Constitutional Amendment I

Posted on 2009-05-11 by David

The beauty of the amendments in the Bill of Rights is that they are all short enough that I will be comfortable quoting each amendment in its entirety as I write about it. That may not hold as I get to the later amendments. Here is Amendment I:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

I have heard people who are keen to remind their fellow citizens that the phrase “separation of church and state” does not exist anywhere in our legal foundation. That’s very true, but I would take that a step further and point out the implications of what is said.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

State governments are perfectly free to make laws respecting an establishment of religion – whether that be favoring one specific sect, or prohibiting a sect or a specific religious practice. The key is that the federal legislative branch cannot enshrine a position related to religion. Please keep this in mind (the distinction between the state and federal governments) as it will be a theme of many of my posts on the amendments.

For those who might fear that Utah might use that as an excuse to establish Mormonism as the religion of the state (officially) if they thought they could get away with it I would simply point out that doing so would run counter to the expressed tenets of the LDS church. (I should also point out that this prevents the use of the first amendment as an argument against the legality of the extermination order against Mormons given by Governor Boggs of Missouri in 1838.) The point here is that each state was meant to be free to determine the course that they felt would be the most conducive to the welfare of their residents.

Like the protection of religion, it is Congress, and not the states, which is prohibited from abridging the freedom of the press or of speech and Congress which cannot interfere with the right of the people to peaceably assemble or petition the government. The assumption was that although the states retain the rights to regulate any of those things they would be wise enough not to abuse that ability and that if they did begin to abuse those powers they would feel the negative consequences as other states would reap the benefits of the dissatisfaction generated by abusive states.

Sadly, it is now the states and municipalities which feel the burden of the restrictions in the first amendment (and others) much more than Congress. Congress does not abridge our freedom of religion, but it does abridge the freedom of our once-sovereign states (and communities).

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Constitution of the United States

Posted on 2009-05-08 by David

Having completed a review of each of the 85 Federalist Papers I am excited to finally write about the Constitution of the United States that they were written to promote. My goal is to reduce the Constitution to a very simple outline showing the form of government that we were meant to have. I will ignore any parts of the Constitution which have been subsequently changed through the amendment process. I hope that by doing so it will be easy to see where we have strayed from the formula. Also, I just want to say in advance that I will not address any of the amendments here – each will be treated separately in future posts.

  • Article I
    • All legislative authority resides in Congress (in other words the president cannot make any laws).
    • Members of the House of Representatives must be at least 25 years old and live in the state they represent. The number of representatives for each state is based on their population but there may not be more than 1 representative for every thirty-thousand people.  Note that there is no stipulation limiting the size of the House of representatives while our population has more than tripled in the last century (from 92 Million in 1910 to over 300 Million now). Representatives are elected to two year terms. The House of Representatives holds the power of impeachment.
    • Members of the Senate must be at least 30 years old and live in the state  he is elected to represent. The Vice President is to serve as the president of the Senate, but cannot cast a vote unless the voting is tied. Senators are elected to six year terms. The Senate is to hold a trial when someone is impeached to determine if they should be removed from office. Interestingly, Senators must take an oath when sitting for an impeachment trial.
    • Each state has the power to choose when they will hold elections.
    • Each house of Congress determines the qualifications for their members (think back to the issue of replacing Obama after he was elected President) and each sets their own rules and keeps their own record. During the congressional session, neither house can adjourn for more than three days or to a new location without the consent of the other house.
    • Members of both houses are to be paid for their service, but they cannot hold any office that was created or received a pay increase while they were in Congress. Also, they are immune from arrest during the session of Congress except for treason, felonies, or breach of the peace.
    • All bills for raising revenue must originate in the House of Representatives. The House and the Senate must pass a bill before it is presented to the President. If the President vetoes the bill it may becomes law if each house of Congress reconsiders it and passes it by a 2/3 majority. When voting on a veto override the name and vote of each member of Congress must be recorded. If the president does not return a bill within 10 days (signed or vetoed) while Congress is in session the bill becomes law. If Congress ends their session before the ten days and the president chooses not to sign then the bill does not become law.
    • Section 8 lists the powers that Congress expressly holds in lawmaking (like establishing weights and measures, regulating commerce, coining money, and establishing post offices).
    • Section 9 lists laws that Congress is forbidden to pass (like ex post facto laws and granting titles of nobility).
    • Section 10 lists powers that are forbidden to the states. The list includes items granted to Congress (coining money, entering treaties with foreign nations) and also items that had also been forbidden to Congress (ex post facto laws and titles of nobility).
  • Article II
    • The president is the chief executive of the nation. He must be at least 35 years old and is elected to four year terms. He is to be paid for his service, but his pay cannot be raised or lowered during a term. The exact words of the presidents oathof office are supplied in the Constitution – he is to "preserve, protect and defend the Constitution of the United States."
    • The president is the leader of the army and navy and has to power to pardon any offense except in cases of impeachment. He can make treaties if two thirds of the senate approves the treaty and the senate must confirm those whom he nominates for government positions (such as Supreme Court justices). If the Senate is nto in session he can make temporary appointments that alst until the end of the next session of Congress.
    • If impeached and conviceted of "treason, bribery, or other high crimes and misdemeanors" the president and any other officers of government are to be removed from office.
  • Article III
    • The Supreme Court and any lower courts formed by Congress are the judicial authority of the nation.
    • Section 2 lists the jurisdiction of federal courts (such as when a foreign nation is involved, or in disputes between states).
    • Section 3 defines what constitutes treason.
  • Article IV
    • States are to honor the actions of other states.
    • States are to treat citizens of other states as they treat their own citizens.
    • Section 3 lists how new states may be created or admitted to the nation.
    • Each state is required to have a republican form of government.
  • Article V
    • If two thirds of each house of Congress vote in favor, Congress can propose amendments to the Constitution  which must be ratified by three fourths of the state legislatures. If two thirds of the state legilatures request it, Congress shall call a convention for proposing amendments – which must be ratified by three fourths of the state legislatures in order to become law. In either case,  no amendment may deny a state of equal representation in the senate unless that state shall consent to the amendment.
  • Artivle VI
    • The new government assumes all debts incurred under the Articles of Confederation
  • Article VII
    • If nine of the states choose to ratify the Constitution in convention it shall be considered binding upon each of the states that ratifies it.

I find it interesting that half of the Constitution is centered on Congress and yet we focus the bulk of our interest in the executive branch. Perhaps that is why we have become so ineffective at electing people who will adhere to the supreme law of the land – we are misinterpreting it in our political focus.

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Federalist No. 85

Posted on 2009-05-07 by David

In the last of the Federalist papers, Federalist No. 85, Hamilton concludes by arguing that the preceding papers should demonstrate that the proposed constitution is fundamentally sound, and that it should be ratified regardless of any few faults or reservations that people might have because revision prior to ratification would be more difficult than amendment after ratification.

In making his argument Hamilton made reference to Article V. In light of a recent discussion where Connor argued the potential dangers of a modern constitutional convention I read through Article V again. While there is always the possibility of people organizing their efforts to remake the government the dangers that Conner discusses are in excess of the provisions of Article V. If such a convention were called it under Article V it could do no more than propose amendments to the existing Constitution. Once such a proposal (or proposals) is made the ratification process is the same as for amendments proposed in Congress – they would need to be ratified by ¾ of the state legislatures. Such amendments are also limited in that they cannot propose to deprive any state of equal suffrage or representation in the senate without the consent of that state.

Based on the words of Article V as well as my resolute faith in the principle of agency I no longer have any shred of discomfort with the idea of a modern constitutional convention. The outcome of  such a gathering would either be illegal or have limited impact. The risks posed by  a legal Article V convention are no greater than the risks we face from Congress every day. As for the risks posed by an unrestrained (illegal) convention – we face those risks from Congress every day as well.

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Federalist No. 84

Posted on 2009-05-06 by David

In his penultimate federalist paper, Federalist No. 84, Hamilton ties up a few loose ends and once again shows his prescience. As I was reading this thought on the need (or lack thereof) for a Bill of Rights:

a minute detail of particular rights is certainly far less applicable to a Constitution like that under consideration, which is merely intended to regulate the general political interests of the nation, than to a constitution which has the regulation of every species of personal and private concerns.

I thought about how our present government had become the kind to "regulation of every species of personal and private concerns"and began to wonder if the Bill of Rights opened the door to a larger, more intrusive government than was intended. Then I got to this:

I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government.  (emphasis added)

The argument that I had in my head before reading that was probably substantially the same but I would have said that without the explicit Bill of Rights which was later added the voters might feel more urgency to check their representatives and replace them when they began to make incursions upon the rights that the voters felt were important.

Later in the paper I found yet another argument against the now static size of our House of Representatives:

It is evident that . . . a continuance of the present number {in Congress} would, in a more advanced stage of population, be a very inadequate representation of the people.

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Federalist Nos. 80 – 83

Posted on 2009-05-05 by David

Some of the items of discussion in the federalist papers are so obvious that I must conclude that the purpose of these papers was not onyl to answer critics of the proposed constitution, but also to endeavor to generally educate those who had not considered the necessities of government in order that they might make an informed choice on the issue of ratification. In my opinion, this effort to disseminate information is one of the hallmarks that separates a statesman from a politician. Politicians seem to love pontificating and posturing, but do not seem to care much whether they actually inform or enlighten.

Federalist No. 80 lays out the types of cases and situations that would properly fall under federal jurisdiction and argues that only those cases have been covered in the powers granted to the federal courts. Federalist No. 81 explains the purpose of allowing for lesser federal courts to be instituted rather than relying on a single supreme court, or dependence on state courts in any case of federal jurisdiction. Federalist No. 82 contends that the judicial systems of the states are not adversly affected in any material way by the federal judicial system as proposed. Federalist No. 83 discusses the value and limitations of trial by jury and contradicts the assertion that trial by jury might be prohibited in civil cases on the grounds that it is mandated in criminal cases. I found it interesting to note some similarities in the reasons to recommend a trial by jury when compared to the reasons that recommend the use of an electoral college. It was also interesting to read how different the judicial systems of the various states were from each other.

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Federalist Nos. 78 – 79

Posted on 2009-05-04 by David

I had always been taught that the Executive, Legislative, and Judicial branches were fundamentally equal in power within the federal government (checks and balances etc.) but Federalist No. 78 says otherwise:

the judiciary is beyond comparison the weakest of the three departments of power.

I wonder if my understanding is a byproduct of the power grabs by the Supreme Court from the earliest days of the nation by which it made itself the equal of the other two departments. I read the whole paper wondering if anything different could have been done regarding the term of office for judges ("during good behavior"). I considered an absolute maximum term of service and concluded that it would have no positive effect. Hamilton argues that an age limitation (the state of New York cut judges after the age of 60 at that time) was not feasible. I have concluded that it would be feasible today due to our current society whereby pensions are relatively normal. In fact, we already have a soft age limit whereby judges are allowed, but not required, to retire. We could choose to make retirement mandatory, but I don’t think we would see any benefit from such a move. My conclusion was that the judiciary was as well designed as it could have been.

The one drawback to our modern judiciary was foreseen:

The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. (emphasis original)

We have seen unfortunate cases where courts (state courts as often as federal) do not merely judge the merits of a case or a law, but order legislative bodies to act accordingly. This seems to display a misunderstanding of the power of the courts. The courts never need to order the executive or judicial branches to do something (except in cases pitting the two departments against each other). If the court rules that a law is unconstitutional the law become null – the court has no need to require the legislature to write a different law.

Federalist No. 79 addresses the provision that the salary of a judge cannot be decreased. There does not seem to be any need for discussion on this point because the reasoning is the same as for the president having a fixed salary and is equally applicable.

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Judicial Appointment

Posted on 2009-05-01 by David

Yesterday I wrote about the president’s power to nominate people for important positions in government. Today we get the news that Justice David Souter will be retiring.  (This is doubly convenient as the remaining federalist papers deal with the judicial branch of our government.) I don’t intend to speculate on who the president will nominate but there are a few things we can learn from this confirmation hearing.

During the 2004 election cycle there were a number of conservatives talking up the importance of re-electing Bush because of the probability that at least one justice would be nominated in the next four years. Obama himself said last fall that the selection of a new justice would be “one of the most consequential decisions of the next president.” One difference between Obama and Bush in relation to the opportunity to make a supreme court nomination is that Obama will have a Senate majority large enough to prevent a filibuster (assuming that Al Franken is seated from Minnesota). This means that Obama may not feel any need to moderate his choice as Bush knew that he must. Bush knew that he could not nominate anyone who was too conservative for the Senate. Obama will know that there is virtually nobody with any qualification who is too liberal for this Senate.

Assuming that this confirmation goes smoothly and that the selection proves to be reliably liberal (the new justice can always surprise people on that score), I think we might know what to expect in the next few years in the Supreme Court. The most senior justice, Justice John Paul Stevens, is on the liberal side of the court and is 89 years old. If there is a fresh liberal justice from our new president and a solidly Democratic senate in place I would be very surprised if he did not choose to retire before 2012 (or even before the 2010 elections). I would also not be surprised to see Justice Ruth Bader Ginsburg choose to retire. Like Justice Stevens she is on the liberal side of the court and while she is not the next most senior justice she is the second oldest at 76 and might want to ensure that her replacement is also liberal (especially if at least one other justice is a woman by then) before there is a chance of electing a Republican president or having Democrats lose any seats in the Senate.

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Federalist Nos. 76 – 77

Posted on 2009-04-30 by David

Federalist Nos 76 and 77 discuss the power of the president to nominate people for high government offices. I notice that these papers use some of the very same arguments in defending these powers of the president as were used to defend other powers that were to be vested in the proposed executive. I also noticed another instance of an assumption which has since been completely reversed:

A change of the Chief Magistrate, therefore, would not occasion so violent or so general a revolution in the officers of the government as might be expected, if he were the sole disposer of offices. Where a man in any station had given satisfactory evidence of his fitness for it, a new President would be restrained from attempting a change in favor of a person more agreeable to him.

Contrary to what Hamilton expected, it is now the exception when one president retains the services of someone appointed by a previous president unless the previous president came from the same party as the current president.

I also took note of the pattern by which the government was laid out. Those powers which had the greatest need for expedience (such as nominating and the making of treaties) were placed in the executive branch with the power to negate being given to the Senate where necessary. Those powers which had the greater need for deliberation (such as the making of laws) were granted to the legislative branch with the conditional power to negate (meaning that the veto was not absolute) given to the President. The setup realy is a very well constructed balance with the judicial branch present to independently arbit between parties when there were doubts regarding conflicting opinions

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Obama’s First 100

Posted on 2009-04-29 by David

Today is day number 100 for the Obama Administration. This has been a benchmark of measurement for every administration since FDR. There will be lots of stories in the political media attempting to measure how he is doing as a president. This morning on NPR they perfectly captured the measure in only six words:

His backers give him high marks.

I add my own perspective as someone who is not sold on Obama but holds out hope that he will eventually do the best job he could do by focusing on those areas where he is right (things like real increased transparency in government). My position is largely unchanged from when Obama was elected and when he was sworn in.

If we simply add the fact that those who oppose him give him low marks we can easily see the correct answer to “how is Obama doing in his first 100 days?”

The answer is that 100 days is too soon to tell how Obama will fare over the course of 1461 days (or 2922 days for two terms). This is perfectly typical. We could not have known after 100 days what things Bush was going to do well and which things he was going to botch horribly over his two terms. The same can be said of Clinton or any of his predecessors.

So, Happy 100 Days Mr. President. May my greatest hopes for your tenure be realized or at least may we come closer to my greatest hopes than we come to my greatest fears.

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Hoping History Holds

Posted on 2009-04-28 by David

Nobody with a political pulse in Utah could be surprised at the news that Sens. Bennett and Hatch plan to run again, especially considering that they both have their campaign websites up and running already (yes, even Hatch for 2012). I have often been discouraged by the assertions of a trusted friend that Hatch is unbeatable for as long as he chooses to run after being in the Senate for over 30 years. My hope that he is wrong got a boost from that Deseret News article.

Holly provides a good rundown against the "seniority is everything" argument of our two senators and we have the next  3 years to disprove Hatch’s assertion that "Sen. Bennett and I work as hard every day for Utahns as the first day we set foot in the U.S. Senate." (They undoubtedly work hard, but the more I look at their records the less I am convinced that either of them work for Utahns anymore like they did the first day they set foot in the Senate.) I would like to provide a proactive argument for why both of our senators should be replaced now even if you believe the seniority argument.

First of all, neither of our Senators is getting any younger so they will have to be replaced sooner than they would like to admit. While they would both like to be compared to the LDS apostles since few people among their voters would care to think of the apostles in a negative light, the fact is that there is a vast difference between the temporary election of a political officeholder and the permanent appointment of an ecclesiastical leader. We know going in that the apostles are there for life, not so with the senators.

Secondly, the Republican party is out of power right now (especially with Arlen Specter switching parties so that the Democrats will have the 60 vote margin to end any attempted filibuster) which diminishes the value of any seniority they have amassed in their decades in office. The Democrats may maintain the 60 seat majority in 2010, but even if they don’t they are virtually assured of maintaining control of the senate. That means that now is the time to elect some new senators so that they can start building their seniority in advance of 2014 (the earliest that Republicans have any real shot at regaining control) rather than waiting until 2016, 2018, or whenever one of our senators fails his immortality test.

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