Balkinization  

Wednesday, March 13, 2019

Shamleless self-promotion

Sandy Levinson

I have recently published two short pieces on our present constitutional situation.  One is part of a symposium in the Newark Star-Ledger, where five scholars were asked to suggest possible reforms in our constitutional order.  I suggested that the exclusive reliance of the national constitution on representative government should be complemented by processes allowing some direct democracy.  A second is part of a Cato Institute symposium built around an excellent essay by Gene Healy arguing that we should take impeachment much more seriously than we do as a way of disciplining presidents.  I argue that Healy should complement his emphasis on the Impeachment Clause by advocating changing the Constitution to allow displacement of presidents by votes or no confidence in Congress or, indeed, recall elections as in Wisconsin or California.  Nothing in these pieces should really surprise anyone familiar with my overall approach to things, though you should find some of the other essays of genuine interest. 

Comments:

I briefly note that the Constitution leaves some exercise of open direct democracy, including as a matter under the Tenth Amendment for "the people" to exercise power.

I do think impeachment should be more than a way to remove the random judge. Off topic, the issue of ethical rules for the Supreme Court comes to mind (what does "good behavior" truly mean? etc.).

I'm open to some sort of "no confidence" vote though not sure how much difference it would be if a significant supermajority requirement is in place. The recall elections cited left something to be desired.
 

Automatically holding a constitutional convention every 25 years to suggest amendments to the States would be a terrific idea along with lowering the threshold for ratification to thirty states.

In addition to tune ups, this would allow a supermajority of states to reverse erroneous court decisions.
 

Article V permits the option of ratification by state convention rather than state legislature, at Congress' option. I suppose that's a form of direct democracy.

I would endorse the idea of regularly scheduled Constitutional conventions. Indeed, it might not be a bad idea to just cut Congress out of the amendment business entirely, on the principle that the federal government amending the federal constitution is a form of self-dealing subject to too much conflict of interest.
 

A sort of "direct democracy" is jury duty.

Grand juries are not required in state trials.
 

Sandy's title for this post well describes Donald J. Trump's presidency. Impeachment indeed is not enough. But Drawn and Quartered is barred by the 8th A. This aside, it will take some time to read through the links provided in the post, so I'll comment later.
 

I think it speaks volumes that our two resident ostensible conservatives are gung ho for regular re-working of the Founding tradition.
 

Shag, drawn and quartered is indeed too much but there remain serious punishments for traitors.

Let's take a second to consider the amount and character of caterwauling from many conservatives if Obama or Clinton's actual campaign manager were being sentenced for their conviction in service to a foreign power. Much less their NSA head, other campaign advisors, personal lawyer, etc.,
 

"a form of self-dealing subject to too much conflict of interest"

Oh, nonsense, as the Constitution requires federal representatives already to be residents of where they represent this is already addressed structurally.
 

I'm not sure if residency answers the question alone but might wonder why other groups also don't have a serious conflict of interest, including states themselves.

But, his (selective) distrust of national power has been cited in the past.
 

It's pretty straighforward that conflict of interest is worst in self-dealing. Like, letting a President and Congress choose the judges who will rule on how much power Presidents and Congress have...
 

Brett at 6:56 PM is well describing what Trump and McConnell (whose spouse serves in Trump's cabinet as Sec'u. of Transportation) have accomplished. "Here come the judges, Here come the judges!" Brett deserves plaudits for pointing this out.
 

The 21st Amendment is put one provision that provides powers to the states.

State involvement would be a "conflict of interest" and lead to "self-dealing" since states themselves benefit. If states picked the judges, they would be picking the people ruling on how much power they have as well.

Governors and state legislatures regularly choose judges that will rule on how much power they have. The federal and state government are following the same general model there. Some states have judicial elections. This raises another conflict of interest, both during campaign season & in general, since the people voting are choosing who will rule on their power and rights.

Conflict of interest alone isn't the issue. The issue is a (selective) opposition to federal power. This clashes with the basic concept behind the U.S. Constitution's federal structure, but this was covered in the past.



 

The original constitutional design had the judges nominated by a federal officer, and confirmed by people selected by state legislatures. As a compromise I'd suggest returning to that, though I think the accretion of power by the federal government has gone on long enough that a bias in favor of the states could be endured for a century or so to restore the balance.
 

For Brett the future is the past with his fairy tale "compromise." Consider the changes in legal training and education over the years since the "original constitutional design." A recent bio of John Marshall reveals how limited his legal training and experience were prior to his appointment as Chief late in the Adams Administration. There were no law schools in those days (other than Litchfield?), training taking place under the tutelage of a lawyer, with limited standards. Madison's legal training and practice were limited. Sure, there was Blackstone and other texts. Adams became an attorney via training with an attorney, but Adams complained that the training he received was poor.

Perhaps a comparative search of newer constitutional courts might lead to improving the judiciary. Time marches on, not backwards.
 

Change is not always improvement, Shag. Sometimes it's in the direction of corruption.
 

Speaking of corruption, Brett's 7:45 AM comment on my 7:27 AM comment on his earlier comment is descriptive of Trump and his presidency, a change that Brett has swallowed hook, line and stinker [sic].

Many years ago in Trump's formative years he and Roy Cohn took a shine to each other. In the end that did not end well for Cohn. In later years Trump and Roger Ailes took a shine to each other, and in the end did not end well for Ailes - nor more recently for Shine.
 

Brett's comments, like many conservatives, seem incoherent to the point of inviting the charge of being disingenuous. They rail against the political 'elites and establishment' but pine for the days when political elites and establishment, rather than the people, chose senators. They lament federal judges ruling in favor of the federal government in intruding into once state matters while supporting incorporation to allow federal courts to strike down state gun control, campaign finance, affirmative action, etc., It invites one to speculate on what motives and principles are really going on...
 

Query: Just when were Brett's MAGA daze [sic]? The Articles of Confederation? Pre-Reconstruction As Constitution? (Some years back I recall Brett's claims of glory for the Roaring Twenties.)
 

Mr. W: I think it speaks volumes that our two resident ostensible conservatives are gung ho for regular re-working of the Founding tradition.

Most certainly.

The Founders had no inkling of the emergence of the totalitarian political economy and the defenses required against it.
 

All political radicals and totalitarians use the hyperbolic threat of a worser totalitarian threat to urge orhers to discard political traditions in order justified to fight the posited boogeyman. Hitler had Bolshevikism, Stalin had Fascism, Bart has his.
 

Mr. W:

Cute.

Neither Germany nor Russia had a tradition of classically liberal limited government. The choices ranged from authoritarian to totalitarian.

The US pioneered constitutionally limited government and is the world's last best hope for its survival.
 

SPAM's closing sentence at 10:05 AM is a reminder that SPAM during the 2016 GOP campaigning in his support of the Cruz Canadacy over and over and over and over again referred to candidate Trump as a fascist, yet SPAM has been in lockstep [not "Locke-step"] with Trump's presidency.

SPAM's "vaunted tradition of classically liberal limited government" changed with the Reconstruction As and the evolution from 13 states to now 50. Now that SPAM seems to be a MAGA disciple, are SPAM's "MAGA daze" [sic] the pre-Reconstruction As Constitution? Or is SPAM sticking with The Gilded Age of the late 19th century? Or does SPAN go along with Trump's re-election theme KAG, suggesting that Trump has restored America to the "Great" category? (There must be a lot of profit on theme hats made in China.)
 

Yes the U.S. pioneered limited government and its interesting that our ostensible conservatives want to tear down that tradition, using the time tested argument of totalitarians that we must because of some allegedly dire emergency.
 

The original constitutional design had the judges nominated by a federal officer, and confirmed by people selected by state legislatures.

Okay. For kicks, I'll just assume Brett grants that states etc. are self-interested too. Moving on. The "people selected" were and are also federal officers.

The change was who elected them. The old way, the people elected them indirectly -- people voted for state legislators (often those bound to certain candidates -- a basic point of the Lincoln/Douglas debates) who appointed senators.

Then, the people of states did so directly. Along the way, states began to treat the state legislature as basically a rubber stamp ala the Electoral College (which got that way even by the early 19th Century). The move toward more popular democracy was already starting to become popular before the Civil War.

As a compromise I'd suggest returning to that

The people not wanting their voting rights diminished as much as some conservatives that probably won't sell well. Basically, the "compromise" is FORCING the people to have state legislatures pick senators, even removing the option of the legislatures just accepting popular votes ala the Electoral College.

though I think the accretion of power by the federal government has gone on long enough that a bias in favor of the states could be endured for a century or so to restore the balance.

Brett with support of remedial affirmative action of a sort.

Again, the concern is not self-interest but an opposition to a certain balancing of federal power. Brett has repeatedly accepted a lot of federal power, including if the person in question has the right enemies, so this concern is selective.
 

Litchfield ...

Huh.

"The Litchfield Law School of Litchfield, Connecticut was the first law school in the United States, having been established in 1773 by Tapping Reeve, who would later became the Chief Justice of the Connecticut Supreme Court. By the time the school closed in 1833, over 1,100 students had attended the institution including Aaron Burr, Jr. and John C. Calhoun."

(Wikipedia)

Henry Baldwin went there too & later was a justice on the Marshall Court.

I see that the Marshall-Wythe School of Law (previously William & Mary) was around back then too. Marshall did attend some law lectures under George Wythe there.
 

Shag:

I distinguish between campaigns and governance.

Obama ran a centrist campaign and governed as a socialist.

Trump campaigned on fascist themes (which I noted at the time), but has surprisingly reversed some of the totalitarian state and been positively constitutionalist in his judicial appointments.

Listen to what they say, but pay attention to what they do.
 

Mr. W: Yes the U.S. pioneered limited government and its interesting that our ostensible conservatives want to tear down that tradition

Examples?

All the conservative movements to call a constitutional convention seek to amend and rebuild the constitution to relimit government power.

Pay attention to the Convention of the States movement. Randy Barnett and others very seriously designed a common state application to relimit federal power, which is quietly being enacted by the states; drafted the rules for conducting the convention; and have already held a successful mock convention with supporters from the state legislatures.
 

The second paragraph answers the first.
 

"The people not wanting their voting rights diminished as much as some conservatives that probably won't sell well."

No, I'll concede that. It may be my prescription, but I don't think the patient will volunteer to take it.

Look, I'm an engineer. I'm not trained to design things according to ideology and feelings. I'm trained to look at the properties of what's being used to build it, and the arrangements and feedbacks necessary to make it work.

You can think all you like that a system ought for some fuzzy reason to have such and such arrangement, and it will still break if that arrangement objectively doesn't work.

The founders consciously designed the government so that human motivations would tend to limit the growth of federal power, (Though not as much as the Articles of Confederation, which had gone too far in that direction to work.) and that large states would not be able to run roughshod over small states. And they did a pretty good job of it, initially.

The 17th amendment took out a key feature in maintaining that functionality, and it is no accident at all that the vast expansion of federal power we saw during the 20th century occurred after that amendment.

Now, if you want all power centralized in the federal government, you're good, the current Constitution will get you there eventually. If you get rid of the electoral college you can speed the journey up a bit.

But if you don't want that, I've told you what's necessary. Not liking it doesn't make it not necessary.
 

I'm not trained to design things according to ideology and feelings.

So, it just comes naturally then? I josh.

The Constitution was ratified to expand federal power. They "consciously designed" it that way. There were various limits placed. Indirect popular election of senators was but one and only limited it so much.

The 17th amendment took out a key feature in maintaining that functionality, and it is no accident at all that the vast expansion of federal power we saw during the 20th century occurred after that amendment.

Again, the states already were starting to allow the people to vote their choice, and in time more and more would do so. The state legislatures would in time generally mostly be a rubber stamp ala the Electoral College.

State legislatures selecting senators was not really (looking at history as a whole) that "key" in limiting the reach of the federal government. National government expanded as the modern world demanded it. For instance, a much larger and interconnected national and international economy; military matters; a great respect for national civil rights. etc.

Taking the right of vote away from people here will not stop things, even if one wanted to take the vote away.
 

Joe: National government expanded as the modern world demanded it. For instance, a much larger and interconnected national and international economy; military matters; a great respect for national civil rights. etc.

Those who desire the government direct the economy and redistribute wealth use this as a pretext to do so. The problem is, since the government lacks the knowledge to run the simplest economy, why would an increase in economic scope and complexity argue for government direction?
 

SPAM's problem is his assumption:

""The problem is, since the government lacks the knowledge to run the simplest economy, ...."

evidencing his ignorance of economics The government staffed with professionals of competence, no, not Steve Mnuchin or Larry Kidlow, can address the greed of the Robber Barons' of The Gilded Age. The so-called free market cannot self-regulate. I listen to what Trump says, much of it self contradictory.

Query: Is the corruption of Trump's presidency non-totalitarian?

Consider the idiocy of Trump proclaiming his love for Dick-Taterhead Kim Jung un and the state ofTrump's history with North Korea. It started with threats of shock and awe and then lovey dovey at least on Trump's side. Imagine listening to a recording by Chet Baker of "I Fall In Love Too Easy." Maybe that works for a foreign affair but not foreign policy. SPAM is tethered with Trump. Campaigning does differ from governing. Trump campaigned as a populist but does not govern as such.
 

They must not teach engineers about spurious relationships. Joe's correct of course. Long time commenters here may remember when Bart could not provide a single example of a nation post-industrialization that did not develop the bigger, more central and active (both in terms of welfare state and bureaucratic regulation) government he and Bret lament (well, except when they're not praising aspects of it they like). That's a heck of an Amendment, to have such widespread and consistent effects across nations and time!
 

Shag:

Its never too late to educate yourself.

The people creating and consuming goods and services are the only ones with the knowledge to run their economy.

The classic essay on the knowledge problem is The Use of Knowledge in Society by Friedrich Hayek.

More recently, James C. Scott expanded on Hayek’s insight and applied it to actual government programs in Seeing Like a State.
 

Mr. W:

In 1775, you would be arguing in favor of maintaining the absolute monarchy over America because some form of aboslute rule was imposed by nearly the entire world since the advent of agriculture.
 

SPAM still has that chronic (Hayek!) cough. He's ancient history in economics. Economics is not a stagnant subject and evolves with the times. A nation's economy with a population of over 300 million in a complex world is not determined in the manner of Ma 'n Pa businesses and their customers. How's Trump's trade and tariffs economic policy working out?
 

I thought Healy’s impeachment paper was quite good and agree with its general thrust of normalizing impeachment. My only observation on Sandy’s additional proposals is that it would be interesting to hear his observations on one example of a parliamentary system with a plebiscitary element, namely the UK attempting to resolve the Brexit issue. Kind of makes me want to vote “no confidence” in that system, as screwed up as ours may be.
 

As mls suggests, the grass is not always greener in the other fella's yard. Brexit is somewhat comparable to a state seceding from the Union even though the Constitution lacks a specific provision for such while the EU has such a provision. I don't know if Monty Python has addressed Brexit, but John Oliver has. It's getting silly. It it were subject to conjugation, I'd come up with "Breakfast, Brexit, Brunch." There remain concerns with the settlement of the "Troubles" in Northern Ireland erupting. Maybe a solution would be a unified Ireland being part of the EU. I imagine Russia, China and other enemies of the US and the UK are pleased with the dilemmas of both the US and the UK., as well as a diminishment of the EU. Russia is said to have influenced the election of Trump. And Trump encouraged Brexit. No collusion? Only coincidence?
 

Even apart from the fact that republics and limited monarchies were not unknown to those in 1775, I'm not making the naturalistic fallacy that Bart is implying, of course.

 

Shag:

I guess it is too late.
 

With respect to my 9:44 PM comment, perhaps I should have added this: "Unconscious parallelism?"

I don't know if it's too late, but there is political dysfunction in Parliament. Perhaps a recognition that Brexit was presented to the voters when not required was a mistake, Parliament may come together and remain in the EU. If not resolved, what can be expected from Scotland's desires for the EU?
 

Scotland will be looking with care at Parliament on Brexit: whether it will take the high road or the low road.
 

Shag:

As a representative body, Parliament is as dysfunctional as our Congress.

The ruling class in both bodies are very consciously ignoring the will of the people to advance their own agendas.

We had this discussion here back when Congress was pissing all over the voters literally besieging Capitol Hill to ram through Obamacare. If I recall, most here were cheering them on, arguing they had no responsibility to the voters who elected them.
 

The "will of the people" can be like the will of the wisps. Over time, consider the will of the people with respect to Obamacare. Life is not static. Time marches on, not backwards. At some point in their lives SPAM and Brett will have to turn around to survive their pre-existing chronic conditions. SPAM seems to resent the Founders' concept of representative governance, pushing the libertarian mantra, perhaps calling for libertarians to unite. But libertarians can't by definition govern, focusing more as individuals rather than as a society.
 

"The ruling class in both bodies are very consciously ignoring the will of the people to advance their own agendas."

In this conversation we've had our resident conservatives say this as well as that we need to return to the pre-17th Amendment days of having Senators chosen by the state ruling classes instead of the people. As I said earlier they "seem incoherent to the point of inviting the charge of being disingenuous."
 

Mr. W:

I support direct election of Senators.

Unlike progressives faithfully advancing the party line, those of us who believe in freedom like Brett and I feel free to have independent thoughts.
 

"those of us who believe in freedom like Brett and I feel free to have independent thoughts"

Yes, the iniquitous use of the term 'RINO' among those who 'believe in freedom like Brett and yourself' shows the big tent under which you dwell...
 

ubiquitous
 

Mr. W:

RINO applies to Republican totalitarians who do not believe in freedom or representing the will of their constituents.

Those of us who believe in freedom have a very low tolerance for those who would take ours away.
 

This comment has been removed by the author.
 

Totalitarians always say they are for simple and/or obvious Good and those who disagree are anathema. A machinean world view is practically the soul of totalitarians
 

Direct election of Senators is fine, as long as a few specified powers could be transferred to officers at the state level. It's not a problem for regular legislation, just a structural issue when it comes to the judiciary.

You can't expect Senators to vote for judges who'd limit their own power. It just isn't a reasonable expectation. So, if you want judges who have any interest in limiting federal power, you need somebody else voting on those confirmations.
 

I note that both SPAM and Brett have ignored identifying their respective "MAGA daze" [sic]. Perhaps they continue to march back in time in search thereof.
 

Direct election of Senators is fine, as long as a few specified powers could be transferred to officers at the state level. It's not a problem for regular legislation, just a structural issue when it comes to the judiciary.

The Constitution does grant various powers to state officers.* I don't know what NEW powers should be "transferred" to them myself.

James Madison and others to be general about it wanted Congress and perhaps some other body to have the power to be a general council of revision. But, the system in place didn't do this. It gives broad power to states, including courts, in practice providing a major structural limit on the restraining power of the central government.

This is part of why I find it misguided and sort of a "just so story" when people make the 17A so important. As me and Mr. W. noted, it surely isn't the primary reason for the expansion of national power. It was in general part of a move to provide more direct control, including over local governments. It wasn't some sort of national power grab thing. And, in general, depriving people voting rights isn't worth the candle, even if you want to move more power back to the states.

You can't expect Senators to vote for judges who'd limit their own power.

I do since senators vote for judges for a variety of reasons.

So, if you want judges who have any interest in limiting federal power, you need somebody else voting on those confirmations.

The system in place provides this "any" interest test underlined by the confirmation of judges who over and over and over again "limit federal poewr." Now, it might not be the way one person likes, but that is another matter.

Anyway, the Constitution is not just about "limiting federal power," and in fact was written to expand it. It does do so in a way that checks power too, not just federal.

So, e.g., there is a national citizenship right to own a gun, even if state judges want to uphold total bans. If the legislature of a state that wants to strongly limit gun rights, would they under Brett's logic have the will to limit their own power by confirming judges who would limit their power to do so?

Again, the whole thing is a tad confused. The system in place has the federal government select and confirm federal officials as states select and confirm state officers. To me, this seems a logical approach.
 

* Disclosure. I'm a notary, so am a state officer. Well, technically.

We have to swear/affirm to uphold the U.S. Constitution per Art. VI.
 

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Reference has been made in several comments to "totalitarian." Check out this website regarding a recent interview of Trump:

https://www.huffpost.com/entry/donald-trump-breitbart-violence-supporters_n_5c8af499e4b0d7f6b0f167a8

Is this "totalitarian" code or innuendo on the part of Trump? Military? Police? Bikers for Trump? Are SPAM and Brett included?
 

"Anyway, the Constitution is not just about "limiting federal power," and in fact was written to expand it. It does do so in a way that checks power too, not just federal."

It was written to expand it to a limited degree. Not remotely to the extent it expanded after the 17th amendment.
 

It was written to expand it to a limited degree. Not remotely to the extent it expanded after the 17th amendment.

"Limited degree" at the time gave a great deal of power to the federal power including creating two branches of government not in place at the time to do so.

Government power expanded around the 17A. Citing it like this is a "just so" story.


 

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