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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Considering Secession

Posted on 2009-04-27 by David

An intriguing discussion erupted after a recent post by Connor. I was soon asking what history would have looked like if the South had been allowed to secede rather than fight the Civil War. Later another commenter asked an even better question:

By allowing the South to secede, wouldn’t that be setting up a dangerous precedent? If any state decided to leave just because Congress passed a law they didn’t like, what would have happened to the nation?

Under such an interpretation, what security did the nation have beyond what the Articles of Confederation provided? The Articles weren’t working. That’s why they created a Constitution that gave more expanded powers to a central government.

Considering recent comments regarding Texas choosing to secede and polls that a surprising number of Texans seem open to the concept I’d like to take a crack at answering what might have happened in those circumstances and I would be very interested to know what others think of the question or of my answer. For the sake of this supposition let’s assume that we are talking about an alternate history where the people of the United States accepted the premise that secession was a legal option and not a cause for war. We are also not talking specifically about secession by the southern states – just about a nation in which any state could decide to leave just because Congress passed a law they didn’t like and that the remaining states would not resort to violence to keep them in the union. In other words there might be arguments against secession in general or in specific cases, but no military action. With that background, here is what I believe would happen.

Any state that chose to secede would immediately relegate themselves to a position with all the disadvantages they had faced under the Articles of Confederation as well as the disadvantage of not having between 12 and 49 (depending on when in history this happened) other states upon which to lean for support. They would be required to provide for their own protections (economic and military) without assistance from their neighbor states. In all likelyhood they would very quickly be looking to form alliances with other states and other nations. In some cases they would likely begin very soon to consider the possibility of rejoining the United States. In such cases they would find themselves facing the requirements for joining the union. Having antagonized the other states in the union they would have to convince the congress to allow them back into membership within the United States. That and their experience under the Articles of Confederation would act as a deterrent to states that wanted to secede for light or transient reasons.

Assuming that there are no major holes in my reasoning above I think it is safe to say that there would be few if any cases of individual states seceding. That leaves us to consider the potential of blocks of states seceding such as the southern states in 1860. In this case we can easily see that a block of states seceding together would be inclined to form a union not unlike the one they were leaving. If two similarly structured nations composed of soverign states were to exist in close proximity to each other and to unsettled land waiting for expansion I think it is safe to assume that the two nations would be driven to compete with each other to become more politically and economically powerful and attractive to the settlers of new lands so that new political entities would chose them over their counterpart when they decided to become a member of a larger political entity. I don’t suppose that the nations would exist entirely without animosity, but they could peacefully coexist as the United States and Canada have done for nearly two centuries.

If legal secession were a political reality any number of possibilities might exist. A single state residing outside any other union would be highly unlikely, but North America could be divided into any number of unions made of sovereign states. In fact a policy allowing for legal secession could leave the door open for Canadian provinces or Mexican states joining a union as sovereign states. I believe that eventually legally accepted secession would have resulted in one or two strong unions of states in which the  central government was limited more closely to what our Constitution outlined – focusing on foreign relations, military defense, and interstate issues and leaving states to independently tackle other issues and learn from each other. In the case of two stable unions existing I would give better that 50% odds that their relations with each other would be fundamentally peaceful.

The short answer is that I do not believe allowing the secession of the south would have been setting a dangerous precedent (at least from the angle of how viable the central government would remain). That leaves the question – have I missed something?

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Federalist Nos. 74 – 75

Posted on 2009-04-24 by David

Federalist No. 74 discusses the power of the president to command the military and grant pardons. Federalist No. 75 discusses the power of the president related to the making of treaties. Neither of the papers is particularly remarkable unless you have concerns related to those issues (I don’t) but it was interesting to read Hamilton’s remarks discussing the way that the making of treaties did not comfortably fit entirely within the powers of the legislative branch, nor completely within the powers of the executive branch – thus necessitating the mixture of presidential and senatorial influence on the process.

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Federalist No. 73

Posted on 2009-04-23 by David

Federalist No. 73 demonstrates two instances where the framers of the Constitution designed not for a virtuous system, but for a system riddled with human fallibility. The static nature of executive compensation helps mitigate the human fallibility of the executive.

There are men who could neither be distressed nor won into a sacrifice of their duty; but this stern virtue is the growth of few soils; and in the main it will be found that a power over a man’s support is a power over his will.

On the other hand, the qualified veto helps to mitigate the human fallibility that would be present in the legislative branch:

The propriety of the thing does not turn upon the supposition of superior wisdom or virtue in the Executive, but upon the supposition that the legislature will not be infallible; that the love of power may sometimes betray it into a disposition to encroach upon the rights of other members of the government; that a spirit of faction may sometimes pervert its deliberations; that impressions of the moment may sometimes hurry it into measures which itself, on maturer reflection, would condemn.

This paper also includes what could be used as a yardstick to measure how well our government is working:

It is far less probable, that culpable views of any kind should infect all the parts of the government at the same moment and in relation to the same object, than that they should by turns govern and mislead every one of them.

The measure is that the more we see the different branches of government succumbing to the same undesirable forces the worse off our government is doing. Hamilton obviously recognized this as he expressed this hope:

It is to be hoped that it will not often happen that improper views will govern so large a proportion as two thirds of both branches of the legislature at the same time; and this, too, in spite of the counterposing weight of the Executive.

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