Saturday, November 26, 2016
President Obama should be supporting a new constitutional convention
Sandy Levinson wrote a few books. But, he's too humble to reference them explicitly.
Anyway, it is open to debate that the "Constitution" is as much of the problem here as much as the people overall not understanding or at least being honest (we have a great skill at self-delusion for things small and big) about how things work. The Constitution requires education of the public, some degree of honesty, a press doing a good job etc. to work well. One might argue such things are somewhat lacking.
If we have various bottlenecks in the system, we need to know how they operate and try to use them somewhat sanely. Thus, e.g., if we have a filibuster, it should be carefully applied, not used as often as it is these days. This finally led to a chance -- which takes a lot in our system -- in regard to some nominations.
As to the Electoral College, I would note I'm also concerned about the number of people not covered (millions in Puerto Rico especially). As to SCOTUS, life tenure is not really my biggest concern, though I'm okay with a twenty-year term limit or something. Garland was a good choice there in part because as someone over 60, it set up something of a quasi-term limit. See also, Lewis Powell and perhaps RBG in time, though her health is better than others.
This is self-serving rationalization, not a constitutional crisis.
Obama is the second most successful president of the left after FDR in enacting his agenda. The only substantial item on Barry's wish list which Congress denied was Cap & Tax, which was so destructive that a Democrat Senate refused to even bring it up for a vote.
The reality is a plurality to a majority of voters opposed everything Obama and his Congress enacted. In fact, the voters loathed these laws so much that they not only fired the Democrat Congress, but also over 800 Democrats in state government in the largest pink slip party since the voters fired Hoover's Republicans. The voters did not punish congressional Republicans for voting against Obama. Instead, they voted for Trump in part because they were pissed off at the GIOP establishment for not reversing the laws Obama enacted.
Do you mean David Remnick? I read this piece in the New Yorker. But I did not think of using the interview to urge that Obama support a Constitutional Convention.
SPAM I AM! is openly praising the voters that put in power a person SPAM claimed over and over again was a fascist. SPAM gleefully accepts such a fascist to be President. Perhaps SPAM all along was a closet Trump voter. SPAM has something in common with Trump.
"Indeed, I suspect that one reason that McConnell and friends will not eliminate the filibuster on legislation is precisely that they have no desire to dismantle the Obama legacy in its entirety, but lack the political integrity to say so."
We share that suspicion.
One of the key dynamics of American politics over the last half century, is that the upper level of the Republican party is run by people who wish they could be Democrats. They're people who entered politics in areas where the Republican party was dominant, and where Democratic party positions are political poison, so in order to advance in politics they had to make a show of being conservative Republicans. But their hearts aren't really in it.
They had a much better time during that long stretch where the Democratic party was in control of Congress. They could 'fight the good fight', making the voters back home happy, and lose, making themselves happy. But then in '94, "the dog caught the car", and they found themselves in the majority. And the old, reliable "Put up a good fight, then lose" scam didn't work anymore. When they took dives the voters noticed.
Ever since then the GOP has been in a state of civil war, where the party's base has been trying to recapture it from the people at the top, and replace them with people who really want to advance conservative positions.
That civil war is, regrettably, a long way from over.
Anyway, do you really suppose that, if we held a Constitutional convention, the Electoral College would be gotten rid of? This would require the states that would thus become irrelevant agreeing to be made irrelevant, not likely.
Now, getting rid of the actual electors in favor of an automatic count, to avoid any possibility of the scheme you've proposed? Very likely.
Brett's (at 7:23 AM) includes this:
"Ever since then the GOP has been in a state of civil war, where the party's base has been trying to recapture it from the people at the top, and replace them with people who really want to advance conservative positions."
There is no single base to the Republican party. Parties change. The Tea Party segment screamed against Obamacare: "Don't touch my medicare." But Medicare is a provision established by government that aging Tea Party members want the benefit of. The new base electing Trump had been assured by Trump that Social Security and Medicare would remain intact. Just what are the conservative positions that Trump is expected to advance? Are these new populist conservative positions? And in what way is Trump a populist - or conservative?
Was that 'civil war" that started in '94 in effect during the Bush/Cheny 8 years that led to the 2007=8 Great Recession, or was there a truce as BrettBart (aka "unBreit"), walked that Administration in virtual anal lockstep? Will the base that surged for Trump change parties if and when the populist Trump fails to deliver on his campaign promises?
Brett closes that comment with this:
"That civil war is, regrettably, a long way from over."
Brett seems to be concerned that the populist Trump will play footsie* with McConnell/Ryan establishment paving a yellow brick road to Wall St. per his cabinet so far.
*A tad milder than Trump's Access Hollywood grabbing that Trump's Revengelicals did not seem to mind.
"Was that 'civil war" that started in '94 in effect during the Bush/Cheny 8 years"
Why, yes, it was. Escalating, as a matter of fact. The Tea Party movement actually originated during the Bush administration, after all. He did quite a few things (Medicaid D, for instance!) to piss off Republicans.
"replace them with people who really want to advance conservative positions"
One of these days maybe a libertarian will write here.
As to the battle, a united party would result in more government in the long run, if a different sort than in place with Democrats (themselves divided). But, then, a conservative in certain respects will want that. Anyway, perhaps, it's unfortunate and the best of bad options too. This includes the realization that as long as we have government in place that certain things are necessary even if some don't like it.
Anyway, the word "Democrats" here is used in a special way. It is fairly blatant here. First, we are told "the upper level of the Republican party is run by people who wish they could be Democrats." But, then we are told they are not really "conservative" Republicans. Even that is up to debate -- there are conservatives in both parties. Certain things some thing "left" is applied a conservative way. For instance, some conservatives are for same sex marriage -- they see it as a conservative way to approach something that will be in place anyhow (same sex couples) etc.
The people want various things, sometimes they conflict. That's a tricky thing for Republicans. (Or, any one in power.) For instance, there are many parts of the PPACA that the majority actually likes. And, some parts they do not actually make some degree of good sense, if like some things, one rather not do. The mandate is an example -- it worked off of a Heritage plan after all that is quite "conservative" -- you have benefits, including when they are needed, you should pay for them. You shouldn't when it suddenly happens be able to go bankrupt and have did nothing to pay into the system. Free riders is immoral in a conservative system. And, we are all are in this together, so there is an obligation to care for the less unfortunate. A quite conservative Christian (to cite a major bloc of the party) principle.
But, it was easier "to have the right enemies" and just say the whole thing was bad. Now, it is harder, since they have the obligation to govern. Being honest with people can be hard, especially when the result are compromises. So, e.g., we have to pretend various things about Trump now. It is not because "they want to be Democrats," any more than support of Medicare makes one a Democrat. It is a baseline thing. Unless "Democrat" means "most people not my breed of conservative Republican." And, for some it does, apparently, so we have to understand people are speaking in a form of code.
"For instance, there are many parts of the PPACA that the majority actually likes."
No doubt. Everybody loves getting a pony, until they find out they have to pay for it, and have to feed it and shovel out its stall. Once they learn that, they might reconsider taking the pony.
But, just ask them if they like ponies? Who's going to say no?
Oldest trick in the book, asking if somebody would like something, without mentioning the cost.
Health care is not really a "pony."
Yes, people do tend to like basic health care, sometimes helping themselves or love one not dying, something deemed basic throughout the world. Thus, Trump and the Republicans say they will retain chunks of the PPACA but will somehow water it down. They didn't say this the first time. They said the whole thing stunk.
Cost was mentioned. The Democrats carefully addressed that in various ways, including -- like insurance is supposed to work -- using a mandate to pay into the pool so it is protected for those who eventually will need it.
The problem is that some didn't want to understand the complexities of the situation. Such a childish mentality is understandable human weakness, but it doesn't make it a good thing that one party cynically took advantage of it.
"Health care is not really a "pony.""
Whoop dee doo. It's not a lunch, either, but you don't have to be a CPA to know there ain't no such thing as a free lunch.
It isn't any accident that Obama lied about people being able to keep their insurance if they wanted to, about this law lowering costs. He had to tell those lies, because the free pony was a really, really expensive pony.
NET, the whole thing does stink. I've compared it to a sh*t sandwich with a cherry on top. It's no use pointing out that somebody has expressed a liking for cherries, and then being outraged because they don't want to eat your sandwich.
But give them a chance, and they might hold onto the cherry as they toss your sandwich in the garbage.
Again, health care is not some fictional "pony," but a very serious thing that is a basic good in countries world-wide.
Again, there was no assumption by serious people that a "free" lunch was supposed to be in place. Thus, it was carefully formulated, including the mandate and use of a for profit health care system. This makes it more conservative than some nations.
The only thing that could be offered there is good predictions of how things would operate. ANYONE, left or right, would do this. Sometimes, the results might not be as expected. But, evidence in place so far shows that the law lowered costs. There was no 'lying' involved there. It is a long term thing that would require, like every.serious.program tinkering over the years.
As a whole, people generally could keep their insurance. One estimate promoting that big "lie" cited less than two percent not being able to. Tiny numbers like that were inhibited generally from retaining their insurance. And, even there, many of these were based on actions of insurance companies themselves. Companies that without the law block many people from getting ANY insurance in various instances. Basic health care, not my little ponies or a sandwich.
ANY government program, including those the people you like promote and that you support, will be imperfect in some fashion & promotion will involve some degree of puffery. Adults realize this without speaking of some "big lie."
You can keep on sneering all you want, but the people overall LIKE chunks of the PPACA and that is why Trump and the Republicans are not simply talking about repealing it, but 'replacing' it with many of the parts retained. Parts that wouldn't be there in the first place without the Democrats.
And, some of the opposition amounts to childish people who want the good but don't want to understand how the real world works regarding the harder stuff.
News that you provide on this day so very interesting thanks .
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"You can keep on sneering all you want, but the people overall LIKE chunks of the PPACA"
Good God, am I denying that? What I'm pointing out is that it means very little to demonstrate that people like things considered apart from the costs of those things, when in the real world you can't have the things without their costs! A concept the average person is very familiar with, I assure you, and which explains why Obama went to such lengths to lie about the costs.
Sure, some small bits of the ACA are going to be retained. Just because it's a sh*t sandwich doesn't mean you have to throw away the cherry on top.
But the overall structure, of divorcing costs from benefits, larding down the policies with mandatory features that made no sense as insurance, (Because they were elective or predictable.) and then mandating that people purchase the insurance so that some people would be forced to subsidize others, that's going to have to go. That's so unworkable, (The "death spiral".) that it's widely suspected the ACA was never intended to work at all, but just to bring the whole system crashing down, so that Democrats could build single payer on the ruins.
I've looked at Trump's health insurance platform. He's proposing returning insurance to being *insurance*, not a welfare program hidden off budget. More use of HSA's, more competition among insurers, fewer benefit mandates, and any welfare components to be explicit and on budget.
It's really too bad we couldn't have done it earlier, before the ACA wrought such havok. But, like I said, no benefit comes free, and I guess the ACA was the cost of Republicans ending up in such thorough control of the government.
None of the "popular" parts of Obamacare would remain popular when polled with a price tag. Poll the following questions:
Should you pay higher health insurance premiums to pay
to insure your neighbor's adult children?
for your neighbor's birth control?
to pay for your neighbor's health insurance when he refuses to buy his own health insurance until he is ill or injured?
Puts all of those free ponies in the proper view as government theft.
Our un-procreating SPAM I AM! for some reason neglected to mention pre-existing conditions in his anarcho libertarian polling screed on Obamacare. Let's have a contest on SPAM's pre-existing conditions. (I don't think he was born selfish. He accomplished that all on his own.)
My last polling question covers preexisting conditions.
Before the preexisting condition mandate went into effect, Obamacare set up a subsidized high risk pool health insurance and only a tiny fraction of the projected insured were willing to buy the insurance.
After the preexisting condition mandate went into effect, insurers immediately started reporting the ill signing up for insurance and then dropping it again when they were well.
The reality is that the preexisting condition mandate creates a free riding problem and increases insurance costs for everyone else to pay for it.
Obamacare's solution was the enormously unpopular and completely ineffective individual mandate.
By the way, do you suppose, given the election results, that Tushnet is going to write a "Resuming Defensive Crouch Liberal Constitutionalism" essay? He did say all bets were off if Trump was elected, after all.
SPAM I AM! resorts to his HUMPTY-DUMPTY method of explaining what he meant. SPAM in his 9:23 AM response to my critique of his 8:47 AM polling states:
"My last polling question covers preexisting conditions."
But here's his last polling question at 8:47 AM:
"to pay for your neighbor's health insurance when he refuses to buy his own health insurance until he is ill or injured?"
SPAM includes 6 lines of explanation in his 9:23 AM response, using the phrase "preexisinting condition" three (3) times. Once again SPAM is poll dancing his way to four (4) Pinocchios.
Of course SPAM avoided intentionally specific reference to "pre-existing condition" in that last question because polling has indicated overwhelmingly that those polled like Obamacare's elimination of pre-existing conditions, including even those who had insurance through employment.
By the Bybee [expletives deleted], don't forget the contest on SPAM's pre-existing conditions. Prizes are to be announced in a later comment.
Shag: Of course SPAM avoided intentionally specific reference to "pre-existing condition" in that last question because polling has indicated overwhelmingly that those polled like Obamacare's elimination of pre-existing conditions...
When a pollster asks if health insurance should cover X, the response will nearly always be overwhelmingly yes.
If the pollster asks whether the respondent want to pay higher insurance rates so his neighbor can get X, then the response will nearly always be overwhelmingly no.
Polling questions offering free ponies used to support government theft is nothing more than propaganda.
The propaganda polling to which you refer does not discuss the free rider cost, which my proposed question addresses.
The original prediction that the filibuster will be left in place will be tested in January. The underlying question will be whether the literally absurd proposition that tax is theft will be ratified by the extinction of the very last barrier to an end of competent governance. What we will then have is government by force: a Franco or Pinochet.
The filibuster test will come later than January, probably, though those overly concerned about artificial procedures might cite that being the time when rules are determined.
SPAM I AM! is not a cross-section of polling. For example, SPAM's household is in several senses barren so there is no need for free birth control. Also, SPAM's household doesn't have children, minor or adult. SPAM's anti-free rider mentality would seemingly eliminate public schools as the SPAM household has no children of school or any other age. SPAM has in the past commented on the drop in reproductivity rates among whiles in America. He's a living example of this. He conceives himself as a self made man, which is perhaps a pre-existing condition. SPAM has no charity towards his fellow man, woman or child.
By the Bybee [expletives deleted], if a wife through emplyment gets medical insurance coverage, is her self-employed husband a free rider by being included under such coverage? Without Obamacare a self employed person would have yuge health care premiums. Many of those who object to free riders saddle up on ponies for their own free rides. Why rural lawyers take on court appointment subsidies at public expense - it's not just the indigent defendant who is a free rider.
"if a wife through emplyment gets medical insurance coverage, is her self-employed husband a free rider by being included under such coverage?"
Generally speaking, Shag, if your spouse is covered by your health insurance through work, you end up paying for it. At least, everywhere I've worked you have.
Holding a constitutional convention is a terrible idea.
The reality is a whole bunch of good stuff in the Constitution would not survive a rewrite.
The dreaded Internal Revenue Code subsidizes health insurance provided by the employer such that its value does not constitute taxable income to the employee. And the cost to include a spouse on the employee's coverage is substantially less that a stand alone premium for a separate policy for the spouse. The difference is a free ride. There are a lot of free rides that libertarians take but think they are not free riders.
Charity is when you voluntarily provide your property or money to another.
Theft is when the government takes your property or money under threat of imprisonment and fine and gives it to another.
Employers provide health insurance to their employees and their families as a form of compensation. No free riders.
Because of Obamacare, the self-employed forced to buy government designed health insurance on the government exchanges are facing skyrocketing premiums and deductibles. Much of this is because of the free rider problem, I discussed above.
How can one person be wrong about absolutely everything?
"The reality is a whole bunch of good stuff in the Constitution would not survive a rewrite."Post a Comment
Quite possibly. Unfortunately, the reality is that a whole bunch of good stuff in the Constitution didn't survive 'living' constitutionalism. It's still in there, but not really in effect anymore.
You know, like separation of powers? Enumerated powers doctrine? Prohibition of double jeopardy?
I'd like to think that judicial reform could fix that without amendments, but, let's be real: It can't.
Our constitution is like an old, old OS, whose every weakness and exploit is on record. It might work just fine 'offline', isolated from threats, but in the real world every legal script kiddie knows how to compromise it. Even if you restored it to pristine condition, it would fall again in record time.
No, only by amendments can the system be fixed, if it can be fixed at all.
And, as Congress has its fingerprints all over the problem, only an idiot would expect Congress to fix it. A convention is the only way forward.
I say that with regret, because I really don't expect a new constitution to be as nice as the one we have now. But what good is a nice constitution that's being violated?