"The Constitution of the United States" Topic

Any government strong enough to give you everything you want, is strong enough to take everything you have.

You know the more I think about it, maybe Jefferson was a closet Anarchist! 🤣

He wasn't really in the closet.

Except that Jefferson changed his tune once he became President (as many do.)

As to the power of the minority in the Senate, it's not quite what is being presented.

At present the Senate is split 50/48/2, with the potential deciding vote in the hands of the Vice President.
As it currently stands, the plurality of the Senate (1 vote from majority) is in one party, with 2 Senators who claim no party affiliation (laughable), from two different states are deciding that the party with fewer members is actually equivalent and the Vice President granting power to that same party through the deciding vote.
There IS no "majority" as such.

Now, according to the longstanding rules created by the Senate for itself, the body is so structured that 60 votes are required to move anything forward. Which means in a divided Senate where no party bloc holds 60 votes, one can point to either side and say "they're not moving things forward"— especially in a Senate split effectively 50/50.

But even if there were no parties, what would change? Among a 100 people, how do you arrive at 60 agreeing for something (in detail)? How do you even arrive at 51? In a way, the party system moves things forward far better than a 100 independent senators would! The party breeds obligation, consensus and loyalty, and while that has excesses, it also produces results— the making of sausages still produces sausage. Unfortunately, someone's preferred sausage is often not someone else's, and that's where the power of the minority becomes important— In a room of 100 people, are 51 automatically correct in what they decide for 50 other people? Are they automatically correct in what they decide for 324,000,000 people? And if we assume the population is split as evenly as this hypothetical 51 vs. 50, do 162,000,001 people get to tell 162,000,000 people what they have to do?
And at that point we begin to see the flaw, don't we?
For decades the US has seen arguments about different topics where the polled majority of citizens are strongly in favor of one point of view, but a powerful minority has managed to defend their position— whether correctly or not is irrelevant. What is relevant is whether one wants that to be the case or not?
I dare say when you are in the minority, you are in favor of the minority having "stopping" power.
When you are in the majority, it ticks you off.
Human nature, after all.

Which is why all of this is so constructed as it is. It ought to be hard to create laws that fundamentally change the lives of millions of people— or even thousands or hundreds. There should be roadblocks in place— big ones— to laws that cannot help but remove power from one group and grant it to another. After all, that is what laws do. A law is essentially a statement that what someone was free to do yesterday they can no longer do tomorrow. Sometimes that law is necessary, and actually a protection to everyone. But sometimes it is not, even when it is intended to be. And for that reason it must be grounded fine and examined and sifted to weed out what is bad— for it is far better that a good law fail than a bad law be made. The good law, after all, just may have to bide it's time— it can be brought up again. But a bad law in place can cause a world of harm or even evil before it can be removed.

So don't be so eager to see laws be created quickly, or in spite of a minority. What you think you are wishing for may prove far worse when it grabs the world in its jaws.

New England town meeting democracy is or used to be talked about a lot. But it is often misunderstood. Towns typically were reluctant to make important decisions on a 51/49 or even. 60/40 vote. They wanted something like 90/10 or unanimity. if a significant minority is against it, don't do it.

The ultimate reason is that there was no good way to compel the reluctant or uncooperative. The police power was very weak, depending on popular consent.

There are only three-the three branches of government are executive, legislative, and judicial.

Actually, these days, there are only two branches of government: The Democrats and the Republicans.

The writers of the Constitution envisioned the Legislative and Executive branches as being checks upon each other, but with the 2-party system, one party often controls both branches, as the Democrats do now. The President is also the leader of his party, and so controls both branches. (And potentially the Judicial branch also, through his power of appointment.)

The United States is moving to a parliamentary style of government without the constitutional framework in place to handle this development. Canada is moving to a presidential style of government without the constitutional framework of checks and balances. In Canada the Prime Minister has become a functional dictator if he commands the majority of the House of Commons.

MB, yes, I partially agree, for now. Don, okay, but there are plenty of instances of bitter fights between Congress and Pres even when both are same party. See, e.g., LBJ and VietNam. But today the respective bases of both parties being so ideologically committed does change the dynamics, a lot.

The United States is moving to a parliamentary style of government without the constitutional framework in place to handle this development.

How so? (Being a Yank, your comment on Canada goes over my head.)
As I see the parliamentary system, there is a Head of State, and a separate Head of Government.
That would make Pelosi and Schumer joint heads of …. Oh wait. Never mind.

So, instead of a "vote of no confidence", there is a "Break glass in case of emergency) impeachment. Hmmm…

Well, anyway, please expand.

Not quite how New England town meetings have worked, but close. These are often remembered for years afterward and can be epic in length and impact. Ours was nearly 6 hours this year.

Debate may be raucous and intense, but is controlled by the Moderator under set rules. Any resident can speak. Only residents who are present at the meeting can vote on measures. It is classic Americana in many ways, very traditional, considered the town's most important annual event and civic duty. Recently some have questioned whether cutting off shut ins, absentees, etc. from participating is okay.

Simple majorities are allowed for some measures, even some big decisions, based on bylaws or state mandates. Many items can only pass with a 2/3 majority. A 90/10 requirement would likely mean no government.

Good points Don.

My only quibble would be the Democrats don't "control" the Senate, they only do in part. The VP casting vote is trumped by the 60/40 rule when it matters, so given the party lines and some Democrat Senators who won't back the Administration on various issues "control" is an illusion.

John,

In the Parliamentary system the Head of State is largely nominal when it comes to running the country. Well at least in Canada, Australia, New Zealand and the UK.

This is largely because of The Queen, who is actual Head of State in the UK and kind of in the others. The Monarchy being non political (mostly).

So in the UK for example, the Prime Minister holds all the Legislation and Administrative responsibilities of POTUS and shows up at International meetings etc but he is not Head of State.

He is as mentioned virtually a Dictator (all be it elected) if, as now, his party has a big majority in the House of Commons, as the second chamber (unelected) does not have the blocking ability of the Senate. Although the Supreme Court does get involved.

One thing the UK system does have is a non political judiciary. The 13 Supreme Court members are appointed on the basis of their ability and experience by a selection board of their peers. They do not serve for life.

This applies in all the lower courts as well.

Tort, yes, NOW, but 300 years ago the police power was nearly non-existent.

Well, I admit I was being silly in my remarks about the parliamentary system.
I didn't see the point in the paragraph I was referring to.

Doc, You said "is, or used to be" and you are right, but you are talking about a very long time ago for a relatively short period.

Even before 1700, it was pretty much in place. It remains one of the oldest forms of American democratic government.

link

Okay, let's rev up this discussion:

"One cannot help but wonder which United States Constitution today's generation of serving officers intends to support and defend when they swear and live their oaths of office. For, make no mistake, while the Madisonian Constitution, as amended, and the Declaration of Independence are still the written laws of the land, the United States is administered today by an entirely different constitutional regime, underpinned by a radically different set of principles. Each officer must face the moral and ethical questions of which to support and defend, and what that defense may entail."

"The seminal political architect of changes that have been impressed into American constitutional governance over the past century was President Woodrow Wilson. Under the cover of the national emergency of World War I, Wilson initiated two radical transformations to Madisonian constitutional governance of limited powers.

The first, his doctrine of a "living constitution" circumvents provisions of the constitution by constituting the Supreme Court functionally as a permanently sitting constitutional convention, usurping the power to make law reserved to the elected Congress and inventing new law and constitutional provisions by judicial action, contrary to the Madisonian Constitution's separation of powers.
Wilson's "administrative state" is an even more profound transformation of constitutional governance. Eliminating the separation of powers entirely, it empowers unelected, unaccountable bureaucratic agencies to reign sovereign over the people, able to make rules with the force of law, enforce them, and adjudicate breeches of them, often absent the due process guaranteed by Madisonian governance.
Wilson's transformations were founded on the Hegelian concept of a state that is sovereign over the people. The Hegelian state functions to define the interests of the community and delimits individual liberty to conform to this revealed state interest. Wilson and his successors have substituted the state as the source and arbiter of citizen's rights, eliminating the Madisonian construct of the state as the servant of the people, governing with their consent in defense of their inalienable rights bestowed from the Creator's fountainhead."

Read the whole thing.

"So which United States Constitution does the current generation of serving officers support and defend? The formally adopted Madisonian Constitution and its Lockean vision of liberty underpinned in natural law, inalienable rights, and legitimacy based upon the consent of the governed; or the Wilsonian constitutional regime and its Benthamite/Hegelian underpinning in a statist defined "common good" of contingent rights and liberties? "

There's only one US Constitution and that is the one the armed forces and civil servants swear an oath to serve.

Absolutely, whatever political science interpretation of the way the content has been managed over the decades, there exists just one written and formally excepted version!

Someone needs to take up fishing!

Trajanus, do you know enough Roman history to understand that the empire retained almost all of the same constitutional FORMS of the republic? While drained of most of their actual content? Emperor was First Consul, and there was always a second one with no power, etc. The senate met and argued and had no power. etc.

I've been warned against "harassing", but that's just plain full of non sequiturs. And incoherent on top of that.

…and I am right and you are wrong

If you are referring to your comment of 'four pieces' of government, then you are wrong. There are three branches of the US government which has already been pointed out to you.

Emperor was First Consul, and there was always a second one with no power, etc. The senate met and argued and had no power. etc.

To whom or what are you referring here? Rome or the French First Empire?

The three branches -- legislative, executive, judicial -- are long understood aspects of LAW: the legislative makes it, the executive enforces/executes it, the judiciary applies it to specific case. Tyranny is defined as having all three functions in the same hands. The Constitution logically covers these in that order, in the first three articles.

Bicameralism is likewise a very old idea, and another part of the system of balances and checks. Polybius analyzed the Roman constitution (and others ) in terms of rule by one, rule by a few, rule by many. One can ACT decisively, e.g the Roman dictator for six months. A few can be wise, debating alternatives, but are slow to act. The many are STRONG, but prey to factionalism. The US Constitution creates a "mixed" (rule by one, rule by few, rule by many) system which can then be BALANCED. A bicameral legislature is a big part of that balance. The president represent s the monarchical (rule by one) principle; the senate and the courts the aristocratic/rule by a few principle, and the House the democratic principle. Political science 101. And 1 + 1 + 1 +1 = 4. You're welcome.

Please point out where the legislative branch of the US government is recognized as two branches and not one.

Article I, Section 1:

"All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."

Congress is one legislative body as stated above. It is subdivided into two, also as stated above. But that doesn't mean, not even close, that it is two branches instead of one.

And the legislative body is referred to collectively as 'the Congress.'

Kevin, the answer to your question France or Rome, was concealed in my paragraph:

Trajanus, do you know enough Roman history to understand that the empire retained almost all of the same constitutional FORMS of the republic? While drained of most of their actual content? Emperor was First Consul, and there was always a second one with no power, etc. The senate met and argued and had no power. etc.

Do you read?

Kevin, that is why I used the term "pieces" rather than "branches". Subtle, I know. "Elements" or "entities" is probably better.

Brechtel, I actually addressed the very thing you have in your statement, refuting your position before you even made it. But then, Doc had already addressed it prior to my more detailed response.

Also, Brechtel, Doc never said "branches." YOU and others did. You incorrectly inferred he meant branches, when it was clear as crystal he did not, but rather the distinctive pieces or elements or bodies of the Federal government, of which there are four, QED.

Frankly, you strike me as too intelligent and too well educated to believe that Doc meant "branches" when he clearly did not. I can only infer that your response was an attempt to ridicule Doc and thus try to fool less attentive readers into believing you had refuted his actual points rather than addressing the same. That's a poor approach to rhetoric and debate. Instead of constructing straw men, why not delve into the actual assertions and, if you believe they need to be refuted, use evidence and logic to do so? As of yet, you have not.

The idea that the Constitution doesn't mention race or slavery is an ahistorical view, and a critical issue for those who want Federal Rulings based on original meanings. That requires some solid understanding of the historical context.

We have legislators demonstrating real ignorance concerning the purpose of the 3/5 compromise. Just two examples of many, unfortunately:

Oregon state Sen. Dennis Linthicum claimed that "the three-fifths vote was actually to eliminate the overwhelming influence the slave states would have in representative government."
[? The 3/5 compromise increased Slave state influence. The Slave-owning states wanted the 3/5 compromise because the northern states already enjoyed a larger population, thus more representatives and more influence. That was why the Slave-states wanted the slaves counted.]

[Tennessee State Sen. Lafferty has said: "By limiting the number of population in the count, they specifically limited the number of representatives who would be available in the slave-holding states and they did it for the purpose of ending slavery." [This doesn't even make sense, as the 3/5 compromise increased the number of white representatives beyond the voter base.]

Here is Section 2, Article 1 of the Constitution:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.,

Now after you exclude everyone including indentured servants and non-taxed Indians as stated, who is left? Only the slaves and historically that is EXACTLY how the slaves--and only slaves--were counted for Congressional representation. And according to Southern states' law there was only one group, identified by Race [not even Native Americans] that could be and should be slaves. The Constitution, in the Bill of Rights, kept that legal ability for the states.

The reasons the Southern States wanted the 3/5 compromise was:

1. Their singular concern that the Northern States growing Population would guarantee their control of the House of Representatives.
2. As Slaves made up 1/3 of the South's population, including them would help 'even' the population imbalance. The South wanted the slaves as a non-voting portion of the population to be counted just like the voting population 1:1. The North didn't want that and saw slavery as an embarrassment and wrong… Hated England had outlawed slavery. The compromise was to count the slaves as not a whole person nor a non-person, but a compromise of 3/5th of a person for representation.

There is no question about this, in reading the letters to and from delegates to the Constitutional Convention, how the ratification arguments for and against detailed the compromise as well as how the Constitution was implemented.

This compromise was an effort to preserve political power. Preserving slavery was only a secondary consideration, but a real one considering many Northern representatives to the Constitutional Convention were interested in ending slavery. For instance, from Paris, Virginian T. Jefferson was appalled by the inclusion of the 3/5th compromise.

The entire education system should be reconstructed since branches is what they are called from elementary up. Also, it's written the same on the test to obtain US citizenship.

Say "4" on your citizenship test, and …. Come back in a year, and try again.

The three-fifths compromise was, well, a COMPROMISE. Nobody wanted to count anyone as 3/5. The south wanted to count slaves a one whole person, for purposes of representation, but not for direct taxation, which the Constitution requires be directly proportional to population. (That's why the income tax required an amendment.)

The north, otoh, wanted the slaves counted as whole persons for taxation but not for representation.

The compromise was to count them as 3/5 for both purposes.

Doc never said "branches." YOU and others did. You incorrectly inferred he meant branches, when it was clear as crystal he did not, but rather the distinctive pieces or elements or bodies of the Federal government, of which there are four, QED.

Branches is the correct term. And the two houses of Congress make up the legislative element, or body if you prefer.

So your 'QED' is somewhat premature as both of you were wrong.

"Dr. McBride, how many branches are there in the US government?"

"Three, Mary Sue."

"So there's three points of power in the system of checks and balances?"

"Nope, there's actually four, because Congress is bicameral, and each House has some unique powers that the other House does not have. So there are four interacting pieces, not three."

"Thank you, I understand now."

Amazing.

A democracy is 3 wolves and 2 sheep deciding on what's for dinner.

It is surprising that the wolves and sheep agreed on a Bill of Rights, banning the consumption of sheep.

It is surprising how many of the debates and questions of how the government should work on this thread were also issues debated by the Federalists and Anti-Federalists leading up to the Ratification of the Constitution in 1789. There is a terrific Great Courses program examining the debates.

What is sad and hard to watch is that so few people understand the Constitution at all; they don't even recognize they are watching it be ignored and denigrated. It is just a set of instructions on how our government is to work. [The supposed rule of law where those in government swear to uphold it's laws] If those in government who choose to ignore the instructions are not held to accounts, unlike Nixon and his Administration, then the Constitution certainly doesn't work regardless of it's inherent benefits or faults.

McLaddie, yes, except that the Declaration is about WHY government exists, not HOW it operates. Natural law means rights exist BEFORE government which is created by the social contract to protect them. The First Amendment does not establish ANY rights; it prohibits Congress from violating the rights that already exist.

(There ARE civil rights granted by government, starting with the suffrage.)

Recall that the Bill of Rights was largely composed (as the Virginia Declaration of Rights) by George Mason a short time BEFORE the Declaration, Mason of course being considered the father of the BofR. The Va document shares many phrases with the US Declaration and the US BofR -- not surprising, as Mason and Jefferson were both drawing on the same sources, mainly Locke.
The US Declaration is not part of the Constitution but IS considered part -- the first part -- of our Organic Laws.

link

The organic laws include the Declaration, the Articles of Confederation, and the Northwest Ordinances passed under the Articles (which created the add-a-state plan we still use today).

If those in government who choose to ignore the instructions are not held to accounts, unlike Nixon and his Administration, then the Constitution certainly doesn't work regardless of it's inherent benefits or faults.

Only Nixon? I could have sworn that until quite recently, there were those who were not simply ignoring the Constitution, but treating it like a fairy tale that didn't exist.

doc mcb:

I don't follow you. I didn't say anything about a or the Declaration. Yes, it does state why government exists. The Preamble to the Constitution does the same thing.

The First Amendment does not establish ANY rights; it prohibits Congress from violating the rights that already exist.

Okay. Again, I am not sure how that fits what I said or what your point is… However, legally, the First Amendment does establish those rights by recognizing them in prohibiting the government from violating them. And of course other rights are more overtly declared: "the right of the people to peacefully assemble." The 2nd and 4th Amendments also speak of rights. The point being?

The Bill of Rights was something many of the states had in place before and then after the Revolution. Madison was the principle writer of the First Ten Amendments. There were many things in the Virginia Declaration of Rights that did not find its way into the Bill of Rights. There were over thirty different 'rights' or government limitations that different states requested when agreeing to ratify the Constitution. They never appeared in the final draft.

I am not sure what you mean by 'Organic Laws.'

Only Nixon? I could have sworn that until quite recently, there were those who were not simply ignoring the Constitution, but treating it like a fairy tale that didn't exist.

John: I agree. The last several years have been ugly. I can name names, but I was simply giving an example with Nixon, a currently 'safe' example. There certainly were those government officials before and after who failed to uphold their oath of office. Clinton lied under oath. He was found guilty, but able to negotiate a stiff fine rather than jail time as President. He was impeached for it.

Mcl, I think we agree but are stressing different aspects of the same thing. Organic law is a real thing, see the link.

link

Trajanus, do you know enough Roman history to understand that the empire retained almost all of the same constitutional FORMS of the republic? While drained of most of their actual content? Emperor was First Consul, and there was always a second one with no power, etc. The senate met and argued and had no power. etc.

Well what a splendidly patronising first sentence that is!

As it happens, yes I do and what a wonderfully pragmatic guy Gaius Octavius was, in conning the people that the old Republican methods were still there. As were most of his successors, when they weren't other wise engaged in God Knows what.

Of course for the most part the Senators etc were also as guilty as hell but bribes and the fear of sudden death tends to shape politics in its on peculiar way.

Now pray do tell me what alternative to:

I, ……..do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God."

Would you prefer to see?

And what the hell it has to do with the Romans!

Trajanus, do I remember correctly that the eulogy for the first emperor bragged that he had "restored the republic"? What the article I linked to is saying, and I agree, is that it is technically possible to keep the Constitution while draining it of its spirit, and turning it into the very opposite of what it was first intended to be. We aere well along the road to doing that, along the Wilsonian lines described in the article. I do not know about others, but my oath of allegiance was and is (no time limit) to the Constitution as a government designed to protect my natural rights. That is the social contract, and if the document is amended (especially by informal usage) into a threat to our liberties, then OTHERS have broken the contract and I am no longer bound by it.

McLaddie: Great Britain had NOT outlawed slavery in 1786 when the Constitution was debated. Slavery was still legal in the British Empire, including the slave trade, which the Constitution first provided a provision for ending, though it restricted the date at which that could happen to 1807– which is exactly when the later US Congress did indeed outlaw it, passing the legislation in 1806, one year prior to Great Britain's own law being enacted.
I believe you may be precisely referring to England as having outlawed slavery on the island itself, but that was only a part of the British Empire, not the whole. For the record, the Americans didn't hate England or the English. They hated the British government and King George III— and yes, they made the distinction at the time. I don't think the Americans, even in the South, much cared what the laws immediately within England were. They cared what laws the British parliament made over the Americans without the Americans' consent or participation— hence the war. Afterwards, they certainly didn't give a hoot in hell what the BP did unless it again affected America.

Again, the text of the Constitution is quite clear. The South wanted to claim unrepresented and untaxed people as sources of representation. The North did not want them counted at all, not because of race but because of taxation. The population of the North paid taxes, and thus earned representation regarding how those taxes were raised and spent; the slave population of the South paid no taxes, and thus should not have had a say in how those taxes were raised or spent, especially when it wasn't the slaves actually having the say. It had nothing to do with whether or not the North was or was not opposed to slavery itself— it had to do with not giving the tax-paying population of the South an unfair level of representation with regards to that taxation— effectively declaring that Southern tax dollars and voters were more "valuable" in terms of representation than Northern tax dollars and voters. It was the desire for the greater need of unity that produced the compromise. It had nothing to do with punishing or demeaning slaves as human beings, or recognizing slavery as a protected thing. In order to get a unified national government, the North compromised on the sole issue of representation, with the can of slavery be kicked down the road for future generations to decide.

For the record, it wasn't democracy that produced the Bill of Rights, either. It was 13 representative republics that did so, via further representatives— same as with the Constitution itself.

Here is that social contract: "We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

If the government under the Constitution were to cease to secure liberty, and instead to violate liberty in a sustained manner demonstrating intent ("a long train of abuses evincing a design") then the final natural right could and should be invoked: "that whenever any government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government . . . " We are not there yet, and pray God we never will be, but we have moved too far in that direction.

Trajanus, do I remember correctly that the eulogy for the first emperor bragged that he had "restored the republic"?

I wouldn't be at all surprised. He worked hard enough to give the impression that it was his most earnest wish. Didn't quite turn out that way though did it. The concept died one of those "unexplained deaths" so common among the power brokers of the day!

What the article I linked to is saying, and I agree, is that it is technically possible to keep the Constitution while draining it of its spirit, and turning it into the very opposite of what it was first intended to be. We aere well along the road to doing that, along the Wilsonian lines described in the article.

I had assumed that. However, my point and I think it was Kevin's also, is that in the immediate World one takes an oath to the Constitution that is on the statute books not one we think its degenerated to mean or how we would prefer.

Back in the day, when Court Evidence was sworn on the Bible you didn't get choose whose version you would prefer.

Parzival, yes indeed, and a popular majority is just as likely to violate rights as other powers.

Trajanus, is it your contention that the Constitution is NOT a social contract? Does it cancel forever a natural right of revolution?

If you promise to roof my house and I promise to pay you money for the work, a failure on your part (or on my part, vice versa) cancels my contractual obligation (or vice versa).

Unless you want to restore either rule by divine right, or rule by whoever is strongest, some such idea of a social compact seems essential. Or do you disagree?

That is the social contract, and if the document is amended (especially by informal usage) into a threat to our liberties, then OTHERS have broken the contract and I am no longer bound by it.

Whether or not you believe the social contract has been broken (which it has not been) you are still bound by the rule of law in the United States.

And rebellion is still illegal, whether or not you agree.

Were the colonists then bound by the British rule of law? Was their rebellion illegal?