Where Constitutional Rubber Meets the Republican Road

Posted on 2009-01-09 by David

Peter Berkowitz makes it sound so easy to come to a consensus on the way forward for the GOP by adhereing to the Constitution. In theory it sounds simple enough to apply the test of whether an idea fits within the framework of the Constitution before deciding whether to adopt the idea. Scott gives a nice analysis of the full article but I think that by looking at the nine ideas that he says should lead the agenda we can get a sense for how hard that concept is to apply in practice – and hence why the GOP lost its way so completely .

An economic program, health-care reform, energy policy and protection for the environment grounded in market-based solutions.

I’m not convinced that anyone in politics today even knows what a free market is so it’s hard to imagine that the idea of “market-based solutions” would have any consistent meaning from one person to another.

A foreign policy that recognizes America’s vital national security interest in advancing liberty abroad but realistically calibrates undertakings to the nation’s limited knowledge and restricted resources.

Follow the first vague idea with another. What does it mean to “advance liberty abroad?” If it includes any amount of playing earth-policeman then I don’t think it can fit within the framework of the Constitution. We should stand as a supreme example of a nation protecting the liberty of her citizens but regardless of our knowledge or resources we should not step in with force anywhere that we do not have legal jurisdiction to enforce liberty unless we have been attacked or publicly invited.

A commitment to homeland security that is as passionate about security as it is about law, and which is prepared to responsibly fashion the inevitable, painful trade-offs.

I’m not even sure that sentence said anything actionable.

A focus on reducing the number of abortions and increasing the number of adoptions.

I’m not sure how this could be construed from the Constitution but it is the right approach to the issue of abortion. Any discussion about the public teaching of any moral issue by the state should be entirely focused on the actual effects it would have on those measurable and commonly held goals. Even the Democrats would generally like to see lower numbers of abortions and higher adoption rates. The question is, do the policies we promote actually achieve those ends – if not they have no business being promoted by the state.

Efforts to keep the question of same-sex marriage out of the federal courts and subject to consideration by each state’s democratic process.

Like abortion, this idea is not about settling the moral question – it is about making sure that the question is settled according to the prescribed process.

Measures to combat illegal immigration that are emphatically pro-border security and pro-immigrant.

I like this idea, but I wonder how to formulate and articulate positions that are both pro-immigrant and pro-security.

A case for school choice as an option that enhances individual freedom while giving low-income, inner-city parents opportunities to place their children in classrooms where they can obtain a decent education.

This should be one of the easiest ideas on this list to pursue among the various conservative groups.

A demand that public universities abolish speech codes and vigorously protect liberty of thought and discussion on campus.

This should also be an easy sell among self-identified conservatives.

The appointment of judges who understand that their function is to interpret the Constitution and not make policy, and, therefore, where the Constitution is most vague, recognize the strongest obligation to defer to the results of the democratic process.

It is not only judges that need to understand this. The citizens as a whole need to recognize the difference between Constitutional interpretation and the making of policy

The fact that I am addressing these nine ideas does not mean that I have concluded that Berkowitz was right about which ideas are most important – I only used those to show the complexity that we must still navigate even after committing to that one core principle. The thing that Berkowitz is absolutely right about is that we can and should commit to put the Constitution at the center of our decision making process if the GOP is to have anything to offer to the American public.

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News Fluff/Flash

Posted on 2009-01-08 by David

Apparently the nation is very interested that Obama Predicts a Florida Victory in tonight’s BCS National Championship game – just like we were dying to know whether Obama likes the BCS system. I don’t mean to pick on these stories, but they serve as good examples of some of the thoughts I am having as I read Breaking the News. What our President-elect thinks of collegiate sports is suddenly very important despite the fact that we have no proof the Obama is any more an expert on the subject than I am. Obama is not claiming to be an expert, he’s simply offering an opinion when the question is asked because that’s what any fan would do. This really is not a problem as far as what Obama is doing, but it is indicative of a problem that is widespread through the media – all too often what gets published is fluff even when there are important issues that we should be informed about. In fact, even when the important issues are covered the result is often fluff.

Because everyone knows who Obama is it may intrigue many to know his opinions on college sports just as a matter of curiosity – nothing wrong with that. The problem is when virtually everything gets the same level of treatment, whether it’s his guess on the outcome of tonight’s game or his plan for stimulating the economy and cutting the waste out of the federal government. To a large degree, our press today had tried to reduce important offices, such as the presidency, to something that is much easier to understand and report on – celebrity.

That seems to be indicative of the major problem that is spreading through media (old and new) – there is a tendancy to publish what is easy to cover in order to make sure that something is published. I have am not immune to that urge myself. It is very difficult to maintain any influence in the conversation, or keep the attention of any regular readers, if you cannot have some level of consistency in publishing. (Note that consistency and frequency are not the same thing, although they can influence each other.) Those who write primarily for themselves may take the time to really cover an important subject with some depth. (Those tend to be my favorite kind of articles.) Those who write in any noticable degree for an audience will feel the pull to get anything out, and thus will feel the urge to look for something manageable or dependable – often fluff.

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Orrin Depends on Sloppy Journalism

Posted on 2009-01-07 by David

The news media is supposed to help us make sense of the world around us, but to a large degree most news organizations have relegated themselves to being nothing more than data streams. A perfect example today comes with the news regarding the D.C. Voting rights bill that Orrin Hatch introduced (again) yesterday. In the Washington Watch section of today’s Utah Policy we get news of the event with no analysis and a mention of, but no link to, the press release. They manage to quote Hatch as he contradicts himself (I’ll get to that in a minute) but offer no analysis or context. The Washington Post covers the story in a biased fashion, but at least in their case we could expect that as Washington has everything to gain and nothing to lose by this bill. Simply put, the residents of D.C. have a legitimate complaint and they would rather compromise on the issue than take the time to make the change in the right way. The compromise is that they offer to help Utah to a temporary solution to Utah’s legitimate concern of being denied a seat in conjunction with a permanent solution to their predicament. Looking at the Deseret News coverage we find the story played as a tussle between Hatch and Jason Chaffetz but still little analysis of the merits of the bill.

Let’s see what analysis of the merits of the bill would tell us.

The residents of D.C. have a legitimate grievance about their lack of voting representation in the House. The proper solution would be an amendment that would grant voting representation in the House to the citizens of any territory that pays federal taxes, or returning the residential portions of D.C. to Maryland as suggested by Rep. Chaffetz  – this bill does neither of those things. Likewise Utah has a legitimate complaint about being denied another seat after the 2000 census. The proper solution is our pursuit of a redress through the judicial system and a bill to examine and improve the methodology of counting for the census as well as growing our way outside the margin of error in the census system. We have the growth, we pursued the judicial relief, and this bill does not address the census methodologies in any way.

Let’s see what sloppy journalism ignores in Hatch’s statement.

While the 2010 census and reapportionment might provide Utah an additional seat, the failure of the 2000 process showed that this is not a sure thing. This bill maximizes the chances of securing an additional seat for Utah, which has had one of the country’s fastest growth rates since the last census.

I have no doubt that when Hatch spoke he emphasized the word "might" regarding Utah gaining another seat after the 2010 census. Somehow he can get away with saying that, and admitting that Utah has one of the fastest growing populations since the 2000 census, without anyone questioning in their stories how having one of the fastest growth rates in the country would allow us to still be below the margin for error in the next census.

For those who are wondering, the bill makes no mention of Utah. It provides two new seats in the House and assigns one to D.C. The supporters of the bill are trying to work fast before Utah gains their seat in the 2010 census because they aren’t willing to wait until Congress will give them what they deserve, which is representation in the house without resorting to a gimmick such as offering a balancing seat to poor, picked-on Utah. They also fear that after 2010 there will not be a Republican state with a legitimate grievance about their apportionment of representatives. I understand that legislation is dependent on the art of compromise, and rightly so in most cases, but gimmicks are not the same thing as compromise.

Orrin is not representing the interests of his constituents – he’s simply representing the interests of some of his friends in Washington. If that were not the case he would not have to lie to us and say  that we might not get our deserved representation from the 2010 census.

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News and Government

Posted on 2009-01-06 by David

I have been reading Breaking The News and consequently thinking about the role of the media in disseminating information and the effects of that process in the political arena. I don’t know that my thoughts are fully formed here, but I had to get something down.

The media has been called the Fourth Branch of Government because of how important an informed electorate is in a system of popular government. There is certainlya lot of truth to that idea. I looked for some other perspectives on this issue and found a 2006 article that was very much opposed to the differences between members of the media and elected members of the official branches of government. I also found a 2007 article suggesting that cash is the fourth branch of government and a 2008 article that claims that the military is the fourth branch. These claims got me thinking about what it meant to have a fourth branch, and why we are so fascinated with identifying it.

Personally I would argue that cash has no will of its own and thus cannot act as a governing force. (It is simply a resource to be used in influencing people.) On the other hand, the idea of the military as a fourth branch of government is plausible. The more I have thought about it, the more I believe that there is always a hidden branch of government (meaning a tool that influences the government and the culture of a nation without being an official governing force). That tool is either religion (cultural morality), media (information), or military (force). In fact, it may be that religion may be a replacement for government (tied to the hidden branches of media or military) when it is a governing force, but not a hidden branch.

There are definitely countries where the military is that fourth branch and I am convinced that military and media both play a role in virtually every society – the fourth branch in any country being whichever of the two holds the most dominant controling position. Thankfully the media is the more dominant cultural tool in our nation (presently). So while I believe that our fourth branch has been compromised, just as each of the other three branches have also been compromised, we are still free from the tyrany that coincides with the military as the fourth branch.

I believe that the problems in our media have the same roots as the problems in our government – we the people have distanced ourselves from the source of our information and become less critical and demanding.

I’d love to hear other thoughts on this issue, but for the time being I’ll go back to ruminating.

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Legislative Accountability

Posted on 2009-01-05 by David

John Florez has a good perspective on what constitutes True government accountability and the forces that work against citizens from receiving the benefits of that accountability. I thought his comparison of the legislature to a corporate board of directors was very apt. My thoughts were sparked by the following statement:

This year, with new legislative leadership, might be a good one to spend more time holding oversight hearings on how effective certain state departments are in solving the problems they were created to resolve — their legislative mandate. . .

For legislators to start asking the tough questions to hold state departments accountable puts their political seat at risk because they threaten and have to fend off special-interest groups that benefit from maintaining the agency status quo. Therefore, it’s critical that legislators, in very real ways, know the public will support them when they hold oversight hearings regarding agencies’ effectiveness and demonstrate what returns taxpayers are getting on their investment. For legislators, those are tough calls but vital in keeping our government working in the public’s interest.

Oversight hearings would provide the openness and accountability in our government that we all want.

Bureaucratic momentum is a powerful force and tends to discourage any real accountability. The first priority of any institution is survival, not the fulfilling of any legislative mandate. Because of that, government bureaucracies have become very adept at promoting their own survival and continuation. In fact, they have learned how to turn failure and ineffectiveness into a tool for budgetary and institutional growth. Bureaucrats have long practice at befriending legislators and promoting their perspectives so that those legislators will be disposed to grant them their budgetary and policy requests. The fact that government jobs are considered to be a very safe area of employment is a testament to how effective their survival tactics usually are.

Despite all these advantages for institutional continuance, I see a glimmer of hope. If legislators will actively seek to cultivate their relationships with the group of voters that they represent they can preempt the ability of any special interest groups to unseat them for asking tough questions when holding real oversight hearings.

Constituents can show that they will support their legislators by being vocal in requesting real accountability and in vocally supporting their legislators through the legislative process. If they do so the legislators should have confidence that they can ask tough questions and demand accountability without fear that doing so will cost them their seats.

As constituents it is to our advantage to focus our efforts on those who represent us. If we voted for our representatives we should have done so because we believe in what they are said they would do, and if we did not vote for them we should be letting them know what we want from our representative. Many politicians say that they intend to represent those who opposed them as well as those who voted for them, but if we do not communicate with our representatives, whether we voted for them or not, they are not able to accurately represent us.

I have found that my efforts are much more rewarded by contacting my representatives, whether I voted for them or not, than if I spend my time shouting into space about what the legislature as a whole should be doing.

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Federalist No. 46

Posted on 2009-01-02 by David

The subject and position of Federalist No. 46 is not substantially different from Federalist No. 45 and my reaction is largely the same as before. On the other hand, Madison makes an important point that expands the scope of my reaction.

Notwithstanding the different modes in which they are appointed, we must consider both of them as substantially dependent on the great body of the citizens of the United States. . . The federal and State governments are in fact but different agents and trustees of the people, constituted with different powers, and designed for different purposes.

My initial reaction was that, like the states, the people in general are no longer guarding their liberty so much as their financial security. Some further consideration convinced me that Madison was right and that my reaction was actually an indication of the fundamental problem.

The adversaries of the Constitution seem to have lost sight of the people altogether in their reasonings on this subject; and to have viewed {the federal and state governments}, not only as mutual rivals and enemies, but as uncontrolled by any common superior in their efforts to usurp the authorities of each other. These gentlemen must here be reminded of their error. They must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone

Although it is easy to feel that the government has gone out of control we must remember that we still have relatively free, fair, and regular elections. The fundamental problem which allows the government to exced their constitutional bounds is not that there are no reins, but that we the people have let go of the reins (this is especially true in places like Utah where the participation in even the most basic civic functions like voting is abysmal). The result is that our runaway horse of government is sometimes staffed by officials elected to virtually hereditary positions and while we may yell about the dangers of the course being taken by our uncontrolled stagecoach, the actual solution is for us to undertake the challenging task of grasping the reins once more and asserting our control over the horse of government. Only after we have tried our hands at the reins can the horse truly be said to be a runaway – prior to a serious attempt at control it is our own failure and not the fault of the horse.

One final quote that I really appreciated:

Measures will too often be decided according to their probable effect, not on the national prosperity and happiness, but on the prejudices, interests, and pursuits of the governments and people of the individual States. What is the spirit that has in general characterized the proceedings of Congress? A perusal of their journals, as well as the candid acknowledgments of such as have had a seat in that assembly, will inform us, that the members have but too frequently displayed the character, rather of partisans of their respective States, than of impartial guardians of a common interest;

Interestingly, the final protection against a federal takeover of the lives of the citizens (as cited by Madison) is the right of the people to keep and bear arms. An alarmist would be quick to take every attempt to regulate the keeping of arms by private individuals as a fundamental threat to individual liberty – and their alarm would not be without legitimate foundation.

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Annapolis Convention

Posted on 2009-01-01 by David

It was not so long ago that I became aware of the Annapolis Convention of 1786. Though I had started reading the resulting report before I got my pocket Constitution I was very excited to see that it was included there. It was there that I finally sat down and read the report through. I found it interesting that the major theme of the convention proceedings was that a Constitutional Convention should be called precisely because the remedies necessary for the defects in the Articles of Confederation exceeded the scope of authority that had been granted to the delegations from the states that attended the Annapolis Convention (5 state delegations were at the convention, 4 more had been commissioned but were not at the convention, and the final 4 states had not commissioned delegations for such a convention). With that background it becomes very hard to consider the argument that the members of the Constitutional Convention exceeded the bounds of their authority. Having had this report published I would think that every state would have sent delegations to the Constitutional Convention with fairly open-ended authority.

Sometime after reading these proceedings I began to wonder what might come out of a similar convention today. Of course the delegations to the Annapolis Convention were charged with addressing a specific issue (the regulation of commerce) and found that no viable solution was forthcoming which would not affect many other issues as well. I do not imagine a convention charged wtih fixing an issue, only one charged with studying our government and comparing what our government is doing with what was written in the original Constitution, what is written in the succeeding ammendments, and poosibly providing their perspective on where our practices are improvements from what is written and where they should be brought into conformity with our established Constitution.

Because all three branches of government would be under review, the delegations should not include those who are currently holding political office at the federal level (I was at first inclined to think that such a review could be conducted by judges from around the nation). Instead, I think that such a convention should consist of people chosen  from the local people from each state – for the sake of variety and balance I would imagine an ideal convention to consist of three Republicans and three Democrats from each state (and probably D.C. as well). Some people might think a convention of 300 participants would be too large to be effective in such an undertaking, but considering that there are over 300 Million people in the country it seems reasonable to have that many representatives. (Besides, it’s still smaller than the House of Representatives.)

Those who argue that the large states are being underrepresented (as some undoubtedly will) should be reminded that the convention would have no power except to study, publish their findings, and possibly make recommendations. I believe that the voters of our nation would be very surprised by the findings of such a convention.

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Federalist No. 45

Posted on 2008-12-31 by David

I wish we had a constitutionally limited federal government such as the one that Madison is promoting/defending in Federalist No. 45.

the next question to be considered is, whether the whole mass of {the powers transferred to the federal government} will be dangerous to the portion of authority left in the several States.

Madison argues that there is little danger from the federal government to the authority of the states. Perhaps we can forgive him as his frame of reference was that:

history does not inform us that either {the Achaean league or the Lycian Confederacy} ever degenerated, or tended to degenerate, into one consolidated government. On the contrary, we know that the ruin of one of them proceeded from the incapacity of the federal authority to prevent the dissensions, and finally the disunion, of the subordinate authorities.

With the advantage of hindsight we can see where we diverged in practice from the foundations laid for oureffective but limited government.

The State governments may be regarded as constituent and essential parts of the federal government; whilst the latter is nowise essential to the operation or organization of the former. Without the intervention of the State legislatures, the President of the United States cannot be elected at all. They must in all cases have a great share in his appointment, and will, perhaps, in most cases, of themselves determine it. The Senate will be elected absolutely and exclusively by the State legislatures. Even the House of Representatives, though drawn immediately from the people, will be chosen very much under the influence of that class of men, whose influence over the people obtains for themselves an election into the State legislatures.

Today it would be much more accurate to say that state governments may be regarded as constituent, but in no way essential, parts of the federal government while the federal government is absolutely essential to the operation and organization of the state governments (financial dependence will do that to you every time). State governments now play a token role (if any role at all) in the election of the President, the senate is no longer elected in any way by the state legislature, and the fact that the members of the house of representatives is drawn from the ranks of those who would also be chosen into the state legislatures is no form of protection for our liberties.

The number of individuals employed under the Constitution of the United States will be much smaller than the number employed under the particular States. There will consequently be less of personal influence on the side of the former than of the latter. The members of the legislative, executive, and judiciary departments of thirteen and more States, the justices of peace, officers of militia, ministerial officers of justice, with all the county, corporation, and town officers, for three millions and more of people, intermixed, and having particular acquaintance with every class and circle of people, must exceed, beyond all proportion, both in number and influence, those of every description who will be employed in the administration of the federal system.

The number of people employed by the federal government and its many agencies is enormous and while it may not have been true in the 1880’s, today more people can name their representative and senators at the federal level than can do so for their state representatives (admittedly, many people can not name any of their representatives). This discrepancy illustrates that the influence of the federal officers exceeds the influence of the local officers even at the local level (despite the fact that the local officers have more direct impact on the lives of citizens).

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

While the powers granted to the state governments are still indefinite today, the definer of those powers in practice has been the Federal government. And while the powers delegated tot he federal government are defined, the federal government has felt no obligation to limit their exercise of authority to those defined powers. Also, as the federal government has exercised increased authority, they have generally done so over "internal objects" which concern the lives, liberties etc. of the citizens in their ordinary course of affairs – directly infringing upon those areas of authority which were to be within the purview of the state government.

It should be noted that most of these changes in our society and political structure are a direct result of ill-advised changes in the Constitution. Those which are not a result of changes in the Constitution are a result of the Constitution being trampled and ignored.

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Federalist No. 44

Posted on 2008-12-30 by David

Although it is not the central point of Federalist No. 44, I found it very interesting to read the fervent distrust of paper money that the defenders of the Constitution had based on their experience – especially considering our present circumstances of economic uncertainty that are largely due to the instability of paper currency (which we manipulate, and experience steady inflation and erratic deflation).

I also found another example of an assumption of our founders which has since been rendered false – this one relates to the checks and balances to be found between state and federal authority.

as every such act of the {federal government} (to violate their Constitutional authority) will be an invasion of the rights of the {state governments}, these will be ever ready to mark the innovation, to sound the alarm to the people, and to exert their local influence in effecting a change of federal representatives. There being no such intermediate body between the State legislatures and the people interested in watching the conduct of the former, violations of the State constitutions are more likely to remain unnoticed and unredressed.

If our states today were truly guarding their constitutional autrity with the jealousy that the founders envisioned I doubt that we the federal behemoth that we are carrying around today which, due to its sheer size, has convinced a large portion of our society that it is capable of solving all our perceived woes. The unfortunate truth is that our states today hardly even whimper at any violation of Constitutional authority by the federal government. There are rare exceptions – such as the backlash against the Real ID Act – but those cases are often nothing more than a plea for full funding when they are asked to implement a federal program that exceeds the Constitutional authority of the government. The states no longer guard their authority – they simply guard their balance sheets.

At the same time, the statement that there are no intermediaries watching the state governments and calling the people to action reamins as true as it was presented in 1788. One might expect that job to be handled by an independent and free press, but the press has done no better at that task than the state governments have done on their level.

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The Revolution

Posted on 2008-12-29 by David

After the primary season and the surprises from the Ron Paul campaign I have wanted to read his book, The Revolution – A Manifesto, for quite some time. I had to wait or quite a while before it became available at my library (apparently I was not very early in placing my hold). I was interested to see what Ron Paul would write considering what he had said and what had been said about him.

I think the shortest accurate review of the book would read like this:

Forget everything you know, or think you know, about Ron Paul before you start reading this book. After you have read it decide what you really think about what he says here.

I honestly believe that the greatest disservice that most people could do to themselves when reading this book would be to color their reading with preconceived notions of how radical his ideas are. Personally I think it is always well worth my time to explore the ideas of a person who can alienate conservatives and liberals at the same time as he unites people from across the political spectrum.

After having read the book I would love to have someone, anyone, go through the book and refute the points that Rep. Paul makes with evidence and statistics rather than the simple and meaningless marginalizing treatment that he and his campaign receved throughout the primary process. I would love to see someone who could do that or the entire book, but I would be surprised if anyone could accomplish the feat for a single chapter of The Revolution.

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