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October 24, 2007

My Commenters Is Smarter Than I: Federalist Papers Edition

In response to my suggestion that the president has no incentive to voluntarily abdicate power, and that Congress has to assert itself, DAS writes:

Indeed. Don't people take high school civics anymore? I do seem to remember something in the Federalist papers about "ambition being made to check ambition". The whole point of our system is that we avoid tyranny by making it in the President's political interest to assert power over Congress and in the political interest of Congresscritters to make a stink and check and balance the President (e.g. Harry Truman gaining political power by investigating matters related to the executive branch).

The real problem in our system (and the triumph of the GOP's denigration of "politics" and government) is that it's no longer in a politician's interest to make waves. Where before people would say "that Harry Truman -- sure he's only doing it for political reasons -- but let's reward him politically for doing such a good thing", now they'll say "oh that Henry Waxman -- he's only doing it for political reasons" and dismiss it thus.

And Josh G. writes:

The fundamental problem is that, when they wrote the Constitution, the Founders failed to foresee the emergence of political parties (which they disapproved of). Checks and balances between branches don't work if the leaders of the different branches are all from the same party. The Framers placed a big bet on the nonexistence of the party system, and they lost. This became clear as soon as 1800, when the Constitution had to be amended to change the Presidential election process after the Burr/Jefferson fiasco. That, unfortunately, also eviscerated the impeachment process because it meant that another member of the President's party would take power. Meet the new boss, same as the old boss. Do you think the Democrats might have worked harder to push for impeachment if it meant that Kerry would become President rather than Cheney?

October 24, 2007 | Permalink

Comments

See federalist #10. They thought they'd designed a system that would reduce the influence of political parties due to regional representation, the idea being regional interests would trump factional interests. It didn't quite work out that way, as Josh says. Now that we've had a couple hundred years to observe this, perhaps a different structure, such as super-regional pools of representatives, would be something to consider at the next constitutional convention. (*cough*) That and making representation in the Senate democratic.

Posted by: me2i81 | Oct 24, 2007 2:16:17 PM

While Josh makes an excellent point about impeachment (indeed, would the House have moved to impeach Nixon had Agnew still been VP? Would they have impeached Clinton if they thought the Senate would convict?), I have to take issue with what he says here:

Checks and balances between branches don't work if the leaders of the different branches are all from the same party.

It doesn't work if the congressional majority behaves as an auxilliary to the administration, as the Republican congress did from January of 2003 till the end of 2006. But that hasn't been the norm, has it? It certainly wasn't in Bill Clinton's first two years in office, or in Lyndon Johnson's last two or three. Or during Carter's term in office. Hm. Maybe it's a Republican thing. I'm not old enough to remember Eisenhower's first term, when the Republicans last controlled the presidency and both houses of congress, nor have I read any serious history of the period, but I really rather doubt that the Republican congress of that time behaved anything like the Republican congress of 2003-2006.

Posted by: Herschel | Oct 24, 2007 2:24:10 PM

Actually me2i81, I think you mean that the greater number and more varied the provincial interests' whose concurrence was necessary the greater the amelioration of the effects of factionalism. So it's really more accurate to say that NATIONAL interests would trump factional or regional influences. That is what Madison says here in #10:

"The other point of difference is, the greater number of citizens and extent of territory which may be brought within the compass of republican than of democratic government; and it is this circumstance principally which renders factious combinations less to be dreaded in the former than in the latter. The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other. Besides other impediments, it may be remarked that, where there is a consciousness of unjust or dishonorable purposes, communication is always checked by distrust in proportion to the number whose concurrence is necessary."

This is why the weakening of the federal government and devolution of power to the states is more likely to result in the oppression of the minority by the majority. The more localized the sphere of control, the easier it is to gain majority acceptance for policies which fail to protect the rights of the minority.

Posted by: H.L. Mencken | Oct 24, 2007 3:14:34 PM

but DAS's examples shows the limits of Josh G.'s point:

it's true that political parties are a nightmare that hamilton and madison did not foresee. but there were several centuries there when we had political parties, *and the branches still checked each other*.

there were decades there when powerful senators or powerful speakers of the house managed to make life hell for the executive branch, when ambition was still being made to check ambition, roughly as madison wanted, even in the presence of political parties.

so to explain the complete collapse of oversight right now, something more than political parties must be invoked: they have been around a long time, and this complete collapse is of more recent vintage.

the question should be: what did clay get, what did calhoun get, what did dirksen, o'neill, and every other powerful speaker or senate king-pin get, that gave them a stake in bucking their party or their president? and why is that no longer available to their successors?

why did hastert fall into line, or delay? why did those guys so thoroughly do the bidding of president and party, when their predecessors did not?

i sometimes suspect it has something to do with the increased nation-wide scope of media campaigns and fund-raising. maybe in the old days, the senator from cornpone was untouchable, even if he wouldn't play ball with the national party, whereas now any elected official can be crushed if their party turns against them?

i really don't know. all i know is that parties have been around since 1800, and this problem, in this severity, has not.

Posted by: kid bitzer | Oct 24, 2007 3:33:05 PM

Heck, Ezra ... I'm not smarter than you. Your gracious quoting of me is just probably a case of Irvine-centrism (me: UCI, class of '99). I'm flatter though, and thanks for the compliment.

Anyhoo, Kid Bitzer made roughly the point in defense of myself that I was just gonna make: when Truman was investigating certain matters of war conduct, a Democrat was in charge.

I have some ideas about answering the implied questions in Kid Bitzer's closing lines, but I shall go Fermat on y'all and say that I could write them in the margin, but I won't ;)

Posted by: DAS | Oct 24, 2007 3:53:31 PM

"I'm flatter though"

nuh-uh: i'm flatter, not you.
you're like, practically volumetric, dude.
but i'm glad my point helped, and i hope you come back and give us at least an outline of the proof.

Posted by: kid bitzer | Oct 24, 2007 4:05:49 PM

Yeah ... I shoulda previewed and checked for typos before I posted. I used to be very flat, though ... now I am getting a little bit chubby and can no longer make blanket statements about my flatness.

I hide my weight, well, though: people still think I'm thin.

*

Basically, what I want to say is that one of the key changes is the "Southern Strategy" which brought together regionalism, ideology and partisanship in the GOP in ways they had not been unified before in either party (e.g. before then, rich Northerners and rich Southerners may have shared ideology, but neither regional nor partisan affiliations, etc.). The other key change being the success of an ideologically motivated denigration of politicians, well, being politicians, including the rise of High Broderism, etc. This creates a perfect storm where a party like the GOP is exactly the sort of unified party which the Founders feared while any opposition is dismissed as "political" rather than celebrated as opposition.

Politicians like to be elected, eh? If the media, etc., environment was such that they felt it would help, rather than hurt, their chances to be re-elected by being an opposition figure, they'd do that. Part of making ambition challenge ambition (c.f. Federalist #10) is, well, rewarding the ambition.

I would rather say this more coherently than I have, but whenever I try to be more explanatory, I end up drifting into rambling ... which is why I went all Fermat on y'all last time ...

Posted by: DAS | Oct 24, 2007 4:20:04 PM

On the question of parties and partisanship: the constitutional answer, albeit one hamstrung quickly and slowly along the line, was staggered terms. Members of the House are theoretically forced to deal with the short-term, Senators deal with the long-term, the preznit sits in the middle. That doesn't foresee perma-campaigning or the role of gerrymandering and TV, but the stagger still exists.

It does make you wonder whether a Senate appointed from state legislatures might be more inclined to offer resistance to the executive (and the House).

Josh G.'s point about impeachment, though, is a kicker: there is basically no way to get rid of a shoddy executive branch, because the line of succession goes through a Veep who's of the same party and a Speaker who's presumably involved in the impeachment process. There needs to be a better mechanism to get rid of a president and put another one in place, and the modern answer would probably be some kind of triggered recall election.

Posted by: pseudonymous in nc | Oct 24, 2007 5:04:24 PM

"triggered recall election"
right; which would be pretty much functionally equivalent to a vote of no confidence in a parliamentary procedure.
might be a step in the right direction.

Posted by: kid bitzer | Oct 24, 2007 5:16:36 PM

Analytically, kid bitzer's point looks correct and answers why things are different in the Hastert era and beyond. Money is now so important that the national party can crush many a local candidate. (Due to effects of media, technology, campaign finance etc.)

In effect, money is now the #1 factor in re-election and the national parties control a lot of the purse strings, especially for primaries.

Posted by: Meh | Oct 24, 2007 5:52:17 PM

Here is an idea for a constitutional amendment. Ditch the post of VP. Have the 2nd place contestant in the presidential pageant get an at-large seat in the Senate that he leaves if the Pres is impeached. He is not allowed to vote on an impeachment proceeding.

Posted by: Chris Beck | Oct 24, 2007 5:54:19 PM

There needs to be a better mechanism to get rid of a president and put another one in place, and the modern answer would probably be some kind of triggered recall election.

Shorter Brendan: "I'm not winning the game so can I please change the rules?"

Posted by: El Viajero | Oct 24, 2007 6:16:04 PM

i sometimes suspect it has something to do with the increased nation-wide scope of media campaigns and fund-raising. maybe in the old days, the senator from cornpone was untouchable, even if he wouldn't play ball with the national party, whereas now any elected official can be crushed if their party turns against them?

Along the same lines, industries are now multinational and therefore interact with the United States at the national level rather than by region. This was the importance of the K Street Project, which gave good Republicans a single, unified system of graft and sinecure rather than having each Senator or Congressman in the pocket of a different industry. (Business doesn't necessarily like this, by the way, because national parties are much better at shaking them down than parties ever were before. They're paying a lot more for their legalized bribes than they used to.) So it's not just that the national party can crush you if you cross it; it is also in charge of greasing you during and after your term in office, more than was ever the case in the past.

Finally, you also have to look at what powers Congress really gave up and what they held onto. Earmark spending exploded under the Republican Congress. So they gave up some power over starting and stopping wars, snipped a few amendments out of the Bill of Rights. They kept control over who got which water project, highway, or museum, which contractors got which no-bid deals. Look to the privileges they're actually using, not abstract notions of institutional power.

Posted by: Antid Oto | Oct 24, 2007 7:17:19 PM

bing! i think antid oto has the answer.

"They kept control over who got which water project, highway, or museum, which contractors got which no-bid deals."

there i was up above asking:
"what did clay get, what did calhoun get, what did dirksen, o'neill, and every other powerful speaker or senate king-pin get, that gave them a stake in bucking their party or their president? and why is that no longer available to their successors?"

and antid oto shows that's the wrong question altogether. the recent crop of people on the hill got everything that clay got and o'neill got. they got it all *without* fighting the white house for it.

the white house just said "sure, take it, don't worry about paying: we're charging it to the future. we won't veto a dime. just don't get in the way of our shredding the constitution and fighting wars whenever and wherever we feel like it."

so ambition has not checked ambition, because the congressional ambition to bring money back to the district has met no opposition in any case.

man. is there *any* aspect of the founders vision of checks and balances that these bastards have not been able to subvert?

Posted by: kid bitzer | Oct 24, 2007 9:56:36 PM

El Vagina Dentata appears more confused than usual.

The ability to replace the chief executive in extraordinary circumstances without resorting to violence is an important one. This ability de facto does not exist in the American system. This is a problem, regardless of party.

And I do think Antid Oto makes a very important point about the returns that Congresscritters have received in lieu of their consitutional duties/powers. They're the ones that keep them elected.

Posted by: pseudonymous in nc | Oct 25, 2007 12:11:54 PM

The ability to replace the chief executive in extraordinary circumstances without resorting to violence is an important one.

We have that already. It's called indictment by the House and conviction by the Senate. All you have to do is get enough people to agree with you on how bad transgressions are.

Brendan can't get enough people on board with his beliefs. No one from either major political party is espousing this. It shows that your beliefs are radical and extreme.

Posted by: El Viajero | Oct 25, 2007 2:49:09 PM

Like I said, El Vagina Dentata is a confused individual. He appears to be holding a conversation with someone else. Poor schizoid man. Perhaps he'll get banned again and come back under another identity.

We have that already. It's called indictment by the House and conviction by the Senate.

And that has happened... ah, yes. Precisely never. For the reasons outlined in the thread so far. It's an obsolescent clause.

All you have to do is get enough people to agree with you on how bad transgressions are.

Ah, right. And I'm sure you believe that if you close your eyes and wish very very hard, your dreams will come true.

Posted by: pseudonymous in nc | Oct 25, 2007 3:25:48 PM

Regarding impeachment, etc., I refer you to an anecdote by one Hunter S Thompson regarding why Nixon wasn't impeached. This is in one of his collections, which is at home while I'm not, so I'm going on shoddy memory here, but I think the idea is sound no matter if I get the numbers a bit fuzzy.
Anyway, Thompson seems to have sat down with a list of all 100 Senators and checked off which would, upon impeachment, vote to convict, which would absolutely not vote against Nixon no matter what, and which were slimy enough to be "fence sitters". And he came up with 60 ayes, 35 nays, and 15 scumbags (this is the part I can't quite remember. The numbers are probably slightly different. So it goes). And Thompson, being the cynical bastard that he is/was, realized that anyone who didn't have the stuff to swing nine votes their way never would have become president in the first place. The Senators in question presumably realized this as well.

This obviously does not reflect well on our political system, I understand.

Posted by: jonathan | Oct 25, 2007 3:53:00 PM

The Supreme Court's members are supposed to be gifted legal scholars, not ideologues of any persuasion. Through the application of logic and legal precedent laws evolve as a society matures, but the intent must remain consistent with maintaining the balance between the will of the governed, and the rights of the individual if we are to have a free society. Although, in practice the Supreme Court's decisions appear to conform to the prejudices and beliefs of society as a whole, at the time of their decisions, rather than a few individuals who have something to gain from "inappropriate or unethical" legal decisions.

Posted by: purpleOnion | Oct 25, 2007 4:49:38 PM

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