Attorneys General–institutions matter

Now that indictments have been announced against the (outgoing–dare I say?) Prime Minister of Israel, it is worth reviewing the institutional basis of the office of Attorney General in Israel.

I am seeing some casual takes on Twitter about why the US doesn’t have an Attorney General who takes a tougher line against law-breaking at the top of government. But the offices could hardly be more different. The US Attorney General is a cabinet appointee. The President picks who holds that position, subject only to Senate majority confirmation. Of course, Trump has had a highly compliant Senate majority throughout his presidency.

Trump could not have had occupants of the office that have been as awful for the rule of law as they have been, if the office were structured like Israel’s. So it is worth sketching how the process of appointing the Israeli Attorney General works. My source for this is Aviad Bakshi, Legal Advisers and the Government: Analysis and Recommendations, Kohelet Policy Forum, Policy Paper No. 10, February 2016.

a. There shall be formed a permanent selection committee that shall screen suitable candidates, one of which shall be appointed to the position by the government. The term of each committee shall be four years. 

b. The chairman shall be a retired justice of the Supreme Court who shall be appointed by the President (Chief Justice) of the Supreme Court upon the approval of the Minister of Justice, and the other members shall be: a retired Minister of Justice or retired Attorney General appointed by the government; a Knesset Member elected by the Constitution, Law and Justice Committee of the Knesset; a scholar elected by a forum comprising deans of law schools; an attorney elected by the Israel Bar Association. 

c. The AGI term duration shall be six years, with no extension, irrespective of the term of the government. 

d. The government may remove the AGI from his position due to specific reasons.… These reasons include, in addition to personal circumstances of the AGI, disagreements between the AGI and the government that prevent efficient cooperation. In such an event the selection committee shall convene to discuss the subject and shall submit its opinion to the government, in writing. However, the opinion of the committee is not binding, and the government may decide to remove the AGI contrary to the recommendation of the committee. The AGI shall have the right to a hearing before the government and before the committee. 

All of this makes for a reasonably independent office. Even if appointment and dismissal are still in the hands of the government, the screening and term provisions make it an arms-length relationship. The occupant of the post is obviously not a cabinet minister, as in the US, and is not a direct appointee of the head of government or the cabinet.

Worlds apart, institutionally.

And this is even before we get into the parliamentary vs. presidential distinction. A president is–for better or worse–meant to be hard to indict, let alone remove. That’s why the main tool against a potentially criminal executive in the US and many other presidential systems is lodged in the congress, through impeachment, and not in a state attorney. A prime minister in a parliamentary system, on the other hand, by definition has no presumption of a fixed term.

The normal way to get rid of a PM is, of course, a vote of no-confidence or the PM’s own party or coalition partners withdrawing support. But that’s the point–they are constitutionally not protected when the political winds, let alone the legals ones, turn against them.

In the broader institutional context of a parliamentary system, it is presumably much easier to take the step of also designing an independent Attorney General’s office that has the ability to indict a sitting head of government.

On the other hand, there is still no obvious way to remove Netanyahu from office any time soon, unless his own party rebels against him. Even though Trump’s own party will probably block the super-majority in the Senate needed to remove him from office*, the resolution of the case against Trump might happen considerably sooner than any resolution of Netanyahu’s case. Barring a rebellion by his current allies, Netanyahu may remain PM for another 4-5 months, through a now-likely third election (since last April) and the post-election coalition bargaining process.

* Assuming the House majority impeaches him, which now looks all but inevitable.

Constitution Day passed

Constitution Day was last Wednesday, and I did not even notice. Did anyone?

Maybe I failed to notice because it did not come during the Days of Awe this year, as it did last year. It came during Elul (the 17th, as calendric convergences would have it), and I was just not yet prepared to contemplate something as awesome–or awful–as the status of adherence to the principles on which the US Constitution was founded.

Dahl’s review of Sabato’s book on US constitution

The New York Times has published an interesting book review by Robert Dahl, one of the world’s preeminent political scientists and author of How Democratic is the American Constitution? (to which he correctly replies, not sufficiently). The review is of The Genius of America, by Eric Lane and Michael Oreskes, and A More Perfect Constitution, by Larry Sabato. I am going to focus on Dahl’s review of Sabato’s book (which is on my to-read list).

Sabato’s book offers 23 reforms to improve the US Constitution. Quoting from Dahl now, with the internal quotations being from Sabato:

“The small-state stranglehold on the Senate,” he writes, “is not merely a bump in the road; it is a massive roadblock to fairness that can and does stop all progressive traffic… It is the height of absurdity for our gargantuan states to have the same representation as the lightly populated ones.”

His solution: “Give the 10 largest states two more Senate seats each, with the next 15 largest states gaining one additional seat.” He would also increase the size of the Senate to accommodate greater diversity in representation and to make it possible for former presidents and vice presidents to be awarded Senate seats.*

Definitely a good start. California would still be grossly underrepresented, though somewhat less grossly. I concede we won’t ever get Madison’s original second-chamber proposal (each state represented, according to population, by members nominated by their respective states and confirmed by the House of Representatives), and Sabato’s proposal is better in some respects than mine (concede equal representation, but with 3 or 5 per state, and each state’s delegation elected simultaneously by a non-majoritarian formula).

Sabato wants a 135-seat Senate and a 1,000-seat House. Even I, as an advocate of a much-expanded House, have never dreamed of going that far. In fact, I do not even think it would be a good idea. More is not always better, even if the current 435, fixed since the country was one third its current population, is ridiculously small. One thousand would make the US House by far the world’s largest representative body.

Sabato also says, according to Dahl, that “The Constitution itself must call for universal nonpartisan redistricting.” Constitutionalizing the redistricting process is a great idea–if one must remain within the single-seat district paradigm. Of course, if one is serious about democratizing the US Constitution, one must be prepared to break out of that paradigm. (If one had 1,000 members and nonpartisan redistricting, it would certainly increase the percentage of potential swing districts and maybe even make the odd third-party plurality achievable. But this goes too far on House size and not nearly far enough on electoral reform.)

But Sabato also has some loony ideas that sound like scraps left on the cutting room floor from one of Ross Perot’s campaign ads:

…mandatory limits on House and Senate terms in office [classic Peroism–MSS]… a balanced budget unless at least 55 percent of the members of each chamber voted to override it [just what we need: more obstacles in the way of the democratic majority**; and, are you ready for it?] extend the term of the president to six years, to which two more years might be added, for a total of eight, after a national referendum in which a majority of voters favored the extension…

A yes/no on extending a president’s term to eight years? Even Perot probably would find that nutty. Chavez, on the other hand…

Sabato also is evidently content with the electoral college:

automatically allocate a state’s electoral votes in presidential elections to “the winner of the certified popular vote in the state.”

This is a reform?

Sabato also proposes six-year terms for members of the House. That would be the world’s longest lower-house term, now that bastions of democracy like Sandinista-era Nicaragua have reduced the term to five (the longer end of term lengths around the world). Of course, this idea, combined with a successful referendum on extending a sitting president’s term, would result in nonconcurrent elections. I wonder if Sabato recognizes that as a problem. I guess I will have to read the book to find out.

Dahl concludes the review with words I wholeheartedly endorse:

A reluctance to engage in public discussions that might challenge the prevailing view of the Constitution as a sacred document will doubtless inhibit debate on Mr. Sabato’s proposals. This is not to say that they should all be adopted. But without a public discussion of proposals like this, too many American citizens will be unable to understand the virtues and problems of our Constitution and how it might be improved.

Indeed, as I have noted several times before (most recently on Constitution Day), it would be immensely useful to ean ourselves as a nation from what Thomas Jefferson called “sanctimonious reverence” for the Constitution and its founders.

Given that the increasing disparities of states’ sizes and the ever-increasing complexity of policy challenges in a globalized economy and warming climate, debate on our foundational political institutions will get more urgent over time. In this sense, Sabato, Dahl, and other prominent political scientists are doing us all a real service by their writings on these matters.

__________

* This is not necessarily a bad idea, to keep their expertise in policy, but it has a very serious flaw: A party gets two new seats in the Senate for every living past president it has elected, thereby adding yet another lag on democratic responsiveness to a system that already has too many. Add the defeated candidates, too (and not only those of the biggest losing party!), and impose a limit of how long either former presidents or their defeated opponents can serve, and you might be getting somewhere. Drop the running mates from the plan.

** Really, it is hard to overestimate how much this goes against the grain of Sabato’s stated interests in reducing the “stranglehold” against “progressive traffic.”

Constitution Day of Awe

September 17 is US Constitution Day, a public commemoration first officially observed only in 2005, but which marks the day, in 1787, of the final meeting of the Constitutional Convention in Philadelphia.

This year, Constitution Day falls during the Days of Awe, the period between Rosh ha-Shanah and Yom Kippur when Jews the world over assess their actions in the past year and atone for their sins and thereby seek to “return” (t’shuvah) to the right path. ((It is worth noting here that “right path” does not carry the theological implications for Jews that it might for members of other religions, nor does it mean primarily seeking forgiveness from the Divine (though it means that, too). It means first and foremost repairing our own personal relationships, working to correct injustice, and committing acts of gemilut chasidim or “loving kindness.”))

The coincidence of Constitution Day and the Days of Awe is thus a perfect opportunity for Americans–Jew and Gentile alike–to assess whether our path is the right one. Has the Constitution been faithfully upheld by the party in power? By the “opposition”? By the media? By us as individuals? Are we as a nation even aware of the core precepts of limited, constitutional, government? How many of our citizens know that Madison’s original “Virginia Plan” for the constitution was radically different from what was completed as a politically feasible draft 220 years ago this day? ((The Virginia Plan, in a nutshell, called for both houses of congress to be apportioned to the states based on population and for the executive to be elected by congress, and to have no veto over legislation. The upper house members would actually have been elected by the House of Representatives (from candidates nominated by the state legislatures) and while the president would not have had a veto, he could have convened a Council of Revision, which would have included judges, to consider a law’s constitutionality. Congress would have retained the final say on which laws were constitutional–including those passed by state legislatures. Madison was a “federalist,” but his constitutional proposal was centralizing, nationalizing, and majority-empowering. These remain fundamental democratic principles worthy of reenactment in our time.))

Limited government is a radical idea of which America was one of the originators, but it seems we have strayed very far from the path set by our founders 220 years ago. What steps can we take as a nation to return to the constitutional path? What have we, individually and collectively, failed to do in the last year to reinvigorate our electoral and constitutional processes? Many of us who were fortunate enough to live in the handful of swing districts and swing states thought we were taking an act of t’shuvah by voting for the party opposed to the incumbent executive. And then what? In the fundamental sense of restraining the president’s claimed wartime powers at home as well as abroad, not much. We as a nation have a lot of “returning” and atoning yet to do.

What can we do in the coming year to set the constitutional and democratic path straight again? Work for fundamental electoral reform, so that we can be represented swing voters without regard to our address? Work for constitutional reform in the spirit of the original idea of constitutional government, if not in its precise, politically bargained, structure?

We should not fear reform, or shrink from even “radical” ideas for improvement in our democracy. Thomas Jefferson, in a letter to Samuel Kercheval, July 12, 1810, and in words that are literally carved in stone in the Jefferson Memorial, said:

I am certainly not an advocate for frequent and untried changes in laws and constitutions… But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the same coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.

Even more, Jefferson warned against what he referred to as “sanctimonious reverence” for the Constitution and its founders.

If we use Constitution Day, and other patriotic commemorations, as an opportunity for “sanctimonious reverence,” we as a nation are idolators–as any student of Jewish history and the Bible will know, one of the worst of all sins.

We Jews give honor to our Torah as a guide to life–a “constitution,” in a sense. We don’t idolize it, but we revere it as the document of our people’s quest to make sense of the world and to guide us in living ethical lives. The progressives among us read it critically and while we certainly do not propose to amend the Torah, we do regularly reform how it is understood in our era, to keep it going hand in hand with progress of the human mind.

So, just as Jews have historically read the Torah and interpreted it and shaped its application–even in early rabbinic times through Talmud–and endeavored to keep it up to date through commentaries and discussion, so we Americans should do with our Constitution. We must not idolize it, or its original authors. For we are its authors. It is our Constitution, and we are responsible for making sure that our leaders–and we ourselves–live by its precepts.

Wherever Americans gather–in public events for patriotic days, in our schools and civic clubs, and in our synagogues, churches, mosques, and other religious institutions–we should make the Constitution come alive by reading it and discussing its relevance to our times. We should embark on a national program not only to read the Constitution itself, but to read the Federalist Papers (an “American Talmud”?), and to read generations of commentaries, controversies, and reform proposals. Always to ask ourselves, is its implementation consistent with its principles? If not, how can we return to the original paradigm in our own days?

This Constitution Day, let us be in justifiable awe of our constitutional heritage, but let’s not be afraid to be critical, to be reformist, to take the difficult steps towards national t’shuvah.

On Congressional Supremacists, Democracy and Madison

The title of this planting is identical to one at PoliBlog, and the context of what follows will be more clear if you head over there and read Steven’s very thoughtful post, criticizing some (including one of his readers) who prefer a more “authoritarian” (or I might say “Latin American“) variant of elected presidency.

In fact, what is below is simply a comment I posted at PB, but which seemed appropriate here (and happens to be the topic of a talk I am giving today):

Don’t forget that Madison was not only a congressional supremacist, but a House supremacist. Federalist 10, written before the Convention, is all about making a single chamber dominant over an “extended republic” because only by having one deliberative body that balances the “passions and interests” of a large community can the danger of “faction” (majority or minority) be checked.

When he put this into practice through his proposed constitution (known as the Virginia Plan), the executive would have been selected by Congress. Both houses of congress would have had membership based on state population, and Senators were to be elected by the House, out of nominations sent by the respective state legislatures. There was no veto as we know it, though the President could have convened a Council of Revision (judges) to consider whether a bill was constitutional. Even if it said it was not, a majority (not two thirds, but 50%+1) could override the Council’s veto attempt.

Federalist 51 came only afterwards, once Madison’s effort to implement the Virginia Plan was thwarted by small states, which preferred to demolish the whole concept of the Union rather than surrender their equality of representation in at least one house of congress. Only when thwarted did Madison turn to institutional checks and balances, as a way to invigorate the executive (though not as much as authoritarians like Honza–or Alito, for that matter) would like, against a congress that no longer looked like the one Madison wanted in Federalist 10.

Thus one can be a House supremacist and a Madisonian. Just as Madison himself was.

The above leans heavily on an excellent chapter on Madison’s political theory by my colleague, Sam Kernell.

Two hundred and thirty years: From ‘revolutionary’ hope to institutional backwardness

I am certainly not an advocate for frequent and untried changes in laws and constitutions… But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the same coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.

–Thomas Jefferson to Samuel Kercheval, July 12, 1810

The above quotation, carved literally in stone on the fourth panel of the Jefferson Memorial in Washington, District of Columbia, conveys a sentiment that is virtually forgotten in America today. In fact, Jefferson warned against what he referred to as “sanctimonious reverence” for the Constitution and its founders. Yet today–and especially literally today, on the anniversary of the Declaration of Independence–American culture practices an idolatry with respect to the Founding that has become an excuse for tolerating a form of democracy that is increasingly behind the times.

The quotation with which this planting begins is quoted, in part, in the conclusion of an excellent piece in today’s Los Angeles Times by Mark Kurlansky. It begins:

SOMEONE HAS TO SAY IT or we are never going to get out of this rut: I am sick and tired of the founding fathers and all their intents.

The real American question of our times is how our country in a little over 200 years sank from the great hope to the most backward democracy in the West.

Indeed. And I very highly recommend the entire piece.

The institutional backwardness of my country’s increasingly eroding democracy is a major and regular theme here at F&V, and I won’t elaborate on it much in this planting. (If you are new here, please go to the “Mission of F&V” above, or to any of the various links on the upper part of the left sidebar.) What I will do instead is elaborate a personal (and familial) view on Independence and the institutional development to which it led, but which has barely evolved with the times and “the progress of the human mind” since.

It may seem contradictory that I have an image of James Madison’s home as the banner for a blog in which I so frequently (and, yes, harshly) criticize the Constitution of which Madison is the supposed father. However, it really is not a contradiction at all.¹ I have great admiration for Madison as the founding father of the science of comparative political institutions and as the first great political engineer,² but disdain for the ongoing reverence for a series of expedient political compromises made over two centuries ago as the price for obtaining approval of a constitution to replace the dysfunctional Articles of Confederation.

We should never elevate pragmatic compromises to idol status, but that is exactly what the prevailing American ideology does. As Kurlansky further notes,

The reason that there is always more disullusionment with Democrats than Republicans is that Democrats raise the expectation of being anti-establishment when, in reality, both parties are committed to maintaining the status quo and the “intent of the founding fathers.”

(Gramsci was right about the hegemony of ruling-class culture,³ as some of the most loyal foot-soldiers of the Party of Power themselves realize.)

As I discuss in “The Mission of F&V,” I have some ambivalence being a descendant of Goerge Read. On the one hand, that an ancestor knew and worked and argued with great men like Madison and Jefferson is a source of pride. On the other hand, Read, perhaps more than any other founding father, is responsible for the abomination that is the Great Compromise, which gave us (and by emulation, Mexico, Argentina, and Brazil, though few federations elsewhere in the world) the concept of equal representation of highly unequal states.

Read’s victory, on behalf of a revolt of the small states, forced Madison to rethink entirely his whole model–the Virginia Plan, which likely would have evolved into a parliamentary and hence far more democratic federalism. The expediency of trying to sell this compromise (which was better, for its time, than the then-status quo) led Madison to write Federalist 51, in which he largely contradicts his pre-compromise theory in Federalist 10. Both papers are beautiful works of political science, but the normative models they advance (checking factionalism through the representative assembly of an “extended republic” in 10, vs. checking the representative assembly itself through a separate executive and an independent and unrepresentative Senate in 51) can’t both be valid simultaneously.

Read himself was somewhat ambivalent about the cause of independence. In fact, he led a faction of the Continental Congress that initially opposed the declaration and believed reconciliation with England was still possible. He went along with the majority and and more than reconciled himself to the decision: He signed the Declaration, aided the War of Independence, and later signed the Constitution that he helped re-draft from Madison’s proposal, and served under it as one of Delaware’s first Senators (among numerous positions within the state). Nonetheless, as I reflect in this Independence Day, I wonder, along with Matthew Yglesias, if Read’s first instincts were not the right ones.⁴ With a bit more time, a good relationship between England and the American states would have developed. So perhaps might we, instead of Australia and Canada, have developed the model of parliamentary federation, a model that would have evolved with society with far greater facility than the rigid institutions crafted at the end of the 18th century.

1. Not that there is anything inherently wrong with contradictions. In fact, I often like to say that the very definition of being an intellectual is having the ability to hold contradictory thoughts in one’s head.

2. And, along with Jefferson, a great fruit experimenter (as also discussed in the F&V “Mission” statement).

3. Which is not to say that I share Gramsci’s puzzlement that Marx’s expected communist revolution did not materialize in the advanced Western countries, or his wish that it would. Please refer to the previous note about intellectuals and contradictory ideas.

4. While I quite like the first part of Yglesias’s post (and its parallels to my ancestor Read’s initial position), the second gets a bit ridiculous. I tend to think that the thoughtful response posted at 7:44 (3 July) by frogmar is a much better piece of alternative (counter-factual) history.

Safire and Taylor on wiretaps–and my radical wish for 2006

William Safire was on Meet the Press today. I did not see it, just like I missed the drop kick (though maybe I will catch both later). Safire is not exactly a fire-breathing radical–or maybe he is (more on that later). I recommend Steven Taylor’s excerpts from Safire’s remarks, and also Steven’s own comemnts afterwards, which read in part:

I would return to a basic principle of modern conservative thought (not to mention a foundational tenet of the founding of the US), which is that relying on human nature to guarantee that the right thing is done, sans proper constraints, is a dangerous path to tread.

I can quibble here with only one thing. I would not call the notion of relying on institutional checks rather than human nature specifically “conservative” (even taking due note of Steven’s parenthetical “not to mention” clause). The idea of constraining executive prerogative is a thoroughly radical idea. It certainly was at the founding, and in some respects it remains so today. I mean ‘radical’ in its most literal sense, as in getting to the root of the problem. The root being the inherent tendency to abuse of authority. The problem being that authority indeed has been abused in this case–to the point that even John Ashcroft apparently had qualms. But I also mean ‘radical’ in the progressive, even leftist, sense of expanding the scope of popular control over power.

Regarding “conservatives” it certainly does not seem a radical position to note that “conservative” administrations, at least recently, have been a good deal more willing to evade checks and balances in the pursuit of their own agenda, especially in foreign policy, than the other variety.

The notion that We the people, through elected representatives, should constrain executive prerogative through a constitutional system written to secure liberty and to ensure that decision-makers work for us, is a radical-democratic idea. It is a radical-democratic idea that must be fought for over and over, and never taken for granted.

Here is my wish that 2006 be the year that we fight for and re-secure this fundamental radical notion and reverse the constitutional crisis that we have been living with since December 12, 2000–if not longer.

Do I think my wish will be fulfilled in 2006, or even in 2007, after the midterm elections? No, I do not, because I do not expect real conservatives–the quaint old kind who believe in limited government–in Congress to break with the party of power, nor do I expect Democrats to win back Congress (as noted in a post earlier today) and give us the divided government that is almost certainly a necessary condition for proper restraint of executive power.

But New Year’s Day is a day for resolutions. And mine is to resolve that this country needs to come to grips with what it faces–a constitutional crisis that goes beyond bugging phone conversations.

“Wartime” President

Steven Taylor at PoliBlog has a post today asking “what is a wartime president?” and which I highly recommend.

About halfway through he notes:

To truly see the President, and all future Presidents until terrorism is quashed, as “wartime presidents” is basically to say that the presidency, henceforth, is an office we should consider as a war office.

If “wartime” has become so “normal” that it will persist without any clear definition of when and how we will know we have “won” and if, therefore, “‘extraordinary’ is the ‘new normal’,” then:

If that is true, let’s amend the Constitution and rewrite the laws. “Normal” requires regular rules. Only “Extraordinary” should allow for unusual, temporary powers.

This is indeed the proper perspective. If we fail as a nation to find domestic spying without any oversight even as much as “bothersome” (to take one expression I saw on a pro-Bush blog) then we are implicitly saying that what we find bothersome is checks and balances themselves. I would hope we would not want to go down that road, which has been well travelled in post-Cuban Revolution Latin America, post-Soviet Russia, and elsewhere.

We may indeed need some serious consideration of constitutional, as well as statutory, reform, for–as Steven noted in another post today–the Article II defense, which states that the President has the authority for such acts as domestic spying under the Constitution, clearly fails the basic premise of the Constitution: No leaders is above the law, and checks and balances must be in place to guard against arbitrary (or overly “energetic”) executive power. But the energy needed to combat real threats is not inconsistent with the checks and balances of democracy. What is inconsistent is the assertion that the authority already exists–an assertion that becomes a public post-hoc justification only when the arbitrary acts themselves become public.

It may be that our checks and balances, as we currently practice them, are inadequate. We may need to delegate certain additional authorities, but those can come only with additional checks and balances to prevent the inevitable over-reaching.

If it is indeed true that the checks and balances are, on the one hand inhibiting necessary “energy” in the executive, yet on the other hand are not deterring arbitrary executive acts, then the cure is checks and balances of a different sort, not dispensing with them in the name of “emergency” and “war.” (Modest steps towards “parliamentary” accountability of the executive, anyone?)

If the rules, statutory and constitutional, are indeed unsuitable for the era, then only public debate and–to the extent the debate leads to a consensus on needed changes–actual reform of the rules can be the proper means of coping with an allegedly transformed situation. Otherwise, we are at least implicitly acquiescing in a descent into an authoritarian “national security” state the implications of which we can only begin to comprehend and the damage from which we may never be able to correct. If we cannot have this debate openly, and accept wherever it might lead–even if that is defeat of the party in power and/or impeachment and judicial proceedings against violators of the law–then it seems to me the terrorists have already defeated our democracy, with an assist from the cabal that has ruled from within the executive branch since 9/11.

**
UPDATE: See Arms and Influence for a well reasoned take. Among Tom’s points are:

If you buy the argument, They can’t tell you any of those details–they’re secret, I commend you to look at how the Europeans and the Israelis handle terrorist threats. […] What’s striking, perhaps, about the age in which we live is how poorly the political class in this country has risen to the defense of democracy and the rule of law as most effective measures against terrorists, not quaint relics of a bygone age.

[The emphasis in italics is his; the bold is mine]

A time bomb under American democracy

Those are the words in an excellent post at Make My Vote Count. Of course, they refer to the US Senate and its malapportionment and the fact that it will only get worse unless something is done about it. But what can be done, given that the Constitution explicitly bans any amendment that would deprive states of equal representation. A time bomb indeed.

The day before the same folks discussed the other body in House of Horrors. Scary stuff, indeed.

Federalism and Constitution Day once more

OK, I relent. I was not going to say any more about this issue.

But Steven posted the other day a further clarification of a point he and I have been bouncing forth and back and forth again, with Scott also getting into the mix (and all of us making appearance in the comments to Scott’s post).

The main question, as I see it, is to what extent does Congress violate the principles of federalism when it imposes its policy will on the states through earmarks, mandates, and the like, outside its enumerated powers? My answer is, not at all, because the very principle of federalism is that the central and state governments each have their independent sovereignty and they are free to enter into mutually beneficial relationships or not, as each side sees fit. If states don’t want the mandate, they can refuse the cash and approach the policy their own way, with their own funds.

Steven, in his “fourth time” post, agrees that there is no real “federalism” issue raised when Congress sees a problem that states are more capable of administering and offers money in exchange for states addressing the problem under terms set down by Congress. He uses food stamps as an example (see the fourth paragraph of the just-linked post), and it is a good example. (As an aside, I am quite sure that he is right that this is an aspect of federalism that is not well taught in our schools, including, I would note, our universities. Outside of my classes, of course.)

So, what is Steven’s objection?

…what I find irksome is when the policy relationship entered into between the state and federal governments can then be used by the feds to adjust its demands on the states. Byrd’s rider in the appropriation bill is just that sort of ex post alteration to the contract…

But wait a second! This is the problem, I think: seeing policy bargains between sovereign institutions as contracts. That is the wrong analogy. It is an ongoing series of transactions, not a relationship governed by any single transaction as formalized as the word contract implies. A contract, properly understood, requires a neutral third-party enforcer. (Regular contracts among citizens and corporations, for example, being enforced under the government’s contract laws.)

Transactions between governments in a federation, on the other hand, are exchanges between independent authorities with only weak third-party enforcement. The judiciary can be involved if there is a question of constitutional jurisdiction, but it is not as if every individual transaction between federal and state governments is subject to judicial review. Besides, the judiciary in question is part of the federal government, even if the purpose of Senate confirmation procedures is to involve an institution that, at least in theory, represents states. (Increasingly it represents the party with the manufactured majority of seats, rather than the states, but that is another thread.)

I find it interesting—and it is a theme I am developing with coauthors on two projects, one on Mexican presidentialism and federalism, and the other on the US in comparative perspective—that the founders of the US Constitution were very explicit, in the Federalist Papers, about the transactional relationship they were setting up between the executive and the legislature: Institutions with separate agency that would have to work together to accomplish their respective goals. However, they did not elaborate a similar transactional relationship between national and state governments. They appeared to think of the levels as having a more separate existence.

Yet the very logic of the separate yet overlapping institutions of federalism mandate a theoretically almost identical transactional relationship as that between the separate but overlapping branches of any one level. If the founders did not foresee it this way, it is only because they imagined greater separation of tasks between the levels of government than between the branches of the federal government.

Yet, in their wisdom, the founders did not bar Congress from carrying out other functions beyond those explicitly enumerated. This allowed the functions of the federal government to grow without overtaking the sovereignty of the states. Each level still has to bargain with the other. And, because congressional power originates in part from the states (at least in theory), congress does not make laws in some sort of hypothetical vacuum in which the same interests arising out of the states are somehow not represented at the federal level.

Constitution day and federalism

Constitution Day is really tomorrow, and I already said most of what I have to say about it on Tuesday here at F&V, as well as on KPBS radio on Wednesday.

Nonetheless, while I mentioned in both settings the irony of the way in which Constitution Day was established—by slipping a mandate on schools into a large appropriations bill—I did not entertain the further question of whether the very act of making this mandate was itself contradictory to the Constitution. This raises questions about what is federalism.

The Volokh Conspiracy today posts an announcement of a talk at George Mason University:

Join Foundation Professor of Law Ronald Rotunda and Patrick Henry Professor of Law Nelson Lund for as they examine whether it is constitutional for Congress to use its spending power to reach down into the curriculum and culture of every school in the country and dictate what shall be taught, celebrated, or memorialized.

(I have to say that I have long been intrigued by the fact that a Professor Rotunda studies laws passed at the United States Capitol.)

Steven Taylor similarly notes how Congressional mandates attached to federal money provided to states “fundamentally alters the overall power of Congress vis-à-vis the states.” Thus with the system working this way…

the pure federalism of the Constitution itself, as delineated by Article I, Section 8 and the Tenth Amendment is not fully in operation.

I’ve never seen this as a problem. “Pure federalism” is the existence of separate sovereign levels of authority, an ingenious idea that the founding fathers committed to parchment on this day (well, more or less) 218 years ago. But nowhere does this federal constitution require that Congress give money to the states without strings, or that it give money to the states at all.

As a payer of federal taxes, I don’t want my tax money sent to states without strings (and here I am talking about far more serious matters of national policy than Constitution Day events). I don’t want to be Argentina or any of several other wholly dysfunctional federations in which federally collected taxes are transferred to state or provincial governments that have no acountability for the way they use the money, and no incentive to raise their own revenue to suppor their own spending habits.

If the states don’t like the strings, they have the sovereign right, under the federal form of government, to refuse the money and either forego the services it would pay for, or raise their own taxes to provide the services as they see fit.

As Steven put it, regarding the increased fiscal powers of the central government over time:

we are doing all of this en masse because we might get our federal money taken away.

Exactly. States can make policy on their own and raise their own revenues for it, or they can take federal money. If they choose the latter, Congress has every right to impose mandates on how they use it, in support of national policy, as conceived by national elected officials, accountable to their own constituencies (which happen to be located back within the various states). That is the essence—and purity—of federalism.

Constitution Day is coming

This Friday, September 16, marks the first official observance of US Constitution Day. The idea of a national day to commemorate the Constitution was a long-time project of Sen. Robert Byrd of West Virginia, and now it is upon us.

The day commemorates the final meeting of the Constitutional Convention in Philadelphia on September 17, 1787. (The 17th is a Saturday this year, so observances are planned in schools and elsewhere for Sept. 16.)

The law was not noticed at all last year when it was enacted—at least if a Lexis Nexis search of the phrase “constitution day” is any guide. Probably this is because it was approved as nothing but a rider to an appropriations bill.

But it sure is being noticed now, because among the provisions of the law is a requirement that all public schools set aside time for discussion of the Constitution in commemoration of the day. In the past week, newspapers all over the country have devoted stories to it. Typical is this one from the Daily Star of Oneonta, NY, noting that one local school superintendent:

found about the regulations recently while on an independent search on the Internet […]. He did not learn about the mandate through communications with state or federal education departments.

The Asheville, NC, Citizen-Times says the Day is “long overdue“:

The Constitution is the nation’s owners manual. It puts down in writing everything on which this nation was founded. It deserves our respect for the dramatic ideas it put forth – liberty, equality, rule by law, not men – and for its astounding longevity; it’s the oldest written constitution of any functioning nation on the planet.

And yet we know shockingly little about it. Most of us have hazy concepts that the First Amendment addresses free speech and the second guns and that’s about it. Constitution Day is a modest effort to remedy that.

I am inclined to agree.

As for my own connection to Constitution Day, and my interest in constitutions and politics more generally, it is quite literally in my blood. I am a descendant of George Read, who was among those who signed the Constitution 218 days ago this Saturday.