Living in a dying Republic.
Not a murdered one, stabbed through its Senate by a rising Empire, as in Rome. Not one ravaged by the depredations of wars, external or internal. Just one that stopped caring passionately about its continuation. One that simply concluded that frames, forms, boundaries and limits on governmental reach were meaningless, often unhelpful to personal interests, and able to be ignored without cost.
How bizarrely we think!
We look long back at Jefferson, Madison, Washington, and see their slaves. We look long back at Franklin, Adams, Gerry, and see their toleration of slavery.
We entirely miss their genius exhibited by framing a system in which those who held slaves, even ones who saw their own acts as immoral, and those who found slavery reprehensible, could toil together toward their common LIBERATION FROM TYRANNY.
Now we only see the undeniable injustice of the slavery. Now we only see the true complicity of the agreement.
We do not see the risk they took. We do not see the sacrifices they made. We do not see the labor of their lifetimes.
We simply deny the existence of giants on whose shoulders this Nation has stood. Worse, we have undertaken an assault and battery on them, hammering and chiseling away at the very shoulders on which we stand.
What we deny seeing is that these injustices and that complicity were, not are. They are in the past. While wrongs assuredly echo into the generations, our Nation has paid, is paying, the piper for the tune those gentlemen danced.
But, we should also see this:
Every descendant of slaves born today in this Nation lives, by comparison with his cousins, both those distant in time and those distant in geography, in a most kingly fashion. Yes, even when such descendants live in government housing, eating government cheese, attending government schools, getting health care through a government plan, they are living like kings compared to children that walk an hour each way to collect filthy water, that would relish the moments on the bus, in the classroom, and in the Section 8 housing provided to them.
That is not to say that we should be contented that we have achieved a national level of affluence sufficient to afford charitable care for millions. Instead, we should be in the business of getting out of the way of liberty, out of the way of private economic arrangements that grow opportunity for all.
But, this posting is not so much about that, as it is about the sometimes terrible fear I have that those to whom we entrust the instruments of government, and we who repose those trust, alike, no longer see harm in liberties lost, in mounding up the powers of government.
Winks and blinks, I fear, will be the death of our Republic.
Winks, of course, signify an agreement.
You've seen this time and again, perhaps beginning with your parents' shared winks when one of them confirmed that the tooth fairy left you the quarter under your pillow, or that Santa had eaten the cookies you left for him.In the enterprise of liberty, one of the important, but not original, features of the frameworks of both our State and federal governments is the division of power between branches. We have Legislative, Executive and Judicial branches. Each has powers and responsibilities, and these are different in character and relevant to their sphere of responsibility.
We know that the Legislature -- in your State and in Washington, DC -- make laws, the Governor and the President enforce laws, and the Judiciary judges the enforcement of criminal laws and hear civil cases between parties. That is the design as crafted in State Constitutions and in the federal one.
Yet, the winks never end.
For example, Congress enacts laws to regulate the safety of foods. Yet, because an exhaustive statute law to cover the topic would consume many thousands of pages, Congress creates an agency, the Food and Drug Administration. It grants discretionary power to the agency, by rules and regulations to fill out the blanks if the Food law. It winks, if you will, at an Executive agency engaged in making law.
The photo to the left shows a printed copy of the Patient Protection and Affordable Care Act (Obamacare). It passed Congress at a substantial girth of just over 2000 pages. It seems like a substantial law, doesn't it? And given its length, who can blame Nancy Pelosi for not reading the law, and who can blame Barack Obama for making promises without reading the law.
Yet.
As huge as that law is, it is an infant, a mere bagatelle, by comparison with the body of regulations that have been generated by the several agencies involved with implementing the Obamacare law. Agencies including the
When the rules and regulations adopted to implement Obamacare are stacked together, the stunning multiplication threatens the record when Jesus fed the five thousand with just a few loaves and fishes. The picture on the right shows the regulations enacted by the agencies.
But, wait, there is more.
An agency like the FDA, it is charged with enforcing the law. Typically, law enforcement consists of a government actor examining private conduct to determine whether that conduct comports with requirements of law. If the conduct does not comport with law, the law enforcement agent or agency brings the individual or organization into a court, either by suing them, or by filing a criminal charge. The application of the law to the facts -- determining if the government actor correctly concluded that the conduct was unlawful -- is done by the judiciary. Yet, with winks from both the judiciary and the legislature, federal agencies (and many State ones) conduct quasi-judicial proceedings.
The incessant winking of the branches has produced, particularly at the federal level, but also in many States, a bricolage of powers and responsibilities shared among branches, rather than particular, even peculiar, to each. That circumstance leave a beleaguered populace confused, disoriented and uncertain whether the collapse of their liberties results from real wrongs, trespassory actions of judges acting like legislatures, executive agencies acting like judges and legislatures, and legislatures not wanting to bear full faith and allegiance to the Constitution by performing their jobs and stopping overreaches by the remaining branches.
And that brings us to the blinking.
That notion is captured in an Ad Age article about the cola wars.
And that brings us to the blinking.
Blinking, on the other hand, signals surrender.
That notion is captured in an Ad Age article about the cola wars.
In the constitutional framework, there are balancing mechanisms that are essential to keep the powers of the federal government divided. In The Federalist No. 78, Alexander Hamilton explains it this way:
And the Congress both makes the laws by which we live, but prescribes the structure of taxes and expenditures by the government. Elsewhere the authors of the Federalists explain (and the secret notes of the Constitutional Convention reflect this thinking) that the power to tax and the power to make laws were placed in the local electorate because it maintains that intimacy of connection between those that legislate and those upon whom the burden of legislation is laid.
The Judiciary lacks the force of the Executive, with its powers of arrest and prosecution, and it lacks the will of the Legislative, with its power to make laws, assess taxes, and order expenditures. The Judiciary has only judgment.
Take all three of these powers. Consolidate them in a man. You will call that man, Majesty, Highness, Chairman, Fuhrer. What you call him, no matter what it is, will mean, in fact, tyrant. That conjoined triplet of tyranny is the fearful monster the Framers of the Constitution sought to avert every arising in this new Nation. That is the reason for the Separation of Powers.
But, there is more than separated functions for these separated branches to the security of our liberty.
Particularly in the Congress, there is an insurmountable power that makes the Legislature more powerful than either of the remaining branches: the power to impeach and remove constitutional officers, including Presidents, cabinet officials, Supreme Court justices and federal judges.
Hold on, Jim, did you just say that the Congress is MORE POWERFUL than either the President or the Judiciary?
Yes, in fact, I did.
Because of the power to impeach and remove officers of the government, Congress holds the winning card in EVERY HAND. The Constitution simply does not admit of an equally effective weapon for the use of either the President or the Courts. True, we read about individual Congressmen being arrested on corruption charges. Also true, we read about judges from time to time that issue injunctions against government programs (Judge Andrew Hanen in Texas, who enjoined the DAPA deferral program of the Obama administration comes to mind). But, in the main, these powers of the Executive and the Judiciary do not arch over, or overmatch, the Congress.
So, in a system in which the power of the Congress PREDOMINATES over the Presidency and the Judiciary, how do we come to the point where now we are?
By the blinking surrender.
Here's an example. In 2013, the Congress and President Obama could not come to agreement on funding legislation for the federal government. Republicans controlled the House of Representatives, Democrats controlled the Senate. House Republicans came to power in 2010, in a nationwide revulsion to various aspects of Obamacare, including its provisions and the process that led to its enactment.
Throughout 2013, TEA Party activists, fiscal conservative Republicans, and others had engaged the public in an effort to build support for a Congressional solution to the problematic and controversial legislation. Ultimately, House Republicans prepared spending measures that left Obamacare functions unfunded; Senate Democrats had their own proposal that funded the law's enforcement and implementation. Unable to reach agreement, the end of September, 2013, spending authorization for discretionary government functions expired.
On the Republican side, however, commitment to a shut down of the government -- previously accepted as a reasonable action to prevail on the issue of Obamacare -- wavered. Moderate Republican Senator Lamar Alexander worked out a funding solution with Senator Chuck Schumer. Then-Senate Majority Leader Harry Reid and Senate Minority Leader Mitch McConnell agreed to the legislation. That proposal did not defund Obamacare (the original proposal from the House). That proposal did not delay implementation of Obamacare for a year (a second proposal from the House). The Republicans, in a word, blinked.
The blinking goes beyond budget battles related to Obamacare. And it is not limited to Congressional blinking.
Recall President Obama's plan to conduct a bombing campaign against Assad in Syria, back in the late summer of 2013? Although that campaign appears to be a possible resurrection now, broad-based opposition, both domestic and internationally, resulted in Obama's threat being all teeth and no bite. Obama blinked.
Now, in the end of things, the blinking on discrete policy issues is just part of politics, the give and take of compromise in a heterogeneous population.
Blinking on the boundaries of constitutional power and duty, however, presents grave risk of harm. The balance of powers depends not only on each department of the government restraining itself to its granted powers, but on each department, to the extent it lies within its granted powers to do so, to check excesses in the others. Impeaching the justices of the Supreme Court would check an excess in which they began to usurp, for example, the presidential power to command the military forces of the United States. Prosecuting a Senator because her votes were corrupted by benefits offered to her by an interested party -- for taking a bribe -- would check that Senator.
But when none of the departments of the government asserts and employs its power to check excesses of the other branches, a disrespect for the entire framework becomes unavoidable.
President Obama says that he will conclude an international agreement with Iran regarding sanctions that have been in place for twenty-five years, sanctions targeting the world's leading sponsor of international terrorism. Moreover, Obama says he will do so without agreement thereto by the Senate. Now, Obama's position has been defended, by Secretary of State Kerry, for example, on the ground that the agreement to be reached is not a "treaty" as that term is used in the Constitution. The Constitution, of course, requires that treaties negotiated by the President depend the advice and consent of two-thirds of the Senate.
By recasting the arrangement with Iran and other international powers as an "agreement," Obama clearly intends to avoid submission to the Senate's advice and consent the questions of ending sanctions against Iran's regime and turning a blind eye to the long-sought Iranian goal of becoming a nuclear power. This abuse of the Constitution ought to provoke a constitutional response. I have previously described three constitutional checks on power granted to the Congress alone: oversight, budget, and impeachment.
In response to Obama's disregard of the Senate's constitutional role, will we see yet another blinking Congress? Will Congress fail to restrict the budget of the Executive Branch as a discipline for Obama's defiance? Will Congress fail to call the Secretary of State to account in hearings on all aspects of the "agreement?" Will Congress fail to show the resolve embodied in the decision to impeach the President, the Secretary of State, and other complicit officers of the United States?
The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.So, the President "holds the sword." Do not confuse that as a reference to the President's role as Commander in Chief. It is a direct reference to the Letter of Paul to the Romans, where Paul remarked that "magistrate beareth not the sword in vain." The sword that the President bears is the sword of enforcement, of punishment.
And the Congress both makes the laws by which we live, but prescribes the structure of taxes and expenditures by the government. Elsewhere the authors of the Federalists explain (and the secret notes of the Constitutional Convention reflect this thinking) that the power to tax and the power to make laws were placed in the local electorate because it maintains that intimacy of connection between those that legislate and those upon whom the burden of legislation is laid.
The Judiciary lacks the force of the Executive, with its powers of arrest and prosecution, and it lacks the will of the Legislative, with its power to make laws, assess taxes, and order expenditures. The Judiciary has only judgment.
Take all three of these powers. Consolidate them in a man. You will call that man, Majesty, Highness, Chairman, Fuhrer. What you call him, no matter what it is, will mean, in fact, tyrant. That conjoined triplet of tyranny is the fearful monster the Framers of the Constitution sought to avert every arising in this new Nation. That is the reason for the Separation of Powers.
But, there is more than separated functions for these separated branches to the security of our liberty.
Particularly in the Congress, there is an insurmountable power that makes the Legislature more powerful than either of the remaining branches: the power to impeach and remove constitutional officers, including Presidents, cabinet officials, Supreme Court justices and federal judges.
Hold on, Jim, did you just say that the Congress is MORE POWERFUL than either the President or the Judiciary?
Yes, in fact, I did.
Because of the power to impeach and remove officers of the government, Congress holds the winning card in EVERY HAND. The Constitution simply does not admit of an equally effective weapon for the use of either the President or the Courts. True, we read about individual Congressmen being arrested on corruption charges. Also true, we read about judges from time to time that issue injunctions against government programs (Judge Andrew Hanen in Texas, who enjoined the DAPA deferral program of the Obama administration comes to mind). But, in the main, these powers of the Executive and the Judiciary do not arch over, or overmatch, the Congress.
So, in a system in which the power of the Congress PREDOMINATES over the Presidency and the Judiciary, how do we come to the point where now we are?
By the blinking surrender.
Here's an example. In 2013, the Congress and President Obama could not come to agreement on funding legislation for the federal government. Republicans controlled the House of Representatives, Democrats controlled the Senate. House Republicans came to power in 2010, in a nationwide revulsion to various aspects of Obamacare, including its provisions and the process that led to its enactment.
Throughout 2013, TEA Party activists, fiscal conservative Republicans, and others had engaged the public in an effort to build support for a Congressional solution to the problematic and controversial legislation. Ultimately, House Republicans prepared spending measures that left Obamacare functions unfunded; Senate Democrats had their own proposal that funded the law's enforcement and implementation. Unable to reach agreement, the end of September, 2013, spending authorization for discretionary government functions expired.
On the Republican side, however, commitment to a shut down of the government -- previously accepted as a reasonable action to prevail on the issue of Obamacare -- wavered. Moderate Republican Senator Lamar Alexander worked out a funding solution with Senator Chuck Schumer. Then-Senate Majority Leader Harry Reid and Senate Minority Leader Mitch McConnell agreed to the legislation. That proposal did not defund Obamacare (the original proposal from the House). That proposal did not delay implementation of Obamacare for a year (a second proposal from the House). The Republicans, in a word, blinked.
The blinking goes beyond budget battles related to Obamacare. And it is not limited to Congressional blinking.
Recall President Obama's plan to conduct a bombing campaign against Assad in Syria, back in the late summer of 2013? Although that campaign appears to be a possible resurrection now, broad-based opposition, both domestic and internationally, resulted in Obama's threat being all teeth and no bite. Obama blinked.
Now, in the end of things, the blinking on discrete policy issues is just part of politics, the give and take of compromise in a heterogeneous population.
Blinking on the boundaries of constitutional power and duty, however, presents grave risk of harm. The balance of powers depends not only on each department of the government restraining itself to its granted powers, but on each department, to the extent it lies within its granted powers to do so, to check excesses in the others. Impeaching the justices of the Supreme Court would check an excess in which they began to usurp, for example, the presidential power to command the military forces of the United States. Prosecuting a Senator because her votes were corrupted by benefits offered to her by an interested party -- for taking a bribe -- would check that Senator.
But when none of the departments of the government asserts and employs its power to check excesses of the other branches, a disrespect for the entire framework becomes unavoidable.
President Obama says that he will conclude an international agreement with Iran regarding sanctions that have been in place for twenty-five years, sanctions targeting the world's leading sponsor of international terrorism. Moreover, Obama says he will do so without agreement thereto by the Senate. Now, Obama's position has been defended, by Secretary of State Kerry, for example, on the ground that the agreement to be reached is not a "treaty" as that term is used in the Constitution. The Constitution, of course, requires that treaties negotiated by the President depend the advice and consent of two-thirds of the Senate.
By recasting the arrangement with Iran and other international powers as an "agreement," Obama clearly intends to avoid submission to the Senate's advice and consent the questions of ending sanctions against Iran's regime and turning a blind eye to the long-sought Iranian goal of becoming a nuclear power. This abuse of the Constitution ought to provoke a constitutional response. I have previously described three constitutional checks on power granted to the Congress alone: oversight, budget, and impeachment.
In response to Obama's disregard of the Senate's constitutional role, will we see yet another blinking Congress? Will Congress fail to restrict the budget of the Executive Branch as a discipline for Obama's defiance? Will Congress fail to call the Secretary of State to account in hearings on all aspects of the "agreement?" Will Congress fail to show the resolve embodied in the decision to impeach the President, the Secretary of State, and other complicit officers of the United States?
We already know the answers to these questions are yes, yes, yes, and yes.
And that, my friends, is how a Republic dies.
And that, my friends, is how a Republic dies.
