Archives for June 2018

Article II, Section 2, Clause 2: “He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

Originally published in the “90-Day Study of the Constitution,” Constituting America, April 27, 2010.

 

As Publius reminded his readers in the forty-seventh Federalist, Montesquieu called the Constitution of England “the mirror of liberty”—so esteemed for its separation of governmental powers. So long as no one person or set of persons can exercise legislative, executive, and judicial powers, neither king nor aristocrats nor commoners can dominate the country. In the United States, where everyone is a commoner, separation of powers remains relevant to the sustenance of liberty. If “the accumulation of all powers” in “the same hands” can “justly be pronounced the very definition of tyranny,” then even a cabal of commoners might so empower themselves, serving as lawgivers, judges, jurors and executioners over their fellow citizens.

But if separation of powers serves as an indispensable bulwark of political liberty (Publius continues), one must understand it rightly, as Montesquieu did. Montesquieu “did not mean that these departments ought to have no partial agency in, or no control over, the acts of each other.” He only meant that no one department may “possess the whole power of another department.” To make the three branches of government entirely independent of one another would amount to making three distinct governments—uncoordinated, ineffective, hardly able to govern at all. No person or persons could be held responsible for government action or, more likely, inaction.

The president’s power to make treaties and nominations exemplifies these principles of liberty and responsibility. Under the Articles of Confederation, Congress negotiated treaties. This required the dispatch of one or more delegates, thus depriving one or more states of representation. On the other hand, a treaty, once ratified, is law—indeed, a supreme law. The executive branch must not legislate. Further, if treaties are laws disputes will arise requiring judicial attention—the province of neither legislature nor executive. If neither the Congress nor the President alone can assume the responsibility of treaty making, the only remedy can be to divide treaty-making into two parts, assigning each part to a different branch.

Then there is the matter of federalism. Treaties are the nation’s business, but do the states not want their interests represented, as well?

The Framers’ solution: the executive branch will negotiate treaties; the Senate will ratify them; the Supreme Court will adjudicate cases arising under them. But this separation of powers and duties does not and cannot imply isolation of powers and duties. Senators can advise the president on the treaty (before and after negotiations); although negotiations themselves ought to be confidential; they can then consent or ratify the treaty resulting from those negotiations. Thus both branches exercise mutual control over treaties without interfering with or encroaching upon one another.

The same goes for presidential appointments. Who will control the apparatus, the administration, of the American national state? Not Congress directly: As James Wilson argued at the Convention, “a principal reason for unity in the Executive was that officers might be appointed by a single, responsible person,” thus avoiding “intrigue, partiality, and concealment.” At the same time, complete presidential control over appointments could allow a president to create offices and fill them with his favorites—the very definition of ‘corruption’ as the term was used in the eighteenth century, and one of the most frequent complaints against monarchy. (Recall the words of the Declaration of Independence: King George III “has erected a multitude of New Offices, and sent hither swarms of Officers to harass our People, and eat out their substance.”) Again, the solution was to divide and correlate two powers, giving nomination to the president and appointment to the Senate. The sovereign people can clearly observe both of these governing actions and finally hold their representatives responsible for them.

The construction of the presidential powers of treaty-making and of nomination addresses the crucial issues of the character of the American regime and the structure of the American state. The people retain their sovereignty through their elected representatives. No one set of representatives governs without restraint from other sets of representatives. Through the Senate, the states have a decisive ‘say’ in both international lawmaking and the composition of the national administration. Both republicanism and federalism are preserved.

Article I, Section 3, Clause 1: “The Senate of the united States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.”

Originally published as part of the “90-Day Study of the U. S. Constitution,” Constituting America, February 28, 2011.

 

Publius famously asserted that “the science of politics” had “received great improvement” in modern times. (Some fifty years later, Tocqueville rather more dramatically—he was French—called for “an new political science for a world altogether new.”) The newness of American politics and of American political science consisted of two things: first, our freedom from rule by monarchic dynasties and titled aristocrats; second, our freedom from the already formidably centralized governments of Europe. The “New World” that Europeans had ‘discovered’ was new to them; what they had discovered was of course a very old world populated by Amerindian nations and tribes. It was new to the Europeans. The real newness of the New World arose from the politics of the European settlers, governing themselves largely unsupervised by European ruling classes and institutions.

Freedom from monarchs and aristocrats meant that Americans could found a regime not seen since antiquity, a republic in which the people were sovereign, with no admixture of any families or classes that claimed a superior right to rule. For example, although most states required property ownership of voters and office-holders, nothing but ill luck or incapacity barred today’s pauper from property ownership and full citizenship rights tomorrow. The socially egalitarian regime of the United States could better reflect the natural equality of human beings enunciated in the declaration of Independence, vindicated in the revolutionary war for independence.

Political communities coalesce not only in the form of their regimes. They also form themselves as relatively large or small societies in terms of population and territory and as relatively centralized or decentralized with respect to their ruling structures. The polis of ancient Greece, small and centralized, contrasted sharply with the contemporary empires of Persia and of China—huge but decentralized entities which gave their provinces substantial latitude for self-government because they had to. In antiquity, no ruler commanded a ruling apparatus that could do much more than exact tribute from the peoples it conquered, quell uprisings among them, and defend imperial borders.

The modern state changed this. Envisioned in principle by the Italian Renaissance writer, Niccolò Machiavelli, and put into practice by the tudor dynasty in England, the Bourbon dynasty in France, and many others, the state combined some of the size of an empire with some of the centralization of the polis or ‘city-state.’ With their standing, professional armies funded by revenues collected by state employees or ‘bureaucrats’ from societies whose energies were funneled into commercial acquisition, and industrial productivity spurred by the new, experimental science aiming at the conquest of nature—all guided by reformed financial institutions—states quickly became the most powerful political entities ever seen.

The American Founders needed to frame a modern state in order to defend American citizens from the statist empires of Europe that still bordered them to the north and south, and also from the still-powerful Amerindians in the west. As we know, they wanted a republican regime for this state. But could a centralized, modern state have a republican regime (and keep it, as Benjamin Franklin pointedly remarked)? Did the centralized ruling apparatus of modern statism not lend itself to the rule of the one or of the few? European statesmen thought so; for the next century, they expected the new republic to implode. On occasion, it very nearly did.

The invention of statesmen devising a new political science for a new world, the United States Senate answers these questions, both with respect to the regime of republicanism and the polity of statist confederalism.

At the Philadelphia Convention, the Framers eventually agreed that the unicameral legislature of the Articles of Confederation should be replaced by the bicameral legislature that had been most copiously advocated by John Adams in his treatise, Defence of the Constitutions of the United States. Gouverneur Morris of Pennsylvania argued for bicameralism as a pillar of what Aristotle and other classical political philosophers had called a ‘mixed regime’—one that balanced the rule of the few who are rich with the rule of the many who are poor. The Senate, Morris said, ought to represent the interests of the commercial oligarchies consisting of urban merchants and financiers as well as country gentlemen. The House ought to represent everyone else—particularly the middling classes of small farmers and shopkeepers. “The two forces will control each other,” providing “a mutual check and a mutual security,” Morris asserted. The British Constitution exemplified such a mixed regime, albeit with a House of Lords—titled aristocrats—not American-style commoners who happened to be wealthy. John Dickinson of Delaware hoped that the Senate would “bear as strong a resemblance to the British House of Lords as possible.”

James Madison of Virginia saw the regime implications of the Senate more clearly. The Senators would represent no particular class or caste; they would represent the constituent states of the United States. Without titles of nobility (banned in the Constitution) or any other set standard of wealth, the senators as such would have no interests separate from those of the people. The Senate therefore would fit easily into a pure or unmixed republic. At the same time, the six-year terms of office would lend the Senate some of the virtues of an aristocracy: steadiness of purpose, the tendency to take a longer view of things that was unlikely among the representatives in the more democratic House, with their biannual re-election worries.

The design of the Senate also addressed the dilemma of statism. Under the Articles of Confederation, the country had suffered from the inefficiencies, injustices, and dangers of excessive decentralization. At the Convention, however, delegates from the smaller states in the Confederation feared relinquishing any more of their sovereignty, fearing domination by the large states. The Framers had already tied the House to the democratic principle of proportioning the number of representatives from each state to the size of its population. Large-state delegates advanced the Virginia Plan: a bicameral legislature, membership of both houses being determined by population. Small-state delegates countered with the New Jersey Plan, which would have retained the Articles of Confederation’s unicameral legislature, with one vote per state. All accounts of the Convention emphasize that the debate between small-state and large-state delegates consumed more time and energy than any other item. How could the small states defend themselves in the new legislature without sacrificing the just, republican claims of the large states?

The answer—called the Connecticut Compromise because advanced by Roger Sherman of that state but also propounded by Dickinson—stipulated bicameralism but with two different modes of election that satisfied both sides and also guaranteed the independence of one house from the other. If the senators were selected by the House, the Senate would have no independence and bicameralism would be nominal; if Senators were selected by voters in each state they might prove better demagogues than statesmen. The compromise established that state legislators choose the senators. The legislators would have every reason to send their ablest men to defend the interests of their state in the national capital—men of “distinguished characters,” as Dickinson put it. For his part Sherman joined George Mason of Virginia in arguing that confederal union must give each state—especially the small ones—the means of defending themselves within the national councils.

Setting the number of each state’s senators at two accomplished all of these purposes. As John Randolph of Virginia argued, a Senate smaller than the House would be “exempt from the passionate proceedings to which numerous assemblies are liable”; the more intimate chamber would conduce more to deliberation than to verbal pyrotechnics. This comported with the ‘aristocratic’ character of the Senate. At the same time, delegations of two senators instead of one reduced the risk of a state being disenfranchised by accident or illness. Finally, giving every state an equal number of senators calmed the fears of the smaller states; confederalism would sustain them, not overwhelm them.

By designing the United States Senate, the Framers thus addressed both the ‘regime’ questions and the ‘polity’ question. The Senate reinforces the republican regime by providing an institutional platform for deliberation and steadiness of purpose that a large, unicameral legislature might lack. The Senate also reinforced a confederal polity—a modern state sufficiently centralized and powerful to defend itself in a dangerous world, but sufficiently responsible to its constituent political parts to prevent that centralized power from usurping the right and duty of self-government.

Harold Meyerson: “When Tea Party Wants to Go Back, Where Is It To?” The Washington Post, October 27, 2010.

 

Only a few days before the elections, after what—one might have thought—saturation levels of news and of opinion centering on the ‘Tea Party Movement,’ a weekly columnist for the nation’s leading newspaper for political coverage, a man named one of the 50 “most influential commentators” in America by The Atlantic Monthly, still doesn’t get it.

Harold Meyerson serves as vice-chair of the National Committee of Democratic Socialists of America; he edits The American Prospect; he gets booked frequently on radio and TV talk shows; he publishes in The New Yorker, The New Republic, The Nation. Everyone who thinks he’s anyone thinks he’s an expert on politics—very much including himself.

But when it comes to the Tea Party, Mr. Meyerson has yet to find a clue. As a socialist, he may be waiting for a subvention. Although not currently employed by a government agency, I can still help—if not materially then at least spiritually.

He likes the Tea Party slogan, “Take our country back.” But he doesn’t know what it means. Here’s what he wants to mean….

The Harold Hypothesis. Mr. Meyerson supposes that the Tea Partyers want to take America back in time. Writing in the WaPo, he tells us: “When the Tea Partyers say they want to take the country back, they mean back to the period between 1950 and 1980, when the vast majority of Americans encountered more opportunity and security in their economic lives than they had before or since.” They blame Franklin Roosevelt and Woodrow Wilson before him, for “the New Deal order” that has (they imagine) ruined the American economy in the long run.

Poor, deluded TP’ers. They don’t know that the New Deal Order “produced the only three decades in American history—the aforementioned 1950-1980—”when economic security and opportunity were widely shared”; when labor unions really protected the workers and the G. I. Bill surged a generation of Americans into the universities; when Americans’ average income soared 75%. Alas, what FDR built Ronald Reagan tore down; thanks to him, “America’s claim to being a land of opportunity has become a sick joke” as “the average income of Americans in the bottom 90 percent of the population flatlined” for the subsequent thirty years and counting.

I resist the temptation to dwell upon Mr. Meyerson’s economic history, other than to remark that anyone who remembers the 1970s as a time of economic vitality in doesn’t remember the 1970s. And it might just be that America’s economic dynanism in the Fifties and Sixties had rather more to do with the collapse of all market-exclusionary empires (except for that pesky socialist one centered in Moscow) and the consequent expansion of trade in goods produced by the one major country whose manufacturing base survived and indeed thrived during the Second World War. It’s a bit unfair to expect a social democrat to offer a sensible account of production and distribution, so I pass on quickly to….

The Meyerson Mistake. Rather, Mr. Meyerson’s more serious error is (of all kinds, given his reputation) political. When Tea Partyers say they want to “take our country back” they’re not talking about leaving it to Beaver in a fit of back-to-the-future nostalgia. They’re talking about self-government.

It helps to take the trouble to listen to Tea Partyers. They’re talking about taking the country back from the kind of folks who’ve followed the career arc of so many of the country’s top politicians, bureaucrats, educators, and pundits—the arc traced by the New Dealers and, yes, Wilsonian Progressives before them. Groomed in the leading universities, taught there that the American Constitution ought to ‘evolve’ or ‘develop’ along a path toward ever-increasing social and economic egalitarianism, the leaders of the new republic, the seers of the American prospect, have long congratulated themselves for knowing where historical progress shall take us, with them guiding us along.

You demur? But then you must be a “reactionary,” no? A dupe of sick jokesters?

The Tea Partyers propose to take the country back from those who know best —including those who say they know that New Dealers led Americans to prosperity. The professional elites have wanted to run the country for more than a century, and have to some extent succeeded in running its schools and many of its other ruling bureaucracies. Theirs is the ox the Tea Partyers aims to gore.

Were they not so inexcusably retrograde, Tea Partyers might be forgiven by the leaders of public opinion for suspecting that those leaders do not so much misunderstand “Take our back,” as deliberately misconstrue it. It may be that the inheritors of the New Deal and of Progressivism know very well that the Tea Partyers would indeed take the country back from the decent people, the forward-looking people who prefer to write Constitutional law as they go along, without inconvenient reference to all those wig-powdering, slave-driving Founding Fathers and their obsolete intentions about limited government.

But we need not be so uncharitable. It may be that today’s Progressives really don’t get it, that their cluelessness about the Tea Partyers and their intentions is entirely sincere. After all, if one assumes that something called ‘History’ is taking us all somewhere that’s very, very good then one might also consistently interpret one’s critics as desperate losers engaged in a futile but damaging attempt to hold all of that back.

We have here a dilemma for progressives. Either they don’t ‘get’ popular self-government or they ‘get’ it all too clearly but prefer to patronize its defenders, hoping they will soon fade back into the obscurity whence they came. One way or the other, a reckoning comes this Tuesday, and this time the real political issue will likely stay with us for a while longer than the Progressives would like it to.