The Wall Street Journal's weekend interview in this past Saturday's edition was with noted conservative Constitutional law scholar Randy Barnett.
Barnett gave a thorough explanation of his detailed views of the merits and likelihood of success of the several states' lawsuit against ObamaCare.
But what drew my attention were these passages from Barnett,
"When the Constitution was written, Mr. Barnett says, commerce was understood to mean "trade in things...goods...The Commerce Clause was really put there, essentially, to create a free-trade zone for the United States," not to give Congress power over all economic activity."
And, near the interview's end,
"Will his argument prevail? "If I want to bet actual money, I'll always bet the court upholds anything Congress does," Mr Barnett says."
When I read this, I realized that I believe our country has no hope for anything resembling an America like the one I knew growing up, without a Constitutional Convention.
Mr. Barnett, a serious conservative and champion of the original Constitution and individual liberty, believes that the Supreme Court will typically simply rubber stamp any foolish, illegal and unconstitutional law Congress sees fit to pass.
When someone like Barnett sees no hope for respect for the Constitution from Congress, it's time to rewrite and amend the Constitution to force it to.
At a minimum, to my earlier post on ten things I'd change in the Constitution, I'd now add a more specific rewrite of the Commerce Clause which also struck down and obliterated existing case law on the subject.
It appears that the Commerce Clause, as liberally interpreted by the Supreme Court, has become the first punch in a 1-2 combination that has essentially stripped the States of their significant powers. The next punch after the Commerce Clause is the Supremacy argument, which states that where the federal and a state government clash, federal law and rule trumps.
If we can't trust our courts to adhere to the Constitution, then we need to amend the Constitution to prohibit those rulings we've already seen the federal courts make in favor of the federal government, and, then, limit the courts, as well.
There appears to be no other way now to restore the limited government which the Framers designed in the Constitution.
Showing posts with label Constitutional Convention. Show all posts
Showing posts with label Constitutional Convention. Show all posts
Thursday, July 29, 2010
Friday, April 2, 2010
Scooped by Rep. LeMunyon
I've been roughly framing a post like this for over a week now.
Thus, I was a bit crestfallen to read James LeMunyon's Wall Street Journal editorial yesterday, entitled A Constitutional Convention Can Rein in Washington.
He beat me to the punch. But with more data than I have, so it's probably a good thing that this piece follows his.
LeMunyon wrote,
"The U.S. Congress is in a state of serious disrepair and cannot fix itself. It has reached this point over the course of many years—in fact over many decades. Regardless of the party in power, Congress has demonstrated a growing inability to effectively address the major issues of our time, including soaring federal debt and the extension of federal authority to states and localities.
The only effective remedy is constitutional reform to rein in congressional excesses and abuses. But Congress can't be expected to propose amendments to fix itself, as it has an inherent conflict of interest.
The remedy is in Article V of the Constitution, which permits a convention to be called for the purpose of proposing constitutional amendments. Any proposed amendment then would have to be ratified by both houses of 38 state legislatures (three-fourths of the states). This entails 76 separate votes in the affirmative by two houses of the 38 state legislatures. (Nebraska, with its unicameral legislature, would be an exception.)
Interest in calling a first-ever Article V convention is growing at the state level. A petition for such a convention passed the Florida Senate last month, to propose amendments requiring a balanced budget and to restrain the growth of the national government. If approved by the House, Florida would be the 20th state with an active call to do so. In the Virginia House of Delegates, I introduced a resolution (H.J. 183) calling for a constitutional convention to restrain the national government as well. Requests by two-thirds or 34 states are required for a convention to be called."
Generally, I agree with his contention that Congress can't be trusted to act against its own self-interest. The only exception I could foresee would be for the existing Republican House leadership to issue their own version of Gingrich's Contract with America, this time including promised Constitutional amendments involving term limits, spending, the commerce clause, and others. Perhaps as in this post.
However, even then, they may not go far enough.
I wasn't aware of the existing momentum in as many as 20 states to call for a convention.
LeMunyon reasonably argues that it would be hard for any fringe group to manage to pass a radically-altered Constitution over the objections of as few as 27 state legislatures.
Instead, he observes,
"Fear of a runaway convention presupposes a profound lack of confidence in state legislatures. It presumes that a majority in 76 legislative houses in 38 states would seriously consider, for example, amending or deleting the Bill of Rights. It presumes that only an elite class of Americans with Washington-based power can get it right when it comes to the Constitution. It presumes that the provisions of the Constitution are something imposed on the people, possibly against their will, rather than a limited grant of authority by the people, supported by the current generation of Americans and amendable to reflect 21st century realities.
It is a mistake to dwell on hypothetical and unfounded concerns about the outcome of a runaway constitutional convention. We instead should focus on the immediate reality of a "runaway Congress" and its accumulation of debt far beyond the ability of Americans to pay. "
This last passage really encapsulates the key point of LeMunyon's, and my own argument. Regardless of party affiliation or, more likely now, party independence, many educated, engaged voters can see that a Constitutional rewrite is actually less risky than surprisingly recent, rapid destruction of our Republic by the spending of an out-of-control Congress and administration.
Electing new members of Congress hasn't worked for decades. Presidents of both parties become imperialistic. Our courts have overstepped the bounds of the Constitution.
I honestly think these continuing risks are greater than that of a large group of state legislators, with over 200 years of history, and 100 years of determined Federal power creep and shredding of the Constitution in the name of Progressivism, doing more damage by amending the Constitution.
As a colleague reminded me recently, it seems many Americans forget that the federal government is not a party to our Constitution, but, rather, a product of it.
The states, now 50 in number (not 57, as in the world according to Wonderboy), enacted the Constitution as a pact among themselves. They can, and should, feel free to change that agreement as they see fit, according to the current Constitution's provisions.
Thus, I was a bit crestfallen to read James LeMunyon's Wall Street Journal editorial yesterday, entitled A Constitutional Convention Can Rein in Washington.
He beat me to the punch. But with more data than I have, so it's probably a good thing that this piece follows his.
LeMunyon wrote,
"The U.S. Congress is in a state of serious disrepair and cannot fix itself. It has reached this point over the course of many years—in fact over many decades. Regardless of the party in power, Congress has demonstrated a growing inability to effectively address the major issues of our time, including soaring federal debt and the extension of federal authority to states and localities.
The only effective remedy is constitutional reform to rein in congressional excesses and abuses. But Congress can't be expected to propose amendments to fix itself, as it has an inherent conflict of interest.
The remedy is in Article V of the Constitution, which permits a convention to be called for the purpose of proposing constitutional amendments. Any proposed amendment then would have to be ratified by both houses of 38 state legislatures (three-fourths of the states). This entails 76 separate votes in the affirmative by two houses of the 38 state legislatures. (Nebraska, with its unicameral legislature, would be an exception.)
Interest in calling a first-ever Article V convention is growing at the state level. A petition for such a convention passed the Florida Senate last month, to propose amendments requiring a balanced budget and to restrain the growth of the national government. If approved by the House, Florida would be the 20th state with an active call to do so. In the Virginia House of Delegates, I introduced a resolution (H.J. 183) calling for a constitutional convention to restrain the national government as well. Requests by two-thirds or 34 states are required for a convention to be called."
Generally, I agree with his contention that Congress can't be trusted to act against its own self-interest. The only exception I could foresee would be for the existing Republican House leadership to issue their own version of Gingrich's Contract with America, this time including promised Constitutional amendments involving term limits, spending, the commerce clause, and others. Perhaps as in this post.
However, even then, they may not go far enough.
I wasn't aware of the existing momentum in as many as 20 states to call for a convention.
LeMunyon reasonably argues that it would be hard for any fringe group to manage to pass a radically-altered Constitution over the objections of as few as 27 state legislatures.
Instead, he observes,
"Fear of a runaway convention presupposes a profound lack of confidence in state legislatures. It presumes that a majority in 76 legislative houses in 38 states would seriously consider, for example, amending or deleting the Bill of Rights. It presumes that only an elite class of Americans with Washington-based power can get it right when it comes to the Constitution. It presumes that the provisions of the Constitution are something imposed on the people, possibly against their will, rather than a limited grant of authority by the people, supported by the current generation of Americans and amendable to reflect 21st century realities.
It is a mistake to dwell on hypothetical and unfounded concerns about the outcome of a runaway constitutional convention. We instead should focus on the immediate reality of a "runaway Congress" and its accumulation of debt far beyond the ability of Americans to pay. "
This last passage really encapsulates the key point of LeMunyon's, and my own argument. Regardless of party affiliation or, more likely now, party independence, many educated, engaged voters can see that a Constitutional rewrite is actually less risky than surprisingly recent, rapid destruction of our Republic by the spending of an out-of-control Congress and administration.
Electing new members of Congress hasn't worked for decades. Presidents of both parties become imperialistic. Our courts have overstepped the bounds of the Constitution.
I honestly think these continuing risks are greater than that of a large group of state legislators, with over 200 years of history, and 100 years of determined Federal power creep and shredding of the Constitution in the name of Progressivism, doing more damage by amending the Constitution.
As a colleague reminded me recently, it seems many Americans forget that the federal government is not a party to our Constitution, but, rather, a product of it.
The states, now 50 in number (not 57, as in the world according to Wonderboy), enacted the Constitution as a pact among themselves. They can, and should, feel free to change that agreement as they see fit, according to the current Constitution's provisions.
Tuesday, August 4, 2009
Finishing Term Limits In Congress
Continuing with the explication of my list of 10 flaws in the US Constitution, as enumerated in this post back in June, today's post deals with Congressional term limits.
My second point involved term limits for the judiciary.
We also need to include Congress, so that all three branches of the federal government have term limits to prevent a professional political class from taking root any further than it already has.
My second point involved term limits for the judiciary.
We also need to include Congress, so that all three branches of the federal government have term limits to prevent a professional political class from taking root any further than it already has.
In my opinion, the 22nd amendment to the US Constitution, limiting presidents to no more than two full elected terms, represents unfinished business. As this webpage suggests, even that amendment hasn't been entirely safe from repeal, either. I was rather disturbed to see that Barney Frank and Harry Reid have attempted to repeal this important amendment.
The general issue is one of US citizens allowing the formation of a professional, career class of federal politicians who enact laws and accrue power to themselves. I'm currently reading Glenn Beck's "Common Sense," and find his observations and evidence to reinforce my own.
For example, just to put everyone on the same page, members of Congress vest in their own pension scheme far faster than most private workers. Further, that pension plan, and their health care system, are exclusively for Congress, and have better terms than the average voter's plans.
When, exactly, did we allow Congress to create for themselves a lush, fully-funded career, complete with better health care options than the voters for whom they work?
There are so many reasons why permitting professional, career federal office-holders is a bad idea that it's probably easier to deal with the two major arguments for long Congressional service.
The first is the oldest one I can recall hearing. This argument contends that the people of a Congressional District or state deserve the right to choose their own representative, and nobody should be able to deny them that representative. Perhaps nobody else in the district is as competent at representing them as their current, or favored representative.
To that, I would counter that the immense damage to the US economy and individual liberty by permitting a professional Congressional class far outweighs any presumed "right" of any group to have a long-sitting federal legislator. Unlike our founding fathers, or, really, any group prior to the middle of the 20th century, today's American citizens can see how a federal 'ruling class' have simply shredded the Constitution and gathered powers previously unimagined to themselves. Seniority and mutual back-scratching has resulted in ever-higher taxes and federal spending, even in peacetime.
If Congress were not seen as a career option, few would care to use it to line their own and their friends' pockets.
Further, if an entire district of over half a million citizens ( i.e., 300MM Americans divided into 435 equally-populated districts) can't manage to find more than one qualified representative, or an entire state can't find more than two qualified senators, their problems run much deeper than term limits. It simply can't be good for a Republic to be run by essentially the same people for decades at a time.
We've seen, since the 1930s, an inexorable tendency for members of Congress to "do something," in order to have evidence for voters that they "accomplished" things. The idea that preserving domestic policy and program arrangements and merely handling necessary, recurring appropriations and/or foreign policy matters is long gone as a measure of a successful Congressional term.
Now, if the federal budget hasn't grown and new pork hasn't been delivered to constituents, well, your Senator or Congressman has been deficient and must be removed via the next election.
The other argument I can imagine against term limits is one of experience. On this line of reasoning, we are asked to believe that only experienced members of Congress who "know the ropes," "how to get things done in Washington," etc., are truly effective. Oh, and let's not forget seniority.
I think this is actually the more baseless, intellectually dishonest, but convincing argument. For example, it's why no state will ever enact federal office term limits. In a Congress run by seniority, who wants to deliberately put themselves 50th among states seeking aid and advantage?
Your local Representative or state's Senators will try to convince you that their chairmanship of this or that committee or subcommittee, their ties to other 'respected' legislators, and solid core of staffers, allow them to be maximally effective for you, the voter.
Do you really want to throw away all that hard-won, seniority-based advantage for your District or state just by throwing the bum out?
The truth is, the House and Senate have become cozy clubs that answer to themselves and party leaders more than to their voters. The long-serving members have rigged the game so that the new arrivals are disadvantaged if they don't play ball. By going along, new members are tossed attractive bones, i.e., choice committee assignments, some favors for the folks back home, etc. Cross your party's leader or whip at your peril.
Of course, if there were federal office term limits, this would all change immediately.
My own preference is to limit Congressional service to three two-year terms in the House and two six-year terms in the Senate. That means in total, not consecutive. None of this husband-wife alternating terms. Serve eighteen years total among the two chambers and you are finished.
Without cushy pension plans and time to make lucrative connections which allow Congressmen to become wealthy off of unspent campaign funds, various vendor and lobbyist relationships, etc., it's unlikely that so many will eye federal office so fondly.
Besides, if you could gain election to Congress, and, thus have a chance to make a lifelong career of gathering more power to yourself and your colleagues, controlling your own pay and perks, why would you not stay? Why not simply grow insensitive to the voters, as you busy yourself with becoming well-entrenched, more powerful and untouchable?
Why do people like Charlie Rangel get away with tax evasion? Because even the IRS won't take on someone who looks like he'll die in office before he ever loses his power.
This is fairness? We want servants in Washington, not capricious masters.
Hopefullly, with term limits, we'll get truly civic-minded candidates motivated with one or two good ideas to implement within a few terms. People who have a passion to enact a specific change, then move along in life.
With our federal spending and invasion of liberties so engorged beyond anything imagined by our Constitution's Framers, it's time to attack the problem at its root by limited Congressional terms, and, thus, as Glenn Beck notes, the motivation of our Congressional members to vote for what enriches and empowers them in a career in Congress, rather than what is best in the long term for our country and its citizens.
Monday, July 6, 2009
Ending One-Party Legislation in Congress
I'm working my way through the the points in this post, in which I enumerated what I consider to be 10 serious flaws in our Constitution.
Today I want to discuss my third point,
"Passage of legislation over significant minority opposition with no attempt at compromise"
This year, with a president and both chambers of Congress controlled by one party, but not in a landslide fashion for any of the three, we have already seen Democrats stiff-arm Republicans over the stimulus and 'cap and trade' bills. Threats have been made about using a 'reconciliation' method to pass universal health care, so that there could be no attempt to discuss it. And the president has consented to this, whether tacitly or explicitly.
In all of these cases, the worst results is that, contrary to what voters want, which is sensible deliberation and compromise, the Democrats have simply ignored any input from Republicans.
Does anybody really think our country is best-served by one party shoving its ideas through by narrow margins? Especially on sweeping issues such as the largest single spending bill in our nation's history, or bills totally restructuing energy and healthcare sectors of the economy to have much more explicit governmental interference?
These are issues which affect large parts of every American's life. Surely whatever landmark legislation is passed needs to respect the concerns of a sizable minority.
Thus, my suggestion that all Congressional bills must pass with a 75% majority. That way, either significant collaboration from both parties must be gained, or one party must truly have overwhelming sway with voters.
The Constitution's article regarding Congress must be modified to clearly state that each bill, in order to become law, must have a 3/4 majority of each House- nothing less.
This nonsense of passing 'cap and trade' legislation in the House by 7 out of 435 votes serves nobody at all.
It's a disgrace to all Americans that our Congress treats the welfare of voters so diffidently as to play politics on such core areas of our lives.
Today I want to discuss my third point,
"Passage of legislation over significant minority opposition with no attempt at compromise"
This year, with a president and both chambers of Congress controlled by one party, but not in a landslide fashion for any of the three, we have already seen Democrats stiff-arm Republicans over the stimulus and 'cap and trade' bills. Threats have been made about using a 'reconciliation' method to pass universal health care, so that there could be no attempt to discuss it. And the president has consented to this, whether tacitly or explicitly.
In all of these cases, the worst results is that, contrary to what voters want, which is sensible deliberation and compromise, the Democrats have simply ignored any input from Republicans.
Does anybody really think our country is best-served by one party shoving its ideas through by narrow margins? Especially on sweeping issues such as the largest single spending bill in our nation's history, or bills totally restructuing energy and healthcare sectors of the economy to have much more explicit governmental interference?
These are issues which affect large parts of every American's life. Surely whatever landmark legislation is passed needs to respect the concerns of a sizable minority.
Thus, my suggestion that all Congressional bills must pass with a 75% majority. That way, either significant collaboration from both parties must be gained, or one party must truly have overwhelming sway with voters.
The Constitution's article regarding Congress must be modified to clearly state that each bill, in order to become law, must have a 3/4 majority of each House- nothing less.
This nonsense of passing 'cap and trade' legislation in the House by 7 out of 435 votes serves nobody at all.
It's a disgrace to all Americans that our Congress treats the welfare of voters so diffidently as to play politics on such core areas of our lives.
Thursday, July 2, 2009
Ending Lifetime Federal Court Apppointments
Last week, in this post, I highlighted 10 major flaws I believe have developed today in the US Constitution.
The second flaw I mentioned is the Constitution's lifetime appointment for federal judges, especially to the Supreme Court.
A little historical perspective and arithmetic illuminates this subject. Back in the 1780s, average male life expectancy was somewhere around 35. You can probably add 10-15 years when controlling for education, wealth and profession. That is, the better-educated, wealthier, less agrarian men probably lived longer due to better hygiene, knowledge of healthier habits, easier work environments, etc.
Plus, the average had to be depressed from the effect of so many uneducated farmers and frontiersmen who met with early or untimely deaths in a very rugged and dangerous environment.
Figure a lawyer or respected community figure would probably not be appointed to a federal court until in his 30s. Perhaps his 40s for the Supreme Court.
As an example, consider the nation's fourth Chief Justice, John Marshall. After a legislative and cabinet career, he ascended to the Supreme Court at the age of 46, serving until his death in 1835, at the age of 80.
Our Founding Father's probably didn't think a lot about lifetime careers in federal office. After all, they had lives to live, businesses to attend to, fortunes to make. Nobody probably gave serious consideration to the idea that anybody would want to serve in government for life.
They probably didn't think a lot about life spans, technology, diet, education, etc. I doubt they considered that better-educated, wealthier men who would be on federal benches would have corresponding longer lifespans. To the Framers, living 20 years longer than average probably gave them the notion that a Supreme Court appointment was good for about two decades, more or less.
Now, we know differently. A 50 year-old person ascending to the Supreme Court is quite likely to have a good 30 years in the position.
Far too long for anybody's benefit.
We need a Constitutional limit on service on federal benches of either: a retirement age of 65, or; 2 successive terms of 7 years, or; a total 10-15 year term of office on any single federal bench, including the Supreme Court.
As I found while researching this prior post on the topic, the increasing lifespans of lifetime-appointed Supreme Court jurists has resulted in increasingly-rancorous fighting over the rarer vacancies.
The 22nd amendment set presidential term limits. But, of course, being a self-dealing body, Congress has conveniently neglected to finish the job for its own branch and the judicial branch, as well.
Let's begin with term limits on federal judicial appointments.
The second flaw I mentioned is the Constitution's lifetime appointment for federal judges, especially to the Supreme Court.
A little historical perspective and arithmetic illuminates this subject. Back in the 1780s, average male life expectancy was somewhere around 35. You can probably add 10-15 years when controlling for education, wealth and profession. That is, the better-educated, wealthier, less agrarian men probably lived longer due to better hygiene, knowledge of healthier habits, easier work environments, etc.
Plus, the average had to be depressed from the effect of so many uneducated farmers and frontiersmen who met with early or untimely deaths in a very rugged and dangerous environment.
Figure a lawyer or respected community figure would probably not be appointed to a federal court until in his 30s. Perhaps his 40s for the Supreme Court.
As an example, consider the nation's fourth Chief Justice, John Marshall. After a legislative and cabinet career, he ascended to the Supreme Court at the age of 46, serving until his death in 1835, at the age of 80.
Our Founding Father's probably didn't think a lot about lifetime careers in federal office. After all, they had lives to live, businesses to attend to, fortunes to make. Nobody probably gave serious consideration to the idea that anybody would want to serve in government for life.
They probably didn't think a lot about life spans, technology, diet, education, etc. I doubt they considered that better-educated, wealthier men who would be on federal benches would have corresponding longer lifespans. To the Framers, living 20 years longer than average probably gave them the notion that a Supreme Court appointment was good for about two decades, more or less.
Now, we know differently. A 50 year-old person ascending to the Supreme Court is quite likely to have a good 30 years in the position.
Far too long for anybody's benefit.
We need a Constitutional limit on service on federal benches of either: a retirement age of 65, or; 2 successive terms of 7 years, or; a total 10-15 year term of office on any single federal bench, including the Supreme Court.
As I found while researching this prior post on the topic, the increasing lifespans of lifetime-appointed Supreme Court jurists has resulted in increasingly-rancorous fighting over the rarer vacancies.
The 22nd amendment set presidential term limits. But, of course, being a self-dealing body, Congress has conveniently neglected to finish the job for its own branch and the judicial branch, as well.
Let's begin with term limits on federal judicial appointments.
Tuesday, June 30, 2009
Ending The Rule of The Czars
Yesterday, in this post, I suggested 10 serious problems with our present Constitution, as interpreted and ignored in the current era.
I believe one of the major flaws in Article 2 is that it does not limit officers of the executive branch to those who must be confirmed by the Senate. Somehow, presidents of both parties have fallen into the habit of naming unconfirmed, non-cabinet "czars" for areas such as: combating illicit drugs; energy; cyber security, and; health, to name just a few.
To read the Constitution, it would not appear that these officials can be named, serve and be paid without Congressional approval. But they are, do and are, none the less.
It's time that the Constitution's Article 2 was sharpened to limit such appointments to those positions approved by Congressional legislation, along with compensation and budgetary amounts explicitly enumerated in the chief executive's budget.
What we have now is a substantial cabinet for nearly every president consisting of entirely unapproved, unnominated personnel doing significant government business without any check on them whatsoever by Congress and, thus, in effect, the people.
I believe one of the major flaws in Article 2 is that it does not limit officers of the executive branch to those who must be confirmed by the Senate. Somehow, presidents of both parties have fallen into the habit of naming unconfirmed, non-cabinet "czars" for areas such as: combating illicit drugs; energy; cyber security, and; health, to name just a few.
To read the Constitution, it would not appear that these officials can be named, serve and be paid without Congressional approval. But they are, do and are, none the less.
It's time that the Constitution's Article 2 was sharpened to limit such appointments to those positions approved by Congressional legislation, along with compensation and budgetary amounts explicitly enumerated in the chief executive's budget.
What we have now is a substantial cabinet for nearly every president consisting of entirely unapproved, unnominated personnel doing significant government business without any check on them whatsoever by Congress and, thus, in effect, the people.
Monday, June 29, 2009
Fixing the Constitution's Flaws
On Friday, in this post, I proposed the idea that a Republican governor could run a very radical, attractive presidential campaign for 2012 by promising to convene a Constitutional Convention of the states and facilitating a substantial modification of the agreement uniting the 50 states.
Some of the ideas I advanced for such a modification were,
"I contend that a candidate who ran on the express theme of facilitating a Constitutional Convention to revise the pact to explicitly strip the federal government of ad hoc powers, limit its future power, and insert needed modifications for the modern era, e.g., term limits, staff size limits, campaign finance remedies, prohibition of non-cabinet administration officials with significant budgets or power, and new eligibility rules for Congress, would offer voters a truly fresh, positive and meaningful alternative to the tired old, similar platforms of the two current parties."
I've begun to enumerate a list of flaws in our current Constitution. Weaknesses which have, over time and with increasingly federal-power-enhancing court decisions, advancing technology and generally changed times, been exploited to radically alter American life substantially from the character it had even just 50 years ago.
Rather than settle for a string of unrelated amendments to the Constitution, I believe the time has come for a more thorough reconsideration and, where necessary, rewrite of the articles themselves, as well as adding some less integral amendments.
Friday's passage of the comprehensive, ill-considered and not-fully-costed energy 'cap and trade' bill in the House by just 7 votes is a prime example of the sort of law-making which is almost certainly not what voters really desire.
Because one party happens to hold majorities in the House and Senate, and holds the White House, they are ramming through bills of epic proportions, in terms of both spending levels and social re-engineering, often times with not one Republican vote joining those on the side passing the legislation.
Here's a list of what I consider to be problems resulting from the current federal governmental situation, both because of Congressional and Executive expansion of power, and court interpretations allowing expansions of federal power.
1. Existence of so-called 'czars' in the executive branch who are not confirmed by the Senate
2. Lifetime appointments to the Supreme Court and other federal benches
3. Passage of legislation over significant minority opposition with no attempt at compromise
4. Professional, lifetime political careers for Senators nor Representatives
5. Special treatment of federal employees/Congress with respect to pensions, healthcare and other benefits
6. Omnibus spending bills accounting for large percentages of the federal budget, so large that they are literally unread in their entirety prior to passage
7. No line item veto
8. Excessively complex legislation written by large Congressional staffs
9. Novice politicians gaining entry to the Senate due to the amendment requiring direct election of this body intended to be more deliberative and experienced than the House
10. Escalating cost of Congressional campaigns and the mess made by a series of campaign finance 'reform' laws and their collision with First amendment free speech rights
In subsequent posts, I'll offer my solution and reasoning for it.
Some of the ideas I advanced for such a modification were,
"I contend that a candidate who ran on the express theme of facilitating a Constitutional Convention to revise the pact to explicitly strip the federal government of ad hoc powers, limit its future power, and insert needed modifications for the modern era, e.g., term limits, staff size limits, campaign finance remedies, prohibition of non-cabinet administration officials with significant budgets or power, and new eligibility rules for Congress, would offer voters a truly fresh, positive and meaningful alternative to the tired old, similar platforms of the two current parties."
I've begun to enumerate a list of flaws in our current Constitution. Weaknesses which have, over time and with increasingly federal-power-enhancing court decisions, advancing technology and generally changed times, been exploited to radically alter American life substantially from the character it had even just 50 years ago.
Rather than settle for a string of unrelated amendments to the Constitution, I believe the time has come for a more thorough reconsideration and, where necessary, rewrite of the articles themselves, as well as adding some less integral amendments.
Friday's passage of the comprehensive, ill-considered and not-fully-costed energy 'cap and trade' bill in the House by just 7 votes is a prime example of the sort of law-making which is almost certainly not what voters really desire.
Because one party happens to hold majorities in the House and Senate, and holds the White House, they are ramming through bills of epic proportions, in terms of both spending levels and social re-engineering, often times with not one Republican vote joining those on the side passing the legislation.
Here's a list of what I consider to be problems resulting from the current federal governmental situation, both because of Congressional and Executive expansion of power, and court interpretations allowing expansions of federal power.
1. Existence of so-called 'czars' in the executive branch who are not confirmed by the Senate
2. Lifetime appointments to the Supreme Court and other federal benches
3. Passage of legislation over significant minority opposition with no attempt at compromise
4. Professional, lifetime political careers for Senators nor Representatives
5. Special treatment of federal employees/Congress with respect to pensions, healthcare and other benefits
6. Omnibus spending bills accounting for large percentages of the federal budget, so large that they are literally unread in their entirety prior to passage
7. No line item veto
8. Excessively complex legislation written by large Congressional staffs
9. Novice politicians gaining entry to the Senate due to the amendment requiring direct election of this body intended to be more deliberative and experienced than the House
10. Escalating cost of Congressional campaigns and the mess made by a series of campaign finance 'reform' laws and their collision with First amendment free speech rights
In subsequent posts, I'll offer my solution and reasoning for it.
Friday, June 26, 2009
A Potentially Winning Gambit for a 2012 Republican Presidential Candidate?
I've been thinking about a truly ground-breaking approach to the presidential election that could be taken by a current Republican- or, for that matter, Democratic- governor.
Admittedly, yesterday, the guy I most identified with this approach, South Carolina's Mark Sanford, removed himself from consideration when he admitted publicly to a year-long affair with a woman from Argentina.
Never the less, here's my idea.
Imagine a governor like Minnesota's Tim Pawlenty or Mississippi's Haley Barbour running on the promise that, if elected, they will work against the steadily-growing power of the president and Congress, and with state governors and legislatures, to convene a Constitutional Convention as soon as practical. By throwing the weight of the presidency behind this step, it would much more likely occur within his four year term than it otherwise ever could.
Building on the increasing size of the segment of voters which are neither registered Republicans, nor Democrats, and increasing voter frustration with the non-responsiveness of the federal government, such a candidate might well gain broad and fervent support.
Consider that, when the Constitution was created, it was the product of 13 states. The states' existences predated and allowed the subsequent drafting of rules for, and the creation of a federal government. The latter is a concept born of the former.
It's unlikely that today's federal government would be recognizable by the Framers of the Constitution. It has nearly completely overrun states' rights and limits on its power.
I contend that a candidate who ran on the express theme of facilitating a Constitutional Convention to revise the pact to explicitly strip the federal government of ad hoc powers, limit its future power, and insert needed modifications for the modern era, e.g., term limits, staff size limits, campaign finance remedies, prohibition of non-cabinet administration officials with significant budgets or power, and new eligibility rules for Congress, would offer voters a truly fresh, positive and meaningful alternative to the tired old, similar platforms of the two current parties.
How refreshing if a presidential candidate promised to focus on Constitutional reform, and then leave office, regardless of which term it occurred. A candidate who ran to return power to the states, and limit the government of which he would be head.
I think it would be unbeatable. Even some in Congress would probably be forced to support her/him, or lose their own local races.
Admittedly, yesterday, the guy I most identified with this approach, South Carolina's Mark Sanford, removed himself from consideration when he admitted publicly to a year-long affair with a woman from Argentina.
Never the less, here's my idea.
Imagine a governor like Minnesota's Tim Pawlenty or Mississippi's Haley Barbour running on the promise that, if elected, they will work against the steadily-growing power of the president and Congress, and with state governors and legislatures, to convene a Constitutional Convention as soon as practical. By throwing the weight of the presidency behind this step, it would much more likely occur within his four year term than it otherwise ever could.
Building on the increasing size of the segment of voters which are neither registered Republicans, nor Democrats, and increasing voter frustration with the non-responsiveness of the federal government, such a candidate might well gain broad and fervent support.
Consider that, when the Constitution was created, it was the product of 13 states. The states' existences predated and allowed the subsequent drafting of rules for, and the creation of a federal government. The latter is a concept born of the former.
It's unlikely that today's federal government would be recognizable by the Framers of the Constitution. It has nearly completely overrun states' rights and limits on its power.
I contend that a candidate who ran on the express theme of facilitating a Constitutional Convention to revise the pact to explicitly strip the federal government of ad hoc powers, limit its future power, and insert needed modifications for the modern era, e.g., term limits, staff size limits, campaign finance remedies, prohibition of non-cabinet administration officials with significant budgets or power, and new eligibility rules for Congress, would offer voters a truly fresh, positive and meaningful alternative to the tired old, similar platforms of the two current parties.
How refreshing if a presidential candidate promised to focus on Constitutional reform, and then leave office, regardless of which term it occurred. A candidate who ran to return power to the states, and limit the government of which he would be head.
I think it would be unbeatable. Even some in Congress would probably be forced to support her/him, or lose their own local races.
Friday, June 19, 2009
Protecting The Minority: New Ideas on Congressional Legislative Rules
The prospect of a Democratic majority and president adding healthcare to the legislation it has rammed through without any significant Republican involvement or agreement- stimulus and budget bills- brought me to consider how this could be remedied.
The Constitution is largely silent on margins for passage of legislation. This website provides the following information,
"Note 41. The U. S. Constitution requires a two-thirds vote of both Houses to pass a resolution proposing an amendment to the Constitution, to pass a vetoed bill, or to remove political disabilities; a two-thirds vote of either House to expel a member; and a vote of two-thirds of the Senators present to ratify a treaty or convict on an impeachment. The House requires a two-thirds vote to suspend the rules, but is obliged to allow a majority to order the previous question or to limit debate, as otherwise its business could never be transacted. Still, a bill cannot be passed without at least forty minutes of debate, as that is allowed after the suspension of the rules or the previous question has been ordered."
The preceding text involving Roberts' Rules of Order refers to majorities as a compromise between the will of the assembly and the rights of the individual.
Perhaps this is what we need in the Constitution. Provisions for legislation over a certain dollar amount, or length of bill requiring a 3/4 majority to pass.
It would be senseless to require some sort of multi-party involvement, because that allows small parties to hold the country hostage via Congress, much like the Greens did in Germany in the last decade. And we can't know how many, or few parties may exist in the future of our Republic.
Rather, in our era of mass, ubiquitous and instant communications, voters know very quickly whether one party stiff-armed the other, as the Democrats have done this year, or invited serious bi-partisan involvement in crafting legislation that significant numbers of both parties will support.
Today, the Democrats hold just shy of 60% of the House seats and 60-61 Senate seats. Yet numerous polls show voters do not agree with many of the actions taken legislatively by what has been essentially just the party currently in power.
Perhaps an amended Constitution should require 3/4 majority, thus forcing compromises, or no action whatsoever.
In time, voters will either keep party majorities below the required threshhold for legislative passage, in order to avoid the sort of behavior we've seen this year by Democrats in Congress and the White House, give one party the majority to ram its approach through, or elect different Representatives in no particular proportion, in order to shake up the dynamics in Congress.
What's clear, though, from this year, is that some better, stronger protection is required from surprisingly small party majorities forcing party-line legislative votes and ignoring any representation of minority views.
The Constitution is largely silent on margins for passage of legislation. This website provides the following information,
"Note 41. The U. S. Constitution requires a two-thirds vote of both Houses to pass a resolution proposing an amendment to the Constitution, to pass a vetoed bill, or to remove political disabilities; a two-thirds vote of either House to expel a member; and a vote of two-thirds of the Senators present to ratify a treaty or convict on an impeachment. The House requires a two-thirds vote to suspend the rules, but is obliged to allow a majority to order the previous question or to limit debate, as otherwise its business could never be transacted. Still, a bill cannot be passed without at least forty minutes of debate, as that is allowed after the suspension of the rules or the previous question has been ordered."
The preceding text involving Roberts' Rules of Order refers to majorities as a compromise between the will of the assembly and the rights of the individual.
Perhaps this is what we need in the Constitution. Provisions for legislation over a certain dollar amount, or length of bill requiring a 3/4 majority to pass.
It would be senseless to require some sort of multi-party involvement, because that allows small parties to hold the country hostage via Congress, much like the Greens did in Germany in the last decade. And we can't know how many, or few parties may exist in the future of our Republic.
Rather, in our era of mass, ubiquitous and instant communications, voters know very quickly whether one party stiff-armed the other, as the Democrats have done this year, or invited serious bi-partisan involvement in crafting legislation that significant numbers of both parties will support.
Today, the Democrats hold just shy of 60% of the House seats and 60-61 Senate seats. Yet numerous polls show voters do not agree with many of the actions taken legislatively by what has been essentially just the party currently in power.
Perhaps an amended Constitution should require 3/4 majority, thus forcing compromises, or no action whatsoever.
In time, voters will either keep party majorities below the required threshhold for legislative passage, in order to avoid the sort of behavior we've seen this year by Democrats in Congress and the White House, give one party the majority to ram its approach through, or elect different Representatives in no particular proportion, in order to shake up the dynamics in Congress.
What's clear, though, from this year, is that some better, stronger protection is required from surprisingly small party majorities forcing party-line legislative votes and ignoring any representation of minority views.
Thursday, June 11, 2009
The Rule Of Law Takes Another Body Blow
As I wrote in a recent business blog post, it appeared that Indiana's treasurer might have managed to get the Supreme Court to slow the unconstitutional freight train that is the Chrysler bankruptcy.
Alas, it was not to be. The full Court declined to hear the case, stating that it failed to merit Supreme Court attention.
Tom Lauria, the plaintiff's attorney, said words to the effect that this non-decision makes one question whether the Court is capable of enforcing and protecting constitutional rights anymore.
To me, it's another reason to agitate for a Constitutional Convention. This seemed to be a pretty open-and-shut case. The federal government violated standing bankruptcy procedures and rights.
What more was to be known to allow the case to be heard?
As I said to a friend recently, the 25th amendment set term limits for the chief executive. Now, we need to finish the job for both of the other branches of the federal government.
It seems that our highest court can't focus anymore on its central job of enforcing the constitution.
I have no doubt some modifications in the form of a revised Constitution, or more amendments, could help rectify this problem.
Alas, it was not to be. The full Court declined to hear the case, stating that it failed to merit Supreme Court attention.
Tom Lauria, the plaintiff's attorney, said words to the effect that this non-decision makes one question whether the Court is capable of enforcing and protecting constitutional rights anymore.
To me, it's another reason to agitate for a Constitutional Convention. This seemed to be a pretty open-and-shut case. The federal government violated standing bankruptcy procedures and rights.
What more was to be known to allow the case to be heard?
As I said to a friend recently, the 25th amendment set term limits for the chief executive. Now, we need to finish the job for both of the other branches of the federal government.
It seems that our highest court can't focus anymore on its central job of enforcing the constitution.
I have no doubt some modifications in the form of a revised Constitution, or more amendments, could help rectify this problem.
Monday, June 8, 2009
The Necessity of a Constitutional Convention
I've been giving quite a bit of thought recently to the obvious, increasingly unconstitutional behavior by Congress and presidents of both parties since as far back as Wilson.
Having begun reading and listening to others of similar bent, I am aware that the progressive-backed amendments of the 1910s were passed by Congress to head off a state-called Constitutional Convention. Nothing strikes more fear into the hearts of lifetime federal politicians than the prospect of a Constitutional Convention which could result in massive revisions to the Constitution, and the possibility of more explicitly-worded limits on federal power.
Consider just two simple aspects of the Constitution which probably made sense at its writing, but no longer do.
Congressional term limits. Back in 1789, an average lifespan was in the neighborhood of 35 years. To become a Senator required sufficient maturity and accomplishment that one probably didn't realistically become eligible until one's mid-30s. A 60-year old person in those days was quite old. Thus, three terms in the Senate was likely seen as about as much as most men would serve.
Further, serving in Washington required leaving one's farm or business. Being a Congressman wasn't considered a full-time job. It's likely that nobody seriously envisioned anyone being foolish enough to make federal representative office one's entire career.
Thus, between a shorter lifespan, career obligations and the need to support a family, it's quite possible that the Framers simply didn't conceive of a context in which career service as a US Representative or Senator was possible. Or even desirable.
And what about the Supreme Court? I don't have exact data, but I'm guessing that men didn't ascend to that body much before the age of 40. If a man was old upon reaching 60, then a 20-year term on the highest bench would be what was probably understood to be the 'lifetime' appointment.
Now, it's not uncommon for a Justice to serve on the Supreme Court for more than 30 years. For example, consider this passage from this webpage,
"Although the average tenure of a Supreme Court Justice from 1789 through 1970 was 14.9 years, for those Justices who have retired since 1970, the average tenure has jumped to 26.1 years. Because of the long tenure of recent members of the Court, there were no vacancies on the high Court from 1994 to the middle of 2005. We believe the American constitutional rule granting life tenure to Supreme Court Justices is fundamentally flawed, resulting now in Justices remaining on the Court for longer periods and to a later age than ever before in American history.
This trend has led to significantly less frequent vacancies on the Court, which reduces the efficacy of the democratic check that the appointment process provides on the Court's membership. The increase in the longevity of Justices' tenure means that life tenure now guarantees a much longer tenure on the Court than was the case in 1789 or over most of our constitutional history. Moreover, the combination of less frequent vacancies and longer tenures of office means that when vacancies do arise, there is so much at stake that confirmation battles have become much more intense. Finally, as was detailed in a recent article by Professor David Garrow, the advanced age of some Supreme Court Justices has at times led to a problem of "mental decrepitude" on the Court, whereby some Justices have become physically or mentally unable to fulfill their duties during the final stages of their careers."
Considering the increasing distance so many voters feel from their elected US representative officials, and the courts, I would personally favor terms limits as follows: 3 consecutive terms for US Representatives, 5 in total; 2 terms for US Senators, and; 15 years for Supreme Court Justices, with similar tenure for lower courts, as well.
Given the Constitution's brevity and limited expression of federal power, I don't believe the Framers intended that there arise a professional class of federal office-holders who would remain in that government for over a generation, i.e., 20 years. For the era of our nation's founding, 20 years would have already been a substantial portion of a man's productive adult life. Now, with much longer average lifespans, our Congress and Supreme Court seem to have become less committed to upholding the Constitution, and more committed to self-preservation.
Having begun reading and listening to others of similar bent, I am aware that the progressive-backed amendments of the 1910s were passed by Congress to head off a state-called Constitutional Convention. Nothing strikes more fear into the hearts of lifetime federal politicians than the prospect of a Constitutional Convention which could result in massive revisions to the Constitution, and the possibility of more explicitly-worded limits on federal power.
Consider just two simple aspects of the Constitution which probably made sense at its writing, but no longer do.
Congressional term limits. Back in 1789, an average lifespan was in the neighborhood of 35 years. To become a Senator required sufficient maturity and accomplishment that one probably didn't realistically become eligible until one's mid-30s. A 60-year old person in those days was quite old. Thus, three terms in the Senate was likely seen as about as much as most men would serve.
Further, serving in Washington required leaving one's farm or business. Being a Congressman wasn't considered a full-time job. It's likely that nobody seriously envisioned anyone being foolish enough to make federal representative office one's entire career.
Thus, between a shorter lifespan, career obligations and the need to support a family, it's quite possible that the Framers simply didn't conceive of a context in which career service as a US Representative or Senator was possible. Or even desirable.
And what about the Supreme Court? I don't have exact data, but I'm guessing that men didn't ascend to that body much before the age of 40. If a man was old upon reaching 60, then a 20-year term on the highest bench would be what was probably understood to be the 'lifetime' appointment.
Now, it's not uncommon for a Justice to serve on the Supreme Court for more than 30 years. For example, consider this passage from this webpage,
"Although the average tenure of a Supreme Court Justice from 1789 through 1970 was 14.9 years, for those Justices who have retired since 1970, the average tenure has jumped to 26.1 years. Because of the long tenure of recent members of the Court, there were no vacancies on the high Court from 1994 to the middle of 2005. We believe the American constitutional rule granting life tenure to Supreme Court Justices is fundamentally flawed, resulting now in Justices remaining on the Court for longer periods and to a later age than ever before in American history.
This trend has led to significantly less frequent vacancies on the Court, which reduces the efficacy of the democratic check that the appointment process provides on the Court's membership. The increase in the longevity of Justices' tenure means that life tenure now guarantees a much longer tenure on the Court than was the case in 1789 or over most of our constitutional history. Moreover, the combination of less frequent vacancies and longer tenures of office means that when vacancies do arise, there is so much at stake that confirmation battles have become much more intense. Finally, as was detailed in a recent article by Professor David Garrow, the advanced age of some Supreme Court Justices has at times led to a problem of "mental decrepitude" on the Court, whereby some Justices have become physically or mentally unable to fulfill their duties during the final stages of their careers."
Considering the increasing distance so many voters feel from their elected US representative officials, and the courts, I would personally favor terms limits as follows: 3 consecutive terms for US Representatives, 5 in total; 2 terms for US Senators, and; 15 years for Supreme Court Justices, with similar tenure for lower courts, as well.
Given the Constitution's brevity and limited expression of federal power, I don't believe the Framers intended that there arise a professional class of federal office-holders who would remain in that government for over a generation, i.e., 20 years. For the era of our nation's founding, 20 years would have already been a substantial portion of a man's productive adult life. Now, with much longer average lifespans, our Congress and Supreme Court seem to have become less committed to upholding the Constitution, and more committed to self-preservation.
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