Archive for the ‘Our Constitution and laws’ Category

When the United States, uniquely among historical national powers, established itself on the foundation of principles our founders purposely intended to establish us as a beacon among nations.  But they also created a high standard for national behavior that has proved a burden ever since.

The original Constitution explicitely set out the authority of the three branches of government but equally explicitely established the boundaries of that power and set each of the branches to watch over the others, especially requiring the legislative branch to oversee the conduct of the executive branch.  But its amendments very soon focused on the rights of citizens–to speak, to organize, to write and print, to worship, to be equal, and most importantly to be secure in their homes and property.

Those of us privileged to travel the world know the degree to which people around the world judge our adherence to the principles we proclaim.  Many Americans think we can say one thing and do another as a nation.  It is not true.  We are daily held to the high standard our founders set for the United States.  And, too often, we do not measure up either at home or abroad.

Most disquieting has been the tendency of our government to sacrifice our individual rights to the perceived need for security.  Threats, real or imagined, are almost immediately seen as grounds for suspending the Constitutional rights of the individual.  Nowhere is this more evident than the use of electronic surveillance in the age of terrorism.  And the current administration seems content to perpetuate some of the worst excesses of its predecessor.

No one said that principled democracy would be easy.  And of course Thomas Jefferson didn’t contemplate today’s technologies.  But he did know human nature.  And  he and his colleagues knew that it would be up to us to keep political power within its Constitutional boundaries and, even more, to insist that America live up to the principles it proclaims.

To Form a More Perfect Union

Author: Gary Hart

These words in the preamble to our Constitution set out the major purpose for creating the United States of America–to bring the individual state republics into a closer union.  Those words also became the mandate for Abraham Lincoln to preserve that union 75 years later.

But for many those words have an almost mystical meaning, a burden laid on us by the Founders to make the union better as time goes by.  Most of my life I’ve believed in the inevitability of progress, that our nation and our society would become increasingly more humane, more decent, more expansive in spirit.  That belief has been tested in recent years.  In a way, for me at least, that test began with the assassination of John Kennedy.  Since then, one thing or another has caused many of us to question whether the union can be made more perfect.

This Wednesday we commemorate the fiftieth anniversary of the Kennedy inaugural, an event that brought many of my generation into public service if for no other reason than to make a contribution to a nation that had been so good to us.  Few today doubt that a climate of anger and hatred towards him had something to do with his assassination. 

Perhaps it is our fate to always have that climate with us.  But if it is our fate, we will make little progress toward a more perfect union.  We still have not reached concurrence on the relationship between state and nation, on race, on our social and moral obligations to the poor, on differences of all kinds.  But the deeper discord is the most troubling.  That is the distrust bordering on hatred toward our fellow citizens.  It is impossible to account for this, for the need on the part of some to turn disagreement into anger and hatred. 

It does seem as if some very deep struggle is going on for the very soul of our union, of America itself.  This struggle does lead to violence, as it did in the earlier era of civil rights.  Until the struggle is resolved, until we find some way to get back to the idealism of making our country better by citizen service and participation, it is futile to think about the United States providing much international leadership.  While we struggle over our own soul, we will not be able to demonstrate the moral authority to suggest direction for others. 

In the meantime, I for one continue with this one belief: America is better than this.

When Will It Stop

Author: Gary Hart

This irrational anger of American against American must stop.  We are more angry at each other than at any time in my long life and it is a danger to our society and our nation.

Within minutes of the Tucson tragedy, at the request of Huffington Post I submitted a commentary entitled “Words Have Consequences”.  Sadly and ironically, almost exactly the same comment was made by Congresswoman Gabriel Giffords during her campaign last fall in response to being put in the political crosshairs, and thus endangered, by a leading opponent.

In response to my HuffingtonPost blog there were two trends: one assumed I was laying blame at the doorsteps of conservative media and political forces, though I did not say so; and second there was a concerted effort to of both ideologies to attack each other.  This is the problem, folks!  My point was not to assess blame.  My point was to rid ourselves of violent language.

When did Americans begin to hate each other?  Was it when we no longer had communists to fear?  Was it the disappearance of our foreign enemy?  Are there Americans who require an evil to demonstrate their patriotism, even if that evil is their neighbor?  When did this search for demons begin and why? 

To those who say, It has always been this way, I say nonsense.  One of the few advantages of age is the remembrance of better times.  It hasn’t always been this way.  In my   blog I said, “America is better than this.”  A stunning number of responses disagreed.  They said we have always attacked and hated each other.  This is not true.  This is false.  Something has gone wrong in recent years. 

Instead of one side or the other saying, It’s their fault, why don’t we all begin to look within our own soul to find out the source of our anger, our bitterness, or divisiveness toward each other.  Unless Americans quit hating each other, our nation will destroy itself.  This hatred and violence is not who we are.  The fault is not in our liberal or conservative stars, my friends, the fault is in ourselves.


Author: Gary Hart

From time to time Americans discuss our “exceptionalism”.  Aside from annoying our friends and allies, and confusing everyone else, there is nothing destructive in this discussion.  It all depends on what we mean when we think of being exceptional.

Some think it means being better than others, both as people and as a nation.  The obvious danger in this is that it leads us to believe our actions, even wrong ones, are justified by this exceptionalism.  But the definition of “exceptional” is instructive.  In addition to meaning remarkable or exceptionally good, it also means abnormal, odd, anomalous, peculiar, aberrant, and deviant.  So, care should be taken when tossing a word like “exceptional” around.

Though not an “America right or wrong” exceptionalist, it seems to me we are different.  But our difference from others should make us humble not proud or arrogant.  Because our difference rests in our founding principles, ideals, and beliefs.  They are embodied in our Declaration of Independence and our Constitution.  These principles spring from deep religious beliefs, from enlightenment ideals, and from centuries of progressive civilization.  They arise from the very reasons our nation was created in the first place.

These principles are universal, catholic, and undying.  They are the ultimate in human aspirations.  But, the reason for us to be humble is that we do not always live up to them.  The people of the world judge us always by the degree to which we live and embody these principles and ideals on a daily basis in dealing with each other and with them.  We are considered exceptional and admirable when we live according to our very highest principles.  We are considered hypocrites when we do not.

Our Founders knew very well what they were doing.  They created a nation whose ideals and aspirations were unique in world history.  They hoped those who followed would behave accordingly.  They knew that if we, their heirs, did not, we would be just like every other society and nation in history–without exception.

Restoring Democracy

Author: Gary Hart

Few principles are as central to democracy and the ideals of the American Republic as majority rule. Though James Madison and his colleagues in The Federalist acknowledged the necessity of protecting the rights of minorities, the course of our nation was to be determined by the will of the majority. No other system consistent with democracy would prove workable.

There is nothing in the United States Constitution that permits a minority to frustrate the will of the majority.

Yet in the early 21st century, the will of the majority of Americans, expressed on a daily basis by our elected representatives in Congress, is consistently thwarted by a minority in the United States Senate. This minority resorts to the Senate rule requiring a three-fifths vote—60 vote–to close (invoke cloture on) debate.

Article One, Section five, of the U.S. Constitution provides that “Each house [of Congress] may determine the rules of its proceedings….” Based upon Thomas Jefferson’s notion that the Senate was to be the saucer in which controversies cooled, Senators have, from the beginning, been at liberty to express their views at such length as they wish. (Jefferson, it should be noted, was the author of the Manual of Parliamentary Procedures for the Use of the Senate of the United States in 1801.) But the Senate has always recognized that even the principle of unlimited speech has its conditions based upon comity and common sense.

Yet today the Senate conducts its business, or not, under the constant threat of a filibuster. Important legislative measures having to do with the vital interests of our nation and the rights of our citizens will not even be introduced if a minority of Senate members refuse to permit them to be considered. Thus, a rule to protect debate is systematically used to prevent debate. Even worse, secret “holds” by individual Senators prevent confirmation of federal judges and administration officials.

Though the Senate filibuster rose to prominence during civil rights debates in the 1950s and 60s, it ran its course and the majority prevailed. Today, it is commonplace and a matter of course for such a lock-step minority systematically to prevent consideration of the clear majority will.

The Constitution prevails over congressional rules. Can it be seriously argued that the Senate could adopt a rule that individual Senators could only vote on every other bill or that they could only vote on trade issues, for example, in the fourth year of their term?

Rules of the Senate cannot trump the obvious intention of the Founding Fathers that legislation passed by majorities of both houses, except for the explicit exceptions for ratification of treaties, becomes the law of the land. This is not a partisan question; though today the filibuster, real or threatened, dominates virtually every significant issue confronting the Senate and our nation. The law of political payback will ensure that today’s Senate majority, once it becomes the minority, will exact its revenge on today’s opposition minority party.

Examples of recent abuse of the cloture rule include a 53 to 36 Senate vote to end tax cuts for the wealthy and a 57 to 40 vote to end “don’t ask, don’t tell” regarding the service of gays in the military. Regardless, both measures failed under the threat of a filibuster. These and other examples are clear violations of the fundamental principle of majority rule.

This is no way to govern a great democracy, not to say also a democracy seeking to democratize other nations.

The abuse of the cloture rule ending debate is a violation of fundamental Constitutional principles. Should a judicial test of this notion occur, it will at the least prove which of the current Supreme Court Justices are, or are not, true “originalists”. Resolutions have been introduced in the Senate to alter the cloture rule and permit majority rule, while continuing to protect the rights of individual Senators.

In the interest of the nation and the U.S. Constitution, the Senate must once again become a democratic institution.

Tomorrow is the next round in democracy’s struggle.  Listening to all the pundits and pollsters, wall-to-wall, it seems foregone that Democrats will lose the House majority and possibly the Senate as well.  At the very least, any thought of major legislation–possibly even minor legislation–initiated by President Obama, must be forsaken.  On the other hand, the perennial Republican effort to privatize Social Security, or for that matter destroy the new health care legislation, will face a presidential veto.  At the very least, the 2012 presidential campaign and the effort to drive President Obama from office will start November the 3ed.
More sophisticated political analysts than I (and here I do not include the self-described 23 year old, cable infested, political “strategists”) will reach their own conclusions as to what this all means, especially when it is almost axiomatic that opposition parties gain in off-year elections.
The historic question this election raises is this: outside the minimum requirements of the Constitution are there standards of intelligence, knowledge, and mental agility we should expect of our elected officials.  A more crude way of asking this question is: Is ignorance an attribute? 
Though relatively young when first elected, I had government and political experience, a law degree, and considerable study of the Constitution.  I didn’t know enough economics, so when considering a candidacy I sought out business and academic economists because I thought I should have at least a minimal understanding of fiscal and monetary policy.  Perhaps today’s crop of candidates are taking the responsibilities of national policy making seriously, but if so it is not apparent. 
Instead, a number of candidates for the House and Senate seem to pride themselves on what they do not know.  And a considerable number of voters seem to favor willfully ignorant candidates, as if knowing something is a barrier to service.  It is one thing to mistake ignorance for an attribute.  It is even worse to reward those who actively resent learning, science, intelligence, and education.
(I confess to having served in the good old days of better government with one, and only one, Senator whose motto was: not very intelligent people need their representative too.)
All those who genuinely love and care for their country and who take the duties and burdens of citizenship seriously must hope this willful ignorance fad will quickly pass, as it has in previous troubled times.  If so, we will quickly return to a more normal time when elected representatives are held to higher standards of thoughtfulness.  This does not mean high IQ.  This means open-mindedness, inquisitiveness, and eagerness to learn and not just spout slogans and talking points.  If not, then we are in for a troubled time for our nation.
Jonathan Swift’s Houyhnhnms, Lilliputions, and Yahoos come to mind.  They all represented the anti-Enlightenment thinking of his time.

Ink by the Barrel

Author: Gary Hart

According to H.L. Mencken, never pick a fight with a man who buys ink by the barrel.  Though he was correct about the consequences, some of us have refused to be intimidated.  (But that is another discussion.)

Nevertheless, what are thoughtful people to do when the men, and women, who buy ink by the barrel use an unconscionable amount of it–or its electronic equivalent, hours of airtime–to “report” on a hitherto anonymous minister in Florida for the simple reason that he threatened to burn a Koran?  And particularly when the reporting is 24/7, non-stop.  (The quotation marks are used to suggest this really isn’t news in any traditional sense.)

Had this travesty of abuse against the First Amendment to our Constitution not occurred, does anyone seriously believe that this minister would have received a pleading call from the Secretary of Defense of the world’s greatest superpower to cease and desist?  Would the Secretary of State, the Mayor of New York, and even the President of the United States have felt called upon to render opinions and pleas?

It is what it is.  But, at the very least, it is a cause for wonder about who is running the news business these days when audiences for both network and cable “news” are disappearing as fast as candidates who don’t take special interest money.  One has to have some suspicion that the 26 year old producers and editors calling the shots are under the bizarre assumption that some of us poor ignorant readers and viewers actually are interested in or amused by this nonsense.  Apparently their theory is that we are too dumb to absorb real news, so we must be fed irrelevant childishness.

Too bad a few of these overpaid children weren’t required to read the purposes of the First Amendment.  It wasn’t so that they and their publishers and network moguls could make money.  It was because the Founders knew the Republic would be in peril without the public having solid information about its really important business.  And there is a record amount of public business that we are being told precious little about.  These children must find it boring and assume we adults do as well.

Learning on the Job

Author: Gary Hart

Thomas Jefferson said that to expect a man [today he would say person] to hold the same views throughout life, while life changed all around him, was like expecting a man to attempt to wear the same clothes he wore as a boy.

That observation came to mind in reading one commentary on the judicial life of retiring Justice John Paul Stevens.  It was observed that he was not asked one question about his views on abortion during his confirmation hearings and that as a Republican nominee he was unanimously confirmed by a Democratic Senate (of which I was a member).  During his lengthy service on the Court he changed his views on a number of key issues, not least on the death penalty.

This is obviously surprising, if not stunning, in two regards: the Court has become an ideological tug-of-war principally in the past three decades, and politics has become inhabited by people who cannot or will not change their minds on virtually anything as life changes around them.

This has to do in part with the theme of this blog: principles should not be changed, but what Jefferson called “style” can be.  Certainly for some people, on both sides, matters such as abortion, the death penalty, and related social issues are matters of principle.  But, in the case of the death penalty, Justice Stevens view on the matter changed because he came to see how poorly and unjustly it was being administered.  The lesson has to do with the gap between principle and practice: in an ideal world, only mad-dog killers are executed; in practice, in the real world of fallible (or ideologically motivated) human beings, too many innocent people are executed.  Experiencing this difference can cause thoughtful people to change their views, while still holding onto principle.

Like most of the ruminations on this blogsite, this is a matter for lengthy discussions well into the night.  What some might draw from it, however, is to hope for judges and policy-makers who are open to changing circumstances, mind-changing experiences, the evolution of human events, new evidence and information, and a temperment that is willing to question old assumptions. 

Many, but certainly not all, of the large figures I was honored to serve with in the 1970s, when a Supreme Court justice could be unanimously confirmed and before the ideological wars began in America, were people perfectly capable of learning, thinking, adapting to new evidence, and, in a word, growing.  Thereafter, things began to change.  

Our nation will not resume its mainstream course forward until we learn to put leaders who are capable of learning on the job, and who possess a judicial temperment,  back on the judicial bench and in the Congress.

The Imperial Presidency

Author: Gary Hart
We the PeopleRecent statements by the Obama administration that the president may be considering his own policy of picking and choosing among provisions of laws passed by Congress, similar in principle to the previous Bush administration, is disturbing.  Having spent a lifetime studying the U.S. Constitution, I can find no provision in it that grants the chief executive this power.
Article I, section 1, clearly gives to Congress the sole authority to enact legislation (“All legislative Powers herein granted shall be vested in a Congress of the United States…”).  Section 7 of the same Article gives the president the power to approve or veto laws passed by Congress.  But nowhere in the Constitution is the president given the authority to decide which laws to execute and which not to.
As Congress cannot intrude on the president’s executive authority, except to disapprove it by law, so the president cannot legislate selectively.  Partisan Constitutional scholars may write learned memoranda pointing out instances, usually in time of war, where presidents have acted without authority or have by-passed or side-stepped legislative mandates.  But might does not make right.  And repetition of unconstitutional actions does not make them more Constitutional.
If President Obama proceeds down this path, out of his own sense of expediency or the urging of frustrated or power-hungry advisors, he will be adding precedent for his successors to follow, successors who may not be as scrupulous as he.  The late Arthur Schlesinger, Jr., wrote “The Imperial Presidency” in 1974, at the close of the Nixon administration.  He wrote: “When the constitutional balance [between Congress and President] is upset in favor of presidential power and at the expense of presidential accountability, the presidency can be said to become imperial.”
Partisans repeatedly wish to make exceptions to strict Constitutional construction in favor of their own favored president.  But the Constitution is not a document meant for expediency.  It survives only so long as its terms are honored and obeyed regardless of president, party, or circumstances.

“…and our posterity”

Author: Gary Hart

we_the_people_smThis little-noticed phrase in the Preamble to our Constitution has profound significance for laws and governing.  If taken seriously it could force us to think entirely differently about laws and government.

The Preamble justifies our Constitution as the basis for forming a more perfect union, establishing justice, insuring domestic tranquility, providing for the common defense, promoting the general welfare, and securing the blessings of liberty “to ourselves and our posterity.”  Most scholars, though not all, conclude that “our posterity” applies to securing the blessings of liberty.  Some believe we must take into account “our posterity” in achieving all of the Constitution’s purposes.

Either way, the idea that future generations have a stake in carrying out the Constitution’s objectives is profound.  When we go to war or even just buy weapons, when we act or do not act on climate change, when we do or do not reform health care, when we preserve wilderness or extract non-renewable resources, when we bail out banks and industries, when we do these and many, many more things, we do so not only for ourselves but also for our posterity, as far into the future as we can imagine generations.

Though political figures often acknowledge “our children and grandchildren” in their speeches, when you listen to political arguments today they almost always have to do with how will this or that affect me, right now, in my life.  Almost all of our concerns are about the impact of decisions on ourselves and our lives.

Assuming our Founders to have been serious people and most of all those who chose words carefully who knew they were writing for the ages, we can assume they meant what they said.  We are to take into account the impact on our posterity’s achievement of the blessings of liberty, and perhaps much more, when we make important public decisions.

We all leave some kind of legacy.  For the fortunate it is often money and property.  For the humble it is usually just our example.  That is our private legacy.  Why can we not also see that we also leave a public legacy, our nation, its resources, a peaceful or warlike planet, the global environment, and much more. 

By adding “…and our posterity,” the Founders placed upon us a profound moral duty.