Monday, July 18, 2011

Taking the 14th

Ironic that President Obama will openly violate the Constitution over Libya yet sidestep a chance to avoid a major uproar.

The president may well have constitutional authority to direct the Department of Treasury to pay its bills, He could have averted the current spectacle that seems to rival biblical proportions.

Prior to the debt-limit situation, Obama continued military operations in Libya without receiving congressional authorization after 60 days, as required by the War Powers Act in lieu of a declaration of war by Congress.

Republicans exploited the deadline to raise the $14.3 trillion debt limit to sever $2 trillion in programs that serve ordinary Americans without raising taxes on the wealthy or even eliminating corporate tax breaks.

The president may well have had the power all along to act on his own - since 1868, when the 14th Amendment was ratified.

Section 4 of the 14th Amendment is plainly written: “The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.”

Obama no doubt had other concerns on his mind with the debt-limit debate. It was a chance to bring the entire conflict to a head, or at least expose Republican stubbornness for all to see. It is obvious that he does not want to act on his own, anyway, because he would be vulnerable to sole political blame.

That aside, he might have avoided this hassle by invoking the 14th Amendment. Like other clauses in the 14th Amendment, Section 4 directly results from a Civil War issue - the large debt that grew after the North borrowed heavily to finance the Civil War, according to The Washington Post. Sponsors of the bill wanted to ensure that Southern states paid their fair share of the nation’s debt. (wp, a4, k7/711)

Yale Law School constitutional law school professor Jack Balkin told the Post, “The purpose of that clause was to prevent the political branches from using default or repudiation as a political threat. It was designed to prevent this kind of gamesmanship.”

Which presents another irony: A heavy proportion of these members of Congress represent states and districts in the South. In fact, House Majority Leader Eric Cantor represents part of Richmond, Va., the capital of the Confederacy.

Two columnists have tried to toss cold water on use of the 14th Amendment, and they make some valid points. Constitutional law professor Laurence H. Tribe points out that a unilateral increase in the debt limit differs from the existing debt limit already authorized by Congress. (nyt, a21, 7/8/11)

Maintaining the debt limit as is will affect all other expenses and any pressing needs that arise. To continue paying the debt, the White House will be forced to ignore spending in other crucial areas. It may not be social security, but it will need to be some important programs.

Tribe also reminds us that “the Constitution grants only Congress - not the president - the power ’to borrow money on the credit of the United States.’ Nothing in the 14th Amendment or in any other constitutional provision suggests tht the president may usurp legislative power to prevent a violation of the Constitution.”

True, but aren’t amendments intended to amend? It states clearly that the debt “shall not be questioned.” Not only are some members of Congress questioning the debt, but they have threatened to ignore it.

Boston Globe columnist Juliette Kayyem writes, “It will not solve the credit crisis, only delay it.” (BGlobe, 7/11/11)

I heartily concur that we should lower the deficit and pay off our debts, but not under circumstances in which one group of politicians can blackmail the president and other members of Congress.

Besides, Republicans were not worried about debts and deficits when President Bush steered us into the invasion of Iraq and initiated legislation to cut taxes for the wealthy.

Kayyem also warns that unilateral action on Obama’s part will trigger a legal challenge. Anyone has a right to resort to legal action.

They tried everything else. Maybe they figure that the majority of the Supreme Court will be on their side.

Monday, July 4, 2011

At Stake

Even on a day when almost nothing happens, the course of American history can be set for more than two centuries.

One such day was July 17, 1787. The birth of the Connecticut Compromise is customarily dated to July 16, 1787, when the Constitutional Convention approved a fresh but flawed legislative system as part of a broader package of provisions for the budding Constitution.

Prior to 10 a.m. on the 17th, delegates from the most populous states to the Convention gathered at what is now Philadelphia’s Independence Hall to assess the convention’s vote from the day before.

The Connecticut Compromise created a split form of government: Each member of the House of Representatives would represent the same number of Americans, on a proportionate basis, and each state would be represented by the same number of senators regardless of population.

The compromise split the difference between the Virginia Plan for proportionate representation in both chambers and the response to the Virginia delegates, the New Jersey Plan. New Jersey’s delegates, afraid that the large states would overwhelm smaller states like New Jersey, demanded equal representation in both the House and the Senate.

Under Convention rules, each delegate had the right to bring up any issue whenever they wanted, even after a decisive vote was taken. That means the issue could be reopened on any given day, and that day was July 17.

The main players of this caucus - Virginians James Madison and Edmund Randolph, Pennsylvanians James Wilson and Gouverneur Morris, and Rufus King of Massachusetts - reopened the issue, however briefly. They met to discuss how to react to the July 16 vote on the basis of their insistence that both the House and Senate should represent the people on a proportionate basis.

As constitutional scholar Richard Beeman recounts, Madison reported that “the time was wasted in vague conversation on the subject, without any specific proposition or agreement.”

In his book “Plain, Honest Men: The Making of the American Constitution,” Beeman characterizes the outcome this way: “He discovered much to his chagrin that only a handful of delegates felt as strongly about the issue as he did, and no one was willing to risk the outcome of the Convention on it.”

So in early March 1789, the newly-revamped Congress convened in New York City for the first time at Wall and Nassau streets, eight blocks southeast of the future site of the demolished World Trade Center. Less than two months later, on April 30, George Washington was inaugurated at the same site as the first president of the United States.

Madison and the other four were apprehensive about a Senate where each state is authorized to send the same number of senators to Congress. As Beeman puts it, “They held the principled view that it was wrong to give any state government, be it a large state or a small one, too much weight and authority within the national government. The only way to avoid that injustice was to represent the people according to their numbers.”

History would repeatedly prove Madison and friends to be right. For example, the senators from New Jersey, Frank R. Lautenberg and Robert Menendez, and Maryland, Barbara A. Mikulski and Benjamin L. Cardin, discovered in 2010 that the wealthy would retain their tax cuts and health-care reform would be watered down. Delaware Sens. Thomas R. Carper and Christopher A. Coons advocate for most of the same concerns affecting the three states.

All because of how the Senate is composed in combination with its much-abused filibuster rule.

More than two centuries earlier, the chief opponents of proportionate representation in the Senate represented Delaware, Maryland, Connecticut, New Jersey and New York. Though Delaware ranks 45th in population with 844,000 residents, New Jersey now ranks 11th with 8.7 million people and Maryland is 19th, population 5.6 million. With 19.5 million people, New York is now the third most populous state.

Many of the 37.5 million Americans from these states are paying today because of the Connecticut Compromise.

________________________________________________________




A few months before the people of Egypt stood up for their rights, I spoke with an exchange student from Saudi Arabia as we waited to pick up medication at a Philadelphia pharmacy nine blocks east of Independence Hall.

He offered some brief but valuable insights about the Middle East, though not altogether unexpected. He described life in Saudi Arabia as “restrictive” and explained that Saudi citizens have no credible means of learning what occurs outside their corner of the world. The student made clear that he supports Israel’s right to exist.

As I viewed the mass demonstrations in Cairo and Alexandria, I wondered how 308 million people are lucky enough to be born in the United States or accepted as citizens here, while hundreds of millions of other human beings are murdered, sexually abused, tortured, starved, enslaved and impoverished in backward countries throughout the world.

These people would be grateful for the chance to vote and just walk down the street without being harassed. To be able to say what they think without endangering their lives. “Without democracy, there is no life,” said Egyptian opposition figure Mohamed ElBaradei on NBC News.

Not that America is perfect, which happens to be the underlying theme of this tome.

It is ironic that white Protestants primarily enjoyed democracy in the United States in 1789 and only men could vote. In less than two centuries, the United States has become comprised of people of almost every race, religion and nationality, and any citizen can vote and even run for every office from president down, excepting immigrants for the presidency.

Despite its weaknesses, the United States is a great country. Anyone living here should feel fortunate, especially compared to those inhabiting many other countries.

The American people still contend with severe difficulties that do not have to be. The failings here are evident - crime, poverty, substandard schools, housing shortages, unemployment, inadequate health-care coverage, the widening income gap, child abuse, prejudice, political gridlock, corruption, government mismanagement and so on.

People often complain about conditions, but little is done about them. Some Americans who may fit the label of “liberal” assail President Obama for failing to push his progressive agenda harder. Some African-Americans gripe that Obama has not done enough for issues which affect the black community. All true.

Maybe they failed to notice some slight stumbling blocks. Obama and Democrats in Congress have been unable to succeed with basic initiatives because of Republican opposition. The U.S. House of Representatives passed legislation for a partly publicly financed health care system on Nov. 7, 2009, when it was controlled by the Democrats, but the Senate dislodged what was called the “public option” because Republicans threatened to exercise their filibuster power.

The same fate awaited Democratic attempts to repeal tax cuts for the wealthy.

If Democrats cannot get past these simple matters, how are they expected to do much else of a progressive nature?

The barrier that blocked Democratic legislation in Congress is one of many traps in our governance system that obstructs efforts to address some of the most basic needs in our country. Children continue to go hungry, more loyal employees in the private sector lose their jobs, students still attend overcrowded schools, prices persist in rising as wages stagnate.

Our system also maintains institutional racism. African-Americans and other racial minorities are disproportionately victimized by such policies.

None of this is likely to improve so long as we endure the policies produced by our current system.

To change policy, change the system.

The historic magnitude of the Constitution cannot be minimized, but certain of its rules limit America’s ability to serve its citizens adequately. The Constitution provides a durable foundation, but in two centuries it was necessary to place a great deal of building blocks placed atop it. What we have now is far from sufficient.

What, specifically, is wrong?

From this writer’s view, the Constitution contained in its enactment four significantly flawed provisions. The most obvious were those prolonging slavery. Fortunately, slavery was abolished with the Civil War, but the Constitution reflects the ongoing racial conflicts inherently embedded in American society.

The electoral college was widely vilified when the 2000 presidential election turned into a bizarre spectacle, which was not the first time that a presidential candidate won the electoral college while losing the popular vote. The electoral college served its purpose for selecting presidents during the nation’s early years, but the reason for it no longer exists and the electoral college remains a drag, at best, on the democratic process.

The electoral college allows the ongoing potential for the selection of a president who is elected by only a minority of the voters, not to mention other disadvantages.

Creation of the Senate permits a minority of the country’s population to control part of the legislative process and the appointment of Supreme Court justices. The majority of the people must depend on chance at the ballot box to obtain sufficient clout in the Senate.

On the surface, the amendment process can easily block any attempt to adjust these clauses to make the system more democratic. Any proposed amendment can be thwarted jby provisions requiring a two-thirds vote in each house and ratification by three quarters of the 50 states.

Under this system, interestingly, the minority of the population can block adjustments of the rules which already stifle the will of the majority.

Our system of governance also inhibits the appointment of Supreme Court justices and judges on the lower federal courts whom we can trust for fairness. It is possible for the minority of the people to select judges because of the power of the electoral college and the composition of the Senate.

Beyond the Constitution itself, our 50-state network as we know it is anachronistic. The economic strength or weakness of many states now depends on corporate decisions reached in other states and even foreign countries. Big cities or metropolitan areas can be self-sufficient if they detach themselves from their state governments. It would likewise make sense if low-population states merged, or if some small states folded into an adjacent larger state.

Many of our problems are self-inflicted. We entrust our fellow citizens with extensive powers on levels from the White House to City Council. We have elected many wonderful people for public office, yet we have voted people into office who mismanaged our government, stole from us and even contributed to frantic turmoil throughout the world.

Politicians who betray our trust are able to do so because we let them get away with it.

Few enough Americans exercise their rights. Many do not vote in any elections and others will only vote in selected elections, especially the presidential election and in big-city mayoral elections. We do not take time to learn about candidates’ backgrounds and their positions.

Once successful candidates take office, too few of us bother to keep track of what they do or communicate our concerns to them. Nor do we organize sufficiently to express dissent of their actions. The series of mass protests in Madison, Wisc., was an exception to what we have experienced in modern times.

Mayors, governors, judges and elected officials of all kinds have mismanaged their operations or abused the trust placed with them. Scandals abound, involving massive contract overruns, judges prosecuted for profiting from sentencing practices, council members benefiting from questionable procedures, a lawyer’s conflict of interest over a proposed building, sexual harassment, the appointment of a schools chief seen as indifferent and unqualified, and a state government’s longtime neglected oversight of an abortion doctor ultimately charged with murder of babies after being born alive.

The system can be changed.

This begs some legitimate questions: Why bring all this up? Are there any alternatives? If there are, how do we bring about any change?

If the system is transformed, some of the beneficiaries will likely include the unions, social-service nonprofits, secular-leaning citizens and the Democratic Party. I am a union member, a registered Democrat and a predominantly liberal person, but the goal here is to promote good government and how it can better serve us.

A series of recommendations are described in the latter portion of this book. They include a more proportionate form of congressional representation; a realignment of state governments; more regional systems of government; modified rules governing the federal courts; and electoral changes to encourage campaigns of independent candidates, among other measures. Did I mention scrapping the electoral college?

These suggestions are probably not perfect, but hopefully they will serve as starting points for consideration.

The most anticipated concern about these ideas is this likely question: How? The obstacles to these kinds of changes are daunting, to the extent that they seem downright impossible.

If the Senate refuses to adjust or eliminate the filibuster rule, what hope is there for anything else? To amend the amendment process, we obviously need to employ the amendment process. The public understood full well the consequences of the electoral college when we endured the Florida recount a decade ago, but there has been no groundswell to eliminate it.

We should be under no delusion that the system will change. Maybe conditions can improve, but at this rate the outlook is not optimistic.

We must first understand the deficiencies of the system before we can improve conditions. Making America what it should be does not seem possible under the existing way of doing business, but maybe it can happen. I do not know how to change policy without changing the system.

At stake here is not the future of unions or the power of the Democratic Party. It is about good government and how it can best serve its people.

The people's voice may prevail after all

‘Having our own police department in this day and age is a luxury we can’t afford’

- Pontiac, Mich., Mayor Leon Jukowski

Mayor John Dickert of Racine, Wisc., may well have a deeper stake in the system than his fellow mayors around the country.

His congressman is U.S. Rep. Paul Ryan, who proposed the virtual end of Medicare; his governor is Scott Walker, whose anti-union policies inspired a political revolution; and one justice on the Wisconsin Supreme Court accused another justice of choking her inside her office.

Dickert joined the other mayors to urge Congress to speed up the end of the Middle East wars and spend the money on urban needs. Their demand was presented in a resolution prepared by the U.S. Conference of Mayors when meeting in Baltimore in late June.

Creation of the resolution coincided with two other developments which offered hope that at last the government might finally pay adequate attention to America’s cities nnd other communities.

Soon after, President Obama announced a careful drawdown of troops in Afghanistan as even many Republicans balked about our continued involvement in Afghanistan, Iraq and Libya.

It is also evident that a healthy proportion of Americans want higher taxes for the wealthy and big business.

Perhaps this confluence of events inspired Obama to rebuke Republicans in Congress for attempting to dictate the economic agenda - especially, their refusal to end business tax breaks and tax cuts for the wealthy.

The most vigorous of these initiatives was launched in Baltimore when the U.S. Conference of Mayors released its resolution, which states: “The United States Conference of Mayors calls on the President and U.S. Congress to end the wars as soon as strategically possible and bring these war dollars home to meet vital human needs, promote job creation, rebuild our infrastructure, aid municipal and state governments, and develop a new economy based upon renewable, sustainable energy and reduce the federal debt.”

We have spent $1.3 trillion in the past decade to fund the wars in Iraq and Afghanistan, which amounts to $126 billion yearly. In a sample breakdown, an MSNBC television host reported that Los Angeles would receive $1.2 billion and Philadelphia would be given nearly enough fill the $629 million gap in its school system‘s budget.

Members of Congress in both major parties are opposing or questioning our military ventures. It certainly reflects the prevalent war-weariness among Americans.

Democrats like Rep. Dennis Kucinich of Cleveland is consistent with his anti-war positions. Some Republicans may well be speaking up now because they were always sincerely concerned about these wars and are only willing to go public now since the current president is a Democrat.

Senate Minority Leader Mitch McConnell of Kentucky conceded as much during a breakfast session on June 21, 2011. “I think some of these views were probably held by some of my members even in the previous administration,” he said. “Party loyalty (to President Bush) tended to kind of mute them.

“A lot of our members, not having a Republican in the White House,” McConnell continued, “feel more free to kind of express their reservation, which might have been somewhat muted during the previous administration.”

No doubt many other Republicans suddenly have a problem with our wars solely because Obama is a Democrat.

It is also becoming safer for politicians to vote for ending corporate tax breaks and increasing taxes on the wealthy. I see more frequent letters to the editor and hear more phone calls on C-span condemning Republican strategy.

So far, 33 Republican senators voted in June 2011 to eliminate a 45-cent-per-gallon ethanol tax credit, joining 38 Democrats and independents Bernie Sanders of Vermont and Joseph I. Lieberman of Connecticut, according to The New York Daily News.

The Tribune Washington Bureau reported that Sen. Jeff Sessions of Alabama, referring to tax breaks for corporate jets, said on June 29, 2011, “I’m not sympathetic to all these jets myself, so I’d be willing to consider that.”

Sen. Ron Johnson of Wisconsin, sounding much different than other Republicans in his state, said, “I’m willing to take a look at the special deals. I would love to do away with special tax breaks, but not legitimate business deductions.”

On the same day as Obama’s scolding, Senate Minority Leader Mitch McConnell said, “Look, taxes aren’t gonna be raised.”

Sen. Charles Schumer, a New York Democrat, said, “Sen. McConnell’s demand is being contradicted by many in his own party. It seems he ventured out on a limb, and many in his own caucus are sawing it off.”

All these developments buttresses the drive to attend to our domestic needs, though it is a long, uphill road. Wherever Obama stands on specific issues at any given time, such situations strengthen the longterm agenda of the Obama administration and Democrats in Congress.

The American public is sufficiently aroused to press for progressive change. Mayors throughout the nation are bombarded by residents outraged by the horrendous cuts in services; the public is exhausted with the wars; and Republican members of Congress no doubt hear rising complaints from their constituents and monitor controversies over Republican policies in Ohio, Wisconsin, Florida and other states.

Maybe this is wishful thinking, but future candidates who represent a sensible approach to governing, including incumbents with shaky levels of popularity, will likely benefit. Candidates and incumbents who espouse extreme concepts promise to become an endangered species.