Deadlock

If there were ever a good example of the failures of our present government, the current deadlock between House Republicans and Senate Democrats is it. Ezra Klein in the current Newsweek has a column in which he suggests that we are in a lose-lose situation, where neither side is able to win. Economically we need the government to stimulate the economy, but the Republicans are determined to cut no matter what, even if it requires a government shutdown. They are being colossally irresponsible and stupid, but they have the power, and are willing to have a shutdown if necessary. Such an impasses in the government should not happen, and would not if it had been better designed. The Republicans are in the majority in the House, and no matter how stupid they are, they should be able to see their programs enacted. The existence of the Senate if the problem.

Wisconsin politics

To be brief, it strikes me as silly that the Democrats in Wisconsin have been protesting against the actions of the Governor and the Republican controlled legislature. It makes great theatre, but is not good government. The Democrats are unfortunately in the minority, and they should accept this status and move on. The pretense that they can affect the Wisconsin state government through protest is a consequence only of the existence of a bicameral system--and in the states there is even less excuse for having two separate chambers. It serves only to shift the focus to bickering between the chambers, and between the parties, from the real business, that of developing a platform, recruiting members, and persuading the electorate that the party has the best program. The Democrats should be working to get themselves elected in the next election, on the basis of their program for the state, not wasting everyone's time whining about the inevitable. The Republicans are threatening the power of labor and the middle class to participate in the political process. If this is not enough of a campaign issue for the next election, I don't know what is.

A movement

I have been away for a while, for those who are interested, but I have been thinking about what more to say. My book is now published as an ebook, but it has been completely ignored so far. It will soon be a POD book as well, and then maybe I can do some more marketing. I have been thinking of expanding the book into what could be several books on more particular topics, as I do more reading. What really needs to happen, though, is to start a movement to promote the kind of change I think is necessary. I have essentially concluded that the Senate needs to change. To abolish the Senate would require a constitutional amendment, making it practically impossible. On the other hand, reforming the procedures within the Senate, with regard to the filibuster, for example, for me do not go far enough. Even without the filibuster the Senate can still block legislation. There has to be more substantial change than changes in Senatorial procedures. My suggestion, as I have said before, is to change the procedures of the House that would strip the power of the Senate to prevent legislation passed by the House from going forward without its approval.

This would be a direct confrontation with the Senate and its traditional powers, but it is not a constitutional issue. The Senate asserted its power to block legislation in 1806: it was not in the constitution. As such it can be taken away by a simple rule change. To do so would require a popular movement to explain the change, and to pressure the House to make the change. I am not a likely leader of a movement, but this is what would have to happen to make the changes I think are needed. It would require that the built-in bias against majority rule be overcome. Even the Tea Party members, for all their talk of popular revolt against the government, are at the same time against the removal of the Senate as a block to their view of the popular will.

Egyptian revolution

The Egyptian revolution, following after Tunisia's is awe inspiring. It will change the entire Middle East, hopefully or the better, and require that we change our thinking about Islam. With respect to our own government, however, I can wholeheartedly agree with Bob Herbert's latest column, When Democracy Weakens, about the lack of true democracy in our own country. We worship stability for the wealthy over the value of true democracy.

Constitutionality of Obamacare

I'm back.

The Balkinization blog has several comments about the recent decision in Florida that Obamacare is unconstitutional, universally condemning the decision as flawed and politically motivated. These are comments by professors of constitutional law, and as such they do not question the more general principle of judicial review of legislative actions. I do not spend much time in my book on the institution of judicial review, believing that it will be taken care of by the other changes I propose, but it is an aspect of the defects of our system. As I see it, the job of the judge is to apply the law to particular cases. This involves some interpretation of what laws apply to the case, but interpretation is minimized as much as possible in the practice of judging. Issues of interpretation of the law are properly left to the legislature as the final decision makers as to what the law is intended to be. This is the case for the judicial system of most other countries. In Britain, my favorite example, the law is what the Parliament says it is. This is expressed as the principle of Parliamentary Supremacy. If there is a dispute as to what the law means, or how it is to be applied, the final authority is Parliament, not the courts. From this point of view, it is not the job of the courts to say whether a law duly passed in Congress is a good or valid law. The law is what Congress passed. There is no magical higher authority. The Constitution is not a sacred document that we have to religiously appeal to as the justification for what we can and cannot do.

Ran Hirschl, a Canadian professor of political science and law at the University of Toronto, has an interesting book on the experience of other countries which have adopted Supreme Courts and the institution of judicial review on the model of the US system. He examines in detail the operation of Supreme Courts in Canada, New Zealand, Israel, and South Africa. His general conclusion is that the establishment of judicial review is an attempt "to maintain the social and political status quo and to block attempts to seriously challenge it through democratic politics." For instance in Israel their Supreme Court serves to preserve the special status of Jews in Israel, and in South Africa it preserves the privileged status of the white, western minority. Judicial review, in short, is just another device designed to limit and thwart the expression of the will of the majority. In the US it has meant the dominance of the wealthy.

Gary

The Glorious Revolution

It is uncanny how when you read history the same issues seem to come up over and over again. I am now reading 1688: The First Modern Revolution by Steve Pincus, a book about the Glorious Revolution in England in 1688-9 where the English Parliament took over from the King the control of government. He provides a detailed discussion of the issues and controversies that drove the revolution, contending that it was much more of a modern revolution than previous historians have thought. Many of these issues appeared again a century later in the American Revolution, almost as if the Americans were not even aware of all that had intervened between 1688 and 1788. In particular the opposition between an agrarian view of property as land, and the commercial view of property as the produce of trade and manufacturing as well as land. The contrast is between Jefferson and Hamilton.

I am thinking of writing an essay entitled "Senatorial Pretensions" focusing on the transformation of the Senate in the 1806-1820 period, but I am not sure how much more research I would have to do.

I will be on vacation from 1/20 to 1.31.  By the way, my book is now published as an ebook on amazon.com.

symbolic voting

The upcoming vote on the repeal of the health care legislation is a clear example of what I call irresponsible voting in the House. It is a vote that will have no consequences, essentially a free vote for each representative because there is no chance that the result of the vote will have any effect on the health care law or any other aspect of government. It is pure political posturing, and as such it is a waste of valuable time that could be applied to real legislation. Congress has enough trouble getting anything done as it is to waste its time posing. I am not in favor of getting rid of the health care legislation, but the Republicans are in the majority in the House, and they should be able to make the changes they feel are necessary to it, even if this means defunding parts of it. But this is real legislation, not just theatre. Symbolic votes are for me only evidence of the basic weakness of the House under the present structure.

The House Majority

I am in an interesting position with regard to the Republican takeover of the House. On the one hand, being a Democrat, the fact that the Senate will be able to block some of the actions of the House, and perhaps moderate its anticipated effort to cut spending and potentially ruin the economy and the well-being of the vast majority of Americans for the sake of the rich, is a good thing. I am glad that the Senate will have a restraining influence on Republican stupidity. I am in favor of maintaining the filibuster rule because it wold allow the Democrats in the Senate, if necessary, to use it to block efforts by Senate Republicans to entice a few Senators--such as our beloved Nebraska Senator Nelson--to vote on their side. Otherwise a simple majority vote against House bills would be sufficient to force the House to compromise with the Senate.

On the other hand, I believe that in principle the House should be able to make legislative decisions without the interference of the Senate or the President. My suggestion to subordinate the Senate would have just this result. In the larger view, I am confident that the House, expressing the will of the people, should and would be able to determine policy for the country.

I reconcile these two contrary positions by saying that the present irresponsible Republican House is the result of the fact that in many ways they are not responsible for what happens. It is not that I don't like what they are proposing to do as much as it is that how they propose to do it is unrealistic. If they had clear responsibility they would be more responsible.