of armed forces in some countries)

1: Yes

0: No

5. Can citizens cast their vote free of significant threats to their security from state or non-state bodies?

1: Yes

0: No

6. Do laws provide for broadly equal campaigning opportunities?

1: Yes

0.5: Yes formally, but in practice opportunities are limited for some candidates

0: No

7. Is the process of financing political parties transparent and generally accepted?

1: Yes

0.5: Not fully transparent

[Why is this important?]

0: No

8. Following elections, are the constitutional mechanisms for the orderly transfer of power from one government to another clear, established and accepted?

1: All three criteria are fulfilled

0.5: Two of the three criteria are fulfilled

0: Only one or none of the criteria is satisfied

9. Are citizens free to form political parties that are independent of the government?

1. Yes

0.5: There are some restrictions

0: No

10. Do opposition parties have a realistic prospect of achieving government?

1: Yes

0.5: There is a dominant two-party system in which other political forces never have any effective chance of taking part in national government

[Why is a multi-party system any more democratic than a 2 party system when democracy is majority rule?]

0: No

11. Is potential access to public office open to all citizens?

1: Yes

0.5: Formally unrestricted, but in practice restricted for some groups, or for citizens from some parts of the country

0: No

12. Are citizens free to form political and civic organisations, free of state interference and surveillance?

1: Yes

0.5: Officially free, but subject to some restrictions or interference

0: No

TOTAL : 10.5 out of 12.

# posted by

Bart DePalma : 1:51 PM

II Functioning of government

13. Do freely elected representatives determine government policy?

1: Yes

0.5: Exercise some meaningful influence

[Our bureaucracy enacts more laws than our Congress and our judiciary often enacts additional law, including rewriting the Constitution controlling the elected representatives.]

0: No

14. Is the legislature the supreme political body, with a clear supremacy over other branches of government?

1: Yes

0: No

[Congress gave much of its legislative power to the executive bureaucracy and the courts assumed other legislative powers.]

15. Is there an effective system of checks and balances on the exercise of government authority?

1: Yes

0.5: Yes, but there are some serious flaws

[The bureaucracy and courts act without meaningful democratic checks.]

0: No

16. Government is free of undue influence by the military or the security services

1: Yes

0.5: Influence is low, but the defence minister is not a civilian. If the current risk of a military coup is extremely low, but the country has a recent history of military rule or coups

0: No

17. Foreign powers do not determine important government functions or policies

1: Yes

0.5: Some features of a protectorate

0: No (significant presence of foreign troops; important decisions taken by foreign power;
country is a protectorate)

18. Special economic, religious or other powerful domestic groups do not exercise significant political power, parallel to democratic institutions?

1: Yes

0.5: Exercise some meaningful influence

0: No

19. Are sufficient mechanisms and institutions in place for assuring government accountability to the electorate in between elections?

1: Yes

0.5. Yes, but serious flaws exist

0: No

[There are no mechanisms like a vote of no confidence and the political ruling class appears to have less and less regard for the desires of their constituents.]

20. Does the government’s authority extend over the full territory of the country?

1: Yes

0: No

21. Is the functioning of government open and transparent, with sufficient public access to information?

1: Yes

0.5: Yes, but serious flaws exist

0: No

22. How pervasive is corruption?

1: Corruption is not a major problem

0.5: Corruption is a significant issue

0: Pervasive corruption exists

23. Is the civil service willing and capable of implementing government policy?

1: Yes

0.5. Yes, but serious flaws exist

[The bureaucracy usually ignores or resists the will of the President and Congress if it differs from the bureaucracy and is protected by the courts from the elected branches.]

0: No

24. Popular perceptions of the extent to which they have free choice and control over their lives

1: High

0.5: Moderate

[This is a major driving force over the past generation for the various electoral rebellions - Reagan, Perot, Gingrich and the Tea Party.]

0: Low

TOTAL: 7 of 12.

# posted by

Bart DePalma : 2:06 PM

III Political participation

27. Voter participation/turn-out for national elections. (average turnout in parliamentary elections since 2000. Turnout as proportion of population of voting age).

1 if consistently above 70%

0.5 if between 50% and 70%

0 if below 50%

[So long as citizens have the opportunity to vote, why is this important. Declining to cast a ballot is also a democratic choice.]

28. Do ethnic, religious and other minorities have a reasonable degree of autonomy and voice in the political process?

1: Yes

[Autonomy?]

0.5: Yes, but serious flaws exist

0: No

29. Women in parliament % of members of parliament who are women

1 if more than 20% of seats

0.5 if 10-20%

[If women are free to run and there is a majority of female voters, why is the gender of the representatives they choose important?]

0 if less than 10%

30. Extent of political participation. Membership of political parties and political non- governmental organisations.

Score 1 if over 7% of population for either

Score 0.5 if 4% to 7% Score

0 if under 4%.

31. Citizens’ engagement with politics

1: High

0.5: Moderate

[This is only important if the disinterest is because people do not believe the government will implement their will and not if the cause is boredom with the subject.]

0: Low If available

32. The preparedness of population to take part in lawful demonstrations.

1: High

[Until the Tea Party, I would have said moderate because conservatives and libertarians generally did not demonstrate]

0.5: Moderate

33. Adult literacy

1 if over 90%

[How is literacy defined?]

0.5 if 70% to 90%

0 if less than 70%

34. Extent to which adult population shows an interest in and follows politics in the news.

1: High

0.5: Moderate

0: Low

35. The authorities make a serious effort to promote political participation.

1: Yes

0.5: Some attempts

0: No

TOTAL: 7 of 9.

# posted by

Bart DePalma : 2:18 PM

IV Democratic political culture

36. Is there a sufficient degree of societal consensus and cohesion to underpin a stable, functioning democracy?

1: Yes

0.5: Yes, but some serious doubts and risks

0: No

37. Perceptions of leadership; proportion of the population that desires a strong leader who bypasses parliament and elections.

1: Low

0.5: Moderate

0: High

38. Perceptions of military rule; proportion of the population that would prefer military

1: Low

0.5: Moderate

0: High

39. Perceptions of rule by experts or technocratic government; proportion of the population that would prefer rule by experts or technocrats.

1: Low

[Unfortunately, those who do dominate the levers of power - the government, academia and media]

0.5: Moderate

0: High

40. Perception of democracy and public order; proportion of the population that believes that democracies are not good at maintaining public order.

1: Low

0.5: Moderate

0: High

41. Perception of democracy and the economic system; proportion of the population that believes that democracy benefits economic performance

1 if more than 80%

0.5 if 60% to 80%

[What does this mean?]

0 if less than 60%

42. Degree of popular support for democracy

1: High

0.5: Moderate

0: Low

43. There is a strong tradition of the separation of church and state

1: Yes

[I am assuming here that the EIU is referring to a single church rather than religion in general. In any case, this principle is a check on democracy to preserve freedom of conscience rather than democracy itself.]

0.5: Some residual influence of church on state

0: No

TOTAL: 7.5 of 8.

# posted by

Bart DePalma : 2:27 PM

V Civil liberties

44. Is there a free electronic media?

1: Yes

0.5: Pluralistic, but state-controlled media are heavily favoured.

0: No 45.

Is there a free print media?

1: Yes

0.5: Pluralistic, but state-controlled media are heavily favoured.

0: No

46. Is there freedom of expression and protest (bar only generally accepted restrictions such as banning advocacy of violence)?

1: Yes

0.5: Minority view points are subject to some official harassment. Libel laws restrict heavily scope for free expression

0: No

47. Is media coverage robust? Is there open and free discussion of public issues, with a reasonable diversity of opinions?

1: Yes

[I would have gone with 0.5 before the advent of conservative news and the internet. Now, it is the freest in human history.]

0.5: There is formal freedom, but high degree of conformity of opinion...

0: No

48. Are there political restrictions on access to the Internet?

1: No

0.5: Some moderate restrictions

0: Yes

49. Are citizens free to form professional organisations and trade unions?

1: Yes

0.5: Officially free, but subject to some restrictions

0: No

50. Do institutions provide citizens with the opportunity to successfully petition government to redress grievances?

1: Yes

[The issue is whether the government listens.]

0.5: Some opportunities

0: No

51. The use of torture by the state

1: Torture is not used

[Don't even start here.]

0: Torture is used

52. The degree to which the judiciary is independent of government influence. Consider the views of international legal and judicial watchdogs. Have the courts ever issued an important judgement against the government, or a senior government official?

1: High

0.5: Moderate

[The judiciary is part of the government. Being independent of the democratic branches is a check on democracy, not democracy.

The judiciary applies the law and does not "Consider the views of international legal and judicial watchdogs." Indeed, this item is contrary to the previous question concerning the influence of foreigners over the domestic political process.]

0: Low

53. The degree of religious tolerance and freedom of religious expression. Are all religions permitted to operate freely, or are some restricted? Is the right to worship permitted both publicly and privately? Do some religious groups feel intimidated by others, even if the law requires equality and protection?

1: High

0.5: Moderate

0: Low

54. The degree to which citizens are treated equally under the law. Consider whether favoured members of groups are spared prosecution under the law.

1: High

0.5: Moderate

0: Low

55. Do citizens enjoy basic security?

1: Yes

0.5: Crime is so pervasive as to endanger security for large segments

0: No

56. Extent to which private property rights protected and private business is free from undue government influence

1: High

0.5: Moderate

[The expansion of government regulatory power over private property has been expansing rapidly since the New Deal and exponentially over the past two years.]

0: Low

57. Extent to which citizens enjoy personal freedoms Consider gender equality, right to travel, choice of work and study.

1: High

0.5: Moderate

0: Low

58. Popular perceptions on human rights protection; proportion of the population that think that basic human rights are well-protected.

1: High

0.5: Moderate

0: Low

59. There is no significant discrimination on the basis of people’s race, colour or creed.

1: Yes

0.5: Yes, but some significant exceptions

[Our government still practices racial preferences.]

0: No

60. Extent to which the government invokes new risks and threats as an excuse for curbing civil liberties

1: Low

0.5: Moderate

0: High

TOTAL: 15.5 out of 17.

# posted by

Bart DePalma : 2:45 PM

The fact that El Jazeera English isn't so easily obtained in most areas in the U.S. is not ideal but the two situations aren't comparable. The Arab population of the country and the closeness to other Arab states make it hard to imagine Israel having it. It would be like us not having Univision.

Shag makes some good points but overall, the U.S. can do better in various ways, and as with our health care system, are not really the "best country on earth" in various respects. True patriotism is not pretending otherwise but doing better.

Seems a good idea to admit we are "flawed"; humility is usually the best policy.

# posted by

Joe : 3:15 PM

Let's give our yodeler a "thumbs up" for pointing out the results of progress here in America demonstrated by the EIU rankings, much of which came about after Brown v. Board of Education. But some of his editorial comments call for a "thumbs down."

# posted by

Shag from Brookline : 3:21 PM

I fully concur with Joe about doing better. As for humility, recall George W. Bush's Oct. 2002 National Security Strategy that declared, in effect, that the US is #1 economically, militarily and politically, and will do whatever is necessary to maintain these positions. We may still be #1 in some or all of these categories, but much changed after throwing down this gauntlet up to Obama's 1/20/09 inauguration.

# posted by

Shag from Brookline : 3:36 PM

Further with respect to humility, E. J. Dionne's WaPo column "Egypt's turmoil as a lesson in humility" about last Thursday's unanimous voice vote in the Senate of a resolution presented by Sens. Kerry and McCain provides a good example that includes this:

"There has also been a certain humility in both parties about the meaning of the Egyptian rebellion. There is at least some acceptance of the limits of the United States' ability to influence events, and also a candid acknowledgement that no one really knows where this uprising will lead. For once, politicians on both sides are being straight with one another and with the country about how a particular situation presents us with a mix of opportunities and dangers."

By the Bybee (@*^&$%#), I never did get hard copy of the NYT yesterday so I reread, several times, Charles Blow's column. It seemed that Blow's listing of Revolutionary Measures was incomplete. In the late 1990s I became aware that some political scientists were focusing upon the Greater Middle East, which includes in addition to the traditional Middle East North Africa and Central Asia. Blow's listing omits the Central Asia portion, as well as the Caucasus nations.

# posted by

Shag from Brookline : 6:37 AM

"7. Is the process of financing political parties transparent and generally accepted?

1: Yes

0.5: Not fully transparent

[Why is this important?]"

I would suppose because a non-transparent system of financing allows an additional element of political unfairness to be concealed. You know, like having a system for financing Presidential candidates (Such as ours) which nominally treats all parties the same, but which doesn't actually, because if a third party qualifies, some pretext will be found to disqualify them from getting the funds?

"10. Do opposition parties have a realistic prospect of achieving government?

1: Yes

0.5: There is a dominant two-party system in which other political forces never have any effective chance of taking part in national government

[Why is a multi-party system any more democratic than a 2 party system when democracy is majority rule?]"

Because majority rule is only "democratic" when the choice is unconstrained. If the Tweedledee and Tweedledum parties arrange that no other party can actually participate, it may be that sometimes Tweedledee gets a majority of the votes, sometimes Tweedledum, but that's not really all that "democratic" anyway.

"27. Voter participation/turn-out for national elections. (average turnout in parliamentary elections since 2000. Turnout as proportion of population of voting age).

1 if consistently above 70%

0.5 if between 50% and 70%

0 if below 50%

[So long as citizens have the opportunity to vote, why is this important. Declining to cast a ballot is also a democratic choice.]"

Because it helps to demonstrate that the system is being set up to deny people choices they can stomach voting for. In a race between Tweedledee and Tweedledum, one of them is going to get a majority of the vote regardless, but an awful lot of people won't bother voting.

****

Ultimately, Bart, the point is that you can avoid having a genuine democracy by more subtle means than refusing to let people vote. By artificially restricting their range of choices, or tilting the 'playing field' near vertical. We don't let this pass unnoticed in other countries, (Unless "we" are Jimmy Carter...) why should we expect others to not notice it here?

Ultimately, having been involved in the Libertarian party for years, before finally concluding that the system is too rigged for a third party to be viable, I have no objection to recognizing that our own country has a "flawed" democracy. It does.

I just found it a bit iffy giving 10's on civil liberties to nations which have considerable press censorship.

# posted by

Brett : 7:02 AM

I don't wish to be caught between Brett (rock) and our yodeler (hard place), but I need cites for Brett's implication that America has "considerable press censorship."

Also, "Libertarian party" is oxymoronic since pure libertarians are too self-centered to party even with each other.

# posted by

Shag from Brookline : 7:52 AM

Brett said...

"7. Is the process of financing political parties transparent and generally accepted?

BD: [Why is this important?]"

I would suppose because a non-transparent system of financing allows an additional element of political unfairness to be concealed.

Democracy is simply direct or indirect majority rule of the citizenry.

How does the disclosure of the sources of political enhance democracy? In the US, such disclosures are abused to avoid the issues of the day and instead attack the politician or party's supporters.

BD: [Why is a multi-party system any more democratic than a 2 party system when democracy is majority rule?]"

Because majority rule is only "democratic" when the choice is unconstrained. If the Tweedledee and Tweedledum parties arrange that no other party can actually participate, it may be that sometimes Tweedledee gets a majority of the votes, sometimes Tweedledum, but that's not really all that "democratic" anyway.

Democracy is about majority coalition building. In a two party system, that takes place internally in the run up to elections. In a multiparty system, this takes place externally when the plurality party tries to form a government.

"27. Voter participation/turn-out for national elections. (average turnout in parliamentary elections since 2000. Turnout as proportion of population of voting age).

BD: [So long as citizens have the opportunity to vote, why is this important. Declining to cast a ballot is also a democratic choice.]"

Because it helps to demonstrate that the system is being set up to deny people choices they can stomach voting for. In a race between Tweedledee and Tweedledum, one of them is going to get a majority of the vote regardless, but an awful lot of people won't bother voting.

In the US, more people vote when they feel they are being ignored by their government. See wave elections.

Ultimately, Bart, the point is that you can avoid having a genuine democracy by more subtle means than refusing to let people vote. By artificially restricting their range of choices, or tilting the 'playing field' near vertical. We don't let this pass unnoticed in other countries, (Unless "we" are Jimmy Carter...) why should we expect others to not notice it here?

I do not disagree with this point and institutions which favor a party are addressed in multiple ways in the survey. I commented on the questions which I thought did not obviously fall under this point.

Ultimately, having been involved in the Libertarian party for years, before finally concluding that the system is too rigged for a third party to be viable, I have no objection to recognizing that our own country has a "flawed" democracy. It does.

Libertarians and socialists are minorities in or polity. In a two party system, they attempt to wield influence over the majority by working within one of the major parties - the libertarians in the GOP and the socialists in the Dems (see Michael Harrington and the DSA's realignment strategy). If we had a multiple party system, the GOP would set up a coalition with the libertarians and the Dems with the socialists. The major parties will have to make some policy concessions in exchange for support in both systems.

# posted by

Bart DePalma : 10:15 AM

In response to Shag's comment as to whether the US Constitution was the first written constitution, the answer is NO: the first written constitution was that created by the nascent United Provinces of the Netherlands in 1579 and is referred to in Federalist #22

# posted by

Unknown : 11:59 AM

I guess it depends how you define constitution. The Constitution of Medina (sharia alert!) dates from the 7th Century AD.

# posted by

Steve M : 5:32 PM

The reference to "United Provinces" in Federalist #22 was not very positive and there does not seem to be a reference to a constitution of the United Provinces. Hamilton was critical of the Articles of Confederation, pointing out the virtues of the Constitution as corrective in certain regards. Assuming that the Articles did not constitute a constitution, perhaps the document involving the United Provinces did not. So I guess we need a definition, as Steve suggests. Of course, at the time of the framing of the Constitution, several of the states had already adopted constitutions, serving to some extent as models. (Note: The MA Constitution authored to a great extent by John Adams is not as readable as the subsequently framed US Constitution.)

# posted by

Shag from Brookline : 5:47 PM

Another useful website for democracy monitoring is Freedom House, which produces an annual survey of political rights and civil liberties in every country in the world.

The methodology and most recent reports are available here: http://www.freedomhouse.org/template.cfm?page=594.

Their rating system uses various factors (transparency, corruption, free and fair elections, freedom of the press, of religion, of assembly, etc.) to arrive at a final rating for each country.

It's an interesting read for anyone interested in these issues. The economist usually makes use of their findings each year.

# posted by

Unknown : 7:11 PM

A flawed democracy indeed!

The Economist reports:

In his first two years in office the federal government issued 132 “economically significant” rules, according to Susan Dudley of George Washington University. (“Economically significant” means that either the rule’s costs, or its benefits, exceed $100m a year.) That is about 40% more than the annual rate under both George Bush junior and Bill Clinton. Many rules associated with the newly passed health-care and financial-reform laws are still to come.

Existing rules are also being enforced more keenly. The workplace-safety regulator slapped employers with 167% more violations in Mr Obama’s first year than in Mr Bush’s last, according to OMB Watch, a liberal watchdog. The Food and Drug Administration (FDA) has stepped up scrutiny of drugs that have already been approved for sale. Last year it barred the use of Avastin for breast cancer, not because it was unsafe but because its benefits seemed too uncertain. The regulatory workforce has grown 16% in Mr Obama’s first two years in office, to 276,429, while private employment has fallen.

After promising to review whether a handful of the roughly 150,000 fine print pages of regulations might be "burdensome," President Obama warned the Chamber of Commerce today:

[T]he perils of too much regulation are matched by the dangers of too little. We saw that in the financial crisis, where the absence of sound rules of the road was hardly good for business. That's why, with the help of Paul Volcker who is here today, we passed a set of commonsense reforms. The same can be said of health insurance reform. We simply could not continue to accept a status quo that's made our entire economy less competitive, as we've paid more per person for health care than any other nation on earth. And we could not accept a broken system where insurance companies could drop people because they got sick, or families went bankrupt because of medical bills.

Despite some throwaway promises, Barrack Obama appears intent to realize the progressive dream of a "government by experts" who are unaccountable to either the people or their elected representatives.

# posted by

Bart DePalma : 8:11 PM

This comment has been removed by the author.

# posted by

Joe : 8:57 PM

Since Shag brought it up, not sure what reference in F.22 was cited either though the United Netherlands were clearly cited in a few papers.

Wikipedia and elsewhere cites the United Provinces "constitution" as a possible first and a model of the Articles of Confederation; since the point was to replace the Articles, the UP precedent's flaws would be an appropriate subject.

A Google search also brought up "Written constitutions: a computerized comparative study" which suggested the definitional problem and other possible precedents, all the way back to 7th Century Japan.

# posted by

Joe : 9:00 PM

Is our yodeler, with this:

"Despite some throwaway promises, Barrack Obama appears intent to realize the progressive dream of a 'government by experts' who are unaccountable to either the people or their elected representatives."

suggesting elections of these experts, perhaps even the election of SCOTUS and the rest of the federal judiciary? If so, perhaps we should ask him for a proposed constitutional amendment to accomplish such and take us back to the good old days before Teddy "Trustbuster" Roosevelt.

Let's consider the campaigns of experts wishing to serve on the SEC or the FDA, keeping in mind the sources of their "Citizens United" campaign fundings.

# posted by

Shag from Brookline : 6:17 AM

Prof. Tribe's op-ed in today's NYTimes titled "On Health Care, Justice Will Prevail" includes this:

"Those judges [from Florida and Virginia who ruled against ACA] made the confused assertion that what is at stake here is a matter of personal liberty — the right not to purchase what one wishes not to purchase — rather than the reach of national legislative power in a world where no man is an island."

Of course, Justice Thomas may be relied upon to assert the "Broccoli Doctrine" to honor his sponsor. (Remember the punchline "Nobody eats parsley anymore"?)

# posted by

Shag from Brookline : 7:14 AM

Shag:

Instead of going restoring the status quo ante T.R., I would instead suggest a system backed with a constitutional amendment where all current regulations sunset in five years unless enacted as legislation by Congress and that the regulators submit all future draft regulations to Congress for enactment. In this way, Congress can benefit from the "expertise" and research of the regulators and we can restore democratic control over our policy making.

# posted by

Bart DePalma : 10:15 AM

Ignoring for the time being the sunsetting of existing regulations proposal, Congress might have logistical problems with regard to the proposal requiring submission of proposed regulations for enactment by Congress, assuming that Congress would be proceeding in good faith to address such proposed regulations. But that's a huge assumption. The proposal would serve to starve administrative agencies with political ideology, taking us back to those good old days (whether TR or FDR) by means of the back door.

# posted by

Shag from Brookline : 10:57 AM

Shag:

What you call "starving with political ideology," anyone who is not a progressive calls democracy.

The bottom line here is that the progressive electoral minority favors rule by a progressive bureaucracy to enact policies which a majority of voters do not support.

# posted by

Bart DePalma : 11:05 AM

The bottom line here is that the progressive electoral minority favors rule by a progressive bureaucracy to enact policies which a majority of voters do not support.
# posted by Bart DePalma : 11:05 AM

Actually, the bottom line is that if you don't like the policies of the currently elected president you are free to vote for someone else in the next election.

# posted by

Bartbuster : 12:07 PM

It strikes me that unelected people step down from government positions a great deal more often than do elected officials. How does election ensure accountability?

# posted by

PMS_CC : 7:43 PM

PMS:

When voters fire a government, the government changes.

When a bureaucrat changes jobs, the bureaucracy grinds along unchanged.

# posted by

Bart DePalma : 11:37 PM

Apparently our yodeler equates "change" with "accountability." While "change" may bring about "accountability," it may only result in a rearrangement like the deck chairs on the Titanic. With the changes voters have made going back to post-WW II, the bureaucracy provides a sense of continuity and balance in government.

# posted by

Shag from Brookline : 6:21 AM

I don't know if our yodeler has another notch on his political gun belt, but I thought of him as I read TPM's report on Dick Wadham: "Colorado GOP Chairman Quits: 'I'm Tired Of The Nuts.'"

# posted by

Shag from Brookline : 6:44 AM

When a bureaucrat changes jobs, the bureaucracy grinds along unchanged.
# posted by Bart DePalma : 11:37 PM

You make an excellent point, Baghdad. I would definitely be in favor of disbanding the FAA just prior to your next flight. Hopefully there won't be too much collateral damage.

# posted by

Bartbuster : 9:53 AM

Shag:

Wadham has been under heavy criticism from across the CO GOP for a subpar party performance in what was a red tsunami wave election everywhere else. A classless exit.

# posted by

Bart DePalma : 5:20 PM

Once again our yodeler provides a Q.E.D. moment. Buenos notches. (Now where's that wrench?)

# posted by

Shag from Brookline : 6:48 AM

Back on topic (somewhat), my next read is Mike Rappaport's (of The Originalism Blog) "Reforming Article V: The Problems Created by the National Convention Amendment Method and How to Fix Them" available via SSRN:

http://ssrn.com/abstract=1748854

about a defect (flaw?) that would require compliance with the defect to fix. (Perhaps Mike has a footnote to Joseph Heller in the 70+ pages of this article.)

# posted by

Shag from Brookline : 7:49 AM

I just finished reading Mike Rappaport's article. WOW! It is a great read and should be of interest to those who wish to "correct" our "flawed" Constitution. Mike does not reference Joseph Heller and his "Catch-22" but it seems like he was channeling Yossarian, but with a possible solution. The big concern is with the national convention aspect of Article V. There is a fear of a runaway convention as opposed to a limited convention. Mike provides a suggested fix to Article V that would address what appears to be a "Catch-22" at page 1567:

"While the state drafting procedure is superior to the national convention method, this claim claim might seem like largely an academic point, because the reasons that make Article V defective would appear to prevent it from being reformed....Congress is extremely unlikely to propose a state drafting procedure that would deprive it of the effective veto over the amendment process that it currently enjoys. This leaves the national convention method. But that method might seem unlikely to produce an amendment because of the problems we have discussed--especially the coordination problems and the fear of a runaway convention."

Mike concludes with the following (page 1581) which reveals his bottom line:

""While the national convention amendment method is broken, a strategy exists that might allow this method to be used one time to pass the state drafting procedure. If the nation ever does decide to employ this strategy and enact something like the state drafting procedure, this may help to restore the federalist character of our Constitution and political system."

Keep in mind that Mike is a firm believer in originalism. I think we can expect critiques from non-originalists that perhaps might reveal the weaknesses of originalism with Mike's proposal. And Sandy might have some comments on the article.

# posted by

Shag from Brookline : 7:33 AM

With respect to fears of a runaway convention, footnote 47 (at page 1533) takes up a full page listing articles and commentaries on the runaway convention. Query whether the limited convention is constitutional?

# posted by

Shag from Brookline : 7:43 AM

Mike Rappaport in his article suggests that if the national convention portion of Article V were not broken, we most likely would have had amendments (based upon perceptions of popularity) for term limits, line item veto and a balanced budget. But Mike fails to inform us of how these really, really would have worked, if enacted.

# posted by

Shag from Brookline : 6:38 AM

Recently the NYTimes website feature on the 150th anniversary of the Civil War discussed the Confederate Constitution, which was similar to the US Constitution but provided for a single 6-year term for president and for line item veto. (Of course the Confederate Constitution was more specific on slavery and property rights associated therewith.)

# posted by

Shag from Brookline : 8:03 AM

Off topic, but I did not get to Friday's NYT until this afternoon and noted Bruce Fein's letter to editor "Justice Scalia's Misstep." I had not noted earlier any commentary at my usual Internet sites. A little Googling indicates some reactions. But between Justice Scalia and Justice Thomas, are there ethical issues to be addressed?

# posted by

Shag from Brookline : 5:08 PM

On the flip side of Bruce Fein, Noah Feldman's op-ed in today's NYT "Sometimes, Justice Can Play Politics" takes us on a tour going back to Chief Justice Marshall of justices and politics. In many of the instances cited by Feldman, the public disclosure was less contemporaneous than currently is the case.

# posted by

Shag from Brookline : 6:00 AM

Shag--you ever think of making your own blog? I know I'd subscribe.

# posted by

PMS_CC : 1:02 AM

I have downloaded the Art. V. article referenced on to my Kindle, but a free download of Prof. Corwin's book on John Marshall (1919; older than Shag!) got first preference.

# posted by

Joe : 10:37 AM

Not for the first time, I'm grateful to the discussants for leading me to an article, in this case Mike Rappaport's, that I hadn't been familiar with. I'm printing it out now, and I look forward to reading it.

# posted by

Sandy Levinson : 10:54 AM

I also thank Shag for bringing Rappaport's article to our attention. I will be interested in Professor Levinson's reaction. Rappaport mentions several of his articles.

# posted by

mls : 11:51 AM

Interesting article & I look forward to any comments Prof. Levinson has to make. I note that Prof. Balkin's "Commerce" article has been released recently too.

The Art. V article suggests that some opposition to national conventions might come from opposition to the type of change at issue. I think this might have some bite since I'm not really gung ho about the three examples listed (term limits, line item veto, balanced budget).

I also didn't support the idea of the Supreme Court deciding unclear (how unclear is to me quite debatable; these issues don't always come down split the usual liberal/conservative way, as shown in the line item veto case) issues as if the amendments were in place in a type of counterfactual.

The article sets forth an alternative amendment process. It has some merit. But, it isn't in place yet. The SC shouldn't act as if it is when deciding cases. It is not the same thing as using a general principle like democracy or the like to guide them.

Anyway, good article, well written, and thanks again.

# posted by

Joe : 9:03 AM

Part III E. 'The Overall Effect of the Failure of the National Convention" at pages 1554-5 of the article demonstrates to me Mike Rappaport's concerns/frustrations, perhaps as an originalist and a federalist. He may desire a reversal of what he describes as the movement "from federalism to nationalism," stating "The movement towards nationalism appears to be in part the result of a constitutional amendment process that blocks amendments that would move away from nationalism either by limiting the federal government or empowering the states." He seems to give a backhand to what some of us would consider progress: "The main constitutional changes - the Reconstruction Amendments, the Progressive Era Amendments, the New Deal interpretations, and the Warren Court interpretations - have generally led to a more nationalist constitution." So deep down, Mike seems to want to turn back the clock of constitutional time. How far back? Who knows? To some of us, originalism is not the answer and perhaps this article demonstrates this.

# posted by

Shag from Brookline : 10:38 AM

I'm not sure, per Shag's last comment, the author is opposed to the nationalist strand as a whole. He is saying that it should not be the only direction of constitutional change. The current amendment process in his opinion wrongly favors nationalist (particularly, pro-Congress) change.

I'd add one thing. He notes as a whole (putting aside the Bill of Rights) the amendments further congressional power or limit them in ways Congress at the time found uncontroversial. The 17A was an exception, providing as well an atypical means to get around the problem.

I think he misses one limit: the 14A sets up a definition of national citizenship. This limits congressional power and the attempt by some to limit citizenship of so-called "anchor babies" and such underlines it does put some limits on Congress.

# posted by

Joe : 11:19 AM

Possibly Mike Rappaport is interested in balancing between federalism and nationalism, whatever that balancing might entail. Perhaps the Federalist Society's goals provide some answers. But is a limited convention constitutional? Perhaps enough states might be interested in the three amendments Mike has focused upon as presumably acceptable to the nation: term limits; balanced budged; and line item veto. But surely Mike's goals are well beyond those three. After so many years, perhaps an unlimited convention might be more appropriate to air out constitutional concerns. Mike's solution may be simple but the problems are more complex. Limited conventions may be more political than unlimited conventions.

# posted by

Shag from Brookline : 5:06 PM

The Legal History Blog provides a link to R.B. Bernstein's review of Pauline Maier's "Ratification: The People Debate the Constitution, 1787-1788." I have not seen reactions of originalists to this book, although there is a version of originalism that addresses the understanding of the Constitution by not only the framers but the ratifiers. Maier's index does not include "originalism" (perhaps because it was not back then in vogue) but it does include the various Articles of the Constitution, including Article V. After reading the portions on Article V, I'll read Bernstein's review, perhaps to check whether the ratifiers' thoughts on Article V may conflict with Mike Rappaport's understanding as reflected in his article.

# posted by

Shag from Brookline : 8:15 AM

I'm still going through the Article V index references in Prof. Maier's book. But I did finish Prof. Bernstein's review, noting for future reference on originalism this:

"In particular, Maier confirms that The Federalist was something of an orphan in the ratification controversy, far less influential than later litigators, jurists, and legal scholars have thought it to be, and having far greater influence on constitutional interpretation only after the end of the ratification process."

Are originalists prepared to focus on "Ratification:" in understanding the Constitution?

# posted by

Shag from Brookline : 10:38 AM

In my semi-retirement I enjoy my lunch at home watching a Charlie Rose rerun of the previous night's broadcast. Today's rerun included a feature on Watson's success with AI over Jeopardy's successful past champions. I thought of an AO (artificial originalism) branded "Holmes" (no, not Sherlock) providing an originalism app in considering whether a statute is constitutional according to principles of originalism. In connection with Watson's Jeopardy challenge, we get to meet the person behind IBM's Watson project. But who would be the Wizard behind the curtain of the "Holmes" project: Ed Meese? Larry Solum? Randy (Comments Off) Barnett? Our own Jack Balkin? SCOTUS' "Silent Cal" Justice Thomas? SCOTUS' Justice Scalia? I don't think Sherlock's "Elementary, Watson" would apply in making the choice.

# posted by

Shag from Brookline : 2:54 PM

Looking over Jack Balkin's "Commerce" article, I see it copyrighted 2/10 ... so it was the one I read last year. Still, good stuff.

http://digitalcommons.law.yale.edu/fss_papers/26/

# posted by

Joe : 11:09 AM

I just finished reading Michael Stokes Paulsen's "Our Perfect, Perfect Constitution" available via SSRN:

http://ssrn.com/abstract=1763484

or by linking at Larry Solum's Legal Theory Blog.

It's only 9 pages long and quite entertaining. I wasn't sure whether I should have my Rosary - or Prayer Beads - at hand while reading; rather, I decided to imagine Sonny Rollins' extended St. Thomas solo.

Paulsen has a rare sense of humor in his writings on ConLaw, making him enjoyable in disagreement. This article is his contribution "to a Constitutional Commentary symposium asking participants how they would re-write the Constitution" expected to be published later this year. (Constitutional Commentary is the sole law review I subscribe to in my semi-retirement. The most recent issue, Vol. 27, No. 1, Fall 2010, includes Symposium articles on "The Interpretation/Construction Distinction in Constitutional Law Annual Meeting of the ASLS Section on Constitutional Law" that includes Andrew Koppelman's "Why Jack Balkin is Disgusting" and Steven D. Smith's "Reply to Koppelman: Originalism and the (Merely) Human Constitution.")

I wish I knew the other contributors to the upcoming Symposium issue. Perhaps this might tie-into a call for a constitutional convention that would be unlimited and potentially a runaway. I'm pleased that at least one contributor has a sense of humor, which he might use to blast off a presidential campaign (like his namesake Pat). Maybe Koppelman, if he is a contributor, may have something to say about disgusting contributors.

One result of this Symposium might along the lines of Thomas Jefferson's treatment of the Bible, except that in addition to snippings there will be additions., some that may end up looking more like a code than a constitution.

# posted by

Shag from Brookline : 2:20 PM

A possible case of "pink eye" has curtailed my reading of Pauline Maier's "Ratification: ..." for the time being. I just read David Schultz's 2/13/11 Salon article "What 'original intent' would look like - Tea Partiers would be surprised how little freedom they'd have if we read the Constitution literally" (you can link to it at The Originalism Blog). The opening paragraph includes this:

"Bachmann even brought Antonin Scalia to a seminar on the Constitution for members of Congress, where the Supreme Court justice instructed members to read the Federalist Papers and follow the framers' original intent. "

In an earlier comment on R. B. Bernstein's review of "Ratification: ...," I quoted this from it:

"In particular, Maier confirms that The Federalist was something of an orphan in the ratification controversy, far less influential than later litigators, jurists, and legal scholars have thought it to be, and having far greater influence on constitutional interpretation only after the end of the ratification process."

Perhaps Justice Scalia is not interested in what "Ratification: ..." might contribute to the understanding of the meaning of the Constitution back when it was ratified. A reminder: How many of the many Founders reflected their views in the Federalist Papers? Was it only three of them, mostly Madison and Hamilton?

# posted by

Shag from Brookline : 8:58 AM

A recent post at The Originalism Blog provides a link to a 2/11/11 Slate article by Christopher Jon Sprigman: "First Do No Harm: Why judges should butt out of the fight over health care reform" that includes this:

"Blame the Founding Fathers. And blame us for our absurd fetishization of them and the increasingly time-worn document they created. Because we're determined to run a post-industrial democracy by reference to a vague, terse, pre-industrial Constitution, we get judicial opinions that read like political arguments. We can't cure this by resorting to 'apolitical' judicial methodologies, like originalism, that are touted as constraining judicial discretion. They don't constrain it; they obscure it. Nor can we cure the problem by appointing only 'apolitical' judges who 'apply the law.' We might as well try to appoint a unicorn, because neither creature exists."

The reference to "pre-industrial Constitution" may not be original, but it makes a point. A "post-industrial democracy" of a population in excess of 300 million should not be constrained by 18th century constitutional stocks and bonds.

# posted by

Shag from Brookline : 8:47 AM

Maier will be on C-SPAN Book TV this weekend & for those with the capacity, her remarks can be downloaded on the Book TV page. Some remarks about her book on Amazon.com (generally, some user reviews are quite good over there) does make it sound interesting. If pretty long!

Paulsen's article started off with a distasteful reference to anal sex. If that is an amendment to due process and equal protection, I wonder if reading about it is an amendment to the First Amendment. Back in the day, that would be obscenity.

Nice to have a sense of humor, but his anti-gay post here a year or two ago wasn't that funny. His "dissenting opinion" in Jack Balkin's "What Roe Should Have Said" was pretty serious too.

Good to have a sense of humor when you think the law isn't being defended. You know, laugh instead of crying, and all that.

# posted by

Joe : 9:46 AM