Jun 9, 2019

June 7, 2019: Constitutional Myth, Preeminent Branch, Collective Misunderstandings



We must disabuse ourselves of the myth that the federal government is composed of three equal branches of government. It isn't. It was never intended to be.”

                 ---from The Quotations of Chairman Joe

In an interesting essay appearing recently in The New York Times, Yuval Levin agrees with House Speaker Pelosi that the Congress is the preeminent branch of government.

Of course we were all taught in our grade school civics, high school government and college political science classes that the three branches of the federal government are equal, at least theoretically. It turns out that this is but another piece of balderdash passed down to us by our well-meaning school masters as they made their contributions to our collective misunderstandings. “(T)he structure of the Constitution and the words of its framers contradict that view” writes Levin. “'In republican government the legislative authority necessarily predominates,' James Madison wrote in Federalist 51.

Congress has broad leeway to make the laws, within its enumerated powers, while the president has to enforce those laws and the courts have to interpret them. (2) That means the second and third branches are meant to operate within the frameworks created by the first. The veto and judicial review can trim this power at the margins, but they are far from making the other branches equal to a Congress eager to assert itself.” (3)

It stands to reason why Madison would declare the Congress the greatest of all the federal institutions. The revolutionary experience was not led by a single man, nor a small clique, but the armies were raised and appointments made by the Continental Congress. It was to the Congress that Washington reported, for the 'president' was then merely the presiding officer of the body and served for only a year. And, since the continental congress met only a few months of each year the tenure of the 'president' was short indeed. In fact, the Continental Congress acted as an executive committee of the whole, in effect, running the government. It is worth noting that at the Constitutional Convention, convened in the wake of Shay's Rebellion  in order to strengthen the central authority, that the drafters of the Constitution came within a vote of making the United States Senate an executive committee of the whole.  This, in effect, would have made the Senate the executive branch with the president reduced to head of state who would preside over the body. The revolutionary experience posited the authority of the conventions and the congresses it created on the will of the people, in whose name they acted. Accordingly, the power of the people being most directly represented in the conventions and then the House of Representatives made the House the most powerful organ of government. Indeed, it is also worth noting that when peace was finally at hand and freedom won, Washington repaired to his home at Mount Vernon and went, for seven years into political retirement. No, this was not a twentieth century-style revolution led by charismatic figures, it was a revolt informed by the voice of the people in whose name it was conducted.

Accordingly, it was the House, being most representative and most accountable (elected every two years) that wielded the most significant power until well into the middle of the 19th century. Indeed, when John Quincy Adams was turned out of the White House, he returned to the Congress where the real power lay. And, speaking of the Adams' family and Congress, John Quincy's father John, the second president of the United States lost re-election and was widely reviled for signing the alien and sedition acts; bills passed by Congress designed to keep the country out of the Napoleonic Wars.  John Adams signed the bills into law not because he agreed with them but because he felt they were an expression of the will of the people as embodied in acts passed by both houses of Congress.  John Adams, therefore, felt that he couldn't veto the bills and thwart the will of the people, so powerful were the views held by the founders that the veto, in this case, was seen by one of the authors of the Constitution to be wildly inappropriate.   Congress wasn't seen by our founders nor our early practitioners of republican rule to be a mere appendage to the executive, it was seen as preeminent among the institutions of governance, representing the will of the people to whom all others are accountable.

To re-assert it's authority this means, according to Levin, that the congress must take oversight seriously, must decentralize decision making so as to involve members in legislating rather than grandstanding and doing running commentaries.  Congress must once again empower committees to draft legislation. It also means calling to account an administration that contends, with a straight face, that the congress has no business interfering in foreign affairs nor conducting 'presidential* harassment' by conducting investigations.

It means reigning in on Disgustus, forcing confrontation, compelling compliance with legislative oversight and, if the courts interfere, impeaching judges and justices who get in the way.

We have a constitutional crisis on our hands and, while the Republic is slowly being strangled, the Congress, like the ancient Roman Senate, dawdles. Michelle Goldberg, also writing in The Times, quotes from a new book written by Michael Wolff. Wolff says that “Steve Bannon, Trump's former chief strategist, suggests that Pelosi has been waiting for the president to self-destruct ever since he was inaugurated. 'Pelosi, Bannon felt, saw the greater truth: The Trump administration would undo itself,' Wolff wrote.

Perhaps he will, but meanwhile, Trump is undoing American governance” observed Goldberg. (4)

He is also making the United States a pariah in the community of nations.

An Br'er Putin, he jus' laugh and laugh

Impeach and Imprison
_______________

  1. Levin, Yuval. “What if Congress Did Its Job?” The New York Times. Wednesday, June 5, 2019. Page A23
  2. The courts routinely consult, through statements made by members of Congress during floor debates among other records, the intent of Congress as it passes laws in order to reach judgments about applying law. Additionally, as the framers outlined the powers and responsibilities of each branch of government it was the legislative that was listed first, followed by the executive and judicial in that order.
  3. Op. Cit.
  4. Goldberg, Michelle. “Democratic Voters Want Impeachment. The House Dawdles” The New York Times. Tuesday, June 4, 2019. Page A26.

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