Thursday, October 11, 2007

Constitutional Tinkering

Larry Sabato, director of the Center for Politics at the University of Virginia, (who also runs a great political tracking and commentary website -- Sabato’s Crystal Ball), said in the Los Angeles Times yesterday that the Constitution of 1787 is outmoded, the cause of deep underlying “systemic” and “structural problems.” We need, Professor Sabato opines, a new Constitution, so that we may “make progress and achieve greater fairness as a society.”

In case you don’t get it yet, Mr. Sabato is the author of a new book: A More Perfect Constitution: 23 Proposals to Revitalize Our Constitution and Make America A Fairer Country. Now I haven't read this book yet, but in general, I have found that when professors or politicos start talking about “fairness as a society,” or “making America a fairer country” or fixing “systemic” and “structural problems,” watch your wallets and get ready to be shaken-down or nagged by Those Who Know Better.

Professor Sabato tells us that the “. . .Constitution remains brilliant in its overall design and sound with respect to the Bill of Rights and the separation of powers.” The problem is, though, that there are “numerous archaic provisions that inhibit constructive change and adaptation.” Well, thank God for small miracles ! The Federal government, indeed all government in this country – is powerful enough to suit me just fine, thank you very much. Inhibiting change that our chattering class betters no doubt think we need is Jim Dandy to yours truly.

I agree with Professor Sabato that the Constitution has some problems. I just don’t agree that Professor Sabato’s list of deficiencies (at least as set out in the Times piece) are really problems; and I agree even less with his proposed solutions.

First, Professor Sabato wants to “restore the war powers balance.” Dr. Sabato rightly says that the Founders probably would not approve of the ability of the President to use his powers as commander-in-chief to effectively wage war on his own. To fix things, Dr. Sabato proposes a “Mother, May I ?” system of allowing the President to commit soldiers to action for up to six months – and then every six months thereafter, to seek Congressional permission to keep them there (albeit without permitting filibusters).

No thanks. In spite of some recent history, I trust Presidential instincts about war, peace, the military and national security far more than those of congressional camera-hogs and would-be candidates for President. Besides, as Professor Sabato says, we live in a “hair-trigger” world, where our welfare and security can be immediately and directly affected by what happens on the other side of the planet; and when the kaka hits the proverbial fan, there is, as Han Solo once put it, "no time to discuss this in committee." Yes, the Presidential war powers may be very emperor-like, but overall, I’d rather keep them that way than institute a system even more subject to daily media and political manipulation than current arrangements.

Next, Dr. Sabato thinks we need a “more representative Senate” He doesn’t like it that Wyoming can elect as many Senators as California. He wants to build a “fairer Senate” by granting the ten States with the greatest population two extra Senators, and the next 15 one extra, each. This is of a piece with his criticisms of the Presidential election system, giving more populous States additional electors to preclude the split between popular votes and electoral votes that occurred last in the 2000 election.

No sale again. The upshot of Professor Sabato’s proposed “reforms” would be to give more power to larger States and to big cities. If you want elections and public policies decided by New York, Chicago and LA; the bi-coastal Great and Good in media and academia to have even more influence; and the priorities of those of us in Flyover country ignored more than even currently – than Professor Sabato’s plans will suit your needs perfectly. The arrangements established by the Founders ensure that Presidential candidates have to campaign and attract support in every region of the country; and the current set-up also promotes legislation with support all across the country, and not just in major urban areas.

Finally, Professor Sabato wants to “end. . .second-class citizenship” by altering Article II Section 1 of the Constitution, and allowing immigrants or persons not born as US citizens, to be elected President. Sabato thinks this is outmoded, and notes that “[t]he founders were concerned about foreign intrigue in the early days of an unsettled republic” and that we now have 14.4 million Americans who were not born on US soil, and we need to give people who are citizens for at least 20 years the “right to aspire to the White House.”

Nope, don’t like that one either. In a world where the whole concept of national sovereignty is under philosophical attack, where populations are increasingly mobile, and where we have an educational system failing us so badly that we have substantial numbers of people who cannot tell us what the War Between the States was – no offense, but I’m not buying it. I see no compelling interest in blurring national distinctions even more by altering present arrangements, even if it means that Arnold Schwarzenegger can never be President.

A little reform can indeed be a dangerous thing. Professor Sabato can keep his proposed new Constitution. As for what I’d change, more on that another time. . .


louielouie said...

i have a suggestion for this doctor fellow.
actually it is asuggestion for the publisher of this so-called book.
i would suggest a different shape/form of the book.
as it would necessitate the insertion into one of the orifices of the body.
possibly like this.

Anonymous said...

While we are fixing it, how about we repeal the direct election of US Senators, so they can once again represent their states and re-affirm that the 2nd Amendment means what it says.

I see no need to repeal the "native born" requirement for President (aka "The Hamilton Clause").


El Jefe Maximo said...

Andrew db, you are pushing at an open door. One of my pet hobby-horses, and bound to make an appearence in my post on MY thoughts on problems with the Constitution -- is the idea that the 17th Amendment, establishing direct election of Senators -- was a big mistake.

Having Senators elected by the State legislators was superior, because that made the Senate more representive of local power structures and elites, and avoided the consolidating effect of created another layer of the already too powerful Washington/East Coast centered national political elite. I think that if power to select the Senators had remained in the 50 state capitals, it would have reduced the power of the Washington lobbies, simply because it fragmented it (lobbing efforts would have to be spread out). Federalism would thus be strengthened.

Another dumb idea was the 22nd "Lame Duck" Amendment. . . but this, and other things, will await another post.

Anonymous said...

"No sale again. The upshot of Professor Sabato’s proposed “reforms” would be to give more power to larger States and to big cities"

So you have a problem with democracy (or a democratically based republic)? Whatever happened to "one man, one vote"? If the power comes from "the people" then doesn't it follow that the states with most of "the people" should have most of the power? Your complaint that many voters apparently don't vote the way you like reminds me of a quip about the former East German government:"When the government loses the election, it replaces the electorate."

El Jefe Maximo said...

Anon 5:15,

We don't have a democracy, we have a republic of limited powers that ensures its people are sovereign, not in an undifferentiated mass -- but through the States. The United States was created by the people acting through their States, the political existence of which predate the United States. The people elect the President, but indirectly voting by States, and the Senate represents the equality of the States. This whole matter was debated in the original constitutional convention.

Now a lot of people favor "national democracy" -- that is, one polity, that has one focus of political power -- Washington, and one set of policies on everything -- determined in Washington. To me, nationalized, homogeneous democracy magnifies the effect of cities as opposed to rural areas; does not adequately protect minorities (in the sense of regional, local minorities, who may disagree with the urbanized, nationalised view of things). It ensures that raw numbers always win and leaves smaller places and rural regions no place to go but court.

I am not somebody who favors nationalized democracy, I think the more political power that's kept cloer to home, the better. The founders set up guards against that, and on that at least, I agree with the founders.

As to the unlamented East German government, it never conducted an "election" that didn't deserve quotations around it, except its last ones. What "elections" did that government (practitioners of centralism if any government ever was) ever lose, except during its fall in 1990 ?

louielouie said...

as i read your discussion of the 17th ammendment, the word that comes to mind is "disconnect".
i.e., the disconnect between theory and practice.
i can read and try to comprehend you discussion of reserving the power to elect senators to the respective state legislators to reflect the power structure therein, but what gets in the way of my understanding your theory, is the reality of the political landscape in two states.
in the 1990 re-districting that the texas repubs had crammed down their throats. they did not have the option to flee to a neighboring state to prevent legislative action. the dems held a quorum in both houses.
however, during this period of time texas sent repub after repub to the us senate. as did okla. during the 1990s, the political landscape began to change in texas and soon the repubs had the majority in both houses. however, in texas they continued to send dems to the us house. of course, this would not be affected by the 17th.
my point is, i believe there is a disconnect in the electorate between the type of federal and local representation they chose. oklahoma would not as yet, sent it's first repub senator to deecee. yet we have had repub senators for decades.
and the other point i don't understand in your discussion, is how reserving the selection of senators to the respective state legislators would affect the concentration of power.
what would, imo, is term limits.
none of the framers of the constitution saw politics as a career.

El Jefe Maximo said...


For one thing, if US Senators were chosen by State legislators -- they'd have to pander to State legislators (and the interests that State legislators have to pander to), as opposed to pandering to, among others, national party machines and campaigns.

You're right about the redistricting argument, but I will say the whole business was a lot less looney before the courts got involved. The ability to gerrymander has always been simply one of the spoils the majority in the state legislature gets to inflict on everybody. And as you recognize, over time, the local political landscape started to reflect what people were doing nationally. Eventually, the stars move into alignment.

Look, all of it is a dirty business. Retail politics is about begging for money and votes. I think it's better to have as many different foci of these operations as possible, because it makes it harder for the national Great and Good to game. I'd be in favor of virtually anything that slows things down and takes even a little bit of influence out of Washington, and works to make politics more local than national. Washington has too much power as it is.

If you want a more efficient system, get rid of the Senate entirely, and do what Nebraska does -- and have a unicameral Congress. That will produce a lot more legislation, and a much more activist legislative body.

Finally, I'm just a cantankerous antiquarian. . .

hank_F_M said...

His thing on the War Powers is (what is a polite word?) interesting.

The current constition gives the congress plenty of power over military action. He is making the same mistake the authors of the “war Powers Act” made – assuming a a mechanical process can over ride political will. In every decision in the past 100 years he does not like the Congress, if it wanted to could have stopped the President. If his propositions were in place congress would not have had the will to use those. Why complicate things?

It is interesting to note he cited the War Powers Act. There was already substantial legislation governing war powers. The WP Act actually gives the president more authority than he had previously. It enalbled Bush I to send several hundred thousand reservists and National Guardsman to the Middle east in 1990 with a lot less bother than the old law required.

El Jefe Maximo said...


You're spot on about Congress having ample power over military action and employment of the troops. If Congress doesn't like something it controls a powerful public platform to complain, as well as the purse, and can stop matters stone, cold dead if so inclined.

What the critics of present arrangements seem to want is to fix matters to provide critics of military operations with political cover. They don't want the Congress to have to politically stand up and be counted -- and do something like cut funding for the troops if they're opposed to a war. They want the shoe on the other foot; for the duties of the commander in chief to be discharged by a committee.

I think that if something like what Dr. Sabato wants were to be put into place: the military would effectively have NO commander in chief, because their available time would be all-consumed with preparing the next benchmark report or similar such thing for Congress. The executive branch would have to spend even more of their effort than under the present system shilling for votes to get them over the next 6 month hump, and playing Gotcha with the press. Our entire military strategy during conflict would become even more of a fixture of press and political manipulation than it already is.

Anonymous said...

Check out Sabato's YouTube page for videos of him talking about the book and his ideas:

It is pretty interesting, actually.