Showing posts with label Constitution of the United States. Show all posts
Showing posts with label Constitution of the United States. Show all posts

Dec 28, 2018

December 7, 2018: Change the Constitution, Free Your Mind Instead, Beyond the Ramparts


"You say you'll change the constitution
well, you know
we all want to change your head
you tell me it's the institution
well, you know
you better free your mind instead."
                            ----John Lennon "Revolution"

It has become commonplace, in the wake of the electoral outrages of 2000 and 2016 to call for a constitutional amendment abolishing the electoral college. 

All the usual arguments are brought to bear.  Yes, North and South Dakota with populations of 1.8 million between them have twice as many senators than California with 40 million people.  And, since the College is comprised of each state choosing the number of electors equal to the number of representatives and senators that they have in Congress, this gives undue weight to those rural expanses, mostly in the largely white rural plains and mountain states.  

Secondly, it is rightly pointed out, the College was created in order to not only provide a buffer between the raw vote and the office of the president--with some holding that the College was intended to be a deliberative body designed to cast a final judgement upon the choice of the people, but it was also created as a sop to the slave states who, under the "three fifths" provision of the constitution gave those states electoral weight equal to three-fifths of the slave population (each man declared to count as 3/5ths vote) even though they couldn't vote.  This had the effect of giving Virginia a near monopoly of the presidency in the early formative years of the republic despite the state lagging behind both New York and Pennsylvania in white male population.  The college was an inducement for the slave states to join the union and, by this reasoning, was part of the 'original sin' of the republic, the remnants of which should be abolished.

That's all well and good, but I see a few problems with the proposal. 

First, it is unlikely that the small states would give up what little leverage they now have in nominating and electing the president and vice-president.  Since it would take a supermajority in the Senate to send the amendment to the several states, it is unlikely that the proposal will see the light of day. 

Secondly, it is troublesome that this proposal should emerge in the waning years of the political dominance of the 'Generation of Swine".  As has been made clear in many entries in these columns, the record of America's worst generation has not been stellar when it comes to governance.  Indeed the Swine have made a pig's breakfast of governance.  For this reason alone, any attempts to amend the constitution must await the passing of the swine.

Third, and most importantly, it is short-sighted of liberals and Democrats to rush to judgement here. 
In an essay published in The New York Times, Michael Tomasky rightly points out that the Democrats need a rural strategy.  (1)

In the last election, Tomasky points out, "Democratic Senate candidates got 45 million votes, and Republicans just 33 million (57 to 42 per cent).  Yet Republicans will gain perhaps three seats.(They gained two).  This, concluded Tomasky, "is not a democracy". (2)

Of course it isn't.  It was never intended to be.

I remember my high school government teacher asking the assembled, "are we a democracy/"  Of course the class nodded that yes, indeed we are. 

"No we aren't" he chided us, pointing out that we are a republic, not a democracy.  That the first term has nearly fallen out of use and that if we use it at all we quickly use the second interchangeably, only ads to the confusion. 

A republic, Mr. Heifje, pointed out, is a form of representative democracy.  The closest we come to a 'democratic' governance are the New England town hall meetings where people vote directly, meetings best parodied on Bob Newhart's "Newhart", a sitcom situated in a Vermont village.  This form of governance is impractical in larger political jurisdictions, the nation simply cannot meet en masse to attend committee meetings, draw up legislation, much less vote on a proposal.  So the founders gave us a structure in which the public would speak and act through their representatives. 

What they gave us was both representative (the House) individually, and representative (the Senate) collectively through our states.  Until the late 19th century, the state legislatures, dawn from the people would elect the State's Senators.  This was far from infallible.  For instance, in 1858, Lincoln narrowly won the popular vote, but lost to Douglas in the legislature leaving Lincoln to go back home and run for president while Douglass went  back to the Senate. 

The electoral college was created because the constitution was created and authorized on the authority of the then various state governments.  And, as previously observed, it served as an inducement for the various states--especially the small ones--to join the union. 

Yes, it is true that Supreme Court Justice Kavanaugh won a slim majority of the senate representing a rather pronounced minority of the voters.  It is also true that before long about 40 per cent of the electorate will control about 60-65 per cent of the senate. 

But when Jefferson, who was in Paris representing the Republic as Ambassador when the Constitution was written, returned from Europe he asked his friend John Adams why they had created the Senate.  Adams, poured his tea from his cup to his saucer and blew on it, demonstrating a method for cooling the beverage.  The founders, who had met at Philadelphia in response to Shay's Rebellion, understood the passions of the mob, and it was to cool these passions that they created the Senate--a republican, not a democratic institution--as well as the electoral college.  It would take three election cycles to have all members of the senate account to their constituency, a term that transcends the house by three fold and transcends even the terms of the presidency.  Likewise, the electoral college, another sieve through which the passions of the people would have to pass before they could be felt. 

While there are many problems with this arrangement, it is worth noting that it has generally worked.  Where it has failed is best demonstrated by the failures of the last two time the college has been at odds with the popular vote, a failure in which the body has failed to deliberate. 

All this aside, for every Dakota that the conservatives can claim, the liberals at present can claim a Rhode Island, Connecticut, Vermont, New Hampshire, New Jersey or Delaware.  The disparity in geographical expression, if not entirely in population must be weighed in totality. 

Nevertheless, disparity exists. 

But before we rush to judgement perhaps it is wise to consider Tomasky's claim that the Democrats need a rural strategy.  And why not?  Was it not the Democratic Party that gave us Rural Electrification, price supports, soil banks, the Farm Home administration, irrigation and land management programs?  Was it not the Democrats who saved the farmers--especially in the plains of Kansas and Oklahoma--from the ravages of the Dust Bowl?   The Democrats have a long and noble history in rural America. 

Further, the Electoral College, has the salutary effect of forcing the Democratic Party into the countryside.  It is becoming increasingly apparent (as the Obama Administration so vividly demonstrated) that while you can win national elections relying on so-called 'blue' states--that is, those states largely located along the coasts and in parts of the Midwest, it is not enough to govern.  In order to effectively govern the nation, a political party must represent nearly all of it.  This is a principle further demonstrated in the reverse by the current ReSCUMlickan party, which because it is not interested in governance--indeed seeks to dismantle the administrative state, it is wholly uninterested in expanding its base--seeking instead to devise ways and means of limiting participation at the polls in order to cling to power.  They can hold the office but cannot govern but, since they are seeking only to dismantle government, geographical expansion does not have high priority. It is, therefore, incumbent upon the Democrats--if they are to salvage governance and thereby save the Republic--to do the arduous work of venturing out beyond the ramparts.

Perhaps the answer isn't to change the institution, but to change our heads instead.  Perhaps the answer is to sally forth once again into rural America and reclaim--like we must do with our industrial and commercial workers--or rightful heritage.  It is time for the Democrats to cast off their recent infatuation with Wall Street and return once again to the people who depend upon them.  I suspect that they will be greeted as newly found friends.

As for the proposals to amend the Constitution, perhaps, after the passage of the swine, the Constitution could be amended so that the electoral college would meet in the nation's capitol instead of in the several states to cast their ballots; an amendment that would duly charge the electors to act as a deliberative body.  Perhaps in this way, we could have prevented the current catastrophe.

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

Impeach and Imprison.

__________________

(1). Tomasky, Michael. "Democrats Need a Rural Strategy".  The New York Times. Thursday,
                       November 8, 2018.  Page A23
(2). Ibid.













Aug 2, 2018

August 1, 2018: Saxon Mother's Son, Crimes and Misdemeanors, Unfit to Serve



“The All-American, bullet-headed, Saxon mother's son”

                     ----The Beatles "Bungalow Bill"

So one can describe one Gerald Rudolph Ford. Ford, who parlayed local celebrity as a jock into several terms in the United States House of Representatives, eventually rising to minority leadership, was moved to quip as Jonathan Turley, professor of public interest law at George Washington University, notes that “An impeachable offense is whatever a majority of the House of Representatives considers it to be at any given moment in history”. (1) Writing in The Washington Post in August of 2014 Turley added parenthetically, “This interpretation was, not surprisingly, part of a frivolous effort to impeach Supreme Court Justice William O. Douglas, whom Ford denounced for espousing “liberal opinions,” for defending the “filthy” Swedish film “I Am Curious (Yellow)” and for writing a magazine article that “praises the lusty, lurid, and risque along with the social protest of left-wing folk singers.” (2)

Giving as he did solace to those who were ardent to impeach Supreme Court Justices,  groups such as the John Birch Society, who campaigned to impeac Chief Justice Earl Warren for decisions ending school segregation, ruling that congressional districts had to be drawn so as to have as equal populations as possible (one- man-one-vote), and that police and prosecutors could not convict if they violate a defendant's rights of substantive and procedural due process (Miranda decision); the man, who in the words of Lyndon Johnson, couldn't walk and chew gum at the same time did, however, stumble upon a basic truth.

For it is a myth that the iniquities of power must reach the high bar of felonious assault upon the republic before the palliative of impeachment can be applied.

No, Virginia, there is no Santa Clause; and yes Virginia the president can be impeached “For Being Ye Publick Ass”.

“Benjamin Franklin asserted that the power of impeachment and removal was necessary for those times when the Executive "rendered himself obnoxious," and the Constitution should provide for the "regular punishment of the Executive when his conduct should deserve it, and for his honorable acquittal when he should be unjustly accused." James Madison said, "...impeachment... was indispensable" to defend the community against "the incapacity, negligence or perfidy of the chief Magistrate." With a single executive, Madison argued, unlike a legislature whose collective nature provided security, "loss of capacity or corruption was more within the compass of probable events, and either of them might be fatal to the Republic.”' (2)

“It was George Mason who offered up the term "high crimes and misdemeanors" as one of the criteria to remove public officials who abuse their office. Their original intentions can be gleaned by the phrases and words that were proposed before, such as "high misdemeanor", "maladministration", or "other crime". Edmund Randolf said impeachment should be reserved for those who "misbehave". Cotesworth Pinkney said, It should be reserved "...for those who behave amiss, or betray their public trust." As can be seen from all these references to "high crimes and misdemeanors", there is no concrete definition for the term, except to allow people to remove an official from office for subjective reasons entirely.

“ Alexander Hamilton said, "...those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself."' (3)

Indeed the first federal official impeached and convicted was John Pickering, a federal Judge for “obnoxious behavior” arising from chronic intoxication.

“"High" in the legal and common parlance of the seventeenth and eighteenth centuries of "high crimes" signifies activity by or against those who have special duties acquired by taking an oath of office that are not shared with common persons. A high crime is one that can only be done by someone in a unique position of authority, which is political in character, who does things to circumvent justice. The phrase "high crimes and misdemeanors" when used together was a common phrase at the time the U.S. Constitution was written and did not mean any stringent or difficult criteria for determining guilt. It meant the opposite. The phrase was historically used to cover a very broad range of crimes. The Judiciary Committee's 1974 report "The Historical Origins of Impeachment" stated: "'High Crimes and Misdemeanors' has traditionally been considered a 'term of art', like such other constitutional phrases as 'levying war' and 'due process.' The Supreme Court has held that such phrases must be construed, not according to modern usage, but according to what the framers meant when they adopted them... (4)

It was from the English legal tradition that we borrowed the phrase “high crimes and misdemeanors”, and here the example is telling:

“Since 1386, the English parliament had used the term “high crimes and misdemeanors” to describe one of the grounds to impeach officials of the crown. Officials accused of “high crimes and misdemeanors” were accused of offenses as varied as misappropriating government funds, appointing unfit subordinates, not prosecuting cases, not spending money allocated by Parliament, promoting themselves ahead of more deserving candidates, threatening a grand jury, disobeying an order from Parliament, arresting a man to keep him from running for Parliament, losing a ship by neglecting to moor it, helping “suppress petitions to the King to call a Parliament,” granting warrants without cause, and bribery. Some of these charges were crimes. Others were not. The one common denominator in all these accusations was that the official had somehow abused the power of his office and was unfit to serve.”(5) Indeed, Nixon was impeached for, among other things, not spending money allocated by Congress. By these standards we can now add appointing unfit subordinates to the growing list of impeachable offenses.

No, Virginia, there is no Santa Clause; and yes Virginia the president can be impeached “For Being Ye Publick Ass”, among many more transgressions.

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

Impeach and Imprison.

____________________

(1). Turley, Jonathan. https://www.washingtonpost.com/opinions/five-myths-about-impeachment/2014/08/01/

  1. Ibid.
  2. Ibid
  3. Ibid.

Feb 5, 2018

February 5, 2018: Impeachable Offense, Faithfully Executed, Oath and Constitution


“Disgustus has violated both his Oath of Office and the Constitution of the United States by refusing to faithfully execute the law of the land”

                                         ----from "The Quotations of Chairman Joe"    

A week ago today the tRUMP administration announced that it will not enforce the new sanctions against Russia for meddling in the election, telling the nation that there is no need for additional measures. (1) This despite the fact that the measure passed the with only 5 dissenting votes, 3 in the House and 2 in the Senate late last summer in a stinging rebuke to the administration for its failed responses to Russian chicanery. Indeed, of the two no votes in the Senate one was cast by Rand Paul for some ideological reason and the other by Bernie Sanders because the measure also included measures against the Iranian regime which he thought might further complicate ongoing efforts to reign in on their nuclear program. It can be reasonably assumed that not since Congress was asked to ratify apple pie has it been so unanimous in its action. Nevertheless, tRUMP is openly ignoring Congressional mandate.

In a previous post (2), I had outlined the possible dimensions of a quid pro quo, the most obvious being weakening U.S. Influence by destroying American credibility at home and abroad and the lifting of sanctions against the Russians so that Putin can begin extracting oil from Arctic oil fields. And, indeed, it was reported that not 18 minutes into the new administration, while Disgustus was delivering his dystopian summary of the American landscape, Flynn was texting to a business associate that the end of the sanctions were at hand and that money would be soon coming their way. (3)

There is some contention as to the veracity of the whistle-blower who outed Flynn, but the story still stands. In any case the universal behavior of this administration vise a vise Putin betrays the veracity of the account; for Flynn has since admitted that he spoke with Russian Ambassador Vislyak and several others concerning not adoptions but sanctions and has pleaded guilty to lying about it. He is now, reportedly, fully cooperating with Mueller's investigations.

It has been oddly apparent now for several years that there is indeed some strange relationship between Disgustus and all things Russian and the actions—or rather, inactions—taken last week cast ever more doubt on the continual protestations of innocence coming from the mouth of Disgustus and his hopeless apologists both inside and outside the White House.

But it is more than that. Under Article II, Section 3. of the Constitution of the United States, the President “shall take care that the laws be faithfully executed”. (4) Failure to 'faithfully execute the laws' is also generally construed to mean failure to fulfill the oath of office in which each president swears to 'faithfully execute the office.' (5). This is generally taken to mean that as “Chief Executive” or as he was previously known “Chief Magistrate”, the president is charged with faithfully executing the laws, bond to do so not only by the oath of office but explicitly by the constitution itself. Indeed, the second article of impeachment against Richard Nixon (6) in part involved contravening the laws governing agencies of the executive branch; and article three was for contempt of Congress for failing to provide information to relevant committees.

Clearly this last action taken in the Russian imbroglio presents yet another article of impeachment, for by defying Congress and failing to faithfully execute the laws, Disgustus has abused his power.

Congress acted in such a way that the vote—overwhelming as it was—is veto-proof. Congress thereby sent the White House a message: over this question the President will have no discretion. It was, in effect, a written mandate. To ignore it is to violate both oath and constitution.

Impeach and Imprison.

_______________________

  1. July 24, 2017: Whole World Laughing, Serving the Kremlin, Very Useful Idiot