Tag Archives: The Constitution

Using the Democracy We Already Have

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Michael Lind, writing at Salon, argues that the agenda of the American right wing amounts to a “Southern Autonomy Project”: an attempt to attract investment to the South by insuring cheap labor and minimal government regulation, while limiting any negative response from Southern voters and interfering with possible corrective action in Washington.

Lind believes we need a progressive agenda to counteract the right, a “National Majority Rule Project”:

Setting political difficulty aside, it is intellectually easy to set forth a grand national strategy that consists of coordinated federal policies to defeat the Southern Autonomy Project.

He thinks these policies would do the trick:

1) A federal living wage, which would level the economic playing field among the states;
2) Nationalization of social insurance, so that Southern states couldn’t water down programs like Medicaid and the ACA to their advantage;
3) Real voting rights for all Americans, insured by Federal law;
4) Truly nonpartisan redistricting in order to eliminate gerrymandering of Congressional districts;
5) Abolition of the Senate filibuster (I’d add a change to House rules that would make it easier to bring legislation to a vote);
6) Abolition of the Federal debt ceiling.

http://www.salon.com/2013/10/13/the_south_is_holding_america_hostage/

Unfortunately, it’s really hard in practice to “set political difficulty aside”. As things stand now, any such reforms would require cooperation from the people the reforms are aimed at.  

The same problem applies to a Salon article that calls for a new Constitutional Convention. The author of this article argues that the Constitution should be amended to make it more democratic, including changes like:

1) Ten-year terms for Supreme Court justices;
2) Public funding for elections and the elimination of campaign contributions;
3) Abolition of the Electoral College;
4) Elimination of special voting rules and earmarks in Congress;
5) A requirement that Congress approve a yearly budget or face a special election;
6) Elimination of the need for state legislatures to approve constitutional amendments.

The author concludes, however:

Of course, it is unthinkable that the United States would do what its states have done 230 times, i.e., call a constitutional convention to design a modern framework of governance. This would require two-thirds of the states to agree. Amending the current constitution is also nearly impossible as it demands a two-thirds majority in both chambers of Congress as well as the approval by 38 states.

 http://www.salon.com/2013/10/12/us_constitutional_reform/

It’s reasonable to conclude that the only way to make our country more democratic is for more right-thinking people to participate in the democracy we already have. People need to vote for politicians who would support changes like those above. (We’d also have to get over the idea that our Constitution as written is a sacred document.)

Having the right people in office can certainly do wonders. Since the voters of California elected a Democratic governor and Democratic majorities in both houses of the legislature, California has started moving in the right direction again.

According to an article in the New Yorker (whose author argues, by the way, for Obama to ignore the debt ceiling if it comes to that), a similar phenomenon occurred after the Southern states seceded:

Throughout the Civil War and afterward, Republicans in Congress had enacted some of the most forward-looking legislation in American history: a national currency, the Homestead Act, a transcontinental railroad, support for higher education, the definitive abolition of slavery—all thanks to the extended absence of delegations from the self-styled Confederate states.

http://www.newyorker.com/talk/comment/2013/10/21/131021

See, all we need to do is use the democracy we already have! (And keep having babies who grow up to be Democrats, especially in Texas, Florida and Ohio.)

How Obama Could Protect the Economy and Get Rid of Boehner at the Same Time

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The 14th Amendment was added to the U.S. Constitution in 1868 in the aftermath of the Civil War. It deals with issues resulting from that conflict. Its most famous language is the so-called “equal protection” clause: no state shall “deny to any person within its jurisdiction the equal protection of the laws”.

The rebellious Southern states were required to ratify the 14th Amendment in order to regain representation in Congress. Of course, since they were traitors (a.k.a. “rebels”), Southern politicians bitterly opposed the 14th Amendment. How dare the Federal government require that all persons, including former slaves, receive “equal protection of the laws”!

Now, 152 years after the Southern rebellion, we are facing a new crisis, primarily instigated by politicians from the same Southern states. This time it would be a financial and economic crisis, brought about by America’s failure to pay its debts. Nobody knows how the crisis would play out, but since bonds issued by the Treasury Department are the foundation of our nation’s banking system and play a vital role in the banking systems of other countries, it’s likely that America’s failure to honor its debts would do more damage to the global economy than the horrendous financial crisis of 2008.

The Constitution makes no mention of a debt ceiling. That limitation on the Treasury Department’s ability to take on new debt (i.e. to borrow money by selling government bonds) was foolishly imposed by Congress in the Liberty Bond Act of 1917. With that law, Congress gave itself the authority to set a maximum dollar amount for the federal debt, despite the fact that it’s Congress that tells the President how much money to spend when it approves the Federal budget.

Since the members of Congress are relatively sensible for the most part, they periodically raise the debt limit so the Federal government has enough money to do the various things the law requires it to do (make Medicare payments, buy cruise missiles, etc.).

If Congress refuses to raise the debt limit, therefore, the President is caught in a dilemma. He either has to borrow more money without Congressional approval or not pay what the government owes to bondholders, employees, government contractors, retirees and so on — thereby doing untold damage to the world’s economy and our own national security.

Fortunately, the 14th Amendment includes a clause devoted to the national debt. Section 4 of the amendment states:

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Legal scholars are now arguing about which law the President should obey. I’m not a legal scholar, but I have no doubt that the appropriate thing for the President (any President) to do if Congress fails to raise the debt limit, thereby “questioning the validity” of the public debt, is to obey the Constitution and borrow whatever funds are necessary to pay the government’s bills.

The Constitution, after all, is the “supreme law of the land”. Even crazy Tea Party people claim to honor the Constitution. The Constitution, which requires the President to “preserve, protect and defend” it, should take precedence over the Liberty Bond Act of 1917.

The last time there was a Republican-generated debt ceiling crisis, the President ruled out the 14th Amendment as a solution. At yesterday’s press conference, however, he mentioned the 14th Amendment but didn’t rule it out. He did say it isn’t a “magic bullet” and made the valid point that bonds issued without clear Congressional approval might be of questionable value. For example, buyers would probably demand higher interest rates before purchasing such government securities.

Nevertheless, it still seems that the most prudent course would be for the President to ignore the debt ceiling and continue to issue government bonds. In fact, it might be a wonderful strategy.

One likely outcome is that the Republican majority in the House of Representatives would impeach the President, just like they impeached President Clinton. But the Democrats in the Senate would never convict Obama of “high crimes and misdemeanors” for using his emergency powers to protect our national security. In fact, it’s very likely that the House Republicans would become even less popular than they are now, leading to gains for Democrats in the 2014 mid-term election.

Some recent polling suggests the Democrats might pick up as many as 30 seats in the House if the election were held today. Since they only need 18 more seats to become the majority party in the House, Obama needs to do whatever he can to maintain the Republicans’ unpopularity. Goading them into a misguided impeachment vote could do the trick, giving the Democrats control of both houses of Congress for the last two years of his Presidency. No more Speaker of the House John Boehner!

The Republicans would still have the filibuster in the Senate, of course, but that’s a topic for another day.

That Amendment Again

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“A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

Fortunately, a well-regulated militia is no longer necessary to the security of a free state. It’s not 1789 anymore. We now have the largest “defense” establishment in the world, as well as the FBI, CIA, NSA, ATF, Border Patrol, National Guard, state police, local police, security guards and mercenaries keeping us secure. We devote more energy and resources to security than any other country in the world.

But we’re stuck with the Second Amendment for now. The question is: how should that amendment be interpreted?

In practice, some people interpret it this way: “the right of just about anyone to own and operate the latest in high-tech firearms shall not be infringed”. That’s an extremely liberal interpretation.

After all, none of the rights mentioned in the Declaration of Independence or the Constitution are absolute.  We certainly don’t have an absolute right to life (you can be executed for certain crimes, especially in Texas), liberty (you can be locked up for lots of reasons) and the pursuit of happiness (ditto). You can’t say whatever you want or assemble wherever you want or even practice your religion however you want.

Living with other people means having our rights restricted. In line with that fact of life, we should all start interpreting the Second Amendment in a reasonably restricted way:

“The right of the people to own and operate firearms shall not be infringed, but shall be subject to appropriate regulation, consistent with everyone’s more important rights to life, liberty and the pursuit of happiness”.

Even Justice Scalia agrees that the right to bear arms is restricted. The next problem, however, is that he and his like-minded colleagues won’t accept regulation that sufficiently protects other people’s rights to avoid death or injury at the hands of someone with a gun.