"Living" Constitution Equals Chaos

Pulling the Plug on the "Living" Constitution

By George Neumayr on 3.25.10 @ 6:09AM

Barack Obama has long seen the U.S. Constitution as an obstacle to what he considers progress. In a 2001 interview that surfaced during the presidential campaign, he made this very clear: the Supreme Court under Justice Earl Warren had failed to break "free from the essential constraints that were placed by the Founding Fathers in the Constitution," Obama mused on a radio show.

The Warren Court was insufficiently radical, he said, conceding too much ground to the traditional interpreters of the Constitution as a "charter of negative liberties," which "says what the states can't do to you, says what the federal government can't do to you, but doesn't say what the federal government or state government must do on your behalf."

The Founding Fathers, he implied, produced a defective document, much too passive in its understanding of government's possibilities. The founders had set up a form of government to protect liberty; he clearly wished they had formed a government to enact equality.

The hubristic character of Obamacare derives in large part from this view. Obama measures progress not by adherence to the Constitution but by its abolition. He wants not a "charter of negative liberties," but a Leviathan, which he calls a "living" Constitution, that swallows them up in the pursuit of egalitarianism.

Tuesday's smug speeches euphemistically revolved around this theme. What "makes us the United States of America," Obama essentially said, is the "scale" of government's ambitions. One would have thought the Constitution "makes us the United States of America." No, it is that politicians are willing to flout the real Constitution for the sake of "hope and change" that makes America great.

America has supposedly entered into a new and glorious phase where no one quibbles over such antiquated matters as constitutional limitation. In that 2001 interview, Obama said he was "not optimistic about bringing major redistributive change through the courts." But now he is. He has given activist courts a major redistributive change via Obamacare to enshrine as part of the left's "living" Constitution.

This "living" Constitution means the real one is dead in practice, but it is not so dead in the minds of ordinary Americans that liberals would ever attempt to hold a constitutional convention to package their enlightened new understandings into a fresh one. They still have to proceed by deception, casting every new affront to the Constitution as a suddenly accurate "constitutional" reading of it.

The value of all the legal suits popping up against Obamacare is that they force renewed attention to the tyrannical relationship between the federal government and the states that this "living" Constitution protects. The suits will fail in the short term, but at least trigger discussion about the central question of our politics: Will Americans go back to living under the actual Constitution or continue to succumb to the fake one residing in the minds and wills of liberals in power that is destroying the country?

Obamacare may finally inspire the people to pull the plug on the "living" Constitution.

Judicial activists and tyrannical politicians have set in motion through the lawlessness of this "living" Constitution a form of chaos that will eventually consume them. After all, their authority depends upon that real Constitution, and if it lacks authority so do they. If politicians can ignore the supreme law of the land, why exactly do the people have to obey theirs? If the Constitution isn't binding, what makes their laws binding?

The proponents of the "living" Constitution can get away with this form of tyranny for a while, and for the reason Thomas Jefferson stated in the Declaration of Independence, that "all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed."

But Obamacare and the single-payer plan that lurks behind it will make the grievances in the Declaration of Independence look minor by comparison. What Obama has dismissively described as outmoded "constraints that were placed by the Founding Fathers in the Constitution" will look very sensible and relevant in the years ahead.

George Neumayr is editor of Catholic World Report and press critic for California Political Review.

The Dangers of "Pollitcs" vs a Republic

Carl M. Cannon

Senior Washington Correspondent

The Peril of Legislating by Polls

POSTED:

03/20/10

To John Boehner, the top Republican in the House, the health care bill coming up for a vote on Sunday boils down to a single question: Which party is heeding the will of the American people? "Americans want Washington to scrap this job-killing government takeover of health care," says the Ohio Republican.

Picking up on this theme, Rep. Paul Broun of Georgia asserts flatly that the American people have already "rejected" the Democrats' proposed health care legislation, citing a Wall Street Journal poll showing that 57 percent of respondents fear it would hurt the economy.

Reps. Eric Cantor of Virginia and Charles Boustany of Louisiana made the same point directly to President Barack Obama at the White House-sponsored health care summit on Feb. 25. "We don't care for this bill. I think you know that," Cantor told the president. "The American people don't care for the bill. I think that we've demonstrated in polling that they don't..."

The public opinion surveys cited by the Republican leadership do indeed report such findings. And Eric Cantor is a bright, attractive guy, and Charles Boustany was a practicing physician with first-hand knowledge of the problems in medicine. Nonetheless, this line of argumentation is all wrong. For months, Republican lawmakers and conservative commentators have brandished public opinion surveys like shillelaghs over the heads of health care reform's proponents, threatening mayhem to the Democrats and their party should they dare to ... legislate.

You will hear more of this all weekend -- and in the future after the health care debate in Washington comes to a climax. But it strikes me as bad social science, bad government, and bad history -- with a dose of hypocrisy thrown in. Using polls in this way is not only unscientific, it's not how a Republic can, or should, operate.

Personally, I do not look forward to the passage of the president's package. I would have few qualms about voting against it if I were in Congress. I'd prefer less government involvement in health care, not more, and less insurance, too. (I think Americans should pay out of pocket for routine medical care, that insurance should be for truly expensive procedures, and that the whole thing should be uncoupled from employment. My views were informed by an eye-opening Atlantic Monthly cover story last summer, "How American Health Care Killed My Father," an article that should have altered the national debate, but didn't.) My views aren't important, and I only mention them because this is not a back-door argument for the Democrats' bill. It's a front-door argument for better debate and better governance.

Let's start with the concept of governing by polls. Bill Clinton did this, to a fault many believed, the nadir coming when he tasked pollster Dick Morris to ascertain whether vacationing each summer at Martha's Vineyard sent the right re-election message for 1996. (I never saw any actual survey on this question, but after Morris reported back to Clinton, a president who neither rode horses nor fly fished ended up in Wyoming for his family's summer holiday.) Clinton's successor veered toward the other extreme: George W. Bush took obvious pride in ignoring public opinion. "I make decisions on what I think is right for the United States based upon principles," Bush told Chris Wallace of Fox News in a February 2008 interview. "I frankly don't give a damn about the polls."

Let's leave for another day a discussion of whether this was a bridge too far for a wartime president. This much is certain: Many influential Republicans and conservatives simply loved this aspect of the 43^rd U.S. president 's personality. "Some call it stubbornness; I call it principled leadership," Rudy Giuliani proclaimed as Republicans met in New York to re-nominate George W. Bush in 2004. "President Bush has the courage of his convictions."

And a week before George W. Bush left office, Sen. Orrin Hatch, R-Utah, singled out this trait as perhaps Bush's most impressive attribute. "President Bush knows that it is tough to lead when you are following the polls," Hatch told his colleagues in a Jan. 14, 2009 tribute to the outgoing president on the Senate floor. "George W. Bush is not leaving the presidency with chapped fingers from holding them up to the wind."

Not to belabor the obvious, but how can it be political courage when a Republican president ignores public opinion polls and high-handed arrogance when a Democratic president does the same thing?

And what of these polls anyway? Do they deserve to be accorded the great weight Republicans are putting in them? I wouldn't think so. Polling the public on something like a 2,100-page health care bill is more akin to junk science than social science -- even though this kind of thing has been going on since the beginning of modern polling.

* * * * *

In 1936, a college journalism teacher named George H. Gallup came out of Iowa with a doctoral degree and an idealistic streak to famously embarrass Literary Digest magazine, which ran a poll predicting a huge victory by Alf Landon over Franklin Roosevelt. Literary Digest had conducted its quadrennial straw poll without mishap since 1920. And in 1936 the magazine's editors were confident that the 2.3 million post cards they'd received -- the names came from subscription lists, automobile registrations and telephone books -- were more than enough to give them an accurate picture. This proved spectacularly wrong: The Digest had Landon besting Roosevelt by 55 percent to 41 percent. It turned out that Literary Digest's cohort was probably a more affluent sample than the country as a whole in the height of the Great Depression. An even worse flaw in the Digest's methods was the response rate: The magazine had sent out 10 million cards -- and the Americans who didn't want to waste the money on a stamp were disproportionately voting Democratic that year.

George Gallup wasn't the only political scientist who'd figured out how to build a better polling mousetrap in the mid-1930s. Elmo Roper and Archibald Crossley, for example, had also learned that with a relatively small sample size of between 2,000 and 2,500 people, they could take the pulse of a nation with 128 million people. It was eye-opening, and the public followed closely as these three men engaged in a spirited competition with themselves, as well as Literary Digest. Whose methods would prove the best?

In political lore, Gallup was the victor, although in real life the competition was won by Elmo Roper. Crossley's model had FDR winning with 53.8 percent of the vote; Gallup had the Democratic ticket winning with 55.7 percent, and Roper said it would be a whopping 61.7 percent -- very close to Roosevelt's actual total of 62.5 percent. George Gallup's coup was that he also predicted that Literary Digest would be wrong, a prognostication that helped make him become a household name. It also attracted Franklin Roosevelt's attention: By 1940, the president quietly retained Roper and Gallup to poll for him on his plans for having the U.S. government help the British in their war against Germany, a plan of action that became known in headline-ese as "Lend-Lease."

It sounds so sensible in hindsight -- and God knows Roosevelt was in the right about Nazi Germany. But in George Gallup, in particular, FDR had hit on a socially conscious innovator who was less interested in horse-race polls than in plumbing the minds of the American people about the issues he cared about, education reform, criminal justice and quality of life. This turns out to be a mixed blessing. To this day the official company biography asserts that George Gallup's name is "synonymous with integrity and the democratic process," and this is true enough. But the democratic process is not as tidy as George Gallup or his public opinion polls, and the very notion of polling Americans about complex policy issues that they often know little about is problematic on its face.

In 1995, for instance, at the behest of CNN and USA Today, Gallup polled about the verdict in the O.J. Simpson murder trial. The questions ranged from the straightforward (agree or disagree with the verdict) to the absurd (would Simpson have been convicted if he were white.) OK, that kind of thing helps get a pulse on racial attitudes, but how about these questions: Did Judge Lance Ito do a good job? Did the jury reach a verdict too quickly? These are technical legal questions that were posed to non-lawyers, who typically watched little of the actual trial, and who may never have set foot in a courtroom in their lives. In other words, everyday Americans who had no basis for registering an original opinion at all. You probably see where I'm going with this. Aren't similar problems present in the health care debate -- and also when pollsters try to determine public opinion on other intricate policy questions, in which the key participants themselves cannot agree on what the legislation would accomplish -- or even on what it should be called?

Take "cap and trade," for instance. The concept itself is not easy to comprehend, but what the shorthand phrase means in policy-speak is having the government set a limit (a cap) on various types of pollutants that contribute to greenhouse gas emissions. Companies with aging plants can buy credits (that's the "trade" part) from firms with cleaner emissions. The theory is that by essentially charging companies for polluting -- and rewarding companies that build cleaner plants -- government creates market incentives to lower greenhouse emissions. I have no opinion on whether this is the right approach to global warming, but I have a definite opinion on the efficacy of polls purporting to show where the public is on this issue.

A 2009 Zogby Poll claimed that only 30 percent of Americans support cap and trade, while a CNN Poll done last fall asserted that 6 in 10 support it. Who is right? Who cares? The most enlightening, not to mention entertaining, polling done on cap and trade reveals that Americans have no earthly idea what the thing means -- or even what issue realm it belongs to. This Pew Poll shows that in an open-ended question only 23 percent of Americans correctly knew (guessed?) that cap and trade concerns energy and environmental policy. And fully 55 percent acknowledged knowing "nothing at all" about cap and trade.

Polls about both cap and trade and the health care bill made the Top 10 Dubious Polling Award. This little-known, but important annual list (it started in 2009) is compiled by George F. Bishop and David W. Moore, two veteran pollsters, authors and political scientists who display appropriate skepticism of their brethren -- and of the media outlets that promote such goofy social science.

One obvious possible lesson of the health care polls may simply be that the Republicans did a better job of criticizing the legislation than the Democrats did at promoting it. Or maybe it's just too complicated an issue, and the public doesn't trust something it doesn't understand. Or perhaps Americans even like the features of the bill well enough, it's Democrats they can't stand -- or Congress itself. (There are actually numerous polls that tend to bolster that last postulate.)

Of course, things could be worse. Ross Perot could be president. I don't mean that as a personal dig at Ross Perot -- I'm using him as a symbol here. Nearly two decades ago, Perot anticipated the interactive nature of the Internet. The phrase 2.0 wasn't in vogue -- the technology did not yet exist -- but this is what the twangy Texas tycoon was talking about in his call for governing via "Electronic Town Halls." California and two dozen other states have for nearly a century practiced a controversial form of direct democracy with their referendum systems. Perot's fantasy of governing via insta-polling would have made California look namby-pamby. In Perot-ville, America would (theoretically) have been spared the messiness and corrupting influence of lobbyists, legislators, political consultants, special interest groups and the media.

"With interactive television every other week, we could take one major issue to the American people ... have them respond, and show by congressional district what the people want," Perot explained. Or think they want. One thing is certain, however: Although the Founders of our Republic couldn't have known about the Internet, a Webocracy would have given them pause. They had enough qualms about democracy.

The Framers had fought a revolution against monarchy, so they knew they didn't want that. But unchecked democracy struck them as too close to anarchy. And so checks and balances were built in to the system. The Supreme Court: lifetime tenure. Senators serve six years, presidents four, House members two. A deliberate body (the Senate), the people's House, a chief executive with veto power. It's all there, mechanisms to be responsive to the people's whims, while being responsible to posterity -- and minority views -- at the same time. In a "pure democracy," James Madison worried in the Federalist Papers, "there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual."

In a letter to a friend named John Taylor written while Madison was in the White House, John Adams amplified on this sentiment. "Remember," he wrote, "democracy never lasts long. It soon wastes, exhausts, and murders itself. There never was a democracy yet that did not commit suicide."

John Adams was right about a lot of things, but our democracy hasn't committed suicide -- not yet -- and one reason it hasn't is that a critical mass of men and women remember that it's a democracy, yes, but wrapped inside a Republic. That shouldn't be a hard word for Republicans to remember.

Obamacare is Unconstitutional and UnAmerican

The Health Vote and the Constitution—II

The House can't approve the Senate bill in the same legislation by which it approves changes to the Senate bill.

By MICHAEL W. MCCONNELL

In just a few days the House of Representatives is expected to act on two different pieces of legislation: the Senate version of the health-care bill (the one that contains the special deals, "Cadillac" insurance plan taxes, and abortion coverage) and an amendatory bill making changes in the Senate bill. The House will likely adopt a "self-executing" rule that "deems" passage of the amendatory bill as enactment of the Senate bill, without an actual vote on the latter.

This enables the House to enact the Senate bill while appearing only to approve changes to it. The underlying Senate bill would then go to the president for signature, and the amendatory bill would go to the Senate for consideration under reconciliation procedures (meaning no filibuster).

This approach appears unconstitutional. Article I, Section 7 clearly states that bills cannot be presented to the president for signature unless they have been approved by both houses of Congress in the same form. If the House approves the Senate bill in the same legislation by which it approves changes to the Senate bill, it will fail that requirement.

Rep. Louise Slaughter (D., N.Y.), chair of the House Rules Committee and prime mover behind this approach, has released a letter from Yale Law School's Jack Balkin asserting that a "rule which consolidates a vote on a bill and accompanying amendments, or, as in this case, a reconciliation measure and an amended bill, is within the House's powers under Article I, Section 5, Clause 2."

But that does not actually address the point at issue. No one doubts that the House can consolidate two bills in a single measure; the question is whether, having done so, it may then hive the resulting bill into two parts, treating one part as an enrolled bill ready for presidential signature and the other part as a House bill ready for senatorial consideration. That seems inconsistent with the principle that the president may sign only bills in the exact form that they have passed both houses. A combination of two bills is not in "the same form" as either bill separately.

Defenders of the Democratic strategy say that a self-executing rule has been used many times before by both parties. But never in this way. Most of the time a self-executing rule is used to incorporate amendments into a pending bill without actual votes on the amendments, where the bill is then subject to a final vote by the House and Senate. That usage may be a dodge around House rules, but it does not violate the Constitution. I am not aware of any instance where a self-executing rule has been used to send one bill to the president for signature and another to the Senate for consideration by means of a single vote.

Self-executing rules have also been used to increase the debt ceiling by virtue of adopting a budget resolution. That procedure is questionable, but because budget resolutions are not laws, this usage does not have the feature of using one vote to send a bill to the president and at the same time to send a different bill to the Senate. There may have been other questionable uses of self-executing rules, but not often enough or in prominent enough cases to establish a precedent that would overcome serious constitutional challenge.

Whether the courts would entertain such a challenge is a harder question. The "enrolled bill doctrine," announced by the Supreme Court in Marshall Field v. Clark (1892), holds that the courts will not question whether a bill certified as having passed both houses of Congress was properly enacted. More recently, in United States v. Munoz-Flores (1990), in a footnote, the Supreme Court stated that Field concerned only the "evidence" the courts would consider in such a challenge and that when "a constitutional provision is implicated," the enrolled bill doctrine would not apply. These holdings are not easy to reconcile. The D.C. Circuit, in a 1995 case, essentially said that it did not understand the Munoz-Flores footnote and thus would not follow it.

The Supreme Court might well hold that Field governs only questions of historical fact, while Munoz-Flores governs questions of constitutional interpretation. In Field, the question was what text passed the two houses of Congress; there was no doubt that only what the two houses passed could be treated as law. Here, by contrast, there will be no dispute about what occurred in the House; the question will be whether using a self-executing rule in this way is consistent with Article I, Section 7. It is one thing for the Supreme Court to defer to Congress on questions of what Congress did, and quite another to defer to Congress on the meaning of the Constitution. Indeed, in United States v. Ballin, decided the same year as Field, the Court ruled, "The Constitution empowers each House to determine its own rules of proceedings. It may not by its rules ignore constitutional restraints . . . ."

One thing is sure: To proceed in this way creates an unnecessary risk that the legislation will be invalidated for violation of Article I, Section 7. Will wavering House members want to use this procedure when there is a nontrivial probability that the courts will render their political sacrifice wasted effort? To hazard that risk, the House leadership must have a powerful motive to avoid a straightforward vote.

Mr. McConnell, a former federal judge on the U.S. Court of Appeals for the Tenth Circuit, is a law professor at Stanford University and director of the Stanford Constitutional Law Center.

Copyright 2009 Dow Jones & Company, Inc.

The Constitution is Working as Designed

The system's fine

T.R. Fehrenbach
Amid all the genuine bad tidings blasting our sensibilities each news day, we are being subjected to the notion that our system of government isn't working. Something's wrong in Washington. This is mostly coming from the semi-educated media and commentator classes, but apparently it is believed to the extent that Congress has recently received its lowest confidence rating: 10 percent.

The idea that the institutions of the U.S. are fundamentally flawed is arrant nonsense. Washington and the Constitution, as amended, are working pretty much as the Founders intended them to work. I have heard and seen all this before, during the Great Depression and run-up to WWII, when supposedly sensible men argued that free institutions weren't up to the challenges of economic crisis and totalitarian dictatorship. We showed them.

To begin with, we are a republic, not a popular democracy. But we are a democratic republic, which means we elect our representatives. The words “democratic” and “republican,” however, have confused us since 1800, when Thomas Jefferson headed the Democratic-Republicans.

The current administration and majority of Congress were chosen by 53 percent of the electorate, giving them a clear mandate to form a government but not necessarily to push partisan politics. A business that ignores 47 percent of its market is on shaky ground, and so is a government. According to the studies, this result was largely because an unprecedented percentage of first-time voters, blacks and Hispanics turned out, voting 62 percent Democratic.

If this coalition wants to effect real change, it must hold together for more cycles; otherwise, it was a fluke. The evidence to date is that the Obama coalition has already lost cohesion; therefore those it put in office have little right to push agendas. Our institutions are right to resist, meantime.

The Founders, both Federalists and Democratic-Republicans, were mortally fearful of tyranny, whether popular or elitist. This is why they created three independent equal branches, two legislative houses and reserved powers not granted the federal apparatus to the states.

This last has been gutted by every strong president, but the division of powers within the federal branch leaves ample room for stopping popular stampedes. The Senate is supposed to slow down or thwart the House; it was designed that way. So was the fact that a few small states can block the will of the great, imperial states. In fact, cloture — cutting off debate — is a newer rule. Originally a single senator could block action.

What I'm getting at is that if you have no consensus, you get no results — nor should you. This doesn't mean the country sinks; it just means you can't implement purely partisan policies. We keep the Army, Navy and Treasury going, you notice. If the American people want reforms and pursue them long enough, not just for the moment, they usually get them. Muddling through, the democratic-republican way, is better than marching off a cliff like morons.

After all, it's worked for more than two centuries.

Find this article at:
http://www.mysanantonio.com/opinion/The_systems_fine_politics_gum_it_up.html

Reconciliation Corrodes The Legislative Process

Reconciliation on health care would be an assault to the democratic process

By Orrin Hatch Tuesday, March 2, 2010

America's Founders gave us a system of governance designed to limit government power and maximize liberty. The legislative branch is different from the executive, and the Senate is different from the House. No single branch has all the power. That can be frustrating for those with ambitious agendas, but everyone benefits by respecting those checks and balances even as we fight over policies.

While the House is designed for action, the Senate is designed for deliberation. That is why Senate rules and procedures give a minority of senators the power to slow or even stop legislation. Both parties do it when in the minority, and both find it frustrating when they are in the majority. But such checks are central to the nature of the institution and to the Senate's place in our constitutional system. These rules temper majority power and generate strong incentives to develop mainstream legislation that commands broad, bipartisan support.

To impose the will of some Democrats and to circumvent bipartisan opposition, President Obama seems to be encouraging Congress to use the "reconciliation" process, an arcane budget procedure, to ram through the Senate a multitrillion-dollar health-care bill that raises taxes, increases costs and cuts Medicare to fund a new entitlement we can't afford. This is attractive to proponents because it sharply limits debate and amendments to a mere 20 hours and would allow passage with only 51 votes (as opposed to the 60 needed to overcome a procedural hurdle). But the Constitution intends the opposite process, especially for a bill that would affect one-sixth of the American economy.

This use of reconciliation to jam through this legislation, against the will of the American people, would be unprecedented in scope. And the havoc wrought would threaten our system of checks and balances, corrode the legislative process, degrade our system of government and damage the prospects of bipartisanship.

Less than a year ago, the longest-serving member of the Senate, West Virginia Democrat Robert Byrd, said, "I was one of the authors of the legislation that created the budget 'reconciliation' process in 1974, and I am certain that putting health-care reform . . . legislation on a freight train through Congress is an outrage that must be resisted." Senate Budget Committee Chairman Kent Conrad, also a Democrat, said last March, "I don't believe reconciliation was ever intended for the purpose of writing this kind of substantive reform legislation." They are both right.

Reconciliation was designed to balance the federal budget. Both parties have used the process, but only when the bills in question stuck close to dealing with the budget. In instances in which other substantive legislation was included, the legislation had significant bipartisan support. For example, Congress used reconciliation to carry welfare reform in 1996, which ultimately passed with 78 votes. And when reconciliation was used to create the Children's Health Insurance Program that I authored with Sen. Edward M. Kennedy in 1997, the program got 85 votes and served as the glue to passing the first balanced budget in 40 years. Both plans were negotiated with, and signed into law by, President Bill Clinton.

But when President George W. Bush and Congress created the prescription drug benefit in 2003, we Republicans in the Senate decided against using reconciliation because it would have made the plan partisan and condemned this important legislation to failure. Instead, the bill garnered significant bipartisan support -- demonstrating why reconciliation was not even attempted. That precedent should carry the day here.

Rejected at first by a majority of senators as an inappropriate way to pass health care, reconciliation was revived after Scott Brown's Senate victory in January. Confronted with the inconvenient truth of an electoral rebuke, the president is pivoting to this tactic that polls show a growing majority of the American people oppose. Some of my colleagues, and others, have wrongly argued that using reconciliation to change only parts of this enormously unpopular bill would not be an abuse of the process. But if the only way to pass this $2.5 trillion bill is through reconciliation, then this continues to be an abuse that stifles dissent and badly undermines our constitutional checks and balances.

The president said in his State of the Union address that "we were sent here to serve our citizens, not our ambitions. So let's show the American people we can do it together." I agree. Poll after poll tells us that is what Americans want. To do that we must start by taking the reconciliation procedure off the table. Let's move forward instead with bipartisan legislation that doesn't abuse the Senate's rules but that does address the challenges our country faces.

The writer is a Republican senator from Utah.