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Game’s Up

I welcome Sandy Levinson’s acknowledgment that rights should be off the table for any hypothetical constitutional convention; the gig should be about structure only. On those issues, Sandy suggests, we can put ourselves behind a veil of uncertainty. Can we, with respect to any institutional issue that actually matters?

Let’s start with a certainty: the country is going broke—not in some distant future, but now. (It may be crass to inject that concern into a high-falutin’ constitutional debate; but then, this country started with a debate over debt and taxes.) Debts for Social Security, Medicare, and Medicaid will not be paid, because they cannot be paid. Public and private pensions won’t be paid, because they can’t be paid. Our retirement savings will be confiscated because that’s the only cash on the table; the only interesting questions are when and how. The Fed’s  policy of paying bondholders a return-free rate of risk is only the beginning of the more overt expropriation that’s to come.

To paraphrase a presidential candidate, I’m not terribly worried about the rich. Their safety net of deductions for mortgages and state taxes will survive; Grover Norquist and Chuck Schumer will see to it. More importantly, the wealthy can and do move their money offshore and equip their children to prosper anywhere in the world. But I do worry about the rest of the country. Somebody will have to tell the American people that the social bargain they thought they had was a polite lie all along, and that the game is up. Would a convention rise to the task?

I’m perfectly happy to concede—in fact, I’ve argued—that the country’s perilous state has something to do with institutional failures. Alas, I can’t think of an institutional remedy—and neither, it seems, can anyone else.  The proposed fixes (from more direct democracy to balanced budget amendments) range from ineffectual to pernicious. California has all that stuff; it’s not a model of good government.

If that’s right, and if rights are off the table, why are we having this debate? If it’s wrong, which structural proposal will do what (if anything) to curb the pathologies of our politics?

Reader Discussion

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on March 12, 2012 at 00:53:12 am

I think your penultimate paragraph is a bit too pessimistic. I believe a useful structure can result by observing a few basic concepts. You make a good start in excluding rights at the outset. We have a pretty good idea of what is responsible for the pathologies that you describe and even have a fair understanding of how to fix them.
A workable, and arguably improved, constitution should be drafted according to three Ps: purpose, principle, and priorities.
The purpose should be stated at the outset, because a constitution is not strictly necessary. A constitution is desirable because it is useful, and the quality of such a document can be measured by how useful it is in achieving its stated purposes. Since no one else posts on these threads, I'll take responsibility for defining the purpose. The purpose of the Constitution is to provide rules for creation and operation of a modern government, in a manner that protects the liberty interests of the people. The purpose of the Constitution is to make it difficult for insular interests to use the delegated power and authority of the government for private advantage, and to make operation of the government resilient in the face of national crises, including those caused by inept or venal officials. The purpose of the Constitution is provide predictability in citizens' interactions with the government.
Certain principles should guide how the structure of the Constitution should achieve its purposes. A system of checks and balances is essential, and a bedrock principle should be that no burdens can be placed on the people unless those burdens are specifically ratified by the legislative branch. I suspect that this is what the founders had in mind when they provided that the bills for the raising of revenue must originate in the house and that only Congress could declare war. This principle should be made explicit so that administrative burdens like EPA regulations, HHS mandates, and other executive branch adventures would have to be validated once they have been make explicit. It would also prevent courts from forcing school districts to raise taxes. Congress should not be able to delegate the imposition of burdens to the executive or judicial branches. This will make Congress be more disciplined in drafting legislation; if Congress does not provide remedies within particular bills, the courts cannot create their own. An analogous principle would be that all burdens imposed by Congress must be direct or not at all; no more "unfunded mandates." This will require a procedure for Congress to appropriate and identify the source of funds for any burdens placed on an entity that is not the federal government. A third principle: no one is indispensable or incorruptible; term limits for all. Another one: social programs are contracts between free citizens, not between citizens and their government. To the extent that government is involved at all, it is as a neutral referee, not a guarantor, financier or loan shark.
After the principles come the priorities. This is where feathers get ruffled, but too bad. The first should be uncontroversial: national defense. There is some subjectivity to others on the list, but I would make a functioning justice system number two, then infrastructure, public health, agriculture, energy, and only then medical care, education and social welfare. I think our Constitution should respect the fact that free people are generous, for the most part virtuous, and our better natures do not require government programs.
Get the purposes, principles and priorities down and the rest writes itself.

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z9z99
on March 12, 2012 at 13:51:47 pm

Gentlemen,

Of our US Constitution today, as it relates to a common person, which I am of sorts and to those I have as friends, is more of a mystery to them than to myself. I've been following this document and government theory for a few decades, more so in the last ten years. And, in this century alone, deep thoughts to our country and people in trouble have brought me to this place, and others, to find answers and hope.

Our Constitution is not at fault, but rather those who have abused the authority which they have been granted by way of election. The current folks in WDC and their predecessors, bear authorship to current nationwide conditions by more than their legislation. Their never ending need to engage in machinations beyond the scope of their election coupled with a large supply of remorselessness would have caused them great harm in times past. We do not use a National Razor, nor will we.

Nevertheless, my concern is to survive and help save the country. Therefore, I offer a few thoughts to get started. While I was steeped in conservative ways from birth, those ways along with liberal ways will not work exclusively. They simply will not work, regardless which is used. But, that's not what I'm here to discuss.

My View

The terseness and brevity of our Federal Constitution still holds favor, although much has been made to counter this lack elsewhere by way of statutes and codes and acts. To ask if this be reversed so as to be as state constitutions are, is to miss its value as it is, and to why we need to discuss this at all.

With much added beyond our slim document this last century, may I say this is a problem of sorts to some, for these manufactured parts weigh heavily just by being. But do they weigh less on typical and ordinary folks, friends, and neighbors ?

What we have had in the US Constitution is the basic necessary framework for which it was designed, and it is valued for this, and would even be so more if it were to be simply followed, rather than the people being led by it.

To say we have received a perfect document is not true, but its purpose was for a purpose which has been altered, mangled, misshapen, and as of today, is properly followed for the contrary purpose of its creation.

When authority is transferred to another party or place, there is more than a simple or complex trust created. Words fail me in describing what was and has been given when this document was ratified centuries ago, but its purpose was clear and is clearer today, as the people see it, or should see it. And to those who have received the document to follow by an oath, do not now see it as others once did.

This transformation of view is to the heart of our vexations of today. This transmogrified and juxtaposed set of variables is beyond the authorities granted by the people. We have not the control as is our right. We have more than simple concerns to which no remedy is to avail us. Our designed part, which we must exercise, has been left without its designed capacity, thus without its natural life.

This main constitution of ours’ is now in the hands of those who have continued on a path improper and harmful to us; all to ends we know not, nor care to, for they do so for their reasons alone, without the just and proper consent from citizens.

Our prized parchment is still valuable, but its current use and its current users are not. As throughout the last century, many violations from it exist and are couched, protected, and hidden behind structures it was designed to combat.

While I'm a simple citizen, of no fame and even less fortune, without the skills I see on these pages, without the degrees to lend weight for my attempts at communication, however, I see no reason to give up on the document in question.

Without honest assessments from various people throughout the nation as to how and when this Supreme Law of the Land returns to its Rightful Owners, discussion of when and how it might be refined or replaced holds less weight now under these un-natural circumstances.

The task at hand is to assist others in rightly sharing responsibilities provided by birth, and to rightly enable responsibilities provided by place, for founding anew lost capabilities to effect establishment again.

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Eric Hodgdon
on March 12, 2012 at 18:16:55 pm

'@ z9z99

"The first should be uncontroversial: national defense. "

By this you mean what ?

For me National Defense means Defense of the Nation; not voluntary offensive external conflicts.

There's been too much killing, nay murder, used in my name. Those international killing sprees Washington seems to think are good ideas, aren't. Their extremely fearful stance is without merit, without cause, and without an ability to apply knowledge in sufficient quantity.

Informing the people as to why those actions are required, is required. Yes, they say things, but not the whole story. Their crouching behind a mythical National Security matter only keeps the Nation at risk. Secrets breed contempt, especially when decent citizens expose the secrets and are then prosecuted for their patriotic deeds. Whistle-blowers are national treasures deserving praise.

An extremely fearful White House is a great danger to the Republic. Saying we are in a 'war' while our borders are wide-open, is, well, not an intelligent way to go about it. Imposing irrational, and inherently un-American laws, regulations, etc. only serves those using a fictitious enemy. But it does point a light towards our National Capital and White House, the sources of our discontent. Where else do our laws come from which restrain those desiring to harm others?

The rest of the world needs to mature by finding their own solutions. We call it the old world, but is it wiser? Our Federal government also needs to mature past its petty-two-party-nanny-police-state-system, and they are no wiser than the old world.

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Eric Hodgdon
on March 13, 2012 at 01:04:36 am

Hi Eric.

By national defense, I mean just that: ability to raise armies,maintain a navy and air force, provide for the power to declare war, commission officers of the armed forces, etc. The remainder of your post seems to me to be directed at another issue--constitutional limitations on the use of military force.

I believe analysis of your concern must again derive from basic principles. The first is that the defense of the United States must be effective, and this requires a degree of flexibility that, while necessary to respond to unanticipated threats, also creates a power that can be abused. We currently have just such an inelegant dichotomy where Congress has the power to declare war, but the president is commander-in-chief of the armed forces, even absent a declaration of war. The question is whether there is a Constitutional remedy to avoid imprudent and frankly disastrous military entanglements, and if so, is it a good idea?

Experience tells us that military adventurism, like the Athenian Sicily campaign, Charles II's invasion of the papal states in the 15th century, Aztec hegemony, the Mexican-American war, Fascist Italy's foray into Ethiopia, etc., etc., is common and not restrained by democratic virtue. Countries have interests and ambitions, and sometimes these involve military action. A pacifist Constitution like Japan's would likely not be feasible for the United States, for the simple reason that the United States fulfills some of the Japanese defense needs, and there is no one to perform the analogous function in our behalf. Preemptive limitation on military options would likely have unintended consequences and not provide the desired restraints. There is likely no practical, direct constitutional mechanism that would exclude the type of military adventurism that you denounce.

Our experience also tells us that a constitution that requires, or even permits political micromanagement of military action has drawbacks, as does excessive deference to presidential authority. The Athenian government's meddling in the Sicilian campaign, Carthaginian politics in the second Punic war and the American experience in Vietnam all demonstrate the perils of inviting overt political management of military action. There are competing interests between democratic assent to armed conflict and deference to a functional command that is not doomed by domestic political affairs. These conflicts are likely to be situation dependent and therefore cannot be resolved prospectively by Constitutional draftsmanship.

A Constitution really should not micro-manage anything. It should be an operation manual that describes how political conflicts are settled, not a scrapbook that codifies the results of those conflicts. The Constitution should not enshrine sentiments or dogmas. It should consist of the minimum necessary to achieve its stated purposes.

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z9z99
on March 13, 2012 at 01:05:58 am

Hi Eric.

By national defense, I mean just that: ability to raise armies,maintain a navy and air force, provide for the power to declare war, commission officers of the armed forces, etc. The remainder of your post seems to me to be directed at another issue–constitutional limitations on the use of military force.

I believe analysis of your concern must again derive from basic principles. The first is that the defense of the United States must be effective, and this requires a degree of flexibility that, while necessary to respond to unanticipated threats, also creates a power that can be abused. We currently have just such an inelegant dichotomy where Congress has the power to declare war, but the president is commander-in-chief of the armed forces, even absent a declaration of war. The question is whether there is a Constitutional remedy to avoid imprudent and frankly disastrous military entanglements, and if so, is it a good idea?

Experience tells us that military adventurism, like the Athenian Sicily campaign, Charles II’s invasion of the papal states in the 15th century, Aztec hegemony, the Mexican-American war, Fascist Italy’s foray into Ethiopia, etc., etc., is common and not restrained by democratic virtue. Countries have interests and ambitions, and sometimes these involve military action. A pacifist Constitution like Japan’s would likely not be feasible for the United States, for the simple reason that the United States fulfills some of the Japanese defense needs, and there is no one to perform the analogous function in our behalf. Preemptive limitation on military options would likely have unintended consequences and not provide the desired restraints. There is likely no practical, direct constitutional mechanism that would exclude the type of military adventurism that you denounce.

Our experience also tells us that a constitution that requires, or even permits political micromanagement of military action has drawbacks, as does excessive deference to presidential authority. The Athenian government’s meddling in the Sicilian campaign, Carthaginian politics in the second Punic war and the American experience in Vietnam all demonstrate the perils of inviting overt political management of military action. There are competing interests between democratic assent to armed conflict and deference to a functional command that is not doomed by domestic political affairs. These conflicts are likely to be situation dependent and therefore cannot be resolved prospectively by Constitutional draftsmanship.

A Constitution really should not micro-manage anything. It should be an operation manual that describes how political conflicts are settled, not a scrapbook that codifies the results of those conflicts. The Constitution should not enshrine sentiments or dogmas. It should consist of the minimum necessary to achieve its stated purposes.

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z9z99
on March 14, 2012 at 03:16:58 am

Michael S. Greve,

It’s taken me a few days to respond to your Saturday post more directly.

From my vantage point and knowledge of events around the country, a good portion of which do not get reported in typical mainstream media, I don't see the problems of today the result of the Constitution, but of its long-term misuse.

A misuse which could occur no matter how a new Constitution could be crafted to prevent such. 'The pathologies of our politics' which you refer to are correct, as I see what has transpired. An examination here could be quick if all reading this, know their history, for I'll try to inject little extra, or not draw to many conclusions.

But, how far back do I go? Simply, as time passed and the country grew at its rapid pace, stuff happened to cause expediencies to take hold. A Civil War, freed humans from slavery, immigrants in numbers, wealth exploded. TR's period took a big step, WW1, Wilson, our first big bull and bust. ( While 1873 had its moments ) We know what FDR's period did to set programs in stone. From WW2 we should know the rest very well. I was born a month before Sputnik.

To draw conclusions from these events, I could say two things.

One, the influx of large sums of money caught the eye of the elected, and as kids in a candy store......

Two, the means to create those large sums of money were not recorded to those who were the creators.

So, today the average citizen is starving and suffering the stomach-ache from others eating the candy.

Before one labels my words with an ism, consider our current ism first.

Capitalism is fine in certain situations and for limited usage. Such was the required need to expand at certain times in our past. Prolonged use of Capitalism is harmful unless it is closely monitored. By this I mean, businesses, companies, and corporations, can not be allowed to enjoy unrestrained actions, and certainly not forever*. It does not work.

Economic Anarchy is still Anarchy, and unleashing things so brought the results, as predicted. If this unleashing had been for a force of good to be enjoyed by most or by all, then fine. More so, if it were planed and accepted so, we, the people, would not regret the current outcome.

Instead, from the depths of unrestrained passions, allowed ill behaviors, which the purpose of government was created to harness, in both economic and political spheres went berserk in their desires.

So, I see no invalidation of our Grand and Illustrious document, but that of the immoral fiber of those who swore to protect it and their all to happy assistants.

I would be glad to say the citizens are ready to protect their Supreme parchment, and to make ready six to ten adjustments to insure their survival, security, happiness, and purpose, but I find no active concern or ready abilities in my fellow citizens to effect a common sense.

Dedication to the Constitution or make a new one?. I'd prefer the former. However, this is not the source to which we should be looking to. As I've indicated, it's the people entrusted with our authority who have failed us. And, again, can any Revered Framework scribed on velum hold back assaults by itself?

So, as I retire from this piece, I find I agree with you. And that I've written some amendments to bring the elected closer to the electors in physical locations around the Nation. With my engineering type of background, I saw a need for basic structural re-enforcing in a few areas. While these suggested additions are not entirely my own, some are. Recent exposure elsewhere returned very little in comment. I hesitate here only in a place to put them.

* With the Earth a physical finite, constant and continued growth is largely impossible, regardless of other considerations. How much growth in population Earth could sustain without imports is an unknown. Currently, we have no developed source of imports, however, we could aim to develop in that area in order to address our prolonged survival past current planet-bound constraints.

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Eric Hodgdon
on March 15, 2012 at 04:00:39 am

Hello z9z99,

Thank you for the comments. I see your knowledge of history is more than fair. Good.

What's below is not aimed at you or our hosts. It's how regular people see one the effects of under-representation. I've tried to remove emotional parts, but decided to leave them in, because without them the feedback is lost. I don't merely write for theoretical discussions, but also to address my fellow Americans, of a different sort than I can find amongst the sagebrush around my house.

I understand defense and its requirement at times, however, we are not at war, nor under attack. I strongly sense fear from those on the East Coast. In Nevada, I'm sorry to be blunt and seemingly insensitive, but 9/11 was not a big deal. Yes, it was tragic, diabolically fiendish, people died. However, it’s not war. There may be some sort of conflict, but when our borders and entry points are open, and it seems anyone can come in, we are not at war.

The silliness and paranoia from Washington is wearing mighty thin, and has caused more and un-necessary displeasure to citizens out here. From the start, the notion of an idea as a target, discredited the Federal government and reduced them to oppressors.

Accepting the torture of anyone, anywhere by this country is more than unacceptable it is ‘criminal.’ I don’t care what reasons are given, it’s a sick and degenerate practice. Doing those acts lowers our society even further.

When citizens become grossly under-represented, the final check is absent. When it’s said the Federal government can indefinitely detain a citizen without charge, when it’s said the Federal government can target and kill anyone, including Americans, in the world without trial or charge, we don’t have government.

These issues harm us all. This Federal government, claiming authorities beyond civilized norms, claiming authorities which do not exist, have reduced the value of human life world-wide.

What we, the people, can do, must do, which I’ve started, is to fight this illness created by our Federal government.

I do not fear doing what is right and proper. My fear is knowing the apathy surrounding me.

So, if 9/11 is a big deal to some, the reaction to 9/11 is a big deal to others. We can work together to install new safeguards. We can work to exercise authorities dormant for centuries. For two these tasks, I’m available.

I’ll try to be more high-falutin’ next time. Right now, I need a shower.

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Eric Hodgdon

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