We will end this week's discussion of US anti-trust monopoly vs global anti-trust monopoly laws by looking at what global Wall Street CLINTON/BUSH/OBAMA pols are up to now in MOVING FORWARD ONE WORLD ONE GOVERNANCE ONE GLOBAL CORPORATE TRIBUNAL RULE.....the goal of re-writing our US Constitution in a CONSTITUTIONAL CONVENTION so that all these global Wall Street ONE WORLD policies that have filled the US with fraud, corruption, loss of US Rule of Law, loss of US Constitutional rights and our Bill of Rights are the new law of the land and yes, WE THE PEOPLE will be be found NOWHERE.
We shouted for a decade all that CLINTON/BUSH/OBAMA has done was illegal, unconstitutional, and an assault on our national sovereignty and rights as citizens--and yes, all these policies and actions done can be VOIDED----REVERSED because they are indeed illegal. Global Wall Street pols know this so they are MOVING FORWARD with a Constitutional Convention to create that ONE WORLD CONSTITUTION. See why capturing our US elections to rigging and fraud these few decades was necessary? Let's just get rid of these 5% to the 1% global Wall Street players before this CONSTITUTIONAL CONVENTION FOR THE GLOBAL 1% OCCURS.
If you think a movement to amend the constitution while our Congress is filled with global Wall Street pols in both Democrat and Republican Parties is a good idea----WAKE UP-----WE SIMPLY NEED TO REVERSE THE PUBLIC POLICY DAMAGE DONE.
Article V: Amending the Constitution
The issue: What is the process by which the Constitution may be amended? Are there subject matter limitations on amendments? Can courts review the validity of constitutional amendments? What is the effect of amendments on previously ratified constitutional provisions?
Introduction
The United States Constitution is unusually difficult to amend. As spelled out in Article V, the Constitution can be amended in one of two basic ways. First, amendment can take place by a vote of two-thirds of both the House of Representatives and the Senate followed by a ratification of three-fourths of the various state legislatures or conventions in three-fourths of the states (ratification by thirty-eight states would be required to ratify an amendment today). This first method of amendment is the only one used to date, and in all but the case of the 21st Amendment, state ratification took place in legislatures rather than state conventions. Second, the Constitution might be amended by a Convention called for this purpose by two-thirds of the state legislatures, if the Convention's proposed amendments are later ratified by three-fourths of the state legislatures (or conventions in three-fourths of the states).
Because any amendment can be blocked by a mere thirteen states withholding approval (in either of their two houses), amendments don't come easy. In fact, only 27 amendments have been ratified since the Constitution became effective, and ten of those ratifications occurred almost immediately--as the Bill of Rights. The very difficulty of amending the Constitution greatly increases the importance of Supreme Court decisions interpreting the Constitution, because reversal of the Court's decision by amendment is unlikely except in cases when the public's disagreement is intense and close to unanimous. Even unpopular Court decisions (such as the Court's protection of flagburning) are likely to stand unless the Court itself changes its collective mind.
The Court has at various times considered the validity of constitutional amendments. Importantly, the Court has considered the method of proposal and ratification, as well as the constitutionality of the subject matter of the amendment, to be a justiciable--and, therefore, not a "political"--question. In the Hawke v Smith (1920), for example, the Court upheld Ohio's ratification of the Eighteenth Amendment over objections that the Ohio Constitution provided for a referendum on the issue by voters that might have overridden the Ohio legislature's ratification of the amendment. The Court concluded that the federal law set for in Article V providing specifically for ratification by state legislatures preempted conflicting state procedures for ratification. Also, in the National Prohibition Cases (1920), the Court generally upheld the validity of the Eighteenth Amendment, rejecting arguments that a prohibition on the distribution and possession of alcohol was a constitutionally impermissible subject matter for a constitutional amendment.
Two more recent cases included in our readings consider the effect of the Twenty-First Amendment repealing the Eighteenth Amendment. In the first case, LaRue v California (1972), the Court concludes that the Twenty-First Amendment qualifies the First Amendment, thus allowing states to regulate expression in establishments that serve alcohol, even when such restrictions might violate the First Amendment if applied elsewhere. In 1996, however, in the 44 Liquormart, Inc. v Rhode Island, the Court disavows its earlier conclusion and makes clear that the Twenty-First Amendment, while it may allow restrictions on alcohol that would otherwise violate the Commerce Clause, in no way qualifies the reach of the First Amendment. The Court therefore concludes that Rhode Island's restrictions on advertising the price of alcohol violate the First Amendment.
In 2005, in Granholm v Heald, the Court held that Section 2 of the 21st Amendment did not give states the power to discriminate against out-of-state wine sellers in ways that would otherwise violate the Commerce Clause. Ruling 5 to 4, the Court struck down a Michigan law banning out-of-state wineries from selling wine to Michigan residents over the Internet. Michigan allowed Michigan wineries to directly ship to consumers, but prohibited non-Michigan wineries from doing the same. The Court noted, however, that the 21st Amendment clearly gave the state the power to ban ALL direct shipments of wine (or other alcoholic beverages) to consumers if it chose to do so. Four dissenters argued that the history of the 21st Amendment proved that it was meant to exclude regulation of alcoholic beverages from the normal prohibitions on state discrimination under the Commerce Clause--however misguided that policy might seem today.
Questions
1. Is it a good thing that our Constitution is so difficult to amend? Why should a minority be able to frustrate a clear majority's wish to alter the Constitution?
2. Don't the amendment procedures doom many potentially good changes, because one or the other political parties will see itself as adversely affected by a proposed change? For example, won't Republicans forever block Washington D.C. from gaining representation in Congress because any representative elected by D. C. citizens is likely to be a Democrat? Isn't it equally unlikely that the electoral college method of choosing a president will ever be changed?
3. May a state rescind its prior ratification if an amendment has yet to be ratified by three-fourths of the states?
4. Many proposed amendments, such as the Equal Rights Amendment, have limited the period for ratification to seven years? Are such limits a good idea? What if a state ratifies an amendment after the specified period? What if a proposed amendment contained no time limit and was ratified two centuries later (see the 27th Amendment)?
5. The Court has recognized the constitutionality of ratification procedures as a justiciable question. Should the Court consider these issues, or should it leave them to the other branches to work out?
6. Only two provisions in the Constitution have been made unamendable--and the unamendability of one of those, the provision barring restrictions on the importation of slaves, expired in 1808. The only provision now unamendable is the guarantee that each state will have equal suffrage in the Senate. Why do you suppose the framers attached such importance to that provision? What if--despite the provision against changing suffrage in the Senate--, we first repealed the provision prohibiting amendment and that ratified an amendment giving larger states more Senate representation? Are there other impliedly unamendable provisions? Could we abolish the Executive Branch by amendment?
7. What if an amendment (say, an amendment prohibiting abortions) included language prohibiting the amendment from ever being repealed? Should the courts enforce the provision and invalidate an amendment that sought to again permit abortions?
8. The Court, in LaRue and 44 Liquormart, wrestled with the question of whether the Twenty-First Amendment qualified the First Amendment. What do you think is the best answer to that question?
9. Consider the various proposed, but unratified, amendments listed on the U. S. Constitution Online link (below). Which of these proposed amendments do you think should have been adopted?
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Global Wall Street pols on both sides of major political party lines are PRETENDING to be protecting WE THE PEOPLE-----the FAR-RIGHT WING global Wall Street Bush neo-conservatives are making this all sound CONSERVATIVE REPUBLICAN-----and the FAR-RIGHT WING global Wall Street Clinton/Obama neo-liberals are making this sound left social progressive. The goal of course is global 1% ONE WORLD ONE GOVERNANCE constitutional changes killing all that makes our US Constitution the strongest for citizens in WORLD HISTORY.
Below we see the Bush neo-cons reasons for AMENDING THE CONSTITUTION----remember, all this designation of our US real estate as Foreign Economic Zones able to ignore all US law has been illegal and it was Clinton era when all this started to take hold ----THE FEDERALISM ACT ---was used as a Presidential Executive Order pretending a President can arbitrarily ignore ALL FEDERAL AND US CONSTITUTIONAL LAWS.
Then Bush and Obama followed----the global 1% now want to CODIFY these actions by AMENDING THE CONSTITUTION.
THIS IS ONE REASON IT WAS CRITICAL TO BE VERY, VERY, VERY LOUD AND TAKING TO COURT THESE PRIMARY AND GENERAL ELECTION FRAUDS----THESE ARE NOT LEGITIMATELY ELECTED POLS.
So Republicans are shouting to AMEND because of actions by Obama that were illegal---and they were-----while Democrats are shouting to AMEND because the actions of Bush and Republicans are illegal -----which they are. Both have no intentions of AMENDING to protect WE THE PEOPLE THE 99%.
We know and documented the Bush Gore 2000 election as illegal----it was filled with election fraud as were the primaries filling our Democratic Party with Clinton neo-liberals and filling the Republican Party with Bush neo-cons. Knowing the illegalities makes it EASY PEASY to reverse and get rid of global Wall Street pols and players.
Inside the Conservative Push for States to Amend the Constitution
By MICHAEL WINESAUG. 22, 2016
A clause in Article 5 of the Constitution allows for states to sidestep Congress and draft amendments. Credit Nick Oxford for The New York Times
Taking advantage of almost a decade of political victories in state legislatures across the country, conservative advocacy groups are quietly marshaling support for an event unprecedented in the nation’s history: a convention of the 50 states, summoned to consider amending the Constitution.
The groups are an amalgam of free-market, low-tax and small-government proponents, often funded by corporations and deeply conservative supporters like the billionaire Koch brothers and Donors Trust, whose contributors are mostly anonymous. They want an amendment to require a balanced federal budget, an idea many conservatives have embraced, many economists disdain and Congress has failed to endorse for decades.
But as the groups near their goal, critics and some skeptical constitutional scholars are warning that holding an amendment-writing meeting with no historical parallel and no written rules could open a Pandora’s box of constitutional mischief.
The process, which is playing out largely beyond public notice, rests on a clause in Article 5 of the Constitution that allows the states to sidestep Congress and draft their own constitutional amendments whenever two-thirds of their legislatures demand it.
That will by no means be easy. Even if the two-thirds threshold were reached, a convention would probably face a court battle over whether the legislatures’ calls for a convention were sufficiently similar. And as with any amendment that Congress proposes, state-written amendments would need approval by three-quarters of the states — either by their legislatures or by state conventions — to take effect.
But as Republicans have surged to control of state legislatures and moved sharply rightward during the Obama years, what was once a pet project of the party’s fringe has become a proposal with a plausible chance of success. Some of the former Republican presidential candidates, including comparative moderates like John Kasich and Jeb Bush, have endorsed a state amendment convention.
So far, 28 states have adopted resolutions calling for a convention on a balanced-budget amendment, including 10 in the past three years, and two, Oklahoma and West Virginia, this spring. That is just six states short of the 34 needed to invoke the Article 5 clause.
“I think the prospect is very good in 2017,” said Gary Banz, a Republican who is the majority whip in the Oklahoma House of Representatives. “You can look at any number of states that are not on board yet, and they’re controlled by very conservative elements.’’
Including nominally nonpartisan Nebraska, Republicans now control 31 state assemblies — more than double the number in 2010. Of the 11 states advocacy groups have targeted for pro-convention lobbying next year, Republicans control both houses of the Legislature in seven.
Representative Banz is among those leading the charge. In addition to his statehouse job, he is the national secretary of the American Legislative Exchange Council, known as ALEC, a nonprofit financed by corporate and private donors, including the Kochs, that is at the center of the convention effort.
At ALEC’s annual meeting, in Indianapolis last month, another leading advocacy group, the Balanced Budget Amendment Task Force, staged a seminar for legislators on an amendment convention.
Citizens for Self-Governance, a Texas-based group with Tea Party roots, has ALEC backing for a more sweeping goal: an amendment that would “impose fiscal restraints” on the federal government, reduce its authority and limit the terms of federal elected officials.
The juggernaut nature of the convention movement has almost overshadowed the longstanding debate about its motivation: to imbue the Constitution with a binding limit on federal spending.
Supporters say the philosophy that state governments and ordinary people usually adhere to — that it is wrong and destructive to spend beyond one’s income — should apply to the federal government as well. In that view, the $19.4 trillion national debt threatens to destroy Americans’ future prosperity.
“It’s immoral for one generation to borrow and spend beyond its means and leave the bill to the next generation,” said Scott Rogers, the director of the Balanced Budget Amendment Task Force.
Gary Banz, a Republican and majority whip in the Oklahoma House of Representatives, is among those leading a charge for a convention on a balanced-budget amendment. Credit Nick Oxford for The New York Times
But opponents say an amendment, not the deficit, is the threat. A government that could not run deficits, they argue, would not be able to stimulate the economy during recessions, when job-creating spending is most needed. And it would not be able to elude budget ceilings for benefits like Social Security, or for job-creating projects like highways that are financed with debt.
In truth, they say, debt is a fact of life for both states and ordinary households — in bond issues that finance revenue generators like convention centers and bridges, and for ordinary necessities like cars, kitchen remodelings and homes. Banning deficit spending, they say, would bring the economy to a halt.
But the basic argument for federal frugality has broad appeal. Polls generally indicate strong support for a balanced-budget amendment, and advocates persuaded 32 state legislatures to back an amendment convention during the Reagan administration.
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Here is the Clinton global Wall Street neo-liberal group MOVE ON doing the same in Democratic Party pretending the problems with elections is only CAMPAIGN FINANCE REFORM and not open and widespread election fraud and rigging.
Getting the money out of elections is the least of problems for WE THE PEOPLE----it doesn't matter if corporations buy media advertising if our REAL good left Democratic candidates had access to REAL election venue coverage. It is the ignoring of FEDERAL ELECTION LAWS these few decades that has made good it impossible for good candidates to get their voices and platforms heard. Baltimore has the most rigged and fraudulent election environment this side of the INTERNATIONAL DATE LINE.
Global Wall Street CLINTON/BUSH/OBAMA want a CONSTITUTIONAL CONVENTION to install ONE WORLD ONE GOVERNANCE new constitution---the one global IVY LEAGUES like HARVARD/YALE and its candidates Clinton/Bush/Obama have been following these few decades ILLEGALLY.
As we said earlier----the WORLD BANK AND IMF have these several decades when brought in to RESCUE developing nations demanded these developing nations RE-WRITE THEIR CONSTITUTIONS to that of global Foreign Economic Zones----and this coming economic crash from massive US Treasury and state municipal bond fraud will be the excuse for Congress to RE-WRITE THE US CONSTITUTION and yes, Trump was installed to make sure it is filled with austerity----complete privatization of all that is public----and Trans Pacific Trade Pact with global labor pool is installed in all US cities deemed Foreign Economic Zones. Hillary would have done the same. This is simply BAD COP GOOD COP ----CLINTON/BUSH/OBAMA now TRUMP.
We the People, Not We the Corporations
On January 21, 2010, with its ruling in Citizens United v. Federal Election Commission, the Supreme Court ruled that corporations are persons, entitled by the U.S. Constitution to buy elections and run our government. Human beings are people; corporations are legal fictions.
We, the People of the United States of America, reject the U.S. Supreme Court's ruling in Citizens United and other related cases, and move to amend our Constitution to firmly establish that money is not speech, and that human beings, not corporations, are persons entitled to constitutional rights.
The Supreme Court is misguided in principle, and wrong on the law. In a democracy, the people rule.
We Move to Amend.". . . corporations have no consciences, no beliefs, no feelings, no thoughts, no desires. Corporations help structure and facilitate the activities of human beings, to be sure, and their 'personhood' often serves as a useful legal fiction. But they are not themselves members of “We the People” by whom and for whom our Constitution was established."
~Supreme Court Justice Stevens, January 2010
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This is what CAMPAIGN FINANCE REFORM pushed by Clinton/Obama global Wall Street neo-liberals has as a goal.......if ONE WORLD ONE GOVERNANCE MOVING FORWARD has a goal of filling US cities deemed Foreign Economic Zones with foreign corporations and the global 1% and their 2% these foreign entities need to be able to participate in our elections. We saw this worsening during 2008 election then 2016 election-----global corporations are demanding they be heard in a global economic system tied to ONE WORLD ONE GOVERNANCE.
As we like to refer----THE OLD WORLD MERCHANTS OF VENICE as city state had a SENATE composed of just that-----global 1% tied to the global market had representatives in that VENETIAN SENATE ---the people of the Roman Empire had NO VOICE---THAT PESKY 99%-----but those old world global 1% could buy influence-----had a voice in these city state SENATES----AND THAT IS TO WHERE CAMPAIGN FINANCE REFORM seeks to go.
Make no mistake----the global Wall Street Bush neo-cons as the global Wall Street Clinton/Obama neo-liberals both have this goal and Trump is simply MOVING FORWARD as that ONE WORLD ONE GOVERNANCE guy.
The global Wall Street 5% to the 1% are not trying to get foreign money out of our elections---they are trying to expand their voices in our elections.
Our US Constitution is not broken---it is rogue criminal pols in office ignoring all that is our US Constitution and Federal law.
Globalization of Campaign Funding: The Problem of Private Money In Politics
By Adam Weinberg
Globalization and Political Campaigns
Does globalization necessitate a rethinking of the way we finance elections?
Debates over campaign finance reform have been framed around dueling needs to prevent political corruption while protecting first amendment rights. Proponents argue that financing elections through private money leads to corruption, because politicians are beholden to their donors and not to their constituents. Contrarily, opponents argue that money equals speech. Any infringement on the right to spend money articulating a political preference is a direct violation of the first amendment. What has ensued is a very important debate about the point at which money stops being speech and starts becoming a form of power used to drown out the voice of others.
Globalization shifts the debate. In the global economy, the question is not the point at which money stops being speech and starts becoming power. The question is whose money, and thus whose speech, should influence American elections? American law is governed by a clear principle that foreign governments, political parties, corporations, and individuals should not directly or indirectly influence any election. This principle is even extended to domestic subsidiaries of foreign corporations, who are allowed to only give contributions that come from domestic profits. Hence, there was an outcry of illegitimacy in the 1996 election’s with a Chinese businessman offered a contribution to the Clinton campaign, through the vehicle of nuns at a Buddhist temple. The administration was penalized, and the contribution returned. This is an important principle that goes to the heart of national sovereignty.
Yet, the globalization of corporate structures makes it virtually impossible to prevent foreign nationals from participating in U.S. elections, as long as private money is the financing mechanism for political campaigns. Take the case of Enron, an energy corporation that gave $2.5 million in the 2000 elections, making it the largest energy campaign contributor, and the 36th top corporate contributor.
Globalization And The New Style Investments In American Elections
Why did Enron invest so heavily in the 2000 election? What might it have hoped to gain? And how does this relate to its global investments and profits?
Enron’s campaign contributions were aimed at reducing and/or shaping any political discussion around energy policy. Campaign contributions are a form of business investment. Enron anticipated returns on their investment. By electing George Bush, there was the potential for the rejection of the Kyoto Accord, removal of CO2 caps for power plants, and proposed incentives for drilling in Alaska and other sensitive ecological systems. Each of these actions would appear to represent high returns on this modest investment.
•Rejecting the Kyoto Accord would permit Enron to expand its markets for energy and energy services in the US. In addition, if the US rejection weakened the international agreements around the Kyoto Accord, this would also expand Enron’s markets abroad.
•Removal of CO2 caps in US power plants would likewise expand Enron’s US market, and increase profits. The only environmental note in Enron’s 2000 annual report was one documenting the costs of air pollution as a drain on profits.
•Incentives for further drilling would offer new profit arenas for Enron subsidiaries, including its on-line transaction system for bidding on and moving energy supplies across and within national borders.
Enron would not be disappointed. In a scant half-year in office, President Bush has:
•promoted withdrawal from negotiating commitments to the Kyoto Agreement to reduce global warming gases,
•eliminated Clinton controls over carbon dioxide emissions from power plants, oincreased energy production,
•increased oil drilling, refining, and transportation;
•increased exploration of new nuclear power plants;
•decreased exploration of renewable energy sources; and
•increased deregulation of power industries.
These policy decisions are likely to translate into substantial profits for Enron. For example, Enron believes it has positioned itself to be the prime energy supplier in deregulating energy markets, since its breadth of services and subsidiaries, and its global reach of supplies and transportation options has prepositioned it better than competitors. In addition, part of the services it sells are risk-underwriting for power systems, facing uncertain deregulatory outcomes. Moreover, with its direct online marketing system, Enron can react faster in any geographic locale to bid on new opportunities for energy (and material) supply. And Enron has built both contractual and investment linkages to a variety of energy suppliers.
Under U.S. law, there might or might not be a problem with Enron giving money to the Bush campaign, to influence policy in favorable ways. At this point, we are stuck in a serious debate over the tension between preventing political corruption and preserving first amendment rights. Yet, the globalization of organizational structures changes the debate.
Enron has become a global firm that transcends any real national affiliation. In the past three years, foreign revenues have increased from 7% to 23% of their total revenues in the last three years ($22,898,000,000 up from 6,013,000,000 in 1998).
Let us consider the full implications of this change. On a pro-rata basis, the majority of campaign funding by Enron could consist entirely of earnings outside of the US. Whether this global revenue is actually used for this purpose is indeterminable, and also largely immaterial for our purposes. If foreign revenues are not directly used for campaign financing and other political investments, then these revenues fill in the voids created by Enron’s use of domestic earnings, and permit expansion of campaign funding.
One might argue that this has always been true. Many American firms have a long history of foreign earnings. Yet, we are witnessing a quantitative leap in the percentage of foreign earnings. Enrons foreign operating revenues have increased over 300% in the last three years. With markets opening in China, India, and elsewhere, this will increase over time.
But this is merely the tip of the global iceberg. The increase in foreign revenues represents a complex set of transnational relationships. These income come from transactions between Enron shareholders, national investors in many foreign subsidiaries or contractors of Enron. Moreover, Enron shareholders are likely to be themselves increasing located outside the US, as Enron stock is traded globally. This suggests that the $2.4M Enron political contribution can serve the following kinds of interests: U.S. shareholders, foreign shareholders of Enron; U.S. shareholders of contractual firms; foreign shareholders of contractual firms; U.S. managers of Enron; foreign managers of Enron subsidiaries; U.S. managers of contractual firms; foreign managers of contractual firms; and foreign and/or U.S. consumers. Enron is currently doing business across North and South America, Europe and Japan with plans to expand. Like many companies, it is going global.
Following is a dramatic example of the complex grasp of Enron, substituting its cross-border and cross-commodity transactions for the “invisible hand” of Adam Smith:
“Cominco Ltd, a zinc producer and an Enron Metals customer in Vancouver, British Columbia, worked with Enron to halt zinc production for six weeks and sell its power into the Northwestern power market, where it was needed. Enron North America protected Cominco by structuring a fixed-price swap to guarantee the sale price of the power, and Enron Metals arranged to supply a portion of the zinc required to fulfill Cominco’s obligations. Cominco’s profit from the deal exceeded the annual profit it makes from producing zinc…” [Enron 2000 Annual Report, 12]
Why is this a problem?
The globalizaton of Enron’s organizational structure allows foreign nationals to influence American elections in direct and indirect ways. Enron often does business abroad through foreign subsidiaries and/or partnerships with foreign companies. Bennett Harrison and others have called this networked forms of production. Firms are linked together through mergers and partnerships into global networks that share information, engage in long term contracts, and work within host countries to create and protect opportunities for other firms within the network. There are important implications. At the very least, foreign nationals are broadly part of the internal decision making apparatus of American firms. Such firms are heavily determining who can afford to run for political office in the United States.
Thus, the energy industry’s early support for President Bush made a substantial difference in his candidacy. It allowed him to run early, and kept others out of the race. The energy industry can no longer be defined as “U.S. energy firms”. The energy industry is a global network of firms with priorities, policies, and decisions being made by managers in an array of countries.
There is a more unsettling scenario. Many of the foreign firms will be companies operated by wealthy families with close ties to foreign governments (and the same family, in some instances). The election of U.S. President is very important to these national governments. Hence, decisions made internally to Enron, about who to support and the strength of that support, will be discussed among top management, which consists of the foreign managers with their ties to foreign governments. If the election is important enough, it is conceivable that a foreign government might underwrite a partnership or sale of a firm to an U.S. corporation as a way to have some influence in domestic policy through campaign contributions and the lobbying doors it opens. It is not a great leap of faith to imagine that the current Chinese government might be placing pressure on Chinese firms, to use their partnerships with American firms to gain access to U.S. politicians making decisions about free trade, human rights, and foreign policy (for example, our shifting stance on Taiwan).
There is another danger. At what point does a firm like Enron cease to be a U.S. firm? The principle of foreign nationals is partially driven by pragmatic politics. People influencing U.S. elections should be doing so based on their belief for what is the best interest of the US. In the future, firms like Enron will acquire more inputs and customers abroad. Hence, they will be mostly concerned about those countries, for which they are dependent for major profits. They are more likely to support politicians and policies that keeps that host countries economy strong.
If 60% if Enron’s employees and revenues are foreign, is it still an American firm? If 80% of its revenues are derived through partnerships with foreign firms? These are difficult questions to answer. They will become more prevalent in the coming years.
Minimizing Corporate Giving
How should the United States respond? One proposal for minimizing the dangers of foreign interference in U.S. elections would be to further regulate corporate giving. We could prevent firms from giving to candidates or to political parties. The logic behind such a proposal rests on a faulty understanding of the difference between hard and soft money contributions.
Hard money is regulated money. In federal elections, individuals are allowed to give $1000 to a candidate per year in a election ($1000 for a primary, and $1000 for a general election). An individual can also give $5000 to a PAC and to a political party. Individuals are capped at $25,000 a year. Soft money is unregulated money. Individuals can give unlimited amounts of contributions to political parties for “party building activities.” Most often, these funds are used to support candidates in fairly overt ways. Corporations can only give soft money. Hence, it would appear that a ban on soft money would solve the problems that just outlined. This is not true.
Most campaign contributions come from very wealthy individuals, who mostly give as a way to protect and promote their companies and trade associations. In fact, 95% of the money in the 2000 elections came from the wealthiest 1% of Americans. Most corporate donations are made by individuals as hard money contributions. Often this done through a practice known as bundling (one author will admit that his first post-college job partially entailed taking bundles of checks to a bank for a Congressman). To maximized influence, individuals bundle their contributions with others from the firm or sector. Sometimes this is done physically. At a fundraiser, a candidate will be handed a stack of checks, which sends the clear message “These checks come from individuals at X firm who support your candidacy.” Often it is done figuratively. In a recent issue of Newsweek, Michael Isikoff reports that in the last Presidential race, the Republican Party gave its fundraisers tracking codes for donors to write on their checks. An internal memo written by the head of electric power industry’s main lobbying group explained to potential donors why the code was important: “IT DOES ENSURE THAT OUR INDUSTRY IS CREDITED, AND THAT YOUR PROGRESS IS LISTED AMONG THE OTHER BUSINESS/INDUSTRY SECTORS” (capitalization used in the original document).
Banning corporate giving of soft money will do little to stop the influence of foreign nationals in U.S. elections. Bundling will increase. Opponents will argue that hard money is regulated and hence the potential for influence is also regulated. This is also a false premise. An individual can give a candidate up to $1,000 every year, with no more than a total of $25,000 per year. As a family, we can give $4,000 to a candidate per year (me, my wife, and my two kids) and $100,000 per year. For a Congressional cycle my family could give a Representative $8,000 or a political party $200,000. It is not a stretch to argue that a foreign firm could quite explicitly place pressure on U.S. managers of a connected firm to bundle. With 50 or 100 Vice Presidents of various sorts, a firm could heavily influence an election. In fact, there are all sorts of reports of fundraisers of this sort, where a trade association bundles with firms expecting their management team to attend and participate. One political party recently held a fundraiser inside a Washington embassy for a foreign government that needs to influence American elections.
Public Financing As A Reality of Globalization
In the global economy, we will continue to see growing profitability from abroad through the movement of domestic capital. The obverse will also true. Foreign investors may channel their influence through the transfer of profits back to the U.S. holding companies, thereby providing a kind of “domestic” laundering of foreign interests.
It might be time for a more serious and sustained conversation about public financing of elections. A number of states have been experimenting with Clean Money systems. Under Clean Money a candidate has to collect a certain amount of contributory signatures, defined as small donations. The donations are small enough to allow everybody to contribute, yet large enough to demonstrate support: $5 is the typical amount. Once enough signatures are collected, the candidate is given a set amount of money for their campaign. In return, they agree not to take any money from private sources. Early experiments in Maine and Arizona suggest that Clean Money works. More candidates run for office. The pool is more diverse. Likewise, voters seen to prefer clean candidates. Finally, candidates report feeling freed to act as public servants.
Globalization Movements And Clean Money
Recent protests around globalization belie a belief that globalization is not benefiting millions of the worlds poor. The real battle is not over the potential for globalization to create benefits. The battle is over the actual distribution of those benefits, and the actual distribution of costs associated with producing those benefits. Globalization is really an economic opportunity with a political problem. We need stronger democratic mechanisms that can harness and shape the face of globalization, and ensure the distribution of opportunities and gains. Since the United States is largely shaping globalization, it would make sense to start here. We need to make our political system more democratic.
This means that elections must be fair and open. It also means that elected officials need to be responsive to their constituents. In a recent issue of the Harvard Journal of Public Policy, Congressman Harold Ford wrote, “the increasingly exorbitant cost of running for public office allows special interests to exert too much influence over decision making in government, and accordingly, hampers average citizens’ ability to make their own views heard in a meaningful and influential way.” Thus, it seems clear that we will continue to have important and spirited debates over campaign finance reform. As we do so, we should understand and include the problem that the globalization of organizational structure adds to these debates.
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Know what? If these global Wall Street pols really wanted to get that extreme wealth out of US elections THEY WOULD ENFORCE US ANTI-TRUST MONOPOLY LAWS and VIOLA----all global Wall Street and global corporations would be broken down to small and regional businesses. They won't do that----
It is the duty of our 3 branches of government to be CHECKS AND BALANCES----and our legislative Congressional pols should have been impeaching Presidents and JUDGES not enforcing US anti-trust monopoly laws.
Below we see an article written by YALE telling WE THE PEOPLE the original framers of US Constitution were elitist----well, yes, that is why 300 years of AMENDMENTS have broadened American Constitutional protections and inclusiveness. The very people as YALE and HARVARD are trying to take our US Constitution back to being elitist this time for a global 1% with a global 99% having no rights----so this movement will be WORSE than the original elitist FOUNDING FATHERS.
“The framers were motivated by both democracy and élitism,” Akhil Reed Amar, a professor at Yale Law School and the author of “America’s Constitution: A Biography” (2005), told me. “The framers didn’t trust ordinary people to make every decision. So you had Congress made up of a very small number of people. And their terms were longer than their counterparts in the state legislatures under the Articles, so they had some freedom to act outside of public pressure.”
For our NEW CITIZENS who these several years have been that global 1% allowed to buy citizenship while the global labor pool comes to America to be exploited, abused, with no rights. We don't want that 5% to the 1% immigrant citizen shouting to re-write a US Constitution that most global citizens WANT TO REMAIN STRONG FOR WE THE PEOPLE.
The kabuki theater that has been Congress these few decades of CLINTON/BUSH/OBAMA has occurred because those global Wall Street pols are not working as STATES MEN AND WOMEN----they are working as players enriching themselves and have only worked to expand global Wall Street power----this is why our Congress is broken.
THIS IS A VERY LONG ARTICLE---PLEASE GLANCE THROUGH-----THE FOUNDERS ARE NOT TO BLAME---THEY WROTE A CONSTITUTION TO PROTECT AGAINST THESE EXTREME WEALTH AND GLOBAL CORPORATE POWER STRUCTURES!
Annals of Law
December 9, 2013 Issue
Our Broken Constitution
Everyone agrees that government isn’t working. Are the founders to blame?
By Jeffrey Toobin
Some critics consider the creation of the Senate, which acts as a brake on legislation, the original sin of the Constitution.Illustration by Barry Blitt
If there is a single point of consensus in this heated political moment, it’s that everyone loves the Constitution. “Conservative or liberal, we are all constitutionalists,” Barack Obama wrote, in “The Audacity of Hope.” Ted Cruz, the junior senator from Texas, who emerged as a principal antagonist of the President’s during the government shutdown, has often said much the same thing. The Founding Fathers, Cruz said, “fought and bled for freedom and then crafted the most miraculous political document ever conceived, our Constitution.”
These homages are more than rhetorical tropes. Most politicians consider the validity of the Constitution off limits as a subject for debate. The Constitution, and the structure of government that it established, provides the backdrop, but never the subject, for every controversy. Obama, who taught constitutional law for more than a decade at the University of Chicago Law School, wrote, “The outlines of Madison’s constitutional architecture are so familiar that even schoolchildren can recite them: not only rule of law and representative government, not just a bill of rights, but also the separation of the national government into three coequal branches, a bicameral Congress, and a concept of federalism that preserved authority in state governments, all of it designed to diffuse power, check factions, balance interests, and prevent tyranny by either the few or the many.”
It’s often noted that the United States is governed by the world’s oldest written constitution that is still in use. This is usually stated as praise, though most other products of the eighteenth century, like horse-borne travel and leech-based medical treatment, have been replaced by improved models. (Thomas Jefferson believed that any constitution should expire after nineteen years: “If it be enforced longer, it is an act of force and not of right.”)
Outside Washington, discontent with the founding document is bipartisan and widespread. In many ways, the contemporary debate reflects the framers’ arguments, more than two centuries ago. How insulated should elected officials be from the demands of the people? How should power be divided among the federal and the state governments? What rights of the individual must be protected against the claims of the government? The Constitution offers only contingent answers to these questions. Indeed, in recent years particularly, it’s become clear that politicians and voters, as well as judges, can play crucial roles in defining the contemporary meaning of the Constitution. The critics have the advantage of having seen the Constitution in action. On the left and the right, they are asking whether the pervasive dysfunction in Washington is in spite of the Constitution or because of it.
In 1987, Philadelphia hosted the national celebration of the two-hundredth anniversary of the signing of the Constitution. There were parades and an exhibit called “Miracle at Philadelphia.” To foster viewer participation, the exhibit culminated with two scrolls, each bearing a question: first, “Will you sign this Constitution?” And, second, “If you had been in Independence Hall on September 17, 1787, would you have endorsed this Constitution?” Sanford Levinson, a professor of law at the University of Texas at Austin, made his way through the exhibit and struggled with the decision of whether to add his name to the scrolls.
Now seventy-two, Levinson is white-haired and cherubic, with an air of perpetual amusement. Seated in his office at Harvard Law School, where he is a visiting professor, Levinson described his dilemma. “I thought long and hard,” he said. “If you look at the Constitution, you see that it was drafted by people who were not little-‘d’ democrats.” This was most evident in what Levinson has called “the brooding omnipresence of American history—race and, more precisely, slavery.” Implicitly but unmistakably, the 1787 Constitution allowed for the continuation of slavery. Women could not vote; in many places, only property owners could. The Bill of Rights, with its explicit defense of individual rights, did not become part of the Constitution until 1791.
Still, Levinson signed. He recalled that Frederick Douglass, the great abolitionist, ultimately supported the Constitution, with all its flaws, because he saw in it the “potential to mount a critique of slavery, and much else, from within.” Levinson remembered, too, the words of Representative Barbara Jordan, the African-American from Texas, who served on the House Judiciary Committee during its impeachment investigation of Richard Nixon, in 1974. “My faith in the Constitution is whole; it is complete; it is total,” Jordan said. Levinson concluded, “If it was good enough for them, it was good enough for me.”
In 2003, Levinson returned to Philadelphia for the opening of the National Constitution Center, the sprawling museum and exhibition hall dedicated to celebrating the document. Visitors were again invited to pass judgment on the work of the founders. Indeed, the center organized a travelling nationwide project called “I Signed the Constitution,” which purported to put visitors in the place of the delegates in 1787.
This time, Levinson didn’t sign. “Between 1987 and 2003, I became less concerned about inputs and more concerned about the outputs,” he told me. “In 1987, I thought a lot about the procedures that were used to set up the Constitution—whether they were democratic or not. At that time, I used to think, Well, what’s the difference if it works? But I came to see that the system just does not work anymore. The outputs fail. It’s not a government that can solve problems.” Levinson elaborated on his misgivings in a 2006 book, “Our Undemocratic Constitution,” which laid out a comprehensive critique.
The Constitution, Levinson wrote, places “almost insurmountable barriers in the way of any acceptable notion of democracy.” He acknowledged that the worst aspects of the eighteenth-century Constitution—the institutionalization of race and gender discrimination—had been corrected through the amendment process. Still, he wrote, “the constitution is both insufficiently democratic, in a country that professes to believe in democracy, and significantly dysfunctional, in terms of the quality of government that we receive.” In the past decade, Levinson has become the unofficial spokesman for progressive critics of the Constitution.
The core challenge of the Constitutional Convention was to persuade the representatives of the states to surrender some of the power they possessed under the Articles of Confederation, which had produced a weak and ineffectual national government. The delegates devoted most of their attention to the rights of states, not of individuals. This led to a debate about just how democratic the new government would be. “The framers were motivated by both democracy and élitism,” Akhil Reed Amar, a professor at Yale Law School and the author of “America’s Constitution: A Biography” (2005), told me. “The framers didn’t trust ordinary people to make every decision. So you had Congress made up of a very small number of people. And their terms were longer than their counterparts in the state legislatures under the Articles, so they had some freedom to act outside of public pressure.”
Both struggles—state vs. federal power, democracy vs. élitism—came together in the fight over the creation of the Senate. Federalists like Virginia’s James Madison and New York’s Alexander Hamilton, who were from larger states, insisted that the government existed to serve people, not the artificial entities known as states. Hamilton went so far as to consider the abolition of states altogether, with all power to be vested in the national government. Less radically, Madison pressed for a legislature based solely on proportional representation; the number of legislators would reflect the number of people in the state, not the state itself.
As Hamilton wrote later, in Federalist No. 22:
Every idea of proportion and every rule of fair representation conspire to condemn a principle, which gives to Rhode Island an equal weight in the scale of power with Massachusetts, or Connecticut, or New York; and to Delaware an equal voice in the national deliberations with Pennsylvania, or Virginia, or North Carolina. Its operation contradicts the fundamental maxim of republican government, which requires that the sense of the majority should prevail.
Several times during the summer of 1787, the Convention nearly collapsed as the small states refused to yield the powers they enjoyed under the Articles. Prodded by Benjamin Franklin, the éminence grise of the Convention, Connecticut’s delegates, led by Roger Sherman, came up with the compromise that saved the young Republic. There would be two bodies in Congress—one based on proportional representation (the House of Representatives) and the other based on states (the Senate). “As an additional sop to the states, the Constitution said that senators would be chosen by state legislators, not voters,” Amar said. “That was designed to make sure that the federal government would be responsive to the needs of the states.”
In creating the national legislature, the delegates had to address the issue of slavery. Although slaves weren’t citizens and couldn’t vote, the Southern states wanted them to be included in the calculation of the over-all population, in order to boost the region’s representation in the House. The North thought that the slaves should not count at all. In a way, the negotiated solution reflected the shameful reality that slaves in the United States were judged less than fully human. The standoff led to a notorious compromise: for purposes of apportioning seats in the House, each slave would count as three-fifths of a person. As the University of Pennsylvania historian Richard Beeman noted, in “Plain, Honest Men,” his 2009 account of the Convention, the debate over the three-fifths rule took place with “a near-total absence of anything resembling a moral dimension.”
Progressive critics of the Constitution object to the compromises that favored the states’ rights and the élitist side of the debate. “The process that produced the Senate is understandable,” Levinson told me, “but the end result is indefensible.” The distortion created by small states having an equal number of senators has dramatically worsened over the centuries. In 1787, when the Constitution was drafted, the largest state, Virginia, had about eleven times as many people as the smallest, Delaware. Today, California has roughly seventy times more people than Wyoming. To Levinson, the creation of the Senate was the original sin of the Constitution. The most obvious offense was that the power reserved to the slave states insured the survival of slavery. It took the Civil War to end it, and the Thirteenth, Fourteenth, and Fifteenth Amendments to overrule the three-fifths compromise.
The Senate continued to reflect its anti-democratic structure long after the Civil War. Through most of its history, it has been a graveyard for legislation, even after the Seventeenth Amendment, ratified in 1913, established the direct election of senators. Its primary function has been to stop bills, which are often supported by a popularly elected President and House members, from becoming law. In theory, the senatorial veto is available to both political parties, but a Senate in which less populated states wield disproportionate influence is fundamentally conservative in nature. In simple terms, in a world where progressives want government to change things and conservatives favor the status quo, a legislative body that makes legislating difficult will be a conservative force. The Senate blocked ratification of the League of Nations treaty after the First World War, civil-rights laws after the Second World War, and the Clinton health-care reform in the nineteen-nineties. “You’ve basically always had two parties in the country where one wants change and the other is more supportive of the status quo,” Noah Feldman, a professor at Harvard Law School, said. “The Senate is an institution that stops change. That’s how it’s designed, and that is always going to hurt that party that wants change, the activist party. Today, that’s the Democrats.”
This, in a way, is the story of the Obama Administration. Obama was elected twice, both times by comfortable margins in the popular vote and by landslides in the electoral college. Though he will spend eight years in office, his tenure as the actual leader of the national government lasted about a year and a half. On July 7, 2009, Al Franken was seated, after a recount, as the sixtieth Democratic senator. (Sixty votes are needed to overcome a filibuster.) Between that time and the end of 2010, Obama pushed through Congress health-care reform (the Affordable Care Act), financial reform (the Dodd-Frank legislation), a bailout of the automobile industry, a repeal of “don’t ask, don’t tell” in the military, and the ratification of an arms-control treaty with Russia. The President also won the confirmation of two Justices to the Supreme Court. In the midterm elections of 2010, Obama’s party lost control of the House and fell below the filibuster threshold in the Senate.
Since then, Obama has failed to accomplish almost anything in Congress. Following his second Inauguration, the President embraced a gun-control bill that had universal background checks as its centerpiece. Even though polls showed that roughly ninety per cent of the public supported the idea, the legislation died in the Senate. (The less populated, more rural states are the ones most fiercely opposed to gun control.) A similarly large percentage of the public supports comprehensive immigration reform. That bill passed in the Senate but appears doomed in the House. Obama even failed to persuade Congress to fulfill its basic obligation to pay the bills and keep the government open. The shutdown, which lasted sixteen days, ended in a ceasefire, but the threat of closure and default will return early next year.
Levinson and his allies believe that the Constitution mandated a kind of institutional paralysis that allowed Obama to do too little. Another leading revisionist, arguably more influential than Levinson or any other law professor, draws the opposite conclusion: the Constitution allowed Obama to get away with too much.
Bald, bearded, and professorial at fifty-six, Mark Levin seems an unlikely media star. After serving in Ronald Reagan’s Justice Department, he went on to lead a small conservative public-interest law firm, the Landmark Legal Foundation. Stints on Rush Limbaugh’s radio program led to an offer, in 2003, to host his own nightly show on WABC, in New York. Levin (pronounced “le-vinn”) doesn’t have Limbaugh’s raucous humor and he doesn’t cheerlead for Republicans in the manner of Sean Hannity, but he has become the country’s most widely followed commenter on the Constitution. His show is in the top five nationally (drawing more than seven million weekly listeners), and his books sell hundreds of thousands of copies. In “Men in Black: How the Supreme Court Is Destroying America,” “Liberty and Tyranny: A Conservative Manifesto,” and “The Liberty Amendments: Restoring the American Republic,” Levin lays out a comprehensive critique of what he sees as the modern desecration of the Constitution.
Levin calls himself a “constitutionalist,” which he has turned from a generic term (Obama used it in his book) into an ideological one. Like many conservatives, he is an originalist, holding that the Constitution’s meaning was set and fixed by the framers. But Levin combines originalism with a kind of apocalyptic fatalism, a belief that the nation has gone so drastically off course that the damage may be irredeemable. “I think in many respects that we are in a post-constitutional era,” Levin told me. “It’s difficult to think of our current federal government—so ubiquitous in our lives, with its tentacles into everything—as consistent with what we understand to be the real meaning of the Constitution. The system that the framers set up was a good one, but it’s not one we’re living under.”
Levin’s prominence is bound up with the Tea Party movement. When Republicans took control of the House in 2011, their first act was to stage a public reading of the Constitution (except the parts about slavery). Tea Party Republicans speak obsessively about how contemporary politicians, especially President Obama, violate the strictures of the Constitution. Levin assails the Affordable Care Act as the epitome of all that is wrong with modern American government. When a lower court struck down the law, in 2011, Levin said, “It is a great day for the rule of law and the citizenry.” (The law was later upheld by the Supreme Court.)
Levin’s constitutionalism has a distinctly populist edge. For him and the Tea Party as a whole, the meaning of the Constitution can be understood by any ordinary citizen, not just a small priesthood of lawyers and judges. As Theda Skocpol and Vanessa Williamson wrote, in “The Tea Party and the Remaking of Republican Conservatism” (2012), “A persistent refrain in Tea Party circles is the scorn for politicians who fail to show suitable reverence for, and detailed mastery of, America’s founding documents”—documents that “are immediately accessible and obviously clear [and] can be understood by each person without the aid of expertise of intermediaries.”
Levin has proposed a series of Liberty Amendments, most of which reflect well-known aspects of the Tea Party agenda. He wants to set term limits on members of Congress, limit federal spending and taxes, and allow three-fifths of the states to overrule any federal legislation. He also wants to repeal the Seventeenth Amendment and return the election of senators to state legislators, rather than to voters. “The original purpose of the Senate was to give state legislators a say in the national government, and that’s gone,” Levin told me. “State legislators are closer to the people, and they should have more of a voice in how the federal government runs.” In any case, “The Senate is not supposed to be democratic. The framers did not want the popular vote to control everything. I do not understand a mind-set with some of these professors who, on the one hand, seem to argue for the greatest expansion of democracy possible and, on the other, rely on the smallest majority possible—five Justices on the Supreme Court. Do you trust the plebiscite mentality or the judicial-supremacy mentality?”
Levin has a pre-Civil War conception of federal power, roughly akin to that of the great states’ rights advocate of the era, John C. Calhoun. Above all, Levin would like to curb the power of the federal government. The Supreme Court would exist mostly to police the federal government, keeping it from overstepping its authority. (Liberals generally embrace a vigorous role for the Supreme Court as a defender of individual rights against the intrusions of the state.) Levin’s ideas are shared well beyond the realm of talk radio. Steven Calabresi, a professor of law at Northwestern University and a co-founder of the Federalist Society, a conservative lawyers’ group, proposed to me that half the Justices on the Supreme Court be selected by the current method of Presidential appointment and Senate confirmation, and the other half by a vote of the fifty state governors. “I would also allow Congress, by a two-thirds vote of both houses, to override Supreme Court decisions in the same way in which it can override Presidential vetoes,” Calabresi said.
Randy Barnett, a professor at Georgetown University Law Center, was a principal architect of the lawsuit challenging the Affordable Care Act, on the ground that Congress exceeded its powers under Article I of the Constitution. He has an elaborate proposal that advances the interests of states. A few years before Levin devised his Liberty Amendments, Barnett created a Bill of Federalism—ten constitutional amendments that would, among other things, give more power to the states. The Levin and Barnett proposals have much in common. Barnett calls for eliminating the federal income tax; prohibiting the imposition of unfunded mandates on the states; and allowing half of the states (provided that they represent half of the national population) to rescind any federal law. Notably, Barnett proposes an amendment that would effectively ratify the Supreme Court’s decision in the Citizens United case, which struck down a key portion of the McCain-Feingold campaign-finance law. That provision, according to Barnett’s draft, states, “The freedom of speech and press includes any contribution to political campaigns or to candidates for public office.”
There is perhaps a populist symbiosis between Sanford Levinson’s progressive critique of the Constitution and Levin’s and Barnett’s conservative vision. Both posit that substantial majorities of the states should be able to override congressional actions. “There are two groups of people who are thinking about amending the Constitution,” Barnett said. “Sandy and his group don’t like the form of government that the Constitution provides. They want to change the Constitution to affect the situation in Washington so that it’s easier to get things done. They are majoritarians. They want a Western European parliamentary system, where a new government comes in and can pass its program right away. They are happy to abuse political minorities, depending on who is out of power at any given time. Majority rule is the only form of checks and balances they feel is justified, so the majority can do whatever it wants. The effect of that thinking is that California and New York get to run the country. That’s what the results of these policies are—to screw the people in the middle of the country. The minority can’t fight back. They always lose. That’s just a dangerous system.
“What’s motivating me is completely different,” Barnett went on. “We established a republican form of government that is not majoritarian. Legitimacy does not come from numbers—it comes from individual rights.”
Levinson told me, “Randy is basically right—I don’t like our form of government. I do think the republican form of government imagined by Madison and his friends was extraordinarily fearful of any kind of rule by the people. They really didn’t have any confidence in citizens. But what Randy finds himself defending is a veto by small, basically rural states, who ought not be subjected to majority rule by people who live in cities. This is one of the great American fault lines.”
The debate between law professors can seem abstract, but their disagreements play out in contemporary Washington, especially in the Senate. The career of Orrin Hatch, Republican of Utah, offers a partial refutation to the theorists on both sides, who insist that the Constitution defines the Senate in a specific way. Hatch’s long tenure suggests that the Constitution allows the Senate to evolve in keeping with the demands of its members—for better or for worse.
Hatch was first elected to the Senate in 1976, which makes him the second most senior member of the body. (Patrick Leahy, of Vermont, is the most senior.) Hatch maintains a hideaway office in the Capitol, just steps from the Senate floor. It used to be Ted Kennedy’s—a room that is said to have once been Jefferson’s library. On the wall of Hatch’s hideaway is a painting by Kennedy of the family compound in Hyannis Port. He inscribed it to Hatch with the words “We’ll leave the light on at the compound for you any time.”
“We fought like hell,” Hatch told me, “but we loved each other.”
Hatch arrived in the Senate as a kind of advance guard for the Reagan revolution—a small-government, Western-style conservative. He first made his mark leading the fight against Jimmy Carter’s labor-reform bill, in 1978, killing a piece of legislation, widely expected to pass, that would have made it easier for unions to organize workers. Later, alternately as the chairman and as the ranking minority member of the Judiciary Committee, Hatch was a fierce advocate for Republican judicial nominees. His support of Clarence Thomas and his denunciation of Anita Hill, in 1991—he accused her of cribbing her accusations against Thomas from “The Exorcist”—remain his defining moment in the public mind.
At the same time, Hatch became an accomplished legislator, adept at building partnerships with unlikely allies. The seventies and eighties were also a kind of golden age in the Senate, where ideological adversaries figured out ways to make common cause. Hatch and Kennedy together passed the Ryan White CARE Act, which dealt with AIDS, in 1990, and the State Children’s Health Insurance Program, in 1997. More informally, they steered many contested nominations of judges and others through the Senate. In other words, Hatch has played both roles in the Senate—as a partisan obstructionist and a consensus-seeking deal-maker.
As befitting a senator from one of the less populated states, Hatch has always been a zealous defender of the provisions of the Constitution that preserve states’ rights. “If you didn’t have the Senate, then the large states would control everything,” Hatch told me when I met with him earlier this fall. “If you look at the red states, we have at least a significant ability in the Senate to force more compromise and more getting along, and that has happened time after time.” From the beginning of his Senate career, Hatch also opposed plans (supported by Richard Nixon, among others) to abolish the electoral college and decide Presidential elections by popular vote. “You would not have any real representation of the people who are basically in the middle of the country,” he said. “The difference between states matters, because there are different people in each state, different economies, different natural resources. If it was just the large states, we’d be dominated completely.
“The Senate was never designed to be like the House,” Hatch said. “In the House, if you can get fifty per cent plus one, you can pass anything. In the Senate, you have to make a real case. You are going to need sixty votes to get it passed. Here there shouldn’t be a plethora of bills going through all the time.” He invoked the famous metaphor, attributed to George Washington, that calls the Senate the saucer into which boiling water is poured to cool. “This has never been a democracy,” Hatch said. “This is a representative republic with heightened democratic principles.” After a pause, he added, “I never called it that before, but I think it’s right.”
The sixty-vote threshold to break Senate filibusters was soon to be challenged by the Democrats. The Constitution makes no reference to filibusters, and over the years there were periodic arguments (and some lawsuits) asserting that filibusters are unconstitutional, as a violation of the norm of majority rule. These cases foundered against Article I, Section 5, of the Constitution, which says that each house of Congress “may determine the Rules of its Proceedings.” Thus, judges have said, if the Senate wants filibusters, it can have them.
When Hatch arrived in the Senate, filibusters were rare, and were used mostly against major legislation. During Obama’s Presidency, the number of filibusters has grown dramatically: Democrats have had to file for cloture—that is, to stop filibusters—about twice as often as Republicans did during their early years in the majority when George W. Bush was President. Approximately half of all the filibusters in American history against Presidential nominations have taken place during Obama’s Presidency.
Hatch pointed out that it was the Democrats who first began to abuse the filibuster, when they were in the minority. “It’s wonderful for them to be moaning and groaning,” he told me. “But it’s sour grapes. They started this crap.”
Hatch acknowledged that the poisonous political atmosphere within the Republican Party has also contributed to the breakdown in the Senate. For twelve years, his junior colleague from Utah was Robert Bennett, who was less well known nationally than Hatch but every bit as conservative. “Bob was a good senator and good friend,” Hatch said. But, in 2010, Mike Lee, who was a law clerk to Samuel Alito, and who is affiliated with the Tea Party movement, castigated Bennett as a moderate and defeated him for the Republican nomination. “I hated to see it happen,” Hatch said, and his disdain for his junior colleague is difficult to hide. Today, Lee is best known as Ted Cruz’s unofficial deputy in the shutdown struggle, a fight that appalled Hatch. “I am never going to be a fan of the shutdown. That is not the way to run the government,” he said. “If they wanted to shut the government down, they have to show me that there is an endgame where it is a justifiable, or winning, fight. But there wasn’t a way. I don’t believe in feckless fights.”
The paralysis of the Senate has reverberated through the entire government. One of the most important Supreme Court cases of the coming year, National Labor Relations Board v. Noel Canning, presents an almost perfect distillation of everything that’s wrong with contemporary Washington—and with the Constitution. The dispute features the excessive power of the Senate, the pervasiveness of filibusters, and the dubious authority of an eighteenth-century document being used in circumstances that are completely different from those for which it was designed.
The delegates in Philadelphia gave the President the power to appoint many senior federal officials, but such appointments were subject to confirmation by a majority of the Senate. This presented a problem at a time when Congress was in session only about six months a year, and the representatives had no way of showing up on short notice. So the framers came up with a way for the President to keep the government running, including making appointments when Congress was out of session. With little debate, the delegates included a provision in Article II, which defines the powers of the executive branch, stating, “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” Recess appointments, as they are known, give the President the power to bypass the Senate to fill certain jobs, but only for a limited time, until the end of the current congressional session.
For two centuries, Presidents exercised the power to make recess appointments rarely, and usually with little controversy. But, as relations between the Senate and the White House became more contentious, Presidents began to do it more often. Bill Clinton made a hundred and thirty-nine recess appointments; George W. Bush made a hundred and seventy-one. But neither of them faced the kind of obstruction that Obama has encountered during his four-plus years in office. In an effort to lower the temperature of his disputes with Congress, Obama initially resisted using recess appointments, but he picked up the pace in 2010. Although he has made only thirty-two in total, his adversaries launched an unprecedented legal counter-offensive against him.
Republicans in the Senate were particularly reluctant to approve Obama’s choices for the National Labor Relations Board, a body for which the G.O.P. has minimal regard. For members of this and other agencies, Republicans did not vote the nominees down—they didn’t have fifty-one votes. Rather, they used filibusters to prevent the full Senate from considering them at all. In the instance of the N.L.R.B., Obama responded by making recess appointments to fill a quorum at the board. In a fairly routine case from 2010, the board filed an unfair-labor-practice charge against Noel Canning, a soda bottler in Washington State, for improperly withdrawing a contract offer to the union representing its workers. The company charged that the action was invalid, because it was made by board members who had been given unconstitutional recess appointments.
In a decision handed down earlier this year, the United States Court of Appeals for the D.C. Circuit sided with the company, striking down the board’s judgment in the case. Indeed, the court said that all actions taken by a broad swath of recess appointees—literally hundreds of rulings—were unconstitutional. The case has the potential to undo the work of any number of independent agencies whose members were installed through recess appointments. Among them are the Equal Employment Opportunity Commission and the recently created Consumer Financial Protection Bureau. The Supreme Court will hear the case later this term.
Why, in an era of jet travel, should Congress have recesses at all? How can the words of delegates in Philadelphia about recesses illuminate an issue that they could not possibly have anticipated? Even accepting the structure that the framers devised, how can the Senate simply refuse to act on a President’s appointments, as the current Republican minority has done so often? How can the actions of forty senators prevent an administrative agency from functioning at all? And how (as the D.C. Circuit ruled) can the President remain powerless in the face of this kind of obstruction?
This fall, the strife became intolerable to a majority of senators. The trigger was a Republican filibuster of three Obama nominees to the D.C. Circuit, which, thanks to cases like Noel Canning, is generally regarded as the second most important in the country. Recently elected Democratic senators, who had known only a Senate paralyzed by filibusters, became more aggressive in wanting to do something about it. “I think the Constitution was very wise in terms of allowing for super-majorities in certain situations, like the ratification of treaties,” Tom Udall, the first-term New Mexico Democrat, told me. “But it’s supposed to be a cooling saucer, not a deep freeze. We have six-year terms, and have only a third of us up every two years. That insulates us from being a hot-headed legislature. But the system is being abused. We can’t accomplish anything. It’s been turned on its head. It’s not the tyranny of the majority—it’s the tyranny of the minority.”
The Republicans’ refusal to allow a vote on the D.C. circuit nominees galvanized even veteran Senate Democrats to join in the effort to limit filibusters. On November 21st, the Senate enacted the so-called “nuclear option,” which allowed a simple majority of members to end debate on Presidential nominees (except those to the Supreme Court). “I think this was a big victory for democracy,” Udall told me after the change in the Senate rules. “What we’ve done is return to what the Constitution says—that we operate around here by majority rule.”
Still, filibusters on legislation are unaffected by the new rule, so the legislative agenda of the President (or his successors) may remain moribund. Small-state senators still exercise disproportionate power. “Two senators to a state is part of the basic document, and we all should have the basic ability to work on behalf of the country,” Udall said. Or as Al Franken, the Minnesota Democrat, said, “The framers made a deal to get the votes of the smaller states, and that’s our Constitution. And there are things that were particular to the time, and that’s carried through. Do I say to Mike Enzi and John Barrasso”—the two senators from Wyoming—“ ‘It’s ridiculous that you’re here’? No, I don’t. Not exactly,” Franken said. “The Constitution has lasted a long time. It’s done pretty well.”
During the shutdown crisis, it became apparent that the House of Representatives—the founders’ nod to proportional representation—had, in its own way, become dysfunctional as well. Richard Posner, a professor at the University of Chicago Law School and a federal appeals-court judge appointed by Ronald Reagan, thinks that the Constitution is not to blame for the country’s political stalemate. Rather, it’s the irrationality of an influential wing of the contemporary Republican Party. “If a country allows itself to get into deep economic trouble, that is going to unsettle the political system,” Posner told me. “That’s what happened in the thirties, with the Depression, and it’s happening now. People get very upset, and they become vulnerable to extremist appeals. That’s what’s happened to the Republican Party in the House of Representatives.” Akhil Amar agrees. “One half of one of our two great political parties has gone bonkers,” he said. “That’s the problem. Not the Constitution.”
The modern Republican Party asserts itself most clearly in the House, where partisan redistricting has transformed the political calculus for most members of that body. And the Supreme Court has said that that is just fine under the Constitution.
Article I says that members of the House shall be “chosen every second Year by the People of the several States,” but it doesn’t say how they should be chosen. “Congress passed a law in 1842 that said members had to be chosen from single-member districts,” Pamela Karlan, a professor at Stanford Law School, said. “But Congress could pass a law tomorrow to move to a system of proportional representation, or some other system.” By one method, voters could elect House members from statewide slates of candidates.
The system of single-member districts generally suits incumbents. Drawing district lines has always been a deeply political undertaking, because elected officials in every age cultivate a strong instinct for self-preservation. In 1811, Elbridge Gerry, the governor of Massachusetts, sculpted districts in such a way that one looked like a salamander—a process that gave rise to the term “gerrymander.” With the help of computer software, the art of gerrymandering has evolved into a science. After the 2000 census, which cost the state of Pennsylvania two seats because of population loss, Republicans carved up the districts so that the G.O.P., which had formerly held ten congressional seats to the Democrats’ eleven, held a twelve-to-seven advantage, even though the over-all statewide partisan breakdown was basically unchanged. A group of Democratic voters challenged the Republican plan, arguing that the new congressional map deprived them of equal protection of the laws, in violation of the Fourteenth Amendment.
The case, Vieth v. Jubelirer, went to the Supreme Court in 2004, and the Justices handed down one of the most important (if least known) decisions of the decade. The Justices refused to strike down the Pennsylvania map, embraced the right of political parties to gerrymander for partisan gain, and, in a fundamental sense, guaranteed the polarized House of Representatives that has become so familiar. In Vieth, the Court was badly splintered. Antonin Scalia wrote the lead opinion, declaring that “political affiliation is not an immutable characteristic, but may shift from one election to the next; and even within a given election, not all voters follow the party line. We dare say (and hope) that the political party which puts forward an utterly incompetent candidate will lose even in its registration stronghold.” Scalia said that the plaintiffs sought “a right to proportional representation. But the Constitution contains no such principle. It guarantees equal protection of the law to persons, not equal representation in government to equivalently sized groups. It nowhere says that farmers or urban dwellers, Christian fundamentalists or Jews, Republicans or Democrats, must be accorded political strength proportionate to their numbers.” Besides, Scalia said, even if there had been a violation of Democrats’ right to vote, there was no way the Court could design a remedy that election experts could agree on.
After the 2010 census, Republicans parlayed their landslides in that year’s elections to draw favorable lines in several states where they had new majorities. In Pennsylvania, which lost another seat, Democrats still enjoy an advantage in party registration, but Republicans now have a thirteen-to-five advantage in House seats. Democrats made similar efforts in states where they controlled the process, especially in Maryland and Illinois. Over all, though, Republicans played the game much better. In 2012, House Democratic candidates across the country won about half a million more votes than their Republican opponents, but the G.O.P. emerged with thirty-three more seats than the Democrats.
It is true, as scholars like Nolan McCarty, of Princeton, have argued, that partisan redistricting does not account for all the polarization in the House. In recent years, Americans have tended to live near their political allies more than in the past. Thus, any district lines would tend to clump like-minded voters together. But there is no doubt that state legislators devoted painstaking attention to designing districts for the sole purpose of taking partisan advantage. As a result, incumbents in the House, especially Republicans, fear primaries more than general elections, and thus take pains to avoid being caught in the act of bipartisanship. What has followed is rancor, extremism, and stalemate.
The Constitution may be amended, but the process is arduous. According to Article V, any amendment must receive the endorsement of two-thirds of the House and the Senate and three-quarters of the state legislatures. Article V also limits any change in the makeup of the Senate. It affirms that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” To Levinson, the difficulty of the amendment process is one of the document’s critical defects. “You have a situation where legislators representing less than one-tenth of the population of the country can stop any amendment,” he said. “That’s completely undemocratic.”
Still, like Mark Levin and Randy Barnett on the right, Democrats have long had their own favored constitutional amendments. In the sixties and seventies, there were attempts to memorialize the welfare state in the Constitution, with guarantees of rights to food, shelter, and health care. The Equal Rights Amendment, guaranteeing equal treatment of the sexes, fell just short of ratification, in 1982. More recently, some academics, like Noah Feldman, at Harvard, have entertained the possibility of creating a right to education; others, like Jamal Greene, a professor at Columbia Law School, advocate a repeal of the Second Amendment right to bear arms. In Congress, a number of senators, including Tom Udall and Al Franken, have proposed a constitutional amendment to overturn the Citizens United decision and allow legislators once again to regulate campaign contributions and expenditures. (One of Barnett’s proposed amendments would do the opposite, protecting Citizens United from being overruled by a future Supreme Court.)
None of these amendments are likely to become law. “It should be difficult to amend the Constitution,” Amar said. “You should have to obtain a very broad consensus before you pass an amendment. I agree with Sandy Levinson that the Constitution could be better. But you have to remember that it could also be worse. We’ve had proposed amendments to stop flag burning, and to ban same-sex marriage, and that’s when I was glad it was difficult to amend. There have been only twenty-seven amendments, and twenty-six of them are good. Prohibition was bad, and it was overturned.” For partisans on the left and the right, it’s tempting to see constitutional amendments as shortcuts to political gain. But the difficulty of the process makes that impossible. Political change leads to constitutional amendments; amendments do not lead to political change.
The Constitution can and often does change without being formally amended. This is the real lesson of the past decade or so. Levin and his Tea Party followers have shown that agitation about the Constitution can serve a conservative political agenda. In everything from television advertisements to law-review articles, they made the case that the Second Amendment protects an individual’s right to bear arms—a concept that the Supreme Court emphatically rejected in the past. In 1939, the Court said that the amendment concerned only “the preservation or efficiency of a well regulated militia.” But, in time, the Court came around to a different view. Conservatives also came within a whisker of success in their constitutional arguments against Obamacare.
There is nothing inherently conservative about the honorable and long-held idea that citizens can understand, and even change, the meaning of the Constitution. Liberals, despite themselves, have proved the same point. Plessy v. Ferguson (1896), which condoned racial segregation, gave way to Brown v. Board of Education (1954), which ended it. As recently as 1986, the Court dismissed the idea that the Constitution protected gay people from discrimination as, “at best, facetious.” Today, that principle is enshrined in the bedrock of constitutional law. And the Court’s decisions have accomplished most, if not all, of what the Equal Rights Amendment was supposed to do for women’s rights. Judicial appointments played a role, but more important was the demand from an engaged populace. Under pressure from voters, individual states expand (or limit) the rights to own firearms, to obtain abortions, and to marry someone of the same gender. Within broad limits, the Constitution invites these sorts of local experiment.
Moments after the Senate passed the filibuster reform last month, President Obama expressed his appreciation, but decried the tactics that made the change necessary. “Today’s pattern of obstruction, it just isn’t normal,” he said. “It’s not what our founders envisioned.” Obama was engaging in the politician’s customary absolution of the founders: the virtues of the system are all due to them; the defects are all due to us. This seems wrong on both counts. The compromises, misjudgments, and failures of the men in Philadelphia haunt us still today. But the founders also left just enough room between the lines to allow for a continuing reinvention of their work. On some occasions, as with race and gender discrimination, the Constitution is renewed and improved in courtrooms; on others, as with the Senate’s recent act of self-improvement, the government finds ways to repair itself. In all events, the roots of these changes are the same. The Preamble to the Constitution says nothing about judges or politicians. It invokes what should be the true and ultimate authority in American government: We the People. ♦
We shouted for a decade all that CLINTON/BUSH/OBAMA has done was illegal, unconstitutional, and an assault on our national sovereignty and rights as citizens--and yes, all these policies and actions done can be VOIDED----REVERSED because they are indeed illegal. Global Wall Street pols know this so they are MOVING FORWARD with a Constitutional Convention to create that ONE WORLD CONSTITUTION. See why capturing our US elections to rigging and fraud these few decades was necessary? Let's just get rid of these 5% to the 1% global Wall Street players before this CONSTITUTIONAL CONVENTION FOR THE GLOBAL 1% OCCURS.
If you think a movement to amend the constitution while our Congress is filled with global Wall Street pols in both Democrat and Republican Parties is a good idea----WAKE UP-----WE SIMPLY NEED TO REVERSE THE PUBLIC POLICY DAMAGE DONE.
Article V: Amending the Constitution
The issue: What is the process by which the Constitution may be amended? Are there subject matter limitations on amendments? Can courts review the validity of constitutional amendments? What is the effect of amendments on previously ratified constitutional provisions?
Introduction
The United States Constitution is unusually difficult to amend. As spelled out in Article V, the Constitution can be amended in one of two basic ways. First, amendment can take place by a vote of two-thirds of both the House of Representatives and the Senate followed by a ratification of three-fourths of the various state legislatures or conventions in three-fourths of the states (ratification by thirty-eight states would be required to ratify an amendment today). This first method of amendment is the only one used to date, and in all but the case of the 21st Amendment, state ratification took place in legislatures rather than state conventions. Second, the Constitution might be amended by a Convention called for this purpose by two-thirds of the state legislatures, if the Convention's proposed amendments are later ratified by three-fourths of the state legislatures (or conventions in three-fourths of the states).
Because any amendment can be blocked by a mere thirteen states withholding approval (in either of their two houses), amendments don't come easy. In fact, only 27 amendments have been ratified since the Constitution became effective, and ten of those ratifications occurred almost immediately--as the Bill of Rights. The very difficulty of amending the Constitution greatly increases the importance of Supreme Court decisions interpreting the Constitution, because reversal of the Court's decision by amendment is unlikely except in cases when the public's disagreement is intense and close to unanimous. Even unpopular Court decisions (such as the Court's protection of flagburning) are likely to stand unless the Court itself changes its collective mind.
The Court has at various times considered the validity of constitutional amendments. Importantly, the Court has considered the method of proposal and ratification, as well as the constitutionality of the subject matter of the amendment, to be a justiciable--and, therefore, not a "political"--question. In the Hawke v Smith (1920), for example, the Court upheld Ohio's ratification of the Eighteenth Amendment over objections that the Ohio Constitution provided for a referendum on the issue by voters that might have overridden the Ohio legislature's ratification of the amendment. The Court concluded that the federal law set for in Article V providing specifically for ratification by state legislatures preempted conflicting state procedures for ratification. Also, in the National Prohibition Cases (1920), the Court generally upheld the validity of the Eighteenth Amendment, rejecting arguments that a prohibition on the distribution and possession of alcohol was a constitutionally impermissible subject matter for a constitutional amendment.
Two more recent cases included in our readings consider the effect of the Twenty-First Amendment repealing the Eighteenth Amendment. In the first case, LaRue v California (1972), the Court concludes that the Twenty-First Amendment qualifies the First Amendment, thus allowing states to regulate expression in establishments that serve alcohol, even when such restrictions might violate the First Amendment if applied elsewhere. In 1996, however, in the 44 Liquormart, Inc. v Rhode Island, the Court disavows its earlier conclusion and makes clear that the Twenty-First Amendment, while it may allow restrictions on alcohol that would otherwise violate the Commerce Clause, in no way qualifies the reach of the First Amendment. The Court therefore concludes that Rhode Island's restrictions on advertising the price of alcohol violate the First Amendment.
In 2005, in Granholm v Heald, the Court held that Section 2 of the 21st Amendment did not give states the power to discriminate against out-of-state wine sellers in ways that would otherwise violate the Commerce Clause. Ruling 5 to 4, the Court struck down a Michigan law banning out-of-state wineries from selling wine to Michigan residents over the Internet. Michigan allowed Michigan wineries to directly ship to consumers, but prohibited non-Michigan wineries from doing the same. The Court noted, however, that the 21st Amendment clearly gave the state the power to ban ALL direct shipments of wine (or other alcoholic beverages) to consumers if it chose to do so. Four dissenters argued that the history of the 21st Amendment proved that it was meant to exclude regulation of alcoholic beverages from the normal prohibitions on state discrimination under the Commerce Clause--however misguided that policy might seem today.
Questions
1. Is it a good thing that our Constitution is so difficult to amend? Why should a minority be able to frustrate a clear majority's wish to alter the Constitution?
2. Don't the amendment procedures doom many potentially good changes, because one or the other political parties will see itself as adversely affected by a proposed change? For example, won't Republicans forever block Washington D.C. from gaining representation in Congress because any representative elected by D. C. citizens is likely to be a Democrat? Isn't it equally unlikely that the electoral college method of choosing a president will ever be changed?
3. May a state rescind its prior ratification if an amendment has yet to be ratified by three-fourths of the states?
4. Many proposed amendments, such as the Equal Rights Amendment, have limited the period for ratification to seven years? Are such limits a good idea? What if a state ratifies an amendment after the specified period? What if a proposed amendment contained no time limit and was ratified two centuries later (see the 27th Amendment)?
5. The Court has recognized the constitutionality of ratification procedures as a justiciable question. Should the Court consider these issues, or should it leave them to the other branches to work out?
6. Only two provisions in the Constitution have been made unamendable--and the unamendability of one of those, the provision barring restrictions on the importation of slaves, expired in 1808. The only provision now unamendable is the guarantee that each state will have equal suffrage in the Senate. Why do you suppose the framers attached such importance to that provision? What if--despite the provision against changing suffrage in the Senate--, we first repealed the provision prohibiting amendment and that ratified an amendment giving larger states more Senate representation? Are there other impliedly unamendable provisions? Could we abolish the Executive Branch by amendment?
7. What if an amendment (say, an amendment prohibiting abortions) included language prohibiting the amendment from ever being repealed? Should the courts enforce the provision and invalidate an amendment that sought to again permit abortions?
8. The Court, in LaRue and 44 Liquormart, wrestled with the question of whether the Twenty-First Amendment qualified the First Amendment. What do you think is the best answer to that question?
9. Consider the various proposed, but unratified, amendments listed on the U. S. Constitution Online link (below). Which of these proposed amendments do you think should have been adopted?
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Global Wall Street pols on both sides of major political party lines are PRETENDING to be protecting WE THE PEOPLE-----the FAR-RIGHT WING global Wall Street Bush neo-conservatives are making this all sound CONSERVATIVE REPUBLICAN-----and the FAR-RIGHT WING global Wall Street Clinton/Obama neo-liberals are making this sound left social progressive. The goal of course is global 1% ONE WORLD ONE GOVERNANCE constitutional changes killing all that makes our US Constitution the strongest for citizens in WORLD HISTORY.
Below we see the Bush neo-cons reasons for AMENDING THE CONSTITUTION----remember, all this designation of our US real estate as Foreign Economic Zones able to ignore all US law has been illegal and it was Clinton era when all this started to take hold ----THE FEDERALISM ACT ---was used as a Presidential Executive Order pretending a President can arbitrarily ignore ALL FEDERAL AND US CONSTITUTIONAL LAWS.
Then Bush and Obama followed----the global 1% now want to CODIFY these actions by AMENDING THE CONSTITUTION.
THIS IS ONE REASON IT WAS CRITICAL TO BE VERY, VERY, VERY LOUD AND TAKING TO COURT THESE PRIMARY AND GENERAL ELECTION FRAUDS----THESE ARE NOT LEGITIMATELY ELECTED POLS.
So Republicans are shouting to AMEND because of actions by Obama that were illegal---and they were-----while Democrats are shouting to AMEND because the actions of Bush and Republicans are illegal -----which they are. Both have no intentions of AMENDING to protect WE THE PEOPLE THE 99%.
We know and documented the Bush Gore 2000 election as illegal----it was filled with election fraud as were the primaries filling our Democratic Party with Clinton neo-liberals and filling the Republican Party with Bush neo-cons. Knowing the illegalities makes it EASY PEASY to reverse and get rid of global Wall Street pols and players.
Inside the Conservative Push for States to Amend the Constitution
By MICHAEL WINESAUG. 22, 2016
A clause in Article 5 of the Constitution allows for states to sidestep Congress and draft amendments. Credit Nick Oxford for The New York Times
Taking advantage of almost a decade of political victories in state legislatures across the country, conservative advocacy groups are quietly marshaling support for an event unprecedented in the nation’s history: a convention of the 50 states, summoned to consider amending the Constitution.
The groups are an amalgam of free-market, low-tax and small-government proponents, often funded by corporations and deeply conservative supporters like the billionaire Koch brothers and Donors Trust, whose contributors are mostly anonymous. They want an amendment to require a balanced federal budget, an idea many conservatives have embraced, many economists disdain and Congress has failed to endorse for decades.
But as the groups near their goal, critics and some skeptical constitutional scholars are warning that holding an amendment-writing meeting with no historical parallel and no written rules could open a Pandora’s box of constitutional mischief.
The process, which is playing out largely beyond public notice, rests on a clause in Article 5 of the Constitution that allows the states to sidestep Congress and draft their own constitutional amendments whenever two-thirds of their legislatures demand it.
That will by no means be easy. Even if the two-thirds threshold were reached, a convention would probably face a court battle over whether the legislatures’ calls for a convention were sufficiently similar. And as with any amendment that Congress proposes, state-written amendments would need approval by three-quarters of the states — either by their legislatures or by state conventions — to take effect.
But as Republicans have surged to control of state legislatures and moved sharply rightward during the Obama years, what was once a pet project of the party’s fringe has become a proposal with a plausible chance of success. Some of the former Republican presidential candidates, including comparative moderates like John Kasich and Jeb Bush, have endorsed a state amendment convention.
So far, 28 states have adopted resolutions calling for a convention on a balanced-budget amendment, including 10 in the past three years, and two, Oklahoma and West Virginia, this spring. That is just six states short of the 34 needed to invoke the Article 5 clause.
“I think the prospect is very good in 2017,” said Gary Banz, a Republican who is the majority whip in the Oklahoma House of Representatives. “You can look at any number of states that are not on board yet, and they’re controlled by very conservative elements.’’
Including nominally nonpartisan Nebraska, Republicans now control 31 state assemblies — more than double the number in 2010. Of the 11 states advocacy groups have targeted for pro-convention lobbying next year, Republicans control both houses of the Legislature in seven.
Representative Banz is among those leading the charge. In addition to his statehouse job, he is the national secretary of the American Legislative Exchange Council, known as ALEC, a nonprofit financed by corporate and private donors, including the Kochs, that is at the center of the convention effort.
At ALEC’s annual meeting, in Indianapolis last month, another leading advocacy group, the Balanced Budget Amendment Task Force, staged a seminar for legislators on an amendment convention.
Citizens for Self-Governance, a Texas-based group with Tea Party roots, has ALEC backing for a more sweeping goal: an amendment that would “impose fiscal restraints” on the federal government, reduce its authority and limit the terms of federal elected officials.
The juggernaut nature of the convention movement has almost overshadowed the longstanding debate about its motivation: to imbue the Constitution with a binding limit on federal spending.
Supporters say the philosophy that state governments and ordinary people usually adhere to — that it is wrong and destructive to spend beyond one’s income — should apply to the federal government as well. In that view, the $19.4 trillion national debt threatens to destroy Americans’ future prosperity.
“It’s immoral for one generation to borrow and spend beyond its means and leave the bill to the next generation,” said Scott Rogers, the director of the Balanced Budget Amendment Task Force.
Gary Banz, a Republican and majority whip in the Oklahoma House of Representatives, is among those leading a charge for a convention on a balanced-budget amendment. Credit Nick Oxford for The New York Times
But opponents say an amendment, not the deficit, is the threat. A government that could not run deficits, they argue, would not be able to stimulate the economy during recessions, when job-creating spending is most needed. And it would not be able to elude budget ceilings for benefits like Social Security, or for job-creating projects like highways that are financed with debt.
In truth, they say, debt is a fact of life for both states and ordinary households — in bond issues that finance revenue generators like convention centers and bridges, and for ordinary necessities like cars, kitchen remodelings and homes. Banning deficit spending, they say, would bring the economy to a halt.
But the basic argument for federal frugality has broad appeal. Polls generally indicate strong support for a balanced-budget amendment, and advocates persuaded 32 state legislatures to back an amendment convention during the Reagan administration.
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Here is the Clinton global Wall Street neo-liberal group MOVE ON doing the same in Democratic Party pretending the problems with elections is only CAMPAIGN FINANCE REFORM and not open and widespread election fraud and rigging.
Getting the money out of elections is the least of problems for WE THE PEOPLE----it doesn't matter if corporations buy media advertising if our REAL good left Democratic candidates had access to REAL election venue coverage. It is the ignoring of FEDERAL ELECTION LAWS these few decades that has made good it impossible for good candidates to get their voices and platforms heard. Baltimore has the most rigged and fraudulent election environment this side of the INTERNATIONAL DATE LINE.
Global Wall Street CLINTON/BUSH/OBAMA want a CONSTITUTIONAL CONVENTION to install ONE WORLD ONE GOVERNANCE new constitution---the one global IVY LEAGUES like HARVARD/YALE and its candidates Clinton/Bush/Obama have been following these few decades ILLEGALLY.
As we said earlier----the WORLD BANK AND IMF have these several decades when brought in to RESCUE developing nations demanded these developing nations RE-WRITE THEIR CONSTITUTIONS to that of global Foreign Economic Zones----and this coming economic crash from massive US Treasury and state municipal bond fraud will be the excuse for Congress to RE-WRITE THE US CONSTITUTION and yes, Trump was installed to make sure it is filled with austerity----complete privatization of all that is public----and Trans Pacific Trade Pact with global labor pool is installed in all US cities deemed Foreign Economic Zones. Hillary would have done the same. This is simply BAD COP GOOD COP ----CLINTON/BUSH/OBAMA now TRUMP.
We the People, Not We the Corporations
On January 21, 2010, with its ruling in Citizens United v. Federal Election Commission, the Supreme Court ruled that corporations are persons, entitled by the U.S. Constitution to buy elections and run our government. Human beings are people; corporations are legal fictions.
We, the People of the United States of America, reject the U.S. Supreme Court's ruling in Citizens United and other related cases, and move to amend our Constitution to firmly establish that money is not speech, and that human beings, not corporations, are persons entitled to constitutional rights.
The Supreme Court is misguided in principle, and wrong on the law. In a democracy, the people rule.
We Move to Amend.". . . corporations have no consciences, no beliefs, no feelings, no thoughts, no desires. Corporations help structure and facilitate the activities of human beings, to be sure, and their 'personhood' often serves as a useful legal fiction. But they are not themselves members of “We the People” by whom and for whom our Constitution was established."
~Supreme Court Justice Stevens, January 2010
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This is what CAMPAIGN FINANCE REFORM pushed by Clinton/Obama global Wall Street neo-liberals has as a goal.......if ONE WORLD ONE GOVERNANCE MOVING FORWARD has a goal of filling US cities deemed Foreign Economic Zones with foreign corporations and the global 1% and their 2% these foreign entities need to be able to participate in our elections. We saw this worsening during 2008 election then 2016 election-----global corporations are demanding they be heard in a global economic system tied to ONE WORLD ONE GOVERNANCE.
As we like to refer----THE OLD WORLD MERCHANTS OF VENICE as city state had a SENATE composed of just that-----global 1% tied to the global market had representatives in that VENETIAN SENATE ---the people of the Roman Empire had NO VOICE---THAT PESKY 99%-----but those old world global 1% could buy influence-----had a voice in these city state SENATES----AND THAT IS TO WHERE CAMPAIGN FINANCE REFORM seeks to go.
Make no mistake----the global Wall Street Bush neo-cons as the global Wall Street Clinton/Obama neo-liberals both have this goal and Trump is simply MOVING FORWARD as that ONE WORLD ONE GOVERNANCE guy.
The global Wall Street 5% to the 1% are not trying to get foreign money out of our elections---they are trying to expand their voices in our elections.
Our US Constitution is not broken---it is rogue criminal pols in office ignoring all that is our US Constitution and Federal law.
Globalization of Campaign Funding: The Problem of Private Money In Politics
By Adam Weinberg
Globalization and Political Campaigns
Does globalization necessitate a rethinking of the way we finance elections?
Debates over campaign finance reform have been framed around dueling needs to prevent political corruption while protecting first amendment rights. Proponents argue that financing elections through private money leads to corruption, because politicians are beholden to their donors and not to their constituents. Contrarily, opponents argue that money equals speech. Any infringement on the right to spend money articulating a political preference is a direct violation of the first amendment. What has ensued is a very important debate about the point at which money stops being speech and starts becoming a form of power used to drown out the voice of others.
Globalization shifts the debate. In the global economy, the question is not the point at which money stops being speech and starts becoming power. The question is whose money, and thus whose speech, should influence American elections? American law is governed by a clear principle that foreign governments, political parties, corporations, and individuals should not directly or indirectly influence any election. This principle is even extended to domestic subsidiaries of foreign corporations, who are allowed to only give contributions that come from domestic profits. Hence, there was an outcry of illegitimacy in the 1996 election’s with a Chinese businessman offered a contribution to the Clinton campaign, through the vehicle of nuns at a Buddhist temple. The administration was penalized, and the contribution returned. This is an important principle that goes to the heart of national sovereignty.
Yet, the globalization of corporate structures makes it virtually impossible to prevent foreign nationals from participating in U.S. elections, as long as private money is the financing mechanism for political campaigns. Take the case of Enron, an energy corporation that gave $2.5 million in the 2000 elections, making it the largest energy campaign contributor, and the 36th top corporate contributor.
Globalization And The New Style Investments In American Elections
Why did Enron invest so heavily in the 2000 election? What might it have hoped to gain? And how does this relate to its global investments and profits?
Enron’s campaign contributions were aimed at reducing and/or shaping any political discussion around energy policy. Campaign contributions are a form of business investment. Enron anticipated returns on their investment. By electing George Bush, there was the potential for the rejection of the Kyoto Accord, removal of CO2 caps for power plants, and proposed incentives for drilling in Alaska and other sensitive ecological systems. Each of these actions would appear to represent high returns on this modest investment.
•Rejecting the Kyoto Accord would permit Enron to expand its markets for energy and energy services in the US. In addition, if the US rejection weakened the international agreements around the Kyoto Accord, this would also expand Enron’s markets abroad.
•Removal of CO2 caps in US power plants would likewise expand Enron’s US market, and increase profits. The only environmental note in Enron’s 2000 annual report was one documenting the costs of air pollution as a drain on profits.
•Incentives for further drilling would offer new profit arenas for Enron subsidiaries, including its on-line transaction system for bidding on and moving energy supplies across and within national borders.
Enron would not be disappointed. In a scant half-year in office, President Bush has:
•promoted withdrawal from negotiating commitments to the Kyoto Agreement to reduce global warming gases,
•eliminated Clinton controls over carbon dioxide emissions from power plants, oincreased energy production,
•increased oil drilling, refining, and transportation;
•increased exploration of new nuclear power plants;
•decreased exploration of renewable energy sources; and
•increased deregulation of power industries.
These policy decisions are likely to translate into substantial profits for Enron. For example, Enron believes it has positioned itself to be the prime energy supplier in deregulating energy markets, since its breadth of services and subsidiaries, and its global reach of supplies and transportation options has prepositioned it better than competitors. In addition, part of the services it sells are risk-underwriting for power systems, facing uncertain deregulatory outcomes. Moreover, with its direct online marketing system, Enron can react faster in any geographic locale to bid on new opportunities for energy (and material) supply. And Enron has built both contractual and investment linkages to a variety of energy suppliers.
Under U.S. law, there might or might not be a problem with Enron giving money to the Bush campaign, to influence policy in favorable ways. At this point, we are stuck in a serious debate over the tension between preventing political corruption and preserving first amendment rights. Yet, the globalization of organizational structures changes the debate.
Enron has become a global firm that transcends any real national affiliation. In the past three years, foreign revenues have increased from 7% to 23% of their total revenues in the last three years ($22,898,000,000 up from 6,013,000,000 in 1998).
Let us consider the full implications of this change. On a pro-rata basis, the majority of campaign funding by Enron could consist entirely of earnings outside of the US. Whether this global revenue is actually used for this purpose is indeterminable, and also largely immaterial for our purposes. If foreign revenues are not directly used for campaign financing and other political investments, then these revenues fill in the voids created by Enron’s use of domestic earnings, and permit expansion of campaign funding.
One might argue that this has always been true. Many American firms have a long history of foreign earnings. Yet, we are witnessing a quantitative leap in the percentage of foreign earnings. Enrons foreign operating revenues have increased over 300% in the last three years. With markets opening in China, India, and elsewhere, this will increase over time.
But this is merely the tip of the global iceberg. The increase in foreign revenues represents a complex set of transnational relationships. These income come from transactions between Enron shareholders, national investors in many foreign subsidiaries or contractors of Enron. Moreover, Enron shareholders are likely to be themselves increasing located outside the US, as Enron stock is traded globally. This suggests that the $2.4M Enron political contribution can serve the following kinds of interests: U.S. shareholders, foreign shareholders of Enron; U.S. shareholders of contractual firms; foreign shareholders of contractual firms; U.S. managers of Enron; foreign managers of Enron subsidiaries; U.S. managers of contractual firms; foreign managers of contractual firms; and foreign and/or U.S. consumers. Enron is currently doing business across North and South America, Europe and Japan with plans to expand. Like many companies, it is going global.
Following is a dramatic example of the complex grasp of Enron, substituting its cross-border and cross-commodity transactions for the “invisible hand” of Adam Smith:
“Cominco Ltd, a zinc producer and an Enron Metals customer in Vancouver, British Columbia, worked with Enron to halt zinc production for six weeks and sell its power into the Northwestern power market, where it was needed. Enron North America protected Cominco by structuring a fixed-price swap to guarantee the sale price of the power, and Enron Metals arranged to supply a portion of the zinc required to fulfill Cominco’s obligations. Cominco’s profit from the deal exceeded the annual profit it makes from producing zinc…” [Enron 2000 Annual Report, 12]
Why is this a problem?
The globalizaton of Enron’s organizational structure allows foreign nationals to influence American elections in direct and indirect ways. Enron often does business abroad through foreign subsidiaries and/or partnerships with foreign companies. Bennett Harrison and others have called this networked forms of production. Firms are linked together through mergers and partnerships into global networks that share information, engage in long term contracts, and work within host countries to create and protect opportunities for other firms within the network. There are important implications. At the very least, foreign nationals are broadly part of the internal decision making apparatus of American firms. Such firms are heavily determining who can afford to run for political office in the United States.
Thus, the energy industry’s early support for President Bush made a substantial difference in his candidacy. It allowed him to run early, and kept others out of the race. The energy industry can no longer be defined as “U.S. energy firms”. The energy industry is a global network of firms with priorities, policies, and decisions being made by managers in an array of countries.
There is a more unsettling scenario. Many of the foreign firms will be companies operated by wealthy families with close ties to foreign governments (and the same family, in some instances). The election of U.S. President is very important to these national governments. Hence, decisions made internally to Enron, about who to support and the strength of that support, will be discussed among top management, which consists of the foreign managers with their ties to foreign governments. If the election is important enough, it is conceivable that a foreign government might underwrite a partnership or sale of a firm to an U.S. corporation as a way to have some influence in domestic policy through campaign contributions and the lobbying doors it opens. It is not a great leap of faith to imagine that the current Chinese government might be placing pressure on Chinese firms, to use their partnerships with American firms to gain access to U.S. politicians making decisions about free trade, human rights, and foreign policy (for example, our shifting stance on Taiwan).
There is another danger. At what point does a firm like Enron cease to be a U.S. firm? The principle of foreign nationals is partially driven by pragmatic politics. People influencing U.S. elections should be doing so based on their belief for what is the best interest of the US. In the future, firms like Enron will acquire more inputs and customers abroad. Hence, they will be mostly concerned about those countries, for which they are dependent for major profits. They are more likely to support politicians and policies that keeps that host countries economy strong.
If 60% if Enron’s employees and revenues are foreign, is it still an American firm? If 80% of its revenues are derived through partnerships with foreign firms? These are difficult questions to answer. They will become more prevalent in the coming years.
Minimizing Corporate Giving
How should the United States respond? One proposal for minimizing the dangers of foreign interference in U.S. elections would be to further regulate corporate giving. We could prevent firms from giving to candidates or to political parties. The logic behind such a proposal rests on a faulty understanding of the difference between hard and soft money contributions.
Hard money is regulated money. In federal elections, individuals are allowed to give $1000 to a candidate per year in a election ($1000 for a primary, and $1000 for a general election). An individual can also give $5000 to a PAC and to a political party. Individuals are capped at $25,000 a year. Soft money is unregulated money. Individuals can give unlimited amounts of contributions to political parties for “party building activities.” Most often, these funds are used to support candidates in fairly overt ways. Corporations can only give soft money. Hence, it would appear that a ban on soft money would solve the problems that just outlined. This is not true.
Most campaign contributions come from very wealthy individuals, who mostly give as a way to protect and promote their companies and trade associations. In fact, 95% of the money in the 2000 elections came from the wealthiest 1% of Americans. Most corporate donations are made by individuals as hard money contributions. Often this done through a practice known as bundling (one author will admit that his first post-college job partially entailed taking bundles of checks to a bank for a Congressman). To maximized influence, individuals bundle their contributions with others from the firm or sector. Sometimes this is done physically. At a fundraiser, a candidate will be handed a stack of checks, which sends the clear message “These checks come from individuals at X firm who support your candidacy.” Often it is done figuratively. In a recent issue of Newsweek, Michael Isikoff reports that in the last Presidential race, the Republican Party gave its fundraisers tracking codes for donors to write on their checks. An internal memo written by the head of electric power industry’s main lobbying group explained to potential donors why the code was important: “IT DOES ENSURE THAT OUR INDUSTRY IS CREDITED, AND THAT YOUR PROGRESS IS LISTED AMONG THE OTHER BUSINESS/INDUSTRY SECTORS” (capitalization used in the original document).
Banning corporate giving of soft money will do little to stop the influence of foreign nationals in U.S. elections. Bundling will increase. Opponents will argue that hard money is regulated and hence the potential for influence is also regulated. This is also a false premise. An individual can give a candidate up to $1,000 every year, with no more than a total of $25,000 per year. As a family, we can give $4,000 to a candidate per year (me, my wife, and my two kids) and $100,000 per year. For a Congressional cycle my family could give a Representative $8,000 or a political party $200,000. It is not a stretch to argue that a foreign firm could quite explicitly place pressure on U.S. managers of a connected firm to bundle. With 50 or 100 Vice Presidents of various sorts, a firm could heavily influence an election. In fact, there are all sorts of reports of fundraisers of this sort, where a trade association bundles with firms expecting their management team to attend and participate. One political party recently held a fundraiser inside a Washington embassy for a foreign government that needs to influence American elections.
Public Financing As A Reality of Globalization
In the global economy, we will continue to see growing profitability from abroad through the movement of domestic capital. The obverse will also true. Foreign investors may channel their influence through the transfer of profits back to the U.S. holding companies, thereby providing a kind of “domestic” laundering of foreign interests.
It might be time for a more serious and sustained conversation about public financing of elections. A number of states have been experimenting with Clean Money systems. Under Clean Money a candidate has to collect a certain amount of contributory signatures, defined as small donations. The donations are small enough to allow everybody to contribute, yet large enough to demonstrate support: $5 is the typical amount. Once enough signatures are collected, the candidate is given a set amount of money for their campaign. In return, they agree not to take any money from private sources. Early experiments in Maine and Arizona suggest that Clean Money works. More candidates run for office. The pool is more diverse. Likewise, voters seen to prefer clean candidates. Finally, candidates report feeling freed to act as public servants.
Globalization Movements And Clean Money
Recent protests around globalization belie a belief that globalization is not benefiting millions of the worlds poor. The real battle is not over the potential for globalization to create benefits. The battle is over the actual distribution of those benefits, and the actual distribution of costs associated with producing those benefits. Globalization is really an economic opportunity with a political problem. We need stronger democratic mechanisms that can harness and shape the face of globalization, and ensure the distribution of opportunities and gains. Since the United States is largely shaping globalization, it would make sense to start here. We need to make our political system more democratic.
This means that elections must be fair and open. It also means that elected officials need to be responsive to their constituents. In a recent issue of the Harvard Journal of Public Policy, Congressman Harold Ford wrote, “the increasingly exorbitant cost of running for public office allows special interests to exert too much influence over decision making in government, and accordingly, hampers average citizens’ ability to make their own views heard in a meaningful and influential way.” Thus, it seems clear that we will continue to have important and spirited debates over campaign finance reform. As we do so, we should understand and include the problem that the globalization of organizational structure adds to these debates.
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Know what? If these global Wall Street pols really wanted to get that extreme wealth out of US elections THEY WOULD ENFORCE US ANTI-TRUST MONOPOLY LAWS and VIOLA----all global Wall Street and global corporations would be broken down to small and regional businesses. They won't do that----
It is the duty of our 3 branches of government to be CHECKS AND BALANCES----and our legislative Congressional pols should have been impeaching Presidents and JUDGES not enforcing US anti-trust monopoly laws.
Below we see an article written by YALE telling WE THE PEOPLE the original framers of US Constitution were elitist----well, yes, that is why 300 years of AMENDMENTS have broadened American Constitutional protections and inclusiveness. The very people as YALE and HARVARD are trying to take our US Constitution back to being elitist this time for a global 1% with a global 99% having no rights----so this movement will be WORSE than the original elitist FOUNDING FATHERS.
“The framers were motivated by both democracy and élitism,” Akhil Reed Amar, a professor at Yale Law School and the author of “America’s Constitution: A Biography” (2005), told me. “The framers didn’t trust ordinary people to make every decision. So you had Congress made up of a very small number of people. And their terms were longer than their counterparts in the state legislatures under the Articles, so they had some freedom to act outside of public pressure.”
For our NEW CITIZENS who these several years have been that global 1% allowed to buy citizenship while the global labor pool comes to America to be exploited, abused, with no rights. We don't want that 5% to the 1% immigrant citizen shouting to re-write a US Constitution that most global citizens WANT TO REMAIN STRONG FOR WE THE PEOPLE.
The kabuki theater that has been Congress these few decades of CLINTON/BUSH/OBAMA has occurred because those global Wall Street pols are not working as STATES MEN AND WOMEN----they are working as players enriching themselves and have only worked to expand global Wall Street power----this is why our Congress is broken.
THIS IS A VERY LONG ARTICLE---PLEASE GLANCE THROUGH-----THE FOUNDERS ARE NOT TO BLAME---THEY WROTE A CONSTITUTION TO PROTECT AGAINST THESE EXTREME WEALTH AND GLOBAL CORPORATE POWER STRUCTURES!
Annals of Law
December 9, 2013 Issue
Our Broken Constitution
Everyone agrees that government isn’t working. Are the founders to blame?
By Jeffrey Toobin
Some critics consider the creation of the Senate, which acts as a brake on legislation, the original sin of the Constitution.Illustration by Barry Blitt
If there is a single point of consensus in this heated political moment, it’s that everyone loves the Constitution. “Conservative or liberal, we are all constitutionalists,” Barack Obama wrote, in “The Audacity of Hope.” Ted Cruz, the junior senator from Texas, who emerged as a principal antagonist of the President’s during the government shutdown, has often said much the same thing. The Founding Fathers, Cruz said, “fought and bled for freedom and then crafted the most miraculous political document ever conceived, our Constitution.”
These homages are more than rhetorical tropes. Most politicians consider the validity of the Constitution off limits as a subject for debate. The Constitution, and the structure of government that it established, provides the backdrop, but never the subject, for every controversy. Obama, who taught constitutional law for more than a decade at the University of Chicago Law School, wrote, “The outlines of Madison’s constitutional architecture are so familiar that even schoolchildren can recite them: not only rule of law and representative government, not just a bill of rights, but also the separation of the national government into three coequal branches, a bicameral Congress, and a concept of federalism that preserved authority in state governments, all of it designed to diffuse power, check factions, balance interests, and prevent tyranny by either the few or the many.”
It’s often noted that the United States is governed by the world’s oldest written constitution that is still in use. This is usually stated as praise, though most other products of the eighteenth century, like horse-borne travel and leech-based medical treatment, have been replaced by improved models. (Thomas Jefferson believed that any constitution should expire after nineteen years: “If it be enforced longer, it is an act of force and not of right.”)
Outside Washington, discontent with the founding document is bipartisan and widespread. In many ways, the contemporary debate reflects the framers’ arguments, more than two centuries ago. How insulated should elected officials be from the demands of the people? How should power be divided among the federal and the state governments? What rights of the individual must be protected against the claims of the government? The Constitution offers only contingent answers to these questions. Indeed, in recent years particularly, it’s become clear that politicians and voters, as well as judges, can play crucial roles in defining the contemporary meaning of the Constitution. The critics have the advantage of having seen the Constitution in action. On the left and the right, they are asking whether the pervasive dysfunction in Washington is in spite of the Constitution or because of it.
In 1987, Philadelphia hosted the national celebration of the two-hundredth anniversary of the signing of the Constitution. There were parades and an exhibit called “Miracle at Philadelphia.” To foster viewer participation, the exhibit culminated with two scrolls, each bearing a question: first, “Will you sign this Constitution?” And, second, “If you had been in Independence Hall on September 17, 1787, would you have endorsed this Constitution?” Sanford Levinson, a professor of law at the University of Texas at Austin, made his way through the exhibit and struggled with the decision of whether to add his name to the scrolls.
Now seventy-two, Levinson is white-haired and cherubic, with an air of perpetual amusement. Seated in his office at Harvard Law School, where he is a visiting professor, Levinson described his dilemma. “I thought long and hard,” he said. “If you look at the Constitution, you see that it was drafted by people who were not little-‘d’ democrats.” This was most evident in what Levinson has called “the brooding omnipresence of American history—race and, more precisely, slavery.” Implicitly but unmistakably, the 1787 Constitution allowed for the continuation of slavery. Women could not vote; in many places, only property owners could. The Bill of Rights, with its explicit defense of individual rights, did not become part of the Constitution until 1791.
Still, Levinson signed. He recalled that Frederick Douglass, the great abolitionist, ultimately supported the Constitution, with all its flaws, because he saw in it the “potential to mount a critique of slavery, and much else, from within.” Levinson remembered, too, the words of Representative Barbara Jordan, the African-American from Texas, who served on the House Judiciary Committee during its impeachment investigation of Richard Nixon, in 1974. “My faith in the Constitution is whole; it is complete; it is total,” Jordan said. Levinson concluded, “If it was good enough for them, it was good enough for me.”
In 2003, Levinson returned to Philadelphia for the opening of the National Constitution Center, the sprawling museum and exhibition hall dedicated to celebrating the document. Visitors were again invited to pass judgment on the work of the founders. Indeed, the center organized a travelling nationwide project called “I Signed the Constitution,” which purported to put visitors in the place of the delegates in 1787.
This time, Levinson didn’t sign. “Between 1987 and 2003, I became less concerned about inputs and more concerned about the outputs,” he told me. “In 1987, I thought a lot about the procedures that were used to set up the Constitution—whether they were democratic or not. At that time, I used to think, Well, what’s the difference if it works? But I came to see that the system just does not work anymore. The outputs fail. It’s not a government that can solve problems.” Levinson elaborated on his misgivings in a 2006 book, “Our Undemocratic Constitution,” which laid out a comprehensive critique.
The Constitution, Levinson wrote, places “almost insurmountable barriers in the way of any acceptable notion of democracy.” He acknowledged that the worst aspects of the eighteenth-century Constitution—the institutionalization of race and gender discrimination—had been corrected through the amendment process. Still, he wrote, “the constitution is both insufficiently democratic, in a country that professes to believe in democracy, and significantly dysfunctional, in terms of the quality of government that we receive.” In the past decade, Levinson has become the unofficial spokesman for progressive critics of the Constitution.
The core challenge of the Constitutional Convention was to persuade the representatives of the states to surrender some of the power they possessed under the Articles of Confederation, which had produced a weak and ineffectual national government. The delegates devoted most of their attention to the rights of states, not of individuals. This led to a debate about just how democratic the new government would be. “The framers were motivated by both democracy and élitism,” Akhil Reed Amar, a professor at Yale Law School and the author of “America’s Constitution: A Biography” (2005), told me. “The framers didn’t trust ordinary people to make every decision. So you had Congress made up of a very small number of people. And their terms were longer than their counterparts in the state legislatures under the Articles, so they had some freedom to act outside of public pressure.”
Both struggles—state vs. federal power, democracy vs. élitism—came together in the fight over the creation of the Senate. Federalists like Virginia’s James Madison and New York’s Alexander Hamilton, who were from larger states, insisted that the government existed to serve people, not the artificial entities known as states. Hamilton went so far as to consider the abolition of states altogether, with all power to be vested in the national government. Less radically, Madison pressed for a legislature based solely on proportional representation; the number of legislators would reflect the number of people in the state, not the state itself.
As Hamilton wrote later, in Federalist No. 22:
Every idea of proportion and every rule of fair representation conspire to condemn a principle, which gives to Rhode Island an equal weight in the scale of power with Massachusetts, or Connecticut, or New York; and to Delaware an equal voice in the national deliberations with Pennsylvania, or Virginia, or North Carolina. Its operation contradicts the fundamental maxim of republican government, which requires that the sense of the majority should prevail.
Several times during the summer of 1787, the Convention nearly collapsed as the small states refused to yield the powers they enjoyed under the Articles. Prodded by Benjamin Franklin, the éminence grise of the Convention, Connecticut’s delegates, led by Roger Sherman, came up with the compromise that saved the young Republic. There would be two bodies in Congress—one based on proportional representation (the House of Representatives) and the other based on states (the Senate). “As an additional sop to the states, the Constitution said that senators would be chosen by state legislators, not voters,” Amar said. “That was designed to make sure that the federal government would be responsive to the needs of the states.”
In creating the national legislature, the delegates had to address the issue of slavery. Although slaves weren’t citizens and couldn’t vote, the Southern states wanted them to be included in the calculation of the over-all population, in order to boost the region’s representation in the House. The North thought that the slaves should not count at all. In a way, the negotiated solution reflected the shameful reality that slaves in the United States were judged less than fully human. The standoff led to a notorious compromise: for purposes of apportioning seats in the House, each slave would count as three-fifths of a person. As the University of Pennsylvania historian Richard Beeman noted, in “Plain, Honest Men,” his 2009 account of the Convention, the debate over the three-fifths rule took place with “a near-total absence of anything resembling a moral dimension.”
Progressive critics of the Constitution object to the compromises that favored the states’ rights and the élitist side of the debate. “The process that produced the Senate is understandable,” Levinson told me, “but the end result is indefensible.” The distortion created by small states having an equal number of senators has dramatically worsened over the centuries. In 1787, when the Constitution was drafted, the largest state, Virginia, had about eleven times as many people as the smallest, Delaware. Today, California has roughly seventy times more people than Wyoming. To Levinson, the creation of the Senate was the original sin of the Constitution. The most obvious offense was that the power reserved to the slave states insured the survival of slavery. It took the Civil War to end it, and the Thirteenth, Fourteenth, and Fifteenth Amendments to overrule the three-fifths compromise.
The Senate continued to reflect its anti-democratic structure long after the Civil War. Through most of its history, it has been a graveyard for legislation, even after the Seventeenth Amendment, ratified in 1913, established the direct election of senators. Its primary function has been to stop bills, which are often supported by a popularly elected President and House members, from becoming law. In theory, the senatorial veto is available to both political parties, but a Senate in which less populated states wield disproportionate influence is fundamentally conservative in nature. In simple terms, in a world where progressives want government to change things and conservatives favor the status quo, a legislative body that makes legislating difficult will be a conservative force. The Senate blocked ratification of the League of Nations treaty after the First World War, civil-rights laws after the Second World War, and the Clinton health-care reform in the nineteen-nineties. “You’ve basically always had two parties in the country where one wants change and the other is more supportive of the status quo,” Noah Feldman, a professor at Harvard Law School, said. “The Senate is an institution that stops change. That’s how it’s designed, and that is always going to hurt that party that wants change, the activist party. Today, that’s the Democrats.”
This, in a way, is the story of the Obama Administration. Obama was elected twice, both times by comfortable margins in the popular vote and by landslides in the electoral college. Though he will spend eight years in office, his tenure as the actual leader of the national government lasted about a year and a half. On July 7, 2009, Al Franken was seated, after a recount, as the sixtieth Democratic senator. (Sixty votes are needed to overcome a filibuster.) Between that time and the end of 2010, Obama pushed through Congress health-care reform (the Affordable Care Act), financial reform (the Dodd-Frank legislation), a bailout of the automobile industry, a repeal of “don’t ask, don’t tell” in the military, and the ratification of an arms-control treaty with Russia. The President also won the confirmation of two Justices to the Supreme Court. In the midterm elections of 2010, Obama’s party lost control of the House and fell below the filibuster threshold in the Senate.
Since then, Obama has failed to accomplish almost anything in Congress. Following his second Inauguration, the President embraced a gun-control bill that had universal background checks as its centerpiece. Even though polls showed that roughly ninety per cent of the public supported the idea, the legislation died in the Senate. (The less populated, more rural states are the ones most fiercely opposed to gun control.) A similarly large percentage of the public supports comprehensive immigration reform. That bill passed in the Senate but appears doomed in the House. Obama even failed to persuade Congress to fulfill its basic obligation to pay the bills and keep the government open. The shutdown, which lasted sixteen days, ended in a ceasefire, but the threat of closure and default will return early next year.
Levinson and his allies believe that the Constitution mandated a kind of institutional paralysis that allowed Obama to do too little. Another leading revisionist, arguably more influential than Levinson or any other law professor, draws the opposite conclusion: the Constitution allowed Obama to get away with too much.
Bald, bearded, and professorial at fifty-six, Mark Levin seems an unlikely media star. After serving in Ronald Reagan’s Justice Department, he went on to lead a small conservative public-interest law firm, the Landmark Legal Foundation. Stints on Rush Limbaugh’s radio program led to an offer, in 2003, to host his own nightly show on WABC, in New York. Levin (pronounced “le-vinn”) doesn’t have Limbaugh’s raucous humor and he doesn’t cheerlead for Republicans in the manner of Sean Hannity, but he has become the country’s most widely followed commenter on the Constitution. His show is in the top five nationally (drawing more than seven million weekly listeners), and his books sell hundreds of thousands of copies. In “Men in Black: How the Supreme Court Is Destroying America,” “Liberty and Tyranny: A Conservative Manifesto,” and “The Liberty Amendments: Restoring the American Republic,” Levin lays out a comprehensive critique of what he sees as the modern desecration of the Constitution.
Levin calls himself a “constitutionalist,” which he has turned from a generic term (Obama used it in his book) into an ideological one. Like many conservatives, he is an originalist, holding that the Constitution’s meaning was set and fixed by the framers. But Levin combines originalism with a kind of apocalyptic fatalism, a belief that the nation has gone so drastically off course that the damage may be irredeemable. “I think in many respects that we are in a post-constitutional era,” Levin told me. “It’s difficult to think of our current federal government—so ubiquitous in our lives, with its tentacles into everything—as consistent with what we understand to be the real meaning of the Constitution. The system that the framers set up was a good one, but it’s not one we’re living under.”
Levin’s prominence is bound up with the Tea Party movement. When Republicans took control of the House in 2011, their first act was to stage a public reading of the Constitution (except the parts about slavery). Tea Party Republicans speak obsessively about how contemporary politicians, especially President Obama, violate the strictures of the Constitution. Levin assails the Affordable Care Act as the epitome of all that is wrong with modern American government. When a lower court struck down the law, in 2011, Levin said, “It is a great day for the rule of law and the citizenry.” (The law was later upheld by the Supreme Court.)
Levin’s constitutionalism has a distinctly populist edge. For him and the Tea Party as a whole, the meaning of the Constitution can be understood by any ordinary citizen, not just a small priesthood of lawyers and judges. As Theda Skocpol and Vanessa Williamson wrote, in “The Tea Party and the Remaking of Republican Conservatism” (2012), “A persistent refrain in Tea Party circles is the scorn for politicians who fail to show suitable reverence for, and detailed mastery of, America’s founding documents”—documents that “are immediately accessible and obviously clear [and] can be understood by each person without the aid of expertise of intermediaries.”
Levin has proposed a series of Liberty Amendments, most of which reflect well-known aspects of the Tea Party agenda. He wants to set term limits on members of Congress, limit federal spending and taxes, and allow three-fifths of the states to overrule any federal legislation. He also wants to repeal the Seventeenth Amendment and return the election of senators to state legislators, rather than to voters. “The original purpose of the Senate was to give state legislators a say in the national government, and that’s gone,” Levin told me. “State legislators are closer to the people, and they should have more of a voice in how the federal government runs.” In any case, “The Senate is not supposed to be democratic. The framers did not want the popular vote to control everything. I do not understand a mind-set with some of these professors who, on the one hand, seem to argue for the greatest expansion of democracy possible and, on the other, rely on the smallest majority possible—five Justices on the Supreme Court. Do you trust the plebiscite mentality or the judicial-supremacy mentality?”
Levin has a pre-Civil War conception of federal power, roughly akin to that of the great states’ rights advocate of the era, John C. Calhoun. Above all, Levin would like to curb the power of the federal government. The Supreme Court would exist mostly to police the federal government, keeping it from overstepping its authority. (Liberals generally embrace a vigorous role for the Supreme Court as a defender of individual rights against the intrusions of the state.) Levin’s ideas are shared well beyond the realm of talk radio. Steven Calabresi, a professor of law at Northwestern University and a co-founder of the Federalist Society, a conservative lawyers’ group, proposed to me that half the Justices on the Supreme Court be selected by the current method of Presidential appointment and Senate confirmation, and the other half by a vote of the fifty state governors. “I would also allow Congress, by a two-thirds vote of both houses, to override Supreme Court decisions in the same way in which it can override Presidential vetoes,” Calabresi said.
Randy Barnett, a professor at Georgetown University Law Center, was a principal architect of the lawsuit challenging the Affordable Care Act, on the ground that Congress exceeded its powers under Article I of the Constitution. He has an elaborate proposal that advances the interests of states. A few years before Levin devised his Liberty Amendments, Barnett created a Bill of Federalism—ten constitutional amendments that would, among other things, give more power to the states. The Levin and Barnett proposals have much in common. Barnett calls for eliminating the federal income tax; prohibiting the imposition of unfunded mandates on the states; and allowing half of the states (provided that they represent half of the national population) to rescind any federal law. Notably, Barnett proposes an amendment that would effectively ratify the Supreme Court’s decision in the Citizens United case, which struck down a key portion of the McCain-Feingold campaign-finance law. That provision, according to Barnett’s draft, states, “The freedom of speech and press includes any contribution to political campaigns or to candidates for public office.”
There is perhaps a populist symbiosis between Sanford Levinson’s progressive critique of the Constitution and Levin’s and Barnett’s conservative vision. Both posit that substantial majorities of the states should be able to override congressional actions. “There are two groups of people who are thinking about amending the Constitution,” Barnett said. “Sandy and his group don’t like the form of government that the Constitution provides. They want to change the Constitution to affect the situation in Washington so that it’s easier to get things done. They are majoritarians. They want a Western European parliamentary system, where a new government comes in and can pass its program right away. They are happy to abuse political minorities, depending on who is out of power at any given time. Majority rule is the only form of checks and balances they feel is justified, so the majority can do whatever it wants. The effect of that thinking is that California and New York get to run the country. That’s what the results of these policies are—to screw the people in the middle of the country. The minority can’t fight back. They always lose. That’s just a dangerous system.
“What’s motivating me is completely different,” Barnett went on. “We established a republican form of government that is not majoritarian. Legitimacy does not come from numbers—it comes from individual rights.”
Levinson told me, “Randy is basically right—I don’t like our form of government. I do think the republican form of government imagined by Madison and his friends was extraordinarily fearful of any kind of rule by the people. They really didn’t have any confidence in citizens. But what Randy finds himself defending is a veto by small, basically rural states, who ought not be subjected to majority rule by people who live in cities. This is one of the great American fault lines.”
The debate between law professors can seem abstract, but their disagreements play out in contemporary Washington, especially in the Senate. The career of Orrin Hatch, Republican of Utah, offers a partial refutation to the theorists on both sides, who insist that the Constitution defines the Senate in a specific way. Hatch’s long tenure suggests that the Constitution allows the Senate to evolve in keeping with the demands of its members—for better or for worse.
Hatch was first elected to the Senate in 1976, which makes him the second most senior member of the body. (Patrick Leahy, of Vermont, is the most senior.) Hatch maintains a hideaway office in the Capitol, just steps from the Senate floor. It used to be Ted Kennedy’s—a room that is said to have once been Jefferson’s library. On the wall of Hatch’s hideaway is a painting by Kennedy of the family compound in Hyannis Port. He inscribed it to Hatch with the words “We’ll leave the light on at the compound for you any time.”
“We fought like hell,” Hatch told me, “but we loved each other.”
Hatch arrived in the Senate as a kind of advance guard for the Reagan revolution—a small-government, Western-style conservative. He first made his mark leading the fight against Jimmy Carter’s labor-reform bill, in 1978, killing a piece of legislation, widely expected to pass, that would have made it easier for unions to organize workers. Later, alternately as the chairman and as the ranking minority member of the Judiciary Committee, Hatch was a fierce advocate for Republican judicial nominees. His support of Clarence Thomas and his denunciation of Anita Hill, in 1991—he accused her of cribbing her accusations against Thomas from “The Exorcist”—remain his defining moment in the public mind.
At the same time, Hatch became an accomplished legislator, adept at building partnerships with unlikely allies. The seventies and eighties were also a kind of golden age in the Senate, where ideological adversaries figured out ways to make common cause. Hatch and Kennedy together passed the Ryan White CARE Act, which dealt with AIDS, in 1990, and the State Children’s Health Insurance Program, in 1997. More informally, they steered many contested nominations of judges and others through the Senate. In other words, Hatch has played both roles in the Senate—as a partisan obstructionist and a consensus-seeking deal-maker.
As befitting a senator from one of the less populated states, Hatch has always been a zealous defender of the provisions of the Constitution that preserve states’ rights. “If you didn’t have the Senate, then the large states would control everything,” Hatch told me when I met with him earlier this fall. “If you look at the red states, we have at least a significant ability in the Senate to force more compromise and more getting along, and that has happened time after time.” From the beginning of his Senate career, Hatch also opposed plans (supported by Richard Nixon, among others) to abolish the electoral college and decide Presidential elections by popular vote. “You would not have any real representation of the people who are basically in the middle of the country,” he said. “The difference between states matters, because there are different people in each state, different economies, different natural resources. If it was just the large states, we’d be dominated completely.
“The Senate was never designed to be like the House,” Hatch said. “In the House, if you can get fifty per cent plus one, you can pass anything. In the Senate, you have to make a real case. You are going to need sixty votes to get it passed. Here there shouldn’t be a plethora of bills going through all the time.” He invoked the famous metaphor, attributed to George Washington, that calls the Senate the saucer into which boiling water is poured to cool. “This has never been a democracy,” Hatch said. “This is a representative republic with heightened democratic principles.” After a pause, he added, “I never called it that before, but I think it’s right.”
The sixty-vote threshold to break Senate filibusters was soon to be challenged by the Democrats. The Constitution makes no reference to filibusters, and over the years there were periodic arguments (and some lawsuits) asserting that filibusters are unconstitutional, as a violation of the norm of majority rule. These cases foundered against Article I, Section 5, of the Constitution, which says that each house of Congress “may determine the Rules of its Proceedings.” Thus, judges have said, if the Senate wants filibusters, it can have them.
When Hatch arrived in the Senate, filibusters were rare, and were used mostly against major legislation. During Obama’s Presidency, the number of filibusters has grown dramatically: Democrats have had to file for cloture—that is, to stop filibusters—about twice as often as Republicans did during their early years in the majority when George W. Bush was President. Approximately half of all the filibusters in American history against Presidential nominations have taken place during Obama’s Presidency.
Hatch pointed out that it was the Democrats who first began to abuse the filibuster, when they were in the minority. “It’s wonderful for them to be moaning and groaning,” he told me. “But it’s sour grapes. They started this crap.”
Hatch acknowledged that the poisonous political atmosphere within the Republican Party has also contributed to the breakdown in the Senate. For twelve years, his junior colleague from Utah was Robert Bennett, who was less well known nationally than Hatch but every bit as conservative. “Bob was a good senator and good friend,” Hatch said. But, in 2010, Mike Lee, who was a law clerk to Samuel Alito, and who is affiliated with the Tea Party movement, castigated Bennett as a moderate and defeated him for the Republican nomination. “I hated to see it happen,” Hatch said, and his disdain for his junior colleague is difficult to hide. Today, Lee is best known as Ted Cruz’s unofficial deputy in the shutdown struggle, a fight that appalled Hatch. “I am never going to be a fan of the shutdown. That is not the way to run the government,” he said. “If they wanted to shut the government down, they have to show me that there is an endgame where it is a justifiable, or winning, fight. But there wasn’t a way. I don’t believe in feckless fights.”
The paralysis of the Senate has reverberated through the entire government. One of the most important Supreme Court cases of the coming year, National Labor Relations Board v. Noel Canning, presents an almost perfect distillation of everything that’s wrong with contemporary Washington—and with the Constitution. The dispute features the excessive power of the Senate, the pervasiveness of filibusters, and the dubious authority of an eighteenth-century document being used in circumstances that are completely different from those for which it was designed.
The delegates in Philadelphia gave the President the power to appoint many senior federal officials, but such appointments were subject to confirmation by a majority of the Senate. This presented a problem at a time when Congress was in session only about six months a year, and the representatives had no way of showing up on short notice. So the framers came up with a way for the President to keep the government running, including making appointments when Congress was out of session. With little debate, the delegates included a provision in Article II, which defines the powers of the executive branch, stating, “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” Recess appointments, as they are known, give the President the power to bypass the Senate to fill certain jobs, but only for a limited time, until the end of the current congressional session.
For two centuries, Presidents exercised the power to make recess appointments rarely, and usually with little controversy. But, as relations between the Senate and the White House became more contentious, Presidents began to do it more often. Bill Clinton made a hundred and thirty-nine recess appointments; George W. Bush made a hundred and seventy-one. But neither of them faced the kind of obstruction that Obama has encountered during his four-plus years in office. In an effort to lower the temperature of his disputes with Congress, Obama initially resisted using recess appointments, but he picked up the pace in 2010. Although he has made only thirty-two in total, his adversaries launched an unprecedented legal counter-offensive against him.
Republicans in the Senate were particularly reluctant to approve Obama’s choices for the National Labor Relations Board, a body for which the G.O.P. has minimal regard. For members of this and other agencies, Republicans did not vote the nominees down—they didn’t have fifty-one votes. Rather, they used filibusters to prevent the full Senate from considering them at all. In the instance of the N.L.R.B., Obama responded by making recess appointments to fill a quorum at the board. In a fairly routine case from 2010, the board filed an unfair-labor-practice charge against Noel Canning, a soda bottler in Washington State, for improperly withdrawing a contract offer to the union representing its workers. The company charged that the action was invalid, because it was made by board members who had been given unconstitutional recess appointments.
In a decision handed down earlier this year, the United States Court of Appeals for the D.C. Circuit sided with the company, striking down the board’s judgment in the case. Indeed, the court said that all actions taken by a broad swath of recess appointees—literally hundreds of rulings—were unconstitutional. The case has the potential to undo the work of any number of independent agencies whose members were installed through recess appointments. Among them are the Equal Employment Opportunity Commission and the recently created Consumer Financial Protection Bureau. The Supreme Court will hear the case later this term.
Why, in an era of jet travel, should Congress have recesses at all? How can the words of delegates in Philadelphia about recesses illuminate an issue that they could not possibly have anticipated? Even accepting the structure that the framers devised, how can the Senate simply refuse to act on a President’s appointments, as the current Republican minority has done so often? How can the actions of forty senators prevent an administrative agency from functioning at all? And how (as the D.C. Circuit ruled) can the President remain powerless in the face of this kind of obstruction?
This fall, the strife became intolerable to a majority of senators. The trigger was a Republican filibuster of three Obama nominees to the D.C. Circuit, which, thanks to cases like Noel Canning, is generally regarded as the second most important in the country. Recently elected Democratic senators, who had known only a Senate paralyzed by filibusters, became more aggressive in wanting to do something about it. “I think the Constitution was very wise in terms of allowing for super-majorities in certain situations, like the ratification of treaties,” Tom Udall, the first-term New Mexico Democrat, told me. “But it’s supposed to be a cooling saucer, not a deep freeze. We have six-year terms, and have only a third of us up every two years. That insulates us from being a hot-headed legislature. But the system is being abused. We can’t accomplish anything. It’s been turned on its head. It’s not the tyranny of the majority—it’s the tyranny of the minority.”
The Republicans’ refusal to allow a vote on the D.C. circuit nominees galvanized even veteran Senate Democrats to join in the effort to limit filibusters. On November 21st, the Senate enacted the so-called “nuclear option,” which allowed a simple majority of members to end debate on Presidential nominees (except those to the Supreme Court). “I think this was a big victory for democracy,” Udall told me after the change in the Senate rules. “What we’ve done is return to what the Constitution says—that we operate around here by majority rule.”
Still, filibusters on legislation are unaffected by the new rule, so the legislative agenda of the President (or his successors) may remain moribund. Small-state senators still exercise disproportionate power. “Two senators to a state is part of the basic document, and we all should have the basic ability to work on behalf of the country,” Udall said. Or as Al Franken, the Minnesota Democrat, said, “The framers made a deal to get the votes of the smaller states, and that’s our Constitution. And there are things that were particular to the time, and that’s carried through. Do I say to Mike Enzi and John Barrasso”—the two senators from Wyoming—“ ‘It’s ridiculous that you’re here’? No, I don’t. Not exactly,” Franken said. “The Constitution has lasted a long time. It’s done pretty well.”
During the shutdown crisis, it became apparent that the House of Representatives—the founders’ nod to proportional representation—had, in its own way, become dysfunctional as well. Richard Posner, a professor at the University of Chicago Law School and a federal appeals-court judge appointed by Ronald Reagan, thinks that the Constitution is not to blame for the country’s political stalemate. Rather, it’s the irrationality of an influential wing of the contemporary Republican Party. “If a country allows itself to get into deep economic trouble, that is going to unsettle the political system,” Posner told me. “That’s what happened in the thirties, with the Depression, and it’s happening now. People get very upset, and they become vulnerable to extremist appeals. That’s what’s happened to the Republican Party in the House of Representatives.” Akhil Amar agrees. “One half of one of our two great political parties has gone bonkers,” he said. “That’s the problem. Not the Constitution.”
The modern Republican Party asserts itself most clearly in the House, where partisan redistricting has transformed the political calculus for most members of that body. And the Supreme Court has said that that is just fine under the Constitution.
Article I says that members of the House shall be “chosen every second Year by the People of the several States,” but it doesn’t say how they should be chosen. “Congress passed a law in 1842 that said members had to be chosen from single-member districts,” Pamela Karlan, a professor at Stanford Law School, said. “But Congress could pass a law tomorrow to move to a system of proportional representation, or some other system.” By one method, voters could elect House members from statewide slates of candidates.
The system of single-member districts generally suits incumbents. Drawing district lines has always been a deeply political undertaking, because elected officials in every age cultivate a strong instinct for self-preservation. In 1811, Elbridge Gerry, the governor of Massachusetts, sculpted districts in such a way that one looked like a salamander—a process that gave rise to the term “gerrymander.” With the help of computer software, the art of gerrymandering has evolved into a science. After the 2000 census, which cost the state of Pennsylvania two seats because of population loss, Republicans carved up the districts so that the G.O.P., which had formerly held ten congressional seats to the Democrats’ eleven, held a twelve-to-seven advantage, even though the over-all statewide partisan breakdown was basically unchanged. A group of Democratic voters challenged the Republican plan, arguing that the new congressional map deprived them of equal protection of the laws, in violation of the Fourteenth Amendment.
The case, Vieth v. Jubelirer, went to the Supreme Court in 2004, and the Justices handed down one of the most important (if least known) decisions of the decade. The Justices refused to strike down the Pennsylvania map, embraced the right of political parties to gerrymander for partisan gain, and, in a fundamental sense, guaranteed the polarized House of Representatives that has become so familiar. In Vieth, the Court was badly splintered. Antonin Scalia wrote the lead opinion, declaring that “political affiliation is not an immutable characteristic, but may shift from one election to the next; and even within a given election, not all voters follow the party line. We dare say (and hope) that the political party which puts forward an utterly incompetent candidate will lose even in its registration stronghold.” Scalia said that the plaintiffs sought “a right to proportional representation. But the Constitution contains no such principle. It guarantees equal protection of the law to persons, not equal representation in government to equivalently sized groups. It nowhere says that farmers or urban dwellers, Christian fundamentalists or Jews, Republicans or Democrats, must be accorded political strength proportionate to their numbers.” Besides, Scalia said, even if there had been a violation of Democrats’ right to vote, there was no way the Court could design a remedy that election experts could agree on.
After the 2010 census, Republicans parlayed their landslides in that year’s elections to draw favorable lines in several states where they had new majorities. In Pennsylvania, which lost another seat, Democrats still enjoy an advantage in party registration, but Republicans now have a thirteen-to-five advantage in House seats. Democrats made similar efforts in states where they controlled the process, especially in Maryland and Illinois. Over all, though, Republicans played the game much better. In 2012, House Democratic candidates across the country won about half a million more votes than their Republican opponents, but the G.O.P. emerged with thirty-three more seats than the Democrats.
It is true, as scholars like Nolan McCarty, of Princeton, have argued, that partisan redistricting does not account for all the polarization in the House. In recent years, Americans have tended to live near their political allies more than in the past. Thus, any district lines would tend to clump like-minded voters together. But there is no doubt that state legislators devoted painstaking attention to designing districts for the sole purpose of taking partisan advantage. As a result, incumbents in the House, especially Republicans, fear primaries more than general elections, and thus take pains to avoid being caught in the act of bipartisanship. What has followed is rancor, extremism, and stalemate.
The Constitution may be amended, but the process is arduous. According to Article V, any amendment must receive the endorsement of two-thirds of the House and the Senate and three-quarters of the state legislatures. Article V also limits any change in the makeup of the Senate. It affirms that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” To Levinson, the difficulty of the amendment process is one of the document’s critical defects. “You have a situation where legislators representing less than one-tenth of the population of the country can stop any amendment,” he said. “That’s completely undemocratic.”
Still, like Mark Levin and Randy Barnett on the right, Democrats have long had their own favored constitutional amendments. In the sixties and seventies, there were attempts to memorialize the welfare state in the Constitution, with guarantees of rights to food, shelter, and health care. The Equal Rights Amendment, guaranteeing equal treatment of the sexes, fell just short of ratification, in 1982. More recently, some academics, like Noah Feldman, at Harvard, have entertained the possibility of creating a right to education; others, like Jamal Greene, a professor at Columbia Law School, advocate a repeal of the Second Amendment right to bear arms. In Congress, a number of senators, including Tom Udall and Al Franken, have proposed a constitutional amendment to overturn the Citizens United decision and allow legislators once again to regulate campaign contributions and expenditures. (One of Barnett’s proposed amendments would do the opposite, protecting Citizens United from being overruled by a future Supreme Court.)
None of these amendments are likely to become law. “It should be difficult to amend the Constitution,” Amar said. “You should have to obtain a very broad consensus before you pass an amendment. I agree with Sandy Levinson that the Constitution could be better. But you have to remember that it could also be worse. We’ve had proposed amendments to stop flag burning, and to ban same-sex marriage, and that’s when I was glad it was difficult to amend. There have been only twenty-seven amendments, and twenty-six of them are good. Prohibition was bad, and it was overturned.” For partisans on the left and the right, it’s tempting to see constitutional amendments as shortcuts to political gain. But the difficulty of the process makes that impossible. Political change leads to constitutional amendments; amendments do not lead to political change.
The Constitution can and often does change without being formally amended. This is the real lesson of the past decade or so. Levin and his Tea Party followers have shown that agitation about the Constitution can serve a conservative political agenda. In everything from television advertisements to law-review articles, they made the case that the Second Amendment protects an individual’s right to bear arms—a concept that the Supreme Court emphatically rejected in the past. In 1939, the Court said that the amendment concerned only “the preservation or efficiency of a well regulated militia.” But, in time, the Court came around to a different view. Conservatives also came within a whisker of success in their constitutional arguments against Obamacare.
There is nothing inherently conservative about the honorable and long-held idea that citizens can understand, and even change, the meaning of the Constitution. Liberals, despite themselves, have proved the same point. Plessy v. Ferguson (1896), which condoned racial segregation, gave way to Brown v. Board of Education (1954), which ended it. As recently as 1986, the Court dismissed the idea that the Constitution protected gay people from discrimination as, “at best, facetious.” Today, that principle is enshrined in the bedrock of constitutional law. And the Court’s decisions have accomplished most, if not all, of what the Equal Rights Amendment was supposed to do for women’s rights. Judicial appointments played a role, but more important was the demand from an engaged populace. Under pressure from voters, individual states expand (or limit) the rights to own firearms, to obtain abortions, and to marry someone of the same gender. Within broad limits, the Constitution invites these sorts of local experiment.
Moments after the Senate passed the filibuster reform last month, President Obama expressed his appreciation, but decried the tactics that made the change necessary. “Today’s pattern of obstruction, it just isn’t normal,” he said. “It’s not what our founders envisioned.” Obama was engaging in the politician’s customary absolution of the founders: the virtues of the system are all due to them; the defects are all due to us. This seems wrong on both counts. The compromises, misjudgments, and failures of the men in Philadelphia haunt us still today. But the founders also left just enough room between the lines to allow for a continuing reinvention of their work. On some occasions, as with race and gender discrimination, the Constitution is renewed and improved in courtrooms; on others, as with the Senate’s recent act of self-improvement, the government finds ways to repair itself. In all events, the roots of these changes are the same. The Preamble to the Constitution says nothing about judges or politicians. It invokes what should be the true and ultimate authority in American government: We the People. ♦
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