Executive orders are Royal decrees. The president signing laws is Royal Assent. Presidential pardons are Royal pardons. The power to adjourn Congress is proroguation. It goes on and on. Of course there are differences, but a lot of these things are still direct copies that never got reformed.
When forming the government the founders didn't just blindly copy British government. There was a lot of debate over what to keep and what to omit (For example, we don't have a king. Presidents were seen as servants not as rulers).
Pardon power is mostly a direct copy of British pardon power. However, there was a reason for that beyond not getting around to reform.
It should also be noted that presidential pardon power, while very powerful, isn't unlimited. The president can only pardon federal crimes, they cannot pardon state crimes. That's an important break from British law where royalty had(?) unlimited power to pardon any crime. Particularly when pardon power was first envisioned, the founders looked towards a very small federal government. In that case, the number of federal crimes were far fewer than what we have today. That means, the presidents pardon power was pretty much only for crimes such as treason.
In other words, absolutely the founders were influenced by British government. They weren't, however, just blindly copying things. Everything went through debate.
The British system was very familiar, and while it had potential flaws visible to them at the time they were known familiar flaws. I find it doubtful that someone coming up with an entirely novel and unfamiliar system would have got anywhere at all, no matter how rational and well argued it was. People like familiar and that can affect their judgement. Just worth considering.
I'm not disputing the fact that they took ideas directly from the British government. I disputing the fact that it was done without consideration, reform, or reason. There's ample evidence that they heavily debated each part of the British government that they adopted.
The fact is, the founders remedy for a corrupt president was impeachment. They made that perfectly clear. Corruption included things like misusing the pardon power (High crimes/Bribery).
What they didn't anticipate was the fact that we'd end up with a 2 party system equally spitting the country where neither side would remove their president from office. The put a LOT of faith in "honor" and the fact that the general electorate would punish dishonorable leaders. They did not expect things like wedge issues.
Isn't this true of your own original post?
I don't really understand what argument you're trying to make.
The British approach is more appropriately labeled not as a separation of powers, but a fusion of powers [0] - probably the strongest example of such a government currently around today.
[0] https://en.wikipedia.org/wiki/Fusion_of_powers#United_Kingdo...
The Westminster system subordinates the executive branch to the legislative, but keeps the judicial branch independent.
(In the past, the judicial branch in the UK was not completely separated from the legislative and executive, due to the judicial roles of the House of Lords and the Lord Chancellor, but that all changed in 2005. And other Westminster system countries such as Canada or Australia didn't have that issue.)
State governors have that power.
The role of "governor" isn't defined by any federal laws or rules. It's theoretically possible for a state to decide that it doesn't need a governor.
[1] https://ccresourcecenter.org/state-restoration-profiles/50-s...
The guarantee clause (Article IV section 4) says "The United States shall guarantee to every State in this Union a Republican Form of Government..." What constitutes a "Republican Form of Government"? Is having a governor essential to it?
I think the answer is nobody can really say because the Supreme Court has never had to consider that exact question, and nobody knows how they'd rule if they did. They have previously ruled that the guarantee clause is "non-justiciable" (in Luther v. Borden, 1849), which implies they'd let a state adopt whatever form of government it likes, but they could change their mind about that if they wanted to.
What if a state wanted to adopt the Westminister system, like a Canadian province or Australian state? What would SCOTUS have to say about that?
I am not aware of any corrupt pardons under Obama similar to that of Marc Rich under Clinton, much less more egregiously corrupt pardons like that of Ford by Nixon or Manafort by Trump.
> it's a modified copy of the British constitutional system. [...] Executive orders are Royal decrees
Those things are not mutually exclusive. In other words, sure, you can look at the latest batch of pardons and think they are overzealous - but it doesn't mean the action does not have place in the US checks & balances system.
Net result: we rein in that power (hopefully). Dont get rid of it - keep it but instill rules and regulations like enforcing Justice Department oversight and review
In other words, Black people would beg to differ.
There's no good reason to give all that power of unconditional pardons to one person.
The idea of a First Amendment such as we have in America would be entirely foreign in Britain, for instance, since no sitting parliament could ever restrict a majority of a future parliament from passing any law they saw fit. Even Royal Assent at the time was largely ceremonial and usually carried out by Royal Commissioners rather than the monarch. In fact, the last time assent was withheld was 1708 under Queen Anne.
Distinctly English rather than distinctly British. As Lord Cooper said in MacCormick v. Lord Advocate, "the principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish Constitutional Law".
> no sitting parliament could ever restrict a majority of a future parliament from passing any law they saw fit
If the British Parliament tried to amend the Acts of Union 1707 to remove the protections granted to Scotland – for example, if it sought to abolish Scots law and replace it with English law – it is quite possible that the Scottish courts would rule such an Act of Parliament unconstitutional under Scots law, and also quite possible that the Supreme Court of the UK would uphold their ruling.
https://lawshelf.com/shortvideoscontentview/the-power-of-the...
> The United States Constitution does not have a provision that explicitly permits the use of executive orders. Article II, Section 1, Clause 1 of the Constitution simply states: "The executive Power shall be vested in a President of the United States of America." Sections 2 and 3 describe the various powers and duties of the president, including "he shall take Care that the Laws be faithfully executed"
They're constitutional--in the sense that the President has the legal authority to issue orders to the rest of the executive branch--but they are certainly not an explicit provision of the Constitution explicitly modeled after the royal decrees of the British monarchy.
Any time you create a second system, you can see similarities to the first system. That doesn't make it a "modified copy"; it makes it a "rewrite that has some similarities".
As I said there are differences but the overall system is basically the same shape. Specifically the Presidential Veto wasn't conjured up out of thin air as a cunning plan to implement a system of checks and balances, it was just carried along with the general cut-and-paste.
The details do differ and have diverged over the centuries, for sure, but the basic executive role of the President in the US system today is that of George III in the 1770s. I also think there's a case to be made that the political relationships between your branches of government would be much more familiar to a 18th Century British politician than their contemporary counterparts.
I personally think we should have kept the part where Parliament ceremonially slams the door in front of the Usher of the Black Rod every time. Cracks me up every time.
Checks and balances essentially don't work in the US. The best bit is simply a decent judiciary, but that was mostly copied from the British. And even that is more poorly executed than elsewhere, due to the political nature of judicial appointees, and esp. due to the tradition of direct elections of some judges. I'd say it's arguably worse than the British model it was copied from, not because the Brits were psychic geniuses, but because of the not entirely unrelated fact that the UK model is much more open to reform; it's aged better because it's less crufty. When lead by a dangerously populist government that might be risk, of course, but so far even populists have turned out not to do too much consitutional harm - might differ in the future.
It's more like: the US constitution was grand it its aims, but pretty v1.0 in its execution. It's full of unintentional (or at least unfortunate) indirect effects that didn't work out too well; such as that congress is likely to deadlock; that the constitution isn't sufficiently amendable; that its form of democracy is subject to unproportional divergence as state population sizes diverge, that by contrast adding new states is way too easy, that elections at all are in no way shape or form necessarily fair (and I don't there there has ever been a particularly free&fair election in the states) due to gerrymandering, state size disparities, imbalanced voting registration requirements, and lack of constitutional protections for elections in general; the presence of systematic biased introduced by winner-takes-all approaches; the lack of a checks on the presidency (clearly not intentional, but impeachment is a purely hypothetical check). I'm sure actual scholars could name a bunch more. Then theres the more general flaws in legal republics, such as that there no systematic mechanism for reform; laws just accumlate leaving extremely outdated wordings on the books forever, and with ever increasingly large rulebooks.
Seriously, name 1 check/balance that's actually particularly good! (I mean, I guess there by sheer scope might be one... but I can't think of one anyhow).
A check and balance has been on great display in recent weeks. A President has stated, "the election was a fraud, I should get another term". Congress has stated, "the election was correct. Moreover, we may choose to prevent you from holding office ever again." The judiciary agrees.
That Congress is likely to deadlock is arguably a feature, not a bug. (That voters don't demand better from their congresspeople is, perhaps, a correctable bug.).
There is only one exception to the amendability of the Constitution -- states cannot be deprived of equal suffrage in the Senate. See Article V.
The disproportionate representation is by design. Without it, the country literally would not have formed. I am pleased to see states hacking around it without an amendment, thus, should the prior function be required, the states themselves can revert.
Is adding states too easy? There are three million US citizens in Puerto Rico without representation in Congress.
I am hopeful that we will find ways forward on gerrymandering. The only true beneficiaries of the existing system are the political parties.
Impeachment is not just hypothetical. Though it was not fully realized against Nixon, it would have been had he not resigned.
Regarding the endless accretion of laws: we get the government for which we vote. Speaking up, as you have done here, is the first step toward making it better.
"Statehood is too easy" is probably the wrong critique. The problem is that there is not clear enough guidelines for enforcing some criteria for what constitutes a new state. Thus we have a false positive like Wyoming, which shouldn't be a state with its minuscule population, and we a false negative in Puerto Rico, which is anachronistically governed like a colony .
I don't have the numbers in front of me, but I don't think the original senate had states that had 80X the representation by population, as we have today between CA and WY.
https://www.law.cornell.edu/constitution/articleiv#section3
As to what you consider a "false positive" state, that's a political question, and apportionment is not the only political consideration. Congress is just about the best option we have for settling such complex, interstate questions.
Moreover, the US has always had lopsided state populations. The 65:1 apportionment population ratio between California and Wyoming (https://www2.census.gov/programs-surveys/decennial/2010/data...) is definitely big, but it's still within an order of magnitude of where we started in 1789.
The first (pre-Census) apportionment, hard-coded in Article 1, Section 2, had a 10:1 Virginia:Rhode Island ratio in the House:
https://www.law.cornell.edu/constitution/articlei#section2
After the first Census, the largest difference ratio of apportionment population (i.e. population after implementing the 3/5 compromise, excluding "Indians not taxed", etc.) was about 11:1, between Virginia and Rhode Island:
https://www.census.gov/history/pdf/ApportionmentInformation-...
If you were to undo that 3/5ths slavery effect, the Virginia:Delaware ratio becomes closer to 12.5:1.
FWIW I agree Puerto Rico ought to be admitted, just as the Virgin Islands, Guam, and Mariana Islanders ought to be as well. France's DOM-TOM system seems like a better model to follow than America's, and it could still happen within our lifetimes; France made major reforms here within the last few decades:
I would argue the "false-positive" state that in this case is California.
Imagine if the entire Eastern seaboard was divided into three States. That would be equally imbalanced.
Practical hacks like that might mitigate the imbalance, but really - the senate needs proportional representation too. It's OK that small states are slightly over-represented, but the current state of affairs is pretty crazy. Also, the amount of people per senator is unbelievably high, making them less approachable than they once were.
If the senate were proportional, we could simply abolish the electoral college with little loss; just let congress elect the president and be done with it.
Each state is supposed to be an equal member of the union, which is why they each get equal voice in the senate. Up until the early 1900s senators were appointed by state governments rather than being popularly elected.
It's sort of fallen out of fashion to identify strongly as a member of your state rather than just as a citizen of the United States, but I think this year has demonstrated that state governments still have a lot of influence and autonomy.
I for one have been very pleased with my state's handling of the situation and have been glad to live here rather than somewhere else.
No, the Seventeenth Amendment should be repealed and state legislatures should be required to appoint senators. The United States form a federal government, not a unitary state; that means the several states should be represented.
> If the senate were proportional, we could simply abolish the electoral college with little loss; just let congress elect the president and be done with it.
Alternatively, state legislatures could appoint electors. Or maybe they could appoint two electors, and the people of the state could vote for the rest.
But personally, I don't think appointed senators would practically help much.
The point of federalism isn't to achieve some ivory tower ideal of centuries past, but to have real value today. Some of the value we can still retain is flexibility: essentially letting states go their own way for many laws and regulations. That benefit of federalism is quite real, and imposes no requirements that the senate needs to have appointed senators vs. elected, nor that the number of senators be fixed (vs. scale with population size). I'm pretty sure we can mitigate the deadlock, lack of accountability, and undemocratic representation issues with today's congress+executive while also eating our federalist cake.
To be clear: I don't think of this is worth pursuing as political reform; it's entirely unachievable due to the US's virtually unamendable constitution (basically only populist amendments are ever achievable, never this stuff; states need to large agree, after all - and pure political power play makes that utterly impossible).
The whole point of having two separate bodies is that it requires two groups that are chosen in a different manner to both agree that a piece of legislation is acceptable.
Also: just because the senate should be proportionally scaled doesn't mean that proportionality needs to follow the same rules as the house's: e.g. one of them might use winner-takes-all per district approach, another a ranked choice, or one might use districts, and another be a proportional representation of the whole state.
Finally, while a slight variation in the representation is likely "nice to have" I don't actually think it's all that critical. The idea makes sense: you want a check on power, but in practice it fails at that goal today, because power is not wielded by senate vs. house, but instead by republicans vs. democrats (sure, in the exceptional curent case of a precisely divided senate where every vote counts there's a slight possibility that intra-party disagreements mean that some senators sometimes switch sides, but even now it's going to be rare). But it's really important to realize that the senate does not exercise any kind of legislative check on the house in the normal case that congress is either clearly divided or clearly in the same hands. When house and senate are in the same hands, it's the political party that makes the decisions and members generally stay in line; and conversely when it's divided it's the political parties that do the horse-trading. There's no protection or moderation offered by the current system; if anything it makes for even more extreme legislation - because now it's either deadlock or go!-go!-go! - and when congress is in gung-ho mode, they don't have the luxury of careful consideration, and so likely produce less moderate legislation.
The current split is a failure; not a feature.
If anything, I would push the principle downwards further, and argue that state senators should represent counties. Indeed, this was the case until the execrably unconstitutional Reynolds v. Sims decision in 1964, which forced states to apportion state senate seats by population.
We would probably be a much happier union if our politics were mostly about those things most of us can agree on, rather that all about the things that we disagree on. Our politics is all scissor statements, now.
Wyoming met the requirements when it was admitted, but its population hasn't grown as much as other states (e.g. no gold rush, etc). If you think this is somehow an incorrect result, what you're really arguing for is the abolishment of established states or periodically "redistricting" them in a way that would do more harm than good (given that states are more than just subdivisions for representative purposes).
> and we a false negative in Puerto Rico, which is anachronistically governed like a colony.
They've had many referendums on that question, and I think they voted against statehood until recently.
In any case - your points against redistricting are good. But even a "temporary" solution might have centuries of value, so I don't think it's entirely unreasonable to make a pragmatic push for limited redistricting, specifically only splitting large states - fusing states is much harder (because which laws apply?), and given population growth, it's pretty reasonable to have more states. Judging by the size of the house - which is probably too small, not too large - the senate has a lot of room to grow. We could certainly afford splitting all of the large states without causing huge issues - if people actually want that.
But a more long term solution without redistricting is to give up on the notion that states are equal. Just give more senators to larger states, and fewer to small states, and the current system mostly works; certainly better than now, and without the need for as radical an imposition as state-level redistricting.
Which is exactly what someone from a large state focusing only on their parochial interests would say. IIRC, the Senate being a place where all states are equal was a pretty important compromise when the Constitution was written.
A more realistic path therefore would be to split the large states; small states don't get as easy a veto over that.
No, it voted for becoming a state, under the terms set for the 2-question referendum.
Question 1: Should Puerto Rico continue its current territorial status?
Yes: 46%
No: 54% (Wins)
Question 2: Which non-territorial option do you prefer?
61.2% for statehood (Wins)
33.3% for free association
5.5% for independence
https://en.m.wikipedia.org/wiki/2012_Puerto_Rican_status_ref...
> and in 2017 a vote on the issue was scotched because of anti-statehood boycotters.
No, the vote was held, statehood won overwhelmingly, but the boycott by opponents was cited (by opponents!) as a reason to disregard the results.
https://en.m.wikipedia.org/wiki/2017_Puerto_Rican_status_ref...
Criticism Edit Critics said that voters who favor a developed version of the current status of Puerto Rico (a commonwealth which is part of the United States with internal self-government) had no alternatives on the ballot. As a result, leaders of the Popular Democratic Party (PPD) instructed such voters to leave the second portion of the ballot blank, or to invalidate the ballot.[27]
Because there were almost 500,000 blank ballots, creating confusion as to the voters' true desire, it provided Congress an opportunity to ignore the vote, which it did.[28]
History professor Luis Agrait explained the result in this manner to CNN: "If you assume those blank votes are anti-statehood votes, the true result for the statehood option would be less than 50%."[29] Considered as a percentage of the total number of votes cast in the first ballot, 44% voted in favor of statehood on the second ballot.
—-
“Scotched” was the wrong word, implying not held, I apologize. Interpreting the vote got destroyed, was what I meant.
It’s clear that the folks who run PR see their jobs in danger if the island becomes a state. Hurricanes have now made it clear what second-class status means to the average person.
Virginia: 447,016
Georgia: 23,375
About 19x.
It surely worked, but with the majority of the Republicans in Congress objecting. And one can't help but wonder what would have happened if the election had been closer (you'd just need to ramp up the voter suppression a bit more). We had a taste of it in Bush v. Gore, where the judiciary decided to stop a recount with a very poor justification. Now imagine it in the much more polarized environment of today. Or with someone actually competent, who managed to solidify power over 4 years rather than doing opposition to his own government half the time.
As to congresses deadlock being a feature: it may well have been intentional; but it's pretty plausibly a long term fatal blow. Countries need to be able to evolve, and when small minorities can prevent that (and we're not their yet, but it's moving that way), you're creating really perverse incentives for horse trading, leading to really low quality law making, and thus low respect for congress. It's not out of the question that this might lead to the nation's dissolution in our lifetimes - what happens when elections are legally stolen?
On impeachment: we'll see what happens with trump who happens to be a perfect case to check whether this feature of the constitution is more than hot air; but given how stacked the deck is against conviction, I'm not holding my breath - and if it's not going to happen now, it never will - not only was he utterly shameless in undermining the election (knowing full well that democracy is worth fighting for, i.e. raising tensions dangerously) and addition literally using combative language and calling for as close to a stormin of the capitol as possible while trying to retain plausible deniability, we're also just post election that shifted the balance of the senate against him. This is pretty much the best case scenario for an impeachment, and it's far from a sure thing.
Additionally, the current election was upheld largely because of states still sticking to extra-legal solid traditions. Those however, are not constitutionally protected; i.e. what worked was american culture & tradition (sometimes backed by state law), not really the american constitution. I mean, for scale: it's easier to throw out an election than a president, which is absolutely Not Ok.
Some of your other objections relate to tradition, e.g. such as puerto rico not being a state. This has nothing to do with the constitution; this is purely a political tradition. And indeed; many traditions are fine - while I think there's no question on the specific instance of puerto rico deserving statehood, the point is that the constitutional bar is very low despite the fact that it allows senate packing. A malicious populist could easily abuse that, if convenient, were it not for the real protection: tradition&culture, not the constitution.
The US has a solid set of traditions and an extremely civic culture; and that's why it works - not because of the constitution.
IMO this is something that I wish more citizens understood. They put way too much faith in the Constitution and don't realize that it's the tradition, the mythology of America that really holds this country together. If we lose that, we lose everything, and the Constitution won't save us.
That risk has been realized. Aren't the parliamentary governments of Hungary and Poland falling into "democratic" authoritarianism?
I'm pretty sure the US system was mainly designed to prevent that kind of thing, and put up democratically-derived barriers against it. The Trump presidency would have been way worse without them. Trump has been very effective at keeping his party in line behind him (even to the anti-democratic extremes). The things you complain about are mainly tradeoffs of that design.
In many countries he could have just insisted (or tell a crony he insists) and that would have been that.
I agree. The checks and balances worked as they were supposed to.
Note that if there was evidence of widespread election fraud, the checks and balances on display here would (hopefully) provide a check on that.
The US works; and has excellent governance; that's not really in question (IMHO). The question is whether that's due to the constitution, or despite it.
If the US were as uninterested in democracy and as accepting of an autocratic leadership as hungary (and as small as hungary) - do you think the constitution of the US would have made anything better?
The person in charge with executing the law is different from the people in charge of crafting the laws to be executed.
The real protection here is that a simple majority can't throw out the minorities voice entirely. But that doesn't require the separation of the executive to achieve, it merely requires either a supermajority, and/or a differently composed senate (which doesn't need to be unrepresentative either, the differing election schedule would suffice, and it doesn't even need a veto - an election-cycle delay would be enough).
Incidentally, from memory, all sliding-into-dictatorship democracies I can think of did so behind a strong "executive". Empirically at least that would suggest that simply not having such a strong executive sounds like a sound protection against despotism. Intuitively, that would suggest that it's pretty hard to rally a country behind a dictatorship that originates in congress; a powerful figurehead matters. Finally, I'm not really sure to what extent a constitution really can or should protect against popular despotism - at best it can delay the process; but part of the point of democracy is self-rule; and taking away that rule to avoid despotism also takes it away for other reform - and it's not really going to work anyhow, because if enough people want to dump the laws, they will, even if the letter of the law begs to differ.
Article II Section 1 of the Constitution?
All it will take is a stronger, more popular leader who feels 'bypassing the rules' is ok for 'the greater good' (aka themselves), and we're in deep trouble.
If Trump hadn't spent all 4 years of his tenure actively disparaging, impugning, maligning, and throwing under the bus every military leader or hero he ran across, we could be in a very, very different country today. I'm still amazed how close he came to winning Arizona considering what he said and did to McCain.
Deadlock is not the worst thing, and the solution to it is not necessarily to remove as many locks as possible.
The actual problem in the US right now is that checks and balances are strong enough to allow one party to block things, but not strong enough to deter waiting until your party stochastically has enough power to get things done. This is exacerbated by having one party's ideologically committed to having the government do less.
In previous decades, stuff like earmarks greased the wheels enough to get things done (but an effective PR campaign against them got them banned). You could also fix deadlocks by strengthening the checks to force compromise among factions, like by coupling automatically expiring legislation with requirements for big super-majorities.
Since Congress makes its own rules, and 51/49 is enough to change a rule ('the nuclear option'), supermajority would have to be a constitutional amendment... And then 45% would be enough to halt government. I guarantee you this would then happen regularly.
Other systems have mechanisms to force elections if deadlocks are persistent. Of course, you also need mandatory voting, PTO for voting, full franchise, etc and that isn't going to happen in America while this Supreme Court lasts.
That was the problem with the Senate's supermajoriy requirements: basically the only thing holding them in place was convention, so they fall in the face of someone willing and able to make unsentimental tactical power plays.
IMHO, someone like McConnell would have behaved very differently if he knew his opponents could block him just as easily as he has blocked them. His apparent effectiveness is almost entirely a result of his greater willingness to hypocritically use then discard convention when it gets in his way. He'd never have gotten his tax cuts or judges if he wasn't able to bend the rules.
> Other systems have mechanisms to force elections if deadlocks are persistent.
I think something like that could be a genuine improvement.
The US Constitution would have really been 2.0 as the Articles of Confederation preceded it: https://en.wikipedia.org/wiki/Articles_of_Confederation
How do you pick judges if you don't appoint them or elect them?
One method that I've heard of is to have a committee (/"commission"/"council") select judges. The committee composition can draw from multiple branches of government (e.g. some members are existing judges and others are appointed/elected by the executive and/or legislative branches) and from civil society (e.g. appointed/elected by bar associations; in some implementations a majority of the committee is from civil society). The terms of members of the committee can be staggered.
The idea is to make it difficult for any one controversial person or party or movement to consistently dominate the committee, because in order to do so they would need to consistently dominate multiple branches of government and civil society (because the different members of the committee are selected by these different institutions) over a long period of time (because of the staggered terms).
In Texas, Justices of the Peace have no particular requirements, and are (IIRC) the equivalent of small-claims courts in the rural counties, but have had some special powers, like acting as coroner in counties without access to one. I had a government teacher with a long list of amusing anecdotes---like the JP that determined that a body with like, 27 bullet wounds had committed suicide. Judge Roy Bean was a JP; at one point someone brought in a dead cowboy who had fallen down a cliff. The body was carrying $25 and a pistol. Bean found the cowboy to be carrying a concealed weapon, confiscated the pistol, and fined the body $25.
The overarching one is the government being a triumvirate. If one branch overreaches, the other two can keep it in check. Triumvirates have historically been stable governments. Even in the Soviet Union - the Party, the Army, the Police.
The bicameral requirement for a concurrent majority is entirely by design and has plenty of supporters. It's pretty egregious to cite this first on the list of supposedly crucial flaws.
>that its form of democracy is subject to unproportional divergence as state population sizes diverge, that by contrast adding new states is way too easy
The one fixes the other, but adding new states turns out not to be that easy. From a political standpoint, larger states have an outsize cultural and regulatory influence (which is known to the state of California to cause cancer, but which cannot be mentioned in textbooks used in Texas schools) so compensating smaller states makes sense; voters in large states who feel their votes are diluted should, in principle, be able to correct this with a split. Is it a perfect balance? Not at all, but it's something.
But in practice, adding new states has become too hard and this may be a source of recent political problems! Puerto Rico should have been a state in the '90s. Movements to split large states may not be such a bad idea.
>that elections at all are in no way shape or form necessarily fair
A cultural and political flaw, not a Constitutional flaw. Maybe an omission, but you can't write all of the laws and practices necessary for a fair election into the Constitution; it would take up most of the document!
>that the constitution isn't sufficiently amendable
A risk-averse and historically motivated bias; we had one bad Amendment (the 18th) and the fallout really put a damper on amendment movements.
>the lack of a checks on the presidency (clearly not intentional, but impeachment is a purely hypothetical check)
Trump's impeachment trial was heavily impacted by the Democrats' primary season and not-so-subtle party establishment hopes that Warren would somehow pull out a win, so everything had to be rushed in order to avoid distracting her (and she lost badly anyway).
The issue isn't the bifurcation of congress by itself, it's that in addition the electoral system for both sides differs so greatly, and simultaneously that the US uses a winner take-all approach to assigning seats which converges to partisanship. Fix any one of those issues and the deadlock issue is reduced. It's the current bicameral nature that the problem, not the abstract notion. However, I also think that bicameralism is oversold - sure, made a lot of sense to try that, but the protections it supposedly provides are extremely slim in a partisan electorate. Part of the time there's deadlock, part of the time it's close (best case, but very rare and growing ever more rare as more congressmen toe the party line), and part of the time there's a trifecta, and there is in essence no bicameral congress, nor even really a separation of powers. The whole thing makes sense only if political parties either don't exist, or are constantly in some kind of coalition. But as in the US? There are only downsides, and virtually no upsides to a bicameral congress. Also, we know more now; other democracies don't have such strongly independant arms and if anything appear more stable.
> The one fixes the other, but adding new states turns out not to be that easy. From a political standpoint, larger states have an outsize cultural and regulatory influence (which is known to the state of California to cause cancer, but which cannot be mentioned in textbooks used in Texas schools) so compensating smaller states makes sense; voters in large states who feel their votes are diluted should, in principle, be able to correct this with a split. Is it a perfect balance? Not at all, but it's something.
Personally: I don't believe this problem is anything near as bad as the current problem (and it's likely overstated anyhow; even large states aren't that large). But yeah, splitting large states would be a good idea, even with proportional representation. But even if there it's worth boosting small states' influence, the current system is excessive. Fundamentally, I'm a little skeptical than non-proportionality is ever a great way to redress that sort of imbalance, but we could easily have a compromise system, e.g. N+1 senators (a kind of smoothing that boosts smaller states). Another thing we could do is limit large states' influence, e.g. by banning stuff like winner-takes-all solutions to the electoral college.
>> that elections at all are in no way shape or form necessarily fair
> A cultural and political flaw, not a Constitutional flaw. Maybe an omission, but you can't write all of the laws and practices necessary for a fair election into the Constitution; it would take up most of the document!
On the one hand: fair enough. On the other: that something so fundamental to a form of government isn't specified is a problem. This isn't black and white; the constitution doesn't and shouldn't include "all of the laws and practices". But the almost complete lack of ground rules - while very federal in spirit - also means that it's a race to the bottom, and what makes sense locally (gerrymandering, winner takes all, etc) isn't good for the whole. The ground rules here are lacking, and that makes sense historically - but then again, that's exacty my point: the constitution is a product of its time, and not a good fit today.
>> that the constitution isn't sufficiently amendable
> A risk-averse and historically motivated bias; we had one bad Amendment (the 18th) and the fallout really put a damper on amendment movements.
It's not just cultural, it's part of the rules too - it's way too easy for a tiny number of voters to essentially veto a change. Also, again, look around the rest of the world (here britain really stands out) - those protections don't seem to help in practice. Britain has no protections whatsoever on constitutional change, yet it hasn't collapsed after centuries. Again, I think that intuitively the idea of setting a high bar for amendments makes sense, but empyrically it does not appear to be borne out. Other protections might be to instead of raising a high bar, create a huge drag - make the process take a long time, and thus require multiple congresses to approve. Have veto-like capabilities, but ones that delay yet further, not prevent reform wholesale.
>> the lack of a checks on the presidency (clearly not intentional, but impeachment is a purely hypothetical check)
> Trump's impeachment trial was heavily impacted by the Democrats' primary season and not-so-subtle party establishment hopes that Warren would somehow pull out a win, so everything had to be rushed in order to avoid distracting her (and she lost badly anyway).
I think you're really focusing on the details here. Set aside whatever political agreements or disagreements you have; the fact is that today's impeachment is a political process that requires going against the grain of partisanship. It's way to attractive to reject impeachment for partisan reasons; because after all - a flawed president one agrees with is still better than giving the other side a win, and it gets worse given the senate's extremely unproportional nature. This causes real problems too; it's not just a question of who wins or who loses - what you see in other countries that have an easier time ejecting leaders is that they try to mitigate damage a lot early, and are a lot more careful to avoid the kind of transgressions that have plagued quite a few US presidents in living memory. And when they do engage in dubious behavior they often seek approval by others at least in their own congressional majorities beforehand, because they know they risk getting hung out to dry otherwise - and that itself is a valuable check on excesses. Alternatively, impeachment itself should have much more teeth.
Maybe trump is too recent a memory, but consider Clinton's impeachment. Sure, I think most people agree questioning a president about his sex life under oath was not reasonable - but lying under oath, really? The only reason that was OK was because the whole thing had the whiff of partisan witch-hunt, and that's a problem, because it'll always be spun to that. I'd rather have a system where everybody knows that if you pull a stunt like that you're liable to get removed. I don't mind if some other leader from the same party takes their place - in fact, that's a good idea, because it makes the process less about partisan rejection of the other side's election win, and more about personal responsibility - but leaders should not be even close to above the law; and right now they are - how bad does behavior need to get before they're actually punished?
Though I agree calling it a "check & balance" is pretentious.
It's at best an instrument for mercy. Of course it can be abused, but if you have a bad president, that's not on the top 10 list of problems.
Of course. If the laws are rotten it's the court's job to tell the legislature don't do that.
No, the Constitutional pardon power (in one direction, for criminal law only) does that already. The question is about how that position of arbiter will be used, not whether the President has it.
I dont understand your comment. Are you thinking that acts of justice, by definition, cannot also be the product of a person becoming an arbiter of law? That you perceive a decision as just doesn't change whether a person might or might not be acting as an arbiter of law.
I mean, I suppose its one of a near-infinite number of possible alternatives, but I don’t see how its an even relevant one. The discussion wasn’t about someone pardoning only black people, it was about pardoning all people convicted under a particular set of laws.
That power can then be used justly or unjustly. The constitutional balance for this is impeachment, but it's not clear that would work in practice or theory.
Typos happen (and this is an international community including people unfamiliar with some idioms). Obviously the alternative presented isn't THE alternative.
Edit: fixed use of election instead of appointment
The supreme court literally decides whether X real-world activity is made illegal by Y law. Interpreting the rules is making rules.
This doesn't seem to be such a problem in other countries. I don't really understand if that's because the judges are purposely appointed to be as partisan as possible, or whether the 'rules' are so badly written that they can be interpreted any way you like.
It's a philosophical difference in legal systems derived from the Napoleonic code (and more indirectly the Roman legal system, so it's common in continental Europe) vs. the English legal system (the US, Canada, India, Australia, etc)
https://en.wikipedia.org/wiki/Common_law#Common_law_legal_sy...
And to your second point, the popular vote went Democratic in the last 7 of 9 elections (and electoral in 5 of 9) but 3 of 9 Supreme Court Justices are Democrat appointed. The court does not reflect our deeply ingrained values.
The Republic is actually quite prescient in its analysis of forms of government and how they decay from one form to another. The USA today very much resembles an oligarchy (class-based rule by the rich) being pushed rapidly into social media-driven democratic mob rule.
Were we already farther down that path, Trump might have been enough to push us down the hill even farther, from democracy to true tyranny.
This is quite similar to taking the views of Paul Ryan and Rand Paul and calling them representative of the US government. Those views are not extreme in the context of the time and are shared by a sizeable fraction but it's not a random or representative sample.
“Represent the view of” is misleading. The Federalist Papers were not an academic exercise of recording opinions for posterity, they were long form campaign ads for a targeted audience to sell the ratification of the constitution.
Also, the Federalist Papers were written before the formation of the parties, and when that formation did occur, Madison was one of the founding leaders, along with Jefferson, of the Democratic-Republican Party, he wasn’t a Federalist.
Agree with the first part, disagree with the second part.
It's going to remain an oligarchy, but the circus of 'mob rule' will be utilized to make sure the oligarchs remain in power.
- Have a public vote, direct legitimation (or via some extra electoral college or something) this means that judges have to be "popular" and run campaigns and question is, if that's really smart ...
- Have the "juristical class" elect within, so judges from lower courts would lick somebody, or current judges elect additional ones. That would put judges into their own "class" and remove all democratic legitimation
- or do what is done and have a democratically elected body do it. In the case of the U.S. it's done by a combination of president (nominating) and Senate (confirming) where the Senate represents the different states.
It is one of the tough problems.
For the pardon the idea comes from absolutist times where a King would pardon as he likes. The modern interpretation comes from correcting "blind" justice. Justice has to rule according to law. But sometimes one either might decide that a law was bad and than a pardon might be a way to correct that (ideally if law is rewritten as well) and sometimes there are hard cases, like the 90 year old who should get a chance to die outside of prison, for sake of family etc.
Generally the system assumes the actors act mostly in good faith and were removed (impeachment etc.) otherwise.
One method that I've heard of is to have a committee (/"commission"/"council") select judges. The committee composition can draw from multiple branches of government (e.g. some members are existing judges and others are appointed/elected by the executive and/or legislative branches) and from civil society (e.g. appointed/elected by bar associations; in some implementations a majority of the committee is from civil society). The terms of members of the committee can be staggered.
The idea is to make it difficult for any one controversial person or party or movement to consistently dominate the committee, because in order to do so they would need to consistently dominate multiple branches of government and civil society (because the different members of the committee are selected by these different institutions) over a long period of time (because of the staggered terms).
You might lose some expertise, but on the other hand, you don't have the tragic spectacle of Justices dieing in office whilst waiting for a 'safe' time to retire.
Taking again Germany as my example, since I know it best: There are 16 judges with a period of 12 years. Adding the age limit and other reasons that averages to about 2 elections per year. Thus a bit more than 4 years till a new group can take over the majority. (Now they are elected alternating by the different chambers of parliament, where one of the chambers, Bundesrat, is also slower moving in replacement ... making it hard for a short term movement to take over control and if, impact is relatively short - unless they stay in power long enough to replace all.
Let them serve for a limited period of time, say 16 years max. Can't be removed before then. It's not that complicated and would prevent justices who literally sit on the bench until the day they die.
I think Germany got that better: here we have a 12 year term (thus a single government can't easily swap them out - a learning from the time of 1933) and a max age of 68 (for whatever reason that was picked)
If that were the case, and justices' terms started in January of even years (to avoid the election cycle), we would currently have 2 Trump appointees, 4 Obama appointees, and 3 Bush appointees, roughly matching what the balance of the court would be next month if Ginsburg had died 3 months later.
It's much better to be on an nth + 1 republic, let me tell you.
SCOTUS judges are not elected; they are appointed by POTUS, after confirmation by the Senate.
At the state level, only about half the states use elections for their Supreme Court judges. However, the highly-polarized and roughly-evenly-split Midwestern states (MN, WI, MI, OH, PA) are among these, so it definitely will come across as more visible.
As far as 1 WY vote being worth 4 Texas votes, that’s also irrelevant because the president is elected as president of the republic, not the president of individual people.
Saying that the president is not a president of the people when people literally vote directly for that person (unlike most of the wester republics) is frankly pretty weak. How can you argue he is not the most influencial political figure in a US citizen life?
This turns out to be really helpful when someone starts claiming something like widespread voter fraud for instance, because there is no one institution to attack, or even identical set of rules that can be exploited. Each state runs it's elections as it sees fit, and then votes the way it deems necessary - and is strongly interested in making sure it's voice is heard.
Some states have tied their electoral votes to the national popular vote in the name of increases democracy. It will be interesting to see the first state that has its electoral votes changed due to this. I imagine those residents won't be so thrilled to have their votes go against their will and in favor of how other people in the country voted.
For all practical purposes though, people vote directly for the president (last election is the proof that even a full front effort won't sway the election outcome from the people's votes). The only practical difference is that one single vote has a different weight depending on what state you live in.
Rural areas are incredibly over-represented imo. This should be addressed more than the tiny details that don't really change the outcome.
Just imagine how different the left and right parties would be if the will of the people would be equally represented.
So the most populous cities should have the unopposed power to decide all of the federal policies that could impact the lives of rural people? This sounds like the recipe for a Hunger Games classist uprising.
This is the same as saying your vote counts less than someone with more friends than you.
Might as well just throw out the whole state sovereignty idea which is an option.
Our whole system was based on individual rights and that philosophy extends to states as equal members of the union.
Just try to look from the other side of the fence. I can rephrase your question as:
"So the few individuals living in rural areas should have the unopposed power to decide all of the federal policies that could impact the lives of the vast majority of the people in the USA?"
So yes. I am sorry but with a democracy, you sometime lose and have to accept that the decision is different from your preference.
In the US this only applies to federal, how much federal laws should impact states is not really in discussion here (and honestly I have no opinion on the matter. I am originally from Europe and have limited understanding of a lot of states laws and structures).
Also, you are confirming my point that rural areas are over-represented. You seem to intend that it is rightly so, but I do find this criteria unjust, just like your example of voting power coupled with amount of friends is.
To me, the only criteria that I find just is "every person has one vote with the exact same power". It's simple and naïve, but only one I have seen that I consider fair.
How you cluster people is irrelevant for a policy to be fair or not. It's petty to chose what gives you an advantage. You should stick to a set of values and agree on policies that better express those values.
Understanding and protecting minorities is one of the core values that need to shapes policies.
You can't solve the minority problem by giving them more votes, because you can't give it to all minorities. Everyone is part of somekind of minority.
Today rural people are a minory who has a privilege compared to others.
Is this a thing? I had no idea. Do you know what states do that ?
In that case, why aren't state legislatures or state governors voting for president and members of congress?
And prior to the 17th, Senator were chosen by the state governments as well.
Presumably because people of those states don't want it that way. Which means they consider the federal government "their" government, not the "government of the state".
Uh, not fully…
In France, Germany, Greece, and Italy it's also a prerogative of the president, for example.
The other gaping flaw is the systemic, undemocratic bias that determines the makeup of our Upper House.
This a feature, not a bug, and in fact the United States would not exist without it. The senate prevents small states from being dominated by large states, and is the only reason that smaller states like Rhode Island agreed to join the union in the first place.
If we were to alter this configuration of the Senate, the same question would undoubtedly arise--why should small states like North Dakota, Vermont, and Oklahoma remain in the Union, only to be dictated to by the citizens of Florida, New York and California?
I don't know why this is a valid argument, when you can turn it on it's head. Why should states like Florida, Texas, New York and California, who (1) have the most amount of people and (2) generate nearly all economic activity, be dictated by the citizens of North Dakota? Why is it that this argument never considers the inverse?
It's clear, by looking at Federal budget inflows and outflows, that states like North Dakota need California more than California needs them. If States were countries, and if The United States were more like the European Union, Texas would naturally have outsized power, much like Germany. It would be Texas citizens bailing out North Dakota.
If you think NYC could be supported purely by NY state alone (or frankly even just 'Blue' states), you'd be in for a rude shock.
That much of the value add/economic activity happens in the more densely populated states isn't that surprising - but cutting off the midwest from the rest of the United States would cause catastrophic famine in very short order, to name one example.
[1] https://data.ers.usda.gov/reports.aspx?ID=17844
[2] https://www.statista.com/statistics/714376/crude-oil-product...
CA's central valley produces fruits, vegetables, and nuts, much of which gets exported, and a bit of, but not a huge amount of staple foods - and if you add up all California's agricultural output, it is still only ~13.5% of the US total. [https://www.cdfa.ca.gov/Statistics/#:~:text=California's%20a....]
The areas in California that produce that food are solid red, through and through. Texas is red, ESPECIALLY the areas that produce that oil - but let's set aside the intra-state conflicts on this. None of the states mentioned are 'ideologically' self sufficient in their needs (CA for Oil, despite being a major food and oil producer, Texas for food - among literally millions of major and minor needs), and NY State or NYC are most decisively not in either category.
[https://www.ers.usda.gov/data-products/chart-gallery/gallery...]
If you look at your own chart, you'll also see that ~90% of all of the remaining entries following California (who make up the bulk of production) would be called midwest, near midwest (definitely not blue), or 'flyover territory'.
If you go to the link you had and filter by staples (as compared to expensive-per-calorie foods like almonds or strawberries), you'll see this reflected even more strongly [https://data.ers.usda.gov/reports.aspx?ID=17844#P7521943176f...]
California has a LOT of people in it. 11% of the nation. While they might not personally feel the brunt of a major famine right away - running out of fuel for the harvesters, or the steel products to repair their equipment, or the equipment itself (predominantly produced in 'red' areas or imported), would mean it wouldn't be that long either.
If we look at the wider context, losing 50%+ of the agricultural products aka inland 'flyover' areas and the midwest would definitely cause catastrophic famine. And that is at least how much is there from your own links.
I think you are missing mine; I'm not making a blue/red distinction, I'm making a point about senate representation.
First, you are trying to prove that California, Texas, or New York could not be self sufficient. This is a meaningless point as today states like Wyoming are not self sufficient. I'm sure a state like Texas would figure out self-sufficiency much faster than Wyoming. Why do large states have to give up power to small states given that both would probably be screwed without the other, but small states would be likely screwed even more? The idea that large states must cede representative power in order to access resources is absurd - after all they are already paying them via federal budgets; surely there is no reason to double pay? The "they provide resources" argument is bullshit.
Secondly, coming back to senate representation & electoral power - there are vastly more people in rural California and conservative districts like Bakersfield than there are in Wyoming. Those voters have effectively 0 senate representation. Again, I don't care if they vote red or blue, but Wyoming gets outsized power. Why?
I don't naively believe that once California has more representative power that the whole country would turn into San Francisco. I believe states like Wyoming and other sparsely populated, deep red states, allows the Republican party to effectively ignore their voters in blue states as well. That's the reason the current system is upheld - it allows the GOP to effectively never have to answer to it's voters. It cuts both ways, the current system is bad for Americans; red & blue. There are more registered republicans in California than most other states have people and the state itself was solidly red until 1992; yet those voters don't have much of a voice.
The party affiliations do not matter - the notion that a Wyoming democrat has 4x the voice than a California republican just isn't right.
Anything else is 'changing the terms', and that is very likely to result in a lot of chaos - since it would be unconstitutional, unless you got 3/4's of the states to go along with it.
Pretty unlikely, since most of the states benefit from this arrangement?
Perhaps. The problem I see is that state boundaries are pretty arbitrary. The real political division is between urban and rural, and whether or not a particular state is 'red' or 'blue' depends on how those boundaries have been created. There are a huge number of rural voters in California that share more with Wyoming rural voters than Wyoming urban voters, so why should they be disenfranchised simply by living within the state of California?
Statehood is eternal. Secession is quite literally treason and the Civil war was in that sense constitutionally mandatory.
>Statehood is eternal.
Is that you, Louis XIV? Spinning yarns about the divine right to rule?
>Secession is quite literally treason...
Says the nation born of treason.
>..and the Civil War was in that sense constitutionally mandatory.
Any institution which is willing and able to kill a million men solely for the purpose of its own preservation is a menace. But as long as it was constitutionally necessary, I guess we're good?
For what it's worth I don't care much about Lewandowski's pardon and I suspect a large part of the outrage here is because his compensation was public and he is a tech worker. There are other more salient recent examples suggesting the pardon system is being abused.
Original incorrect statement: Levandowski not lewandowski. Different people different offenses.
Is it though?
I went to school in America, I know what they teach and elevate as sacrosanct.
The developed world laughs at our "checks and balances".
This last term, the judiciary was the only "check and balance" left and it did its job, but it didn't have to.
But aren't prosecutions done by the DoJ, as part of the executive branch, i.e. the decision to prosecute someone at all, or whether to offer a plea deal is already under the president's control?
He may ultimately be in charge of the prosecutions, but for him to take that much control is considered unseemly. The closest the President will generally come to deciding whether to prosecute someone is to make a policy that certain crimes will get extra attention or no attention. Alternatively, he can fire the US Attorney.
The executive branch also controls the justice department, which did the prosecutions.
On the judicial, so it would be great if it was also subject to Congressional approval. It would still fulfill its purpose.
Sometimes pardons are politically unpopular even when they are right or justly merciful. Pardoning someone who embarrassed the government, for instance -- I can easily imagine a majority of Congress choosing to deny Chelsea Manning's commutation.
It's a bit of a parallel to the "better a hundred guilty go free, than one innocent suffer" philosophy that is supposed to rule the court system -- I'd rather the pardon be flawed in being too generous than too stingy with its mercy.
I agree that there should be no check on the power to pardon. There can't be because Congress does have the power to convict in some rare cases. The check is on the legislative as well as on the judicial branch.
Or worse, had someone murder his political opponent and then pardoned him? This sort of thing was unthinkable a few years ago, but no longer.
https://avalon.law.yale.edu/18th_century/fed69.asp
> ...If a governor of New York, therefore, should be at the head of any such conspiracy, until the design had been ripened into actual hostility he could insure his accomplices and adherents an entire impunity...
District Attorneys, the FBI and other agency's responsible for prosecuting crimes report to the President as part of the executive. Each has broad discretionary power on which crimes they prosecute, what sentence they seek, and what deals get cut. The president having some authority to wave crimes goes along with this ( and also short-circuits the president manipulating law enforcement for their own purposes ).
If the president one day decided that he didn't want the executive branch to enforce the law and pardoned everyone... well they'd be impeached quickly, and the supreme court would almost certainly rule that the president doesn't have the power to pardon everyone. Assuredly an injunction would be issued to block the pardon coming into force.
An example: https://www.dcourier.com/news/2019/nov/10/veterans-day-dan-f...
Note that the President does not have the corresponding power to convict anyone.
An interesting set of pardons was when Andrew Johnson pardoned all the rebels in the Confederacy, including Jefferson Davis.
As far as I know, the only Confederate officers convicted and hanged were the ones running the POW camps. The crime was the brutal way they ran them, not rebellion.