Pro Logica

October 8, 2012

Government Reform–Part 1: Introduction

This post is the first of possibly five separate posts on governmental reform in the United States (as it develops, additional posts may be added).  These posts will be interrelated and culminate in a post on tax reform.  The topics as currently envisioned are: government pay, Social Security and Medicare, non-profit organizations and taxes.

The existing U.S. income tax has been around for some seventy years and in that time it has been used to implement various social benefits to the citizenry.  For many people and organizations, the job of determining how much one owes has become a chore and tax reform has been battered about for years without any reform at all.  Tinkering with the specifics of the law each year has, more or less, become a habit of the legislature and even if all loopholes were eliminated it wouldn’t be very long before Congress would start the tinkering process all over.  The current presidential candidates are proposing changes to the existing tax code, these changes consisting of either raising or lowering rates on various classes of income and removing so-called loopholes which allow some taxpayers to pay a lesser amount than the standard rate–really, more tinkering and further legitimizing its existing structure.   Furthermore, the current tax code can be invidiously tweaked to alter the rates among the various classes and to add insult, the descriptions of the changes rarely inform the taxpayer of any increase to their taxes; they might tout a decrease however.  For instance, in 2010, those seniors who paid taxes, paid more than they would have under the 2009 calculations simply because the extra exemption for those over 65 was removed and a much smaller figure was added to the allowable deduction.  In my case the increased tax liability amounted to almost $600.00.  This particular change does raise some interesting questions:

  • Did Congress actually approve this change of calculation by passing a bill which received a presidential confirmation or was vetoed and then over-ridden by the necessary majority?  (Republicans and Grover Norquist notwithstanding.)
  • If not the above then, where in the Executive Branch did this change actually originate and was it approved by the POTUS in a presidential directive?  (The POTUS must have been involved somewhere, but its inclusion might have been hidden in routine operations.)
  • Does the law, as written, actually allow such Executive Branch revisions?  (Congress ultimately at fault.)
  • Was there no comment period and did any retired senior lobby (AARP especially) complain about this change?

Clearly, if transparency and simplicity is supposed to be a governmental goal, the existing tax code is inadequate.

Federal government pay has been a subject of contention ever since the Federal government has been paying employees.  Many private employees and employers believe that government workers are overpaid while the government workers, themselves, believe the opposite.  A liberal reading of the U.S. Constitution will only affirm that its elected officials, appointees and required staff will be paid.  Clearly, its authors did not believe that a fixed pay schedule would stand the test of time.  The views here can range between ‘bureaucratic personnel are overpaid’ and ‘Confucianism’.

Social Security and Medicare certainly need revision since our country’s demographics do not elicit any confidence that these programs will pay for themselves in the far foreseeable future.  These programs are exceedingly well-liked by U.S. citizens and reform will be exceedingly difficult, but something must be done.

And finally, non-profits need more definitional scrutiny since they are often used as methods for circumventing established laws and/or beliefs of accountability by government and, private individuals and organizations.  Witness today’s concern about super PAC’s.

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September 3, 2012

Legal Abortion? Blame Texas

Filed under: Specific rulings of SCOTUS — Tags: , — Ron Toczek @ 2:58 pm

While this topic is old news relative to my posts on abortion, I am repeating my views here because I believe the pro-life people are pursuing the wrong tactic for eliminating abortion, mainly because health of the pregnant woman,rape and incest will always be contentious subjects.  Certainly, person-hood amendments to constitutions would be definitive to protecting new-born life but they cannot totally prevent abortions especially since SCOTUS has defined a right to privacy and Congress has done nothing to prevent SCOTUS from ruling on the topic.

When we examine the Roe v. Wade ruling we find that there is nothing in the U.S. Constitution about abortion, absolutely nothing.  Also, the right to privacy cannot make an illegal action into a legal one–consider the use of hearsay in criminal trials  or the principle of the seal of confession in the Catholic Church.  This, together with Amendment X limits SCOTUS jurisdiction to Federal laws concerning privacy unless the law specifically states that it applies to all the States.

Following this logic, Texas had every right to tell SCOTUS to stick their ruling up their you-know-what, but by meekly acquiescing they set a precedent for the other States.  However, pro-life groups should notice that nothing has changed either with the Constitution or laws enacted under it, meaning each state can repudiate the Roe v. Wade ruling whenever it so desires.

In the Aftermath of the AFCA Decision by SCOTUS

Filed under: Specific rulings of SCOTUS — Tags: , , , , — Ron Toczek @ 12:42 pm

The news sphere has been rife with comments about the SCOTUS decision to uphold the Affordable Care Act.  In a 5-4 decision, Chief Justice Roberts has been credited with the swing vote whereas many pundits were ready to give that position to Justice Kennedy.  So much for predictions.  Since this was an important milestone for health care here in the U.S. it was not surprising to see the number of news articles and blog posts which appeared–I know that I have only read a small portion of what is available.  For all the analysis, criticism and praise thrown out to the public, I am commenting here on three aspects of the ruling which, in my opinion, has received very little coverage:

  1. The ruling is very conservative, much more so than the dissenting opinion by the ‘conservative’ justices,
  2. The arguments against the forced expansion of Medicaid are specious, and
  3. The use of the word ‘liberty’ as a synonym for ‘freedom’ by Justice Kennedy.

(Before getting to the above three topics, I am expressing my disapproval of any simple majority vote being either an expression of democracy or an example of the rule of law–stated in a prior post—simply because one vote by one person is not enough to establish a law to be worthy of enforcement.  One can only marvel at the possible attempts to corruptively influence a single person to change their vote.  A 5-4 SCOTUS ruling, for or against, should always be declared  as favorable to the defendants of the suit or to the constitutionality of the law in question.)

1.   ‘Conservative’ in its adjectival sense expresses a desire to do things as they have been done in the past and there are many old sayings which attest to its virtue.  Here, its opposite is ‘innovative’ or ‘a desire to change from the traditional’.  Since new ideas and new gadgets are always arising and shortcomings of the traditional methods–usually due to unforeseen consequences caused by individuals trying to exploit the traditional for their own benefit, deficiencies from the expected public outcome of the traditional may occur and some innovative course of action may be necessary to correct the imbalance.  Being conservative means to weigh the innovations against their practicability and to guard against a hasty acceptance of the new before many of its unintended consequences have enfolded.  Many times, innovation wins out before a long enough trial period due to youthful exuberance for the new, necessity for an immediate solution, special interest lobbying or sometimes just plain ignorance, enough so that the new does not quite live up to its expectations necessitating further modifications or even some backtracking, all to be expected in a working republican government.  It is very disconcerting that a political party (the Republican Party) using the name of the classification of our government is actively rejecting the essential principle underlining republican governments, that of compromise among the lawmakers.

The oldest tradition applicable to a constitutional government comes from parliamentary law and basically says that the legislative body determines the law and that any judicial body can only determine that law’s constitutionality and specific applicability, in other words, a judiciary does not have the authority to make law; the purpose of the law and whatever its effects on the governed cannot be a consideration of the judicial body.  Essentially, this tradition can be restated as saying that the finding of a constitutional provision which allows the legislative act is enough to make it constitutional.  The dissenting opinion is relying upon the principle that finding a provision which might not justify the law is enough to declare such law as unconstitutional, a principle which is found nowhere in parliamentary law.  Chief Justice Roberts found a constitutional provision which allowed the mandate and being conservative in outlook made the conservative decision.  I point out again that for SCOTUS to enter a ruling stating that a Federal law is unconstitutional is an attempt to make law and by examining the law which authorized the establishment of the Federal marshal system one can see that it prevents the Judiciary from enforcing any of its rulings.

2.   The ruling concerning the Medicaid expansion is specious only because it differentiates between the methods employed by Congress to enact laws.   As I read the ruling, it would be allowable for Congress to rescind the old Medicaid law and substitute new provisions for Medicaid which exactly coincide with the new parameters.  This seems to set an artificial condition on Congressional methods for enacting laws–SCOTUS cannot really enforce any of its rulings.  As one can gather from the criticism of this aspect, Medicaid is a voluntary program for the States.

3.   Finally, the difference between ‘freedom’ and ‘liberty’, when talking politics, is the difference between individual and group action.  Every individual in a given society or culture has the freedom to obey or flaunt the norms or laws of their society or culture.  There may be consequences of that freedom, but the individual can accept those consequences.  The question of liberty does not arise until there is a subpopulation of some society or culture which considers itself distinct and separate from the present political entity and forms a goal of separating themselves from that ruling group.  Liberty in this political sense indicates that the group wants responsibility for its own laws and customs.  Revolutions are about liberty, not freedom; liberty is about groups, not individuals.  The question of viability, worthiness and morality of any revolutionary group are unrelated to the concept of liberty, contrary to most people’s expectations; not every revolutionary group has bettered the life of those people it purportedly represents.  Justice Kennedy, by using ‘liberty’ instead of ‘freedom’, had two aims: to rhetorically have the readers of the dissenting opinion associate his belief of the injustice of the mandate is on a par with the injustices of the British rule over its territories which later became the United States of America and also to mislead those same readers into thinking he has a valid argument but is nothing more than the freedom any individual already has to either obey or flaunt the law.

February 17, 2012

Presidential Electability–A New Development

Filed under: Interpretation, U. S. Constitution — Tags: , — Ron Toczek @ 6:04 pm

After I’ve posted my view on presidential eligibility, two judges have made the national news.  One, a Georgia judge in a state case, has subpoenaed  the president asking him to prove his eligibility in order to be placed on the Georgia ballot in the upcoming November elections.  Two, another judge has stated his opinion that a native-born citizen is a natural born citizen and that Mr. Obama is a native-born citizen.  I did not pay attention to all the details in this latter situation so I am not sure whether there was a judicial ruling in a case but it seems to me that is was a Georgia judge, not a Federal one, who made the claim.

For those who have read my earlier post, you may probably guess what I am about to say.   To the judge issuing the subpoena Mr. Obama should reply,  “In 2008, I have met all the eligibility requirements for POTUS, and unless you have evidence to the contrary, I still meet the same qualifications and you cannot probe for evidence using me as a witness.  If you do have a credible witness who can testify that I am not a natural born citizen (of course you will have to supply a definition for such) your complaint is first with the sovereign state of Hawaii, claiming that the state was erroneous in issuing a statement saying that I am a natural born citizen.  Should the state retract their original statement, I can still contest that retraction but until the state of Hawaii does, you have no authority to issue a subpoena to me for the purpose of establishing my qualifications for POTUS.”  On the other hand, by not appearing, he certainly implied the above though I suspect that the judge would not see it that way.

Clearly, the other judge’s statement lies in the realm of pure opinion unless it occurs as a part of an official ruling.  An official ruling by a State judge would still be an opinion as far as the other States are concerned.  If a ruling by a Federal judge and no Congressional law is passed to the contrary and other states accept the definition as valid, an official opinion can then be accepted as a de facto law.  Judges like to assume their de facto laws are established laws (note Chief Justice Roberts statement on Roe v Wade), but standard parliamentary procedure dictates otherwise.

The case which prompted the Georgia judge to subpoena the POTUS brings up a new wrinkle in the process of electing a POTUS which has absolutely nothing to do with eligibility but a lot to do with electing a POTUS.  The primary concern of this Georgia case is to determine whether Mr. Obama should be allowed to have his name on the Georgia ballot as a candidate for POTUS, eligibility is just one of the considerations.

Some years back there was a national discussion about limiting Congressional delegates to two terms. At the time I was in favor of it chiefly because the Constitution, by not saying anything against it, just plain permitted it.  Those opposed used precisely the same argument and, consequently, nothing was done.  This latter stance was and is very hypocritical since laws are generally construed to be specific in a positive sense and hardly ever in a negative sense. There are laws which lay out their purpose and this can lead to unspecified actions being argued as against the purpose of the law, but the Constitution has no such purpose which a term limit restriction can be found to be against.  Also, the Constitution affirms the sovereignty of the States which implies that the States can very well apply further restrictions to their elected delegates.  Applying these principles to the electoral process for the POTUS, it is very clear that each State has complete control over its electoral representatives; i.e., they can require their electoral representatives to vote for a particular candidate, not vote for a particular candidate or something in between.  Translating this view into today’s regular election process wherein the candidates for POTUS are listed on ballots and then the state assemblies  appoint the electors, the state assemblies may still exercise their control over their electors but the state has an additional method of keeping a candidate for POTUS off the ballot by just not allowing it in the first place for whatever reason.

In other words, Georgia, as well as any sovereign State of the U.S., can, Constitutionally,  deny any presidential candidate a spot on their ballot, providing they have one, direct their electors on who to vote for or even give no direction to their electors.  Of course there are other, non-Constitutional considerations that would determine what a State actually does.

January 20, 2012

Presidential Recess Appointments

Senators and other members of the Republican Party are up in arms about the POTUS appointing three executive officers while claiming the Senate was, in point of fact, in recess when the appointments were made.  These people claim that the Senate was actually in Session since a member came to the chambers and opened a session but since a quorum was not present, immediately adjourned.

Parliamentary law requires a quorum to do any business and the Constitution in Article I, Section 5, specifically states that a quorum of each House be a majority of the members of that House, i.e. it takes 51 Senators to be present at any of their sessions in order to pass any resolution.  (Use of the word ‘quorum’ without definition indicates that the founders were well aware of the laws of proper parliamentary procedure.)  While parliamentary law says that no resolutions may be passed, the Constitution gives those present the power to order the others to attend and may even fine those who don’t come to the next scheduled meeting.  A later paragraph in the same section requires that each House cannot adjourn for more than three days without the other House’s consent.  Nowhere in Article 1 is the word ‘recess’ used, capitalized or uncapitalized.

The word ‘Recess’ is used only once in the entire U.S. Constitution and it occurs in the last paragraph of Article II, Section 2 where it says that the POTUS may fill all vacancies during a Senate Recess.  The word is capitalized but there is no definition of ‘Senate Recess’ leading to a definite ambiguity in the exact meaning of ‘Senate Recess’.  Other provisions require that the POTUS faithfully execute all laws and that the advice and consent of the Senate shall consist of two-thirds of the Senators present for specific actions that do not concern presidential appointments, but in the same sentence aver that presidential appointments must have the advice and consent of the Senate.  All in all, the pertinent Constitutional provisions represent a jumble of confusing possibilities in the matter under discussion and thus, is a perfect application of a case requiring a SCOTUS ruling–the POTUS’ v. someone from the Senate, preferably a Senate officer; this would be, very clearly, a claim involving the United States.   Granted, this case would not have a claim for monetary damages but a claim for the loss of trust in the United States Constitution would be sufficient for SCOTUS  jurisdiction.  On the other hand, the POTUS’ defense would draw on the same premise.

At this stage in the debate–it remains a debate until something definitive is resolved among the branches of government–a lot of things could happen,some good, some bad.  Some possibilities:

  • Congress successfully impeaches one or more officers.  Those impeached are removed, those not impeached remain in office.
  • No impeachments, Congress defines ‘Senate Recess’.  Officers remain in office while law dictates circumstances under which a legal recess appointment can occur in the future.
  • No impeachments, no case before SCOTUS, no Congressional definition of ‘Senate Recess’.  Situation is just as befuddled as before.
  • No impeachments, case before SCOTUS.  Ruling would not effect appointee’s status unless POTUS cows to SCOTUS.  The least possibility would be for SCOTUS not to rule, thus agreeing that the POTUS has acted Constitutionally.
  • No impeachments, case before SCOTUS but ruling includes definition or partial definition of ‘Senate Recess’.  Like above but ruling stands as de facto law until Congress acts.

No matter what happens, the appointees remain in office unless fired by the POTUS (not necessarily the appointer) or successfully impeached.

As noted in the last post, there is no guarantee that members of the U.S. Government will act Constitutionally because power begets ego and those egotistical persons involved in the decision making process will ignore parliamentary law and substitute their own beliefs for the content of the U.S. Constitution.

For what its worth, I would argue for the recess appointment being Constitutional; the appointments were necessary and the Senate was in a de facto state of recess, but strong arguments could be raised to the contrary.

January 11, 2012

Presidential Eligibility, a Parliamentary View

Over these last three years some citizens of the U.S. have been making a big to-do about Mr. Obama’s constitutional eligibility to actually serve as POTUS.  Article II, Section 1 of the U.S. Constitution devotes an entire paragraph to the requisites for presidential eligibility, and of those none are disputed in Mr. Obama’s case except for the first simple phrase:

“No person except a natural born citizen,…”

There are other parts of the Constitution which may have a bearing on a candidate’s eligibility but their primary concern is only in the realm of citizenship without any reference to a qualification termed ‘natural born citizen’.  Whatever the ruckus, the above phrase and its interpretation is at the heart of all the discussion.  Many news articles disparagingly call these people ‘birthers’ and the loudest of these ‘birthers’ seem to stem from the Republican Party’s rank and file; whatever their furor they certainly have not tried to convince members of Congress to pass a law clearly defining the term ‘natural born citizen’ but, instead, have been trying to fashion a case, unsuccessful I might add, which would be reviewed by the Federal courts for the purpose of establishing a clear definition of ‘natural born citizen’ and consequently, declaring that Mr. Obama was not eligible to be POTUS; i.e., getting the courts to do what Congress should.

Before delving into this topic more thoroughly I would like to point out that the purpose of this post is not to define “natural born citizen”, a job in which I have neither the power nor authority to do, but to illustrate some of the Constitutional and parliamentary aspects that pertain to presidential eligibility and then consider the particular situation of the case against Mr. Obama.

The parliamentary aspects are very straightforward; when a question arises about the interpretation of a particular phrase in the constitution or charter of the organization, a member of that organization’s legislative body can introduce a motion to either clarify or eliminate that phrase.  The outcome can be a formal change to the constitution, a by-law clarifying the generalized phrase, some other type of resolution which sidesteps the issue or even nothing.  Even if the question arose as a result of a dispute between members or of a dispute between a member and the organization itself, there is no need for some special method of resolving the dispute; it can be resolved among the members through the legislative process.  For most organizations this is of little consequence since an aggrieved member can just quit the organization.  Divisive disputes can arise but they are not common.  Dispute-resolution-systems (judiciaries) within an organization are hardly ever given any authority to enforce their decisions and, without enforcement authority, their decisions are no better than recommendations–the legislative body most always has the final say-so be it a true parliamentary government, a truly representative legislature in a republic or a quorum of the entire membership.  Autocracies are not parliamentary types of organizations, since the leader, be it king, dictator, caliph or whatever has the power to overrule any legislative body.  Needless to say, there is a lot of variety in governing systems and each one will have its own peculiar aspects set by its constitution and/or laws.  Parliamentary speaking, legislation trumps all aspects of organizations.

It becomes somewhat more complicated to apply parliamentary procedures to an organization like “The United States of America”, an organization having a written Constitution with many statements of a generalized nature, i.e., having terms and/or phrases in need of further definition.  Also, these statements may not necessarily be independent from one another which could cause differing interpretations; hence, the reason for the Judicial Branch of the Federal Government.  We must assume that the authors of the U.S. Constitution were not ignorant of parliamentary law  and when they used the terms ‘legislative’ and ‘judicial’  in the Constitution, these terms were referencing similar concepts from parliamentary law.  What they did somewhat differently though, was establish an independent executive division not under the control of the legislative body.  Speculation on my part considers that the establishment of an Executive Branch with a president as its head would give to the new government an important figurehead (sort of a king) around which the country could rally in times of stress or need.  While it has done that at times, it also has had the unfortunate consequence of making the POTUS, in the eyes of the U.S. voters, more important and powerful than he can actually be, often to the detriment of the governing process.  Personally, I like the idea of three branches since it lessons the chance of a divisive deadlock in the government.  Very important in the original outlook is the independent functioning of the three branches of government while remaining within the parliamentary purview described in the above paragraph.  The ultimate control by the legislature is enshrined in both, the overriding of a presidential veto and the impeachment process but in a weakened form since no mere majority of the Legislative Branch can override a veto or impeach any person.  At this point in the history of the Federal Government there is no Congressional law which has defined ‘natural born citizen’ nor has any Federal Court ruling been promulgated which attempts to distinguish between a ‘citizen’ and a ‘natural born citizen’.  This argument illustrates that the U.S. Constitution does not invalidate the normal parliamentary solution to resolving ambiguity; Congress can pass a law defining a ‘natural born citizen’ and that definition will have precedence over any other subordinate actions accomplished prior to the definition’s passage as a law and this would include any prior SCOTUS ruling.  To the detriment of the U.S. Constitution, Congress has never put SCOTUS aright since the Civil War and SCOTUS has been legislating ever since.

Since the more normal option has not been used, we must look to other provisions within the Constitution which may have a bearing on this question.  There is some clarification of the disputed phrase in the Constitution’s Fourteenth Amendment where it state’s unequivocally that a person born in the sovereign States of the U.S.  or in the territories governed by the U.S. Government is a U.S. citizen but it does not say ‘natural born citizen.  This phrasing indicates that the framers of the Fourteenth Amendment conceived of situations wherein a citizen born in the U.S. or its territories cannot be a ‘natural born citizen; however, there is no indication in the Amendment of what the difference could possibly be even though there is a strong hint that parental citizenship should be a factor.

Then there is then Judicial Branch of the U.S.  I do believe that of the three branches of the U.S. Government, the Judicial Branch has an inferiority complex, of course, completely justified.  The other two branches can be weak but never inferior.  the Judicial Branch’s inferior status stems from the constitutional limitations on its power–it has none.  The Federal Marshall system as authorized by Congressional Law to be the enforcement agency of court rulings is an agency of the Executive Branch and as such is totally under the control of the POTUS who can actually direct a Federal Marshall not to carry out any Judicial Branch ruling.  If the POTUS does permit the Federal Marshall agency to enforce a Judicial Branch ruling that enforcement becomes a Constitutionally valid action because it has the approval of two of the three sections of the Federal Government.  Even then, Congress has the option of acting.  SCOTUS, nevertheless, with the help of the inferior courts and due to the other two Branches failure to uphold the U.S. Constitution and also with the sovereign States acquiescence, has deprived the States of much of their sovereignty and unofficially changed the constitutional term ‘citizen’ to ‘citizen/special interest’.  They have changed the meaning of ‘offer a ruling about the Constitutionality of a law’ to ‘declare whether a law is Constitutional’ and have created citizen’s rights without recourse to the ‘people or States as required by the Tenth Amendment (else why would we need an amendment process).  The complaints listed here are not meant to criticize all of SCOTUS’ rulings; many of them have been well-justified.  Its just that SCOTUS has exceeded its Constitutional authority in some cases and the other two branches and even the States themselves have allowed this usurpation of their Constitutional authority.  To SCOTUS’ credit they have not yet rendered a ruling which  clarified or placed limitations on the term ‘natural born citizen’ but this doesn’t mean that they won’t try one of these times; it needs to be said that there is a Constitutional way for SCOTUS to have some influence on the definition of ‘natural born’.  A little more detail will be forthcoming when discussing the particular aspects of the accusations against Mr. Obama.

The last place to look for guidance is in the manner of electing the POTUS, which is found in the Twelfth Amendment.  In a nutshell, the process is as follows:  States choose electors. Electors cast ballots and certify the names and counts (eligibility status is tacitly implied).  President of the Senate opens the certificates. Votes for POTUS are counted.  Votes for the Vice President are also counted but separately.  These last three steps are done in the presence of the House and the Senate.  The rest of the process is concerned with tabulating the results and then determining the winner.  There are three other provisions, one for the time of choosing electors, another for the time of counting the votes and one for prohibiting an elector choosing both candidates from his State, none of these three concern the topic of this post.  Since the electors cast the ballots and certify the results, they are ultimately responsible for the accuracy of the certificates, including presidential eligibility.  The States are indirectly responsible since they choose the electors and the House and Senate members are are also indirectly responsible since they can review the names offered and vote to throw out an unqualified name and delete those ballots associated with  that name.  There were no definite objections to Mr. Obama’s eligibility either before or during the electoral college process and neither was any objection to Mr. Obama’s eligibility raised before his inauguration. 

Here is where the ‘rule of law’ becomes interesting.  The announcing of the new POTUS and VPOTUS  (Vice President of the U.S.) represents a claim that all the Constitutional laws have been validly satisfied in the selection process of the new officers.  If the new officers actually get inaugurated they are, in fact, the new POTUS and VPOTUS (I believe one judge has so ruled or stated).  However, Congress has full control over the period between the announcement and the inauguration and should some facts arise raising a serious doubt about the validity of the declared new officer(s), Congress may definitely act to delay a possibly improper inauguration and institute a formal investigation.  Considering possible time constraints to duly enact a law, the existing POTUS, within the context of a move by Congress to delay an inauguration, could step in and delay an alleged improper inauguration since HIS oath is to enforce the Constitution.  The Constitution has rules for the proper succession of officers and if these cannot be followed Congress can order a new election or possibly institute some other temporary arrangement.  Without any specific instructions in the Constitution, Congress would have almost unlimited power over the make-up of the Federal Government until the next election cycle.  While this situation has not happened yet–it is highly unlikely–we, the people, should probably consider passing an Amendment to cover this situation.  After the inauguration of the executive officers, the only recourse is to impeach the impostors.  The Constitutional provision explicitly stating that Congress can write no ex-post-facto laws prevent laws invalidating prior elections or inaugurations or any laws or presidential directives enacted prior to the successful impeachment and also prevents Congress from criminalizing any prior actions.

So much for parliamentary and Constitutional direction toward the existing state of Mr. Obama’s eligibility for being POTUS.  At this time, Congress has not started any impeachment proceedings, though some members have expressed such a desire.  This indicates that there is not enough evidence for a successful impeachment.  The political make-up of Congress is also not conducive to a successful impeachment process considering the dearth of evidence.  Politics will generally trump facts in any political situation, a very good reason to eliminate political parties from the method of selecting government officials.  Political parties will always exist but they should be recognized for what they are, nothing but special interests whose particular goals will never be accepted by everyone.  What is amazing (yes, this word was considered overused at one time but still has its uses) is the number of people who act, write articles or make comments and get the parliamentary and/or constitutional aspects wrong usually substituting what they think should be for the actual meaning of the appropriate provisions.

Moving on to the particular law suits filed against Mr. Obama, I must say that I have no real facts but lots of articles that presented many details of the case against Mr. Obama.  To my knowledge, so far, no inferior court, let alone the Supremes,  has decided to rule on any of the cases.  Personally, I don’t even know if any cases were actually filed nor in what courts if they were.  What I can do, however,  is state the proper Constitutional requirements for a Federal Court to claim jurisdiction and then examine the ineligibility claims against the proper procedures.  I have already covered in prior posts and in above paragraphs many facets of the Judicial Branch’s requirements for Constitutional jurisdiction but it can be summarized into the following statement for the particular aspects of presidential eligibility:

  • The U.S. Constitution grants a citizen the right to have his grievance heard by the Judicial Branch provided it is a matter of law or equity concerning the Constitution or any of Congress’ duly enacted laws or even any presidential directives (which are based on duly enacted laws or the Constitution).

First, there must be a grievance expressed by a citizen and second, that grievance must be against the application of a provision of the Constitution, of a duly enacted Congressional law or of a presidential directive.  I hate to keep driving home this point, but the inferior courts and SCOTUS (back to the Supremes) have violated the dictates of the Constitution and its Amendments ever since the Fourteenth Amendment was added to the Constitution.  They tried even earlier but were stopped by the Eleventh Amendment.  As I see it, the main problem with SCOTUS is their fixation on Constitutionality.  They seem not to understand that an equity claim against a law may be valid due to its peculiar circumstances, without the law, itself, being unconstitutional.

One of the earliest claims was that Mr. Obama did not ever submit a valid birth certificate showing that he was born in the U.S.  Superficially, this claim has no bearing on SCOTUS making a ruling, i.e., there can be no claim to jurisdiction; the mere fact that the POTUS has not submitted a certified birth certificate to the general public does not belie the fact that the State of Hawaii has issued an official statement verifying that Mr. Obama was indeed born in Hawaii.  Since the Constitution requires that the Federal Government must accept a sovereign State’s word, Mr. Obama was indeed born in the U.S.  A more basic problem with birth certificates is the actual association of a physical person with the official piece of paper known as a birth certificate.  Unless there are specific traits like fingerprints or toe prints recorded on the official document and which can be checked on the grown person, one must have some very solid evidence that the person claiming to be Mr. Obama is an impostor.  The claim of the army officer saying he didn’t have to obey an order because Mr. Obama was ineligible to be POTUS has no standing since all of Mr. Obama’s actions after the inauguration have been legal and binding.  In this game of “who has a claim for damages against a duly elected and inaugurated POTUS”, only someone who was a possible candidate during the selection and campaign processes can have a legitimate claim since these are the only people who had a chance to become the POTUS.

Assuming the birthers can get a valid citizen to press the claim against Mr. Obama, they certainly would have to give their reason(s) why the claim is valid, which, is in this case, “Mr. Obama is not a ‘natural born citizen'”.  However, this statement, by itself is not enough to pass Constitutional review because Article III is very specific about what cases can be heard by the courts and the only stipulation that comes near to this supposed case is the one requiring the United States as a party to the claim, I’m sure any lawyer would be smart enough to see that.  At this stage the possibilities are many due to the number of inferior courts and the fact that each of these courts may or may not choose to hear the case as it travels through the court system, but let us assume that SCOTUS does decides to review the case especially since it involves interpreting a Constitutional provision.  What can be the possible rulings from SCOTUS.

  1. SCOTUS can dismiss the claim because the election was duly done and this can be phrased in many different ways.
  2. SCOTUS can dismiss the claim but rule on the definition of ‘natural born citizen’.  The extent of the ruling can be as little as addressing the specific reason(s) entered by the claimant to a possibly complete definition of ‘natural born citizen’.  SCOTUS in this ruling would certainly have the right claim that Mr. Obama has the qualifications to be eligible or is ineligible for the post of POTUS on the basis of their definition of ‘natural born citizen’.

Parliamentary and Constitutionally, I can go no further.  There are only the two choices above for SCOTUS  since it is my opinion that adding other provisions concerning prior elections or inaugurations would be unconstitutional and subject many of the SCOTUS judges to deserved impeachment and conviction.  Nevertheless, should a case as outlined above actually come before SCOTUS for judgment, knowing the attitude of SCOTUS , it would be highly unlikely for them to render their ruling within the bounds of the two Constitutional choices they do have and considering the partisanship between the two major political parties, Congress will not have the wherewithal to prevent or still any major mayhem which will, very likely, arise.  This mayhem could be trivial or country splitting.  I would only pray for the best.

November 19, 2011

A Second Thought on Congressional Term Limits

In my post Some Suggestions on Improving the Governance of the U.S.A. Part 1: Congress I suggested that Congressional representatives be limited to two terms but have come to realize that a representative’s second term will have to be financed and run while the representative is still serving HIS first term; therefore, not eliminating the possible corruptive influence of lobbyists.  A better solution is to allow a representative unlimited terms but not allow that representative to serve two consecutive terms.  Each State would also need to ban  a candidate from filing to run for office while serving as a representative.  Very important, though, are the rules for emptying a campaigner’s war chest soon after an election and not allow the creation of any war chest until after formally filing as a candidate for the elected position.

October 17, 2011

Freedom of Speech? Brown v. Entertainment Industries Assn.

The Supreme Court’s (SCOTUS’) ruling in this case is the culmination of a claim made by Entertainment Industries Assn. that a specific California law is unconstitutional because obeying it abridges a video game vendor’s protected free speech.  The law, itself, is only paraphrased in the ruling and I have not spent the effort to read the original wording of the law but the ruling only addresses the case in terms of its paraphrasing.  According to the ruling, the law bans a vendor in California from selling a video game–one which portrays violence as a socially accepted activity in situations where violence is not a socially acceptable activity–to a minor (someone under eighteen years old) without permission from that minor’s parent(s) or guardian(s).  The plaintiff in this case is a legal entity of the State of California–‘Entertainment Industries Association’–and the defendant, while nominally ‘Brown’, is actually the sovereign State of California.  Five justices agreed with the plaintiff (the majority opinion), two justices disagreed with the plaintiff but found the law to be too vague to enforce (a good equity ruling) and two justices agreed with the defendant. Whatever the actual wording of the California law was, the plaintiff’s claim was that the law, by violating their member’s freedom of speech, was unconstitutional and the majority opinion confirmed that claim.

At first, I thought that the majority opinion was ridiculous since it equated one side of a two party contract to an act of protected free speech, i.e., speech not subjected to abridgment by law.  I still do think that that decision is ridiculous and it exposes those five justices as having a lack of both, common sense and wisdom; they are, therefore, unqualified to be justices of SCOTUS.  Article I of the Constitution specifically enjoins Congress from interfering in contract obligations and, sovereign States have the sole power to define those citizens of the State who are eligible to sign contracts.  However, after spending some time reading the relevant sections of the Constitution, Wikipedia, some ‘freedom of speech’ rulings by SCOTUS and some historical documents, I have come to the conclusion that the worst aspect of this ruling is that it exists.  The Constitution flatly denies jurisdiction of this case to the Judicial Branch.

The ‘sins’ of SCOTUS in this case amount to:

  • As mentioned above, treating a sovereign State’s right to determine the eligible signers of contracts as an abridgment of free speech.  The only person having HIS freedom of speech abridged is the minor who is barred from signing a contract allowing HIM to legally purchase a product having certain characteristics unless those responsible for that minor give HIM explicit permission, but there are many prohibitions on minors entering legal contracts.
  • Effectively changing the Constitution (Amendment I) to read, “the sovereign States shall make no law abridging the freedom of speech” instead of “Congress shall make no law abridging the freedom of speech.
  • Effectively changing the Constitution (Article III and the Eleventh Amendment) to allow State defined corporate entities as legal parties to cases heard by SCOTUS–Article III and the Eleventh Amendment are very specific on who these parties may be.  Congress certainly may enact a law which could extend the definition of a person so as to allow such corporate entities, but I believe no such law exists.
  • Assuming jurisdiction over a case which concerns a difference of opinion between a citizen of a sovereign State and HIS State–specifically  banned by the Eleventh Amendment.
  • Ignoring Section 5 of the Fourteenth Amendment–Section 5 states that Congress, not the Judicial Branch, has the authority to implement the amendment.
  • Misusing the principle of judicial precedent.  More than likely, “Feiner v. New York” was the first case in which SCOTUS decided to hear a claim of abridgment of freedom of speech.  Even though the Eleventh Amendment excluded the case from SCOTUS jurisdiction, SCOTUS argued that the Fourteenth Amendment gave it jurisdiction.  The basic problem with the Fourteenth Amendment is that without Congressional laws defining its actual application any state law can be deemed unconstitutional.  This only mocks the term ‘sovereign State’ and could essentially eliminate all State governments contrary to the Constitution which enjoins the Federal government to guarantee a republic government for each State.  Use of the Fourteenth Amendment in this manner has effectively rescinded the Eleventh Amendment.  Sighting an illegal ruling does not justify a continuing illegal jurisdiction.

As I have recently reviewed many of SCOTUS’ rulings, I find that a majority of them seem to commit as least one type of these ‘sins’.

In spite of my conclusions, I do think that a citizen’s freedom of speech is essential for all republican governments and prior to the civil war it was the State’s obligation to define when abridgment to freedom of speech applied.  The Thirteenth Amendment, outlawing Slavery in the U.S. and all sovereign States required something like the first section of the Fourteenth Amendment but it also stated unequivocally that the U.S. Congress was the branch specifically authorized to spell out the amendment’s details.  While the Fourteenth Amendment talks about the privileges and immunities of the citizens and their equal protection of the laws it specifically enjoins Congress to define these properties.  Our country does not have a problem with its constitution but with a power hungry Judicial Branch and an exceptionally weak Legislative Branch which refuses to chastise and/or expel judges from the Judicial Branch when they act unconstitutionally.

With these unconstitutional acts by SCOTUS, I have often wondered why states have not asserted their sovereignty and just ignore those SCOTUS rulings which are not constitutional.  The only risk is that POTUS might agree with SCOTUS and withhold much needed funds graciously granted by the Federal government.  Pity, pity, pity!

June 6, 2011

On Obama’s Directive on Barring the Justice Department from Defending the Federal Marriage Act

Filed under: Interpretation, U. S. Constitution — Tags: , — Ron Toczek @ 1:04 pm

For those of you who have read my previous posts, you probably know what I am going to say, but you would be only partially correct.  The Executive Branch is an independent branch of the U.S. Government and, as such, it can independently determine the constitutionality of any particular Congressional law.  The Executive Branch is charged with the responsibility of enforcing a law, however, enforcement of a law is separate from arguing that the law is constitutional.

In this particular case, the defendants have been charged with violating some provisions of the ‘Marriage Act’, a Congressional law duly passed.   The Justice Department is ready and able to: 1) Cite the provisions of the law which the defendants violated, and 2) Present evidence showing that the defendants have, in truth, violated those provisions.  Absolutely nothing more is required for the enforcement process.  Since the hullabaloo started with a request from an appellate court asking the Executive Branch if it would tender arguments for the constitutionality of the law and the Executive Branch’s decision not to tender any argument, the Justice Department has already won its case at a lower court.  Simply put, the defendants have appealed that lower court’s ruling on Constitutional grounds and the appellate court has considered that their argument has some merit.

Personally, I am disappointed in the Executive Branch’s decision but considering the POTUS’ current beliefs, I am not surprised.  It is gratifying that Congress has undertaken the defense of the constitutionality of the law.  What is dismaying, is the response from the traditional values organizations decrying the POTUS’ decision as one of non-enforcement and the media essentially not clarifying the Constitutional aspect of the decision.  These organizations beliefs have prejudiced them into confusing the job of enforcement of a law with defending the constitutionality of a law, while the media has missed an opportunity to inform and educate the public about the workings of our  Constitution.

May 7, 2011

Some Suggestions on Improving the Governance of the U.S.A. Part 1: Congress

INTRODUCTION

In an earlier post I believe that I have defended my point of view that there is nothing wrong with the U.S. Constitution as it is written, especially with regard to the complaints at that time and which seem to be still extant.  In that post, I did not consider that the current low standing of Congress in the eyes of the citizens of the U.S.A. had any bearing on its constitutional workings despite some claims to the contrary.  It is true, though, that many people in this country mistakenly believe that their two treasured ideals derived from the Declaration of Independence–inalienable rights and government of, by and for the people–are actually embedded in the language of the Constitution itself.  It is this erroneous view of the Constitution which makes some people claim that Congress somehow acts unconstitutionally .  Whatever, after a couple of hundred years of the Constitution’s use and abuse, in the name of good governance, some changes are due.  In this post, I offer my thoughts and suggestions for improving Congress so it may better serve the goals set forth in both the Preamble to the Constitution and the Declaration of Independence.   Later posts will cover other areas where some improvement of government is needed.

A BRIEF REVIEW OF THE U.S. CONSTITUTION

The U. S. Constitution, is only a document with words printed on it and the function of those words is to describe the basic government of the U.S.A.  It consists of a Preamble, seven Articles and 27 Amendments. By the words of the document itself, those States which have ratified the Constitution and those States which have been admitted to the Union by an established Congress as described in the Constitution owe their allegiance to the government described in the Constitution.

  • The Preamble states the reasons why the document was written and sets forth the general requirements of what is to be accomplished by the government formed using the organization principles stated in the document.
  • Article I defines the Legislative Branch (Congress), its function (to make laws, impeach officers from the other two branches and admit new States), its make-up (House and Senate) and its members (elected by states or appointed by legislatures, minimum qualifications of each one).
  • Article II defines the Executive Branch, its function (to enforce the laws), its make-up (a president and vice-president elected by an electoral college) and reasons for impeachment of executive officers.
  • Article III defines the Judicial Branch, its function (to resolve claims against the federal government), its make-up (a Supreme Court), its members (a Chief Justice chosen by the president and confirmed by the Senate), its jurisdiction and reasons for impeachment of judges.
  • Article IV contains a medley of provisions concerning State sovereignty, Federal citizenship, Federal property jurisdiction, extradition, new States and the guarantee of a republican form of government in each State.
  • Article V covers the amendment process.
  • Article VI covers prior government debts,  the order of precedence (constitution, laws, federal treaties–federal over state) and requirement of oaths by all officers.
  • Article VII covers the ratification process.
  • The reader can read all the Amendments if HE (genderless) so chooses, but important ones are the Bill of Rights, abolition of slavery, suffrage of former slaves and women, establishment of an income tax and a two term limit on the presidency.  Dubious Amendments include the election of Senators (discussed in this post) and the equal protection of the laws (unnecessary with the preamble).  Of course, this evaluation is mine.

The above is but a scant enumeration of the words of the constitution but one gets an overall picture of what is written.  If one examines the current structure of the three branches, one finds that there exist all sorts entities and employees not specified in the Constitution–Congressional aides, presidential advisors, Federal departments, independent agencies, circuit courts, appellate courts and who knows what else.  These entities have their origination in Congressional law, i.e., passed by Congress and approved by a President of the United  States of America (POTUS), signed or unsigned.

POLITICAL CONSIDERATIONS

The U.S. Constitution does not cover every aspect of the political process in the U.S.A.  There is no mention of political parties, campaign donations, advertising by candidates or corporate entities (corporate entities being defined in a prior post), lobbying or  the method of choosing electoral college members.  Qualifications for candidates are stated but the States can impose further qualifications.  Some States have primary elections and in many cases they are more important than the regular elections.  As I see it, most of the governing lapses envisioned by the citizens of the U.S.A. are fictions of their own inability to understand the Constitution coupled with political party prejudice and the influence of big money into the legislative process; these activities being the main cause of the current negative opinion of Congress.  Whatever the shortcomings of the current governing process, they are not the result of the Constitution but they are the result of the persons elected by the voters of the U.S.A.  No constitution, by itself, can guarantee good  government.

Before discussing any of these political aspects with a view to improving their current shortcomings, I would like to express my interpretation of what the founding fathers had in mind when they drafted the constitution.

THE ORIGINAL IDEA

While there are sources of the debates which led up to the drafting of the constitution, one really cannot use them to evaluate the final document since that document represents a compromise of all the opposing views that were brought into the discussion; hence, one should not look outside the document itself for any of its meaning.  This method does have its problems due to ambiguous interpretations, technological advancements and changes in the meanings of words; however, in general, these don’t pose any particular problems for the topic discussed in this post.

The first thing to notice is the title of the document–“The Constitution of the United States of America”.  This title does two things: it gives the name of the institution to which the document’s provisions apply and it defines the legal special interests to whom those same provisions apply–namely States.  Since there is no Amendment which has changed the title of our country it is still “The United States of America”.  Along with the title there are numerous provisions within the constitution which refers to States while the word, ‘people’, occurs only twice;  one can only conclude that States must form a necessary and important part of the entire governing apparatus.

Moving on to the Preamble, we notice the first three words,”We, the people” , indicating that the government described in the rest of the document derives its authority from those to be governed (people) by the governmental organization described in the rest 0f the document.  This is the only place in the Constitution itself where one might conceivably recognize a slight reference to the Declaration of Independence.  This lapse of reference was partially rectified by the passage of the first ten Amendments (the Bill of Rights); even in these there is no mention of the Declaration.  As for the authority from the “people”, it is clear from the election of representatives, the ratification process and Article IV, Section 2, which states citizens of a State are citizens of the several States that this authority is transferred through the States themselves and not as general citizens of the United States of America.  In the original document, Senators were not elected but chosen by the State legislatures.  As I see it, the founders were loathe to include democratic processes in the governing of these United States; there are no ‘people’ provisions as such and all Federal decisions were and still are tempered by later decision processes.  Contrary to popular opinion and ex-Chief Justice Marshall, the Supreme Court cannot declare a law or directive unconstitutional because that act runs counter to the construction of the Constitution itself; it also admits of no further temporizing process and places those judges which declare a law to be unconstitutional subject to impeachment if Congress so chooses.  The Supreme Court of the United States of America (SCOTUS), by its latest ruling in the McCain-Feingold decision, has unequivocally stated that its rulings are not absolute and depend only upon the opinions of its members.

I have previously expounded on the separation of the Branches and present here a very short summary which I believe represents the Founders view of the workings of the Federal Government and is encoded in the written form of the Constitution itself.

  • The Legislative Branch (Congress) enacts laws with or without the approval of the POTUS and can impeach officers and judges from both the Executive and Judicial Branches. The content of enacted laws are subject to the written specifications within the Constitution.  The Preamble, being part of the Constitution, can be used as justification for the enactment of laws when State laws and/or actions might cause conflict among the States.  Immigration is the prime example.
  • The Executive Branch enforces the constitutional provisions and the laws of the Legislative Branch and the rulings of the Judicial Branch.  The Executive Branch has the power to write Directives based upon its interpretation of the above three sources.
  • The Judicial Branch resolves claims within its stated jurisdiction and in that process may advise the other two branches of its interpretation of the constitutionality of enacted laws or presidential directives.
  • The Legislative Branch with its power of impeachment is the ultimate authority on the constitutionality of enacted laws, presidential directives and judicial rulings.

It is to be noted that the Executive and Judicial Branches can each independently interpret the Constitution subject only to the impeachment process of Congress.  Of course, a smooth running government will depend upon the three branches having a coherent view of the current state of the Union and its current goals and expectations, something not always attainable and never attainable when political parties are hell-bent on their own ideology without compromise.  Especially devastating to the governmental organization written in the Constitution is the U.S.A.’s current two major parties putting their own party’s opposition to the other party above that of their ideology and putting their own ideology above that of welfare and governance of the country.  One cannot solve problems by insisting that that your own solution is the only solution or by waiting for the other party to blunder first.

SUGGESTION I:  REPEAL THE XVII AMENDMENT.

The XVII amendment was passed in 1913 and provided for the popular election of Senators instead of their being chosen by the State legislatures.   I believe that the political parties supported its passage since they felt that the direct election of Senators would give their party, when in power, more leverage in passing their agenda; but whatever reasons gave credence to the passage of this amendment, we are currently stuck with it  and the States have lost some of their sovereign ability to govern.  Considering the present shenanigans taking place in Congress because of campaign donations, lobbying and political partisanship, Congress has its lowest rating of credibility ever in its history.  Almost ninety per cent of the people of the U.S.A. believe that Congress is not  fulfilling its Constitutional duty according to some public opinion polls.  At this point in our history it very well might be that the U.S. Congress is more corrupt than any of the State legislatures.  My contention is that the current low opinion of Congress is the culmination of processes started since the ratification of this amendment, processes that have increased the influence of political parties and big money over the States in the actual governing process.  While I agree with most of the people that Congress is, indeed, not fulfilling its Constitutional Duty, I probably disagree with most of them since I find very little  fault with Congress’ mechanics; after all, the Constitution is a essentially,only a formula.  I believe that the current Congress’ lack of fulfillment of their Constitutional duty lies in its inability to enact laws which fulfill the semantical objectives set forth in the Preamble, primarily because it members are more interested in pursuing political power for their party.

Essentially, the main reason for repealing the XVII Amendment is to reduce the influence of the above three mentioned activities on the legislative process.  I use the word , ‘reduce’, since it is probably safe to say that these activities and others like it arising in the future could probably never be eliminated–human greed and hubris with its corporate extension show no upper bound on inventiveness.  Another reason for repealing the XVII Amendment is given in the above section–the State is part of the governing apparatus and needs proper representation and the Senate is where that representation was originally placed.  Direct election of Senators actually dilutes a State’s involvement in the Federal Government.  Another good reason is the dependence of the Senator on the good will of his/her State–if the Senator does not represent the State satisfactorily or commits a no-no as far as the State’s people or legislature is concerned, that Senator, when chosen by a State Legislature, can be immediately replaced.  The State can only remove elected Senators by a recall petition which is time consuming and expensive and the length of the process could be disastrous if the State had a rogue Senator.  For those of you who think that a representative can’t be recalled, I point out that the Constitution does not prohibit recalls by the people since it says nothing about recalls and whomever can be voted in can also be voted out.

SUGGESTION II: REQUIRE THE FIRST RESOLUTION OF EACH CONGRESS TO BE A JOINT RESOLUTION OF BOTH HOUSES STATING THE GOALS TO BE ACHIEVED BY THAT CONGRESS  AND HOW THOSE GOALS FULFILL THE GOALS STATED IN THE PREAMBLE.

This is a common sense suggestion to help the voter better understand the difference between what the Congress actually does and what it  started out to do.  The enumeration of the goals themselves will contribute to an understanding of what the Congress considers to be the common welfare.  Both of these factors could help determine whether individual Congressmen get reelected.  While not absolutely essential, good governance requires that the other two branches be consulted for their expertise in implementation and judgment.

SUGGESTION III: REQUIRE THE POTUS TO EVALUATE THE CONGRESS ON THEIR PERFORMANCE IN REACHING THEIR GOALS AND THIS EVALUATION BE GIVEN IN HIS STATE OF THE UNION ADDRESS.

While the typical voter would be expected to evaluate HIS Congressional representative from their own parochial view, the POTUS ‘ evaluation would be from the perspective from the whole country and give a broader view of the accomplishments of Congress or lack thereof.

SUGGESTION IV: LIMIT CONGRESSIONAL SESSIONS TO 182 DAYS (WEEKEND RECESSIONS INCLUDED) DURING THE YEAR DIVIDED INTO AT LEAST TWO SUB-SESSIONS WITH AT LEAST ONE MONTH’S RECESS BETWEEN EACH SUB-SESSION AND REQUIRING EACH CONGRESSIONAL REPRESENTATIVE TO ATTEND EVERY DAY OF THE SESSION EXCEPT FOR SICKNESS AND FAMILY EMERGENCIES.

This leaves 183+ days in which each member of Congress can meet with HIS constituents, have  discussions with HIS congressional colleagues about upcoming bills, take HIS vacation, spend time with HIS family, go on fact-finding junkets, etc.  Session time needs to be for the debate and passage of bills.  Fund raising and campaign activities need to be banned during each sub-session, with no exception for short recesses.

SUGGESTION V: ALL CONGRESSIONAL AIDES TO MEMBERS OF CONGRESS REPRESENTING A STATE MUST BE EMPLOYEES AND CITIZENS OF THAT STATE.

This will allow the State to keep tabs on their members of Congress.  Need I say more.

POLITICAL PARTIES AND OTHER CORPORATE ENTITIES

The Constitution makes no mention of political parties, corporations or special interests of any kind except States.  It is not because there weren’t such entities existent at the time but because these entities were judged to be of no significance for the derivation of the authority of the Constitution; that authority came directly from the people who were citizens of the several States and was transferred through each State either by the State’s ratification of the Constitution or its acceptance by Congress.  The Preamble to the Constitution states unequivocally  that  “We the people … do ordain and establish this Constitution for the United States of America”.

In my post on the recent ruling by SCOTUS on the McCain-Feingold campaign finance law, I defined the concept of a corporate entity as a formal or informal organization consisting of two or more persons capable of having a political opinion (somewhat paraphrased) and that political parties, corporations of any kind and informal agglomerations of people with specific or general interests are all corporate entities.  By not openly referring to any of these associations the Constitution is claiming that the Federal Government with the States is the only authorized voice of the people and that any other association of people is nothing but a corporate entity or as commonly labeled, a special interest.  On the other hand, the First Amendment guarantees the right to freedom of assembly and a corporate entity  may certainly be formed from such an assembly.  Witness the current Tea Party phenomenon.  It started out as a more or less spontaneous assemblage and has spawned a few formal organizations trying to capture its spirits and ideals.  Besides these formal organizations there are Sarah Palin and her followers, Michell Bachman and the House Tea Party Caucus and other independent tea party souls and gatherings expressing various political opinions not necessarily in agreement with each other.  Each of these can be classified as a corporate entity and, as such, not a spokesman for “We the people”.

SUGGESTION VI:  STATES NEED TO ELIMINATE ALL MENTION OF POLITICAL PARTIES WITHIN THEIR GOVERNING APPARATUS.

Specifically.

  • Eliminate primary elections for political party  Congressional candidates.
  • Eliminate political party designations for all Congressional candidates.
  • Require that each Congressional candidate not be a member of any political party for two or more years prior to his/her public declaration of candidacy.

Currently, many members of Congress put party loyalty above the common good and show very little interest in compromising.  Enabling this suggestion could reduce the tendency for a member of Congress to vote on party lines when it is clear that the member would like to vote otherwise.  I know that political party fanatics will disagree with me on this point since they are firmly convinced that their party platform coincides with the common good–they have no humility.  A parliamentary system of government would suit their disposition better and I would suggest they move to a country that has that type of government.  Even there, these types would never be satisfied.  For myself, I don’t see much difference between a political fanatic and a political hack.

Another advantage would be the lessened probability of party loyalty preventing the impeachment and/or conviction of a U.S. executive officer or judge.

SUGGESTION VII: STATES NEED TO LIMIT  ITS CONGRESSIONAL REPRESENTATIVES TO TWO TERMS.

For those who believe that the Constitution doesn’t permit this, I suggest reading Article I, Section 2.  There are two reasons for implementing this suggestion: it avoids the tendency for senior members of Congress to wield undue influence on its junior members and it opens up the second term of that member, should HE be so lucky, to vote for laws more conducive to the general welfare instead of putting HIS reelection to the forefront.

SUGGESTION VIII:   CAMPAIGN FUNDS

  • CANDIDATE’S FUND RAISING ACTIVITIES MUST OCCUR ONLY IN HIS/HER DISTRICT  AND NO FUND RAISER SHALL HAVE A PRESET DONATION FOR ADMITTANCE.
  • ALL OF A CANDIDATES CAMPAIGN FUNDS MUST ORIGINATE IN-STATE.
  • PERSONAL DONORS (A CANDIDATE IS A PERSONAL DONOR), MUST HAVE THEIR ADDRESSES RECORDED ALONG WITH THEIR DONATION AMOUNT–EACH PERSON’S TOTAL DONATION  MUST HAVE A LIMIT LOW ENOUGH TO DISCOURAGE UNDUE INFLUENCE BY ANY PERSON OR ENTITY ON A CANDIDATE.
  • CORPORATE ENTITIES NOT INCORPORATED IN THE STATE CANNOT DONATE TO THAT STATE’S CANDIDATES–FOR THOSE THAT ARE, THEY MAY BE TREATED AS PERSONS BUT ALL THEIR MEMBERS MUST BE CITIZENS OF THE STATE AND THE CANDIDATE MAY NOT ACCEPT A PERSONAL DONATION FROM A MEMBER OF SUCH CORPORATE ENTITY UNLESS THAT CORPORATE ENTITY GIVES NO MONEY FOR HIS CAMPAIGN (EMPLOYEES OF A CORPORATE ENTITY ARE MEMBERS OF A CORPORATE ENTITY).
  • CANDIDATES MUST BE PROHIBITED FROM COLLECTING CAMPAIGN DONATIONS UNTIL AFTER THEIR CANDIDACY HAS BEEN FORMALLY ACCEPTED BY THE STATE.
  • CAMPAIGN FUNDS MUST BE KEPT SEPARATE FROM A CANDIDATE’S ORDINARY PERSONAL EXPENSES.
  • UNSPENT CAMPAIGN FUNDS MUST EITHER BE RETURNED TO THE DONORS OR GIVEN TO CHARITY BY THIRTY DAYS AFTER THE VOTE COUNTING HAS BEEN DECLARED FINAL.

These are all common sense suggestions and stem from the Constitution itself or the definition of campaign and representative.

  1. Members of Congress represent the people of their State or district within the State, not the people of other States or districts and not any corporate entity.
  2. Campaign funds are for campaigning, nothing else.
  3. There is no campaigning after an election, there should be no campaign funds left over.
  4. A corollary to 1 and 2, no single person or corporate entity should be able influence the candidate should HE be elected.
  5. The people who vote for a candidate should know who and what they are voting for.

SUGGESTION IX: LIMIT FUND RAISING AND CAMPAIGNING TO SIXTY OR NINETY DAYS BEFORE THE ELECTION.

Anyone inept enough that he/she couldn’t get their message out to the voters in sixty days probably shouldn’t be elected representative.

SUGGESTION X:  BAN ALL PAID TELEVISION, RADIO, NEWSPAPER, MAGAZINE, MAIL AND INTERNET ADVERTISING WHICH, DIRECTLY OR INDIRECTLY, REFERS TO ANY CANDIDATE OF A CONGRESSIONAL SEAT.

This still leaves campaign stumping, commentator endorsements in all the same media, letters to the editor, internet sites, printed brochures, lawn endorsements and campaign news coverage while eliminating multiple and exorbitant advertising costs affordable only to corporate entities and wealthy citizens.

SUGGESTION XI: AMEND THE CONSTITUTION TO REQUIRE ALL BILLS TO INCLUDE AN EXPIRATION DATE.

While many laws do have expiration dates, others do not.  No law should be exempt from periodic review.

DEMOCRATIC PROCESSES

Today, if one were to look up the definition of a democracy, one would probably get as the main definition something like:

“government by the people; a form of government in which the supreme power is vested in the people and exercised directly by them or by their elected agents under a free electoral system”

In one of the lesser definitions, especially in an American dictionary, one would, more than likely, find:

a government like that of the United States of America

It is interesting to note what Benjamin Franklin’s reply to this question was as he was leaving the Constitutional Convention,  “Sir, what kind of government did you fellows come up with?”

“A republic, if you can keep it.”

I really can’t vouch for the quotes since they were hearsay on my part but the answer points to the realization that the founders did not fashion a democracy, at least not in the classical definition of a democracy.  The italicized part of the definition did not become part of the definition until the latter half of the twentieth century, and so the correct classification for the government of the U.S.A. is that of a republic, which is simply a government which has some elected agents do the governing.  (The use of the word ‘democracy’ to mean a republic is now so ubiquitous that the original classical definition will probably fade from the language and be relegated to a strictly legal definition needed to understand older political tracts.)  As originally designed, members of the House, the President and Vice-president are the U.S.A.’s only elected agents with the President and Vice-president being elected in a very indirect manner.  The XVII Amendment added Senators to that category which, I believe, has diluted the sovereign States role in the governance of the U.S.A.

‘Democratic’, an adjective meaning ‘of or pertaining to a democracy’, has an extended usage in which it does not necessarily refer to ‘democracy, the government’; instead, it may be used to render a sense of involvement by the people as in, “Electing officers is a democratic process”.  Certainly, voting in a free election is a democratic process and that a republican government does use the democratic process of voting.  Staged elections cannot be classified as a democratic process.  While I do prefer the form of our republic as formulated in the Constitution–it is better than a parliamentary system or a constitutional monarchy (the most popular republics currently in use across the world)–it does seem that citizens could play a somewhat larger role in the legislative process.

SUGGESTION XII: REQUIRE ALL CONGRESSIONAL BILLS SENT TO THE POTUS HAVE A MINIMUM PUBLIC DISCUSSION PERIOD OF THIRTY DAYS PRIOR TO THE POTUS’S DECISION TO PASS OR VETO THE BILL, THE POTUS’ DECISION INCLUDING A SUMMARY AND EVALUATION OF THE PEOPLE’S COMMENTS.

Clearly, some bills, like acts of war, will necessarily require a very short discussion period which could be set by a near unanimous vote of the Congress, but that doesn’t mean there should be no discussion period at all.

MAJORITY RULE

As a concept, ‘majority rule’, meaning ‘more than one half’, is associated with voting and is usually considered to be the quintessence of democratic processes.  However, as I see it, the practice of using this concept as a governing tool is highly suspect, since any law or ruling passed by just a few votes (especially one) can be overturned later by just a few votes expressing a change of opinion for whatever reason and bribery could be one of those reasons.  Witness the latest 5-4 McCain-Feingold decision of SCOTUS which overturned an earlier 5-4 decision ruling on the same law; those two separate rulings convinced me that the law itself could not be unconstitutional and that the Supreme Court should do only what the Constitution authorizes it to do which is to resolve claims and disputes.   (Tis a sad fact that this country has been governed for two hundred years by the legacy of an egotistical judge who got pissed off (to use the vernacular) because his constitutional job wasn’t important enough for his ego.  This could have been prevented by that judge’s timely impeachment which would have reasserted Congress’ constitutional authority to enact laws.  Afterall, declaring a law unconstitutional is a legislative act.)

Simple majority rule can result in actions by the governed which would be considered legal at one time to be illegal at a later time and then legal again at even some later time; definitely not a situation where the ‘Rule of Law’ could be said to prevail.  Simple majority rule can also result in tyranny by a small majority.  It is  precisely these bad governing practices which led to the discrediting of classical democracy as a governing system over two thousand years ago.

SUGGESTION XIII: AMEND THE CONSTITUTION TO REQUIRE THAT ALL BILLS SENT TO THE POTUS FOR PASSAGE REQUIRE A TWO-THIRDS MAJORITY VOTE FROM EACH HOUSE.

There are provisions in the Constitution and in many state constitutions as well which require more than a simple majority before a bill can be considered proper, so there is plenty of precedent, and this suggestion should limit some bad effects of democracy with regard to constitutional law .

Duverger’s Law, which is quite empirical, states that systems which function by simple majority vote, eventually lead to the domination of the system by two political parties and it does seem to hold, witness the U.S.A. for one.  My personal observation tells me that this law pertains mainly to large organizations where  entrenched interests of some members clash with different entrenched interests of other members; eventually the members separate into two groups wherein the primary motivation of each group is the control of the organization.  Many rural electric co-operatives seem to escape the consequences of Duverger’s Law simply because the objective of the co-operative is very limited in scope and practically universal among its members, a situation unattainable in a nation.  For small organizations whose actions bear little effect politically, Duverger’s Law simply would lead to the creation of another organization.

SUGGESTION XIV:  EACH STATE MUST REQUIRE A CONGRESSIONAL REPRESENTATIVE TO OBTAIN AT LEAST SIXTY PER CENT OF THE LAWFUL VOTES IN HIS/HER ELECTION.

This would help blunt Duverger’s Law.  Besides, I, personally, find it very difficult to vote for any of the two main party candidates, since I judge the candidates, and the parties they belong to, against the Declaration’s dictum–government of the people, by the people and for the people.  I can’t complain about ‘of the people’ since the acceptance of the Constitution by the peoples of the included States satisfies that part,  but the other two???  Many of our Congressional representatives are in the very-well-to-do class and could care less about the concerns of the middling and lower classes, while most of the others try to smother the lowest classes with goodies in the manner best fitted to ensure their own well to do status.  Both of the main political parties are more concerned about extreme individualism than general welfare, and party representatives have a tendency to kowtow to their party leaders.  In short, both parties are morally corrupt; no wonder the low opinion of Congress by the U.S. public.  Today, there are very few, if any, Congressional representatives who present themselves as independent from party loyalty.

LOBBYING

Lobbying is probably the toughest problem to counteract in a representative legislative body since it is both legal and essential to good republican government.  Any citizen or corporate entity has the right to petition their State’s representative but does not have any right to petition another State’s representative though that representative may listen if HE so chooses.  While there is nothing to prevent a Congressional representative from listening to a lobbyist, that act alone provides opportunities for the lobbyist to offer favors to the representative hoping that that particular representative will then vote more favorably for the lobbyist’s interest.  Pure and simple this is bribery and today’s representatives take all they can get, another moral failing.  Bribery is, of course, illegal but today’s lobbyists are experts in offering bribes that may not be technically illegal.  An honest person would presume that anyone who offers a bribe has something to gain by that act, an act which is probably not connected to the general welfare of the people of the U.S.A.  By this reckoning I would venture to say that currently there are no honest Congressional representatives.

SUGGESTION XV: EACH STATE NEEDS TO REQUIRE ITS REPRESENTATIVES TO REPORT ALL CONTACTS WITH LOBBYISTS.

A couple of earlier suggestions do deal with aspects of lobbying–secret meetings and campaign funds–but there are other aspects that need to be dealt with.

SUGGESTION XVI:  ELIMINATE PERMANENT SUBCOMMITTEES.

Bills would tend to be much simpler and if something comes up which engenders much discussion with differing opinions, an ad hoc  committee can than be formed to  work out the compromises necessary to come up with a functioning bill.  Subcommittees have become too powerful and subcommittee members, being fixed, become special targets for lobbyists.  And, to quote some earlier bribers, every person has HIS price.

SUGGESTION XVII: ALL CONTRACT LOBBYISTS REPRESENTING CORPORATE ENTITIES FROM MORE THAN ONE STATE NEED TO BE  BARRED FROM CONTACTING INDIVIDUAL REPRESENTATIVES

Corporate entities from individual States and contract lobbyists representing corporate entities from a single State can always contact their State’s representative.  Individual state chapters of nation-wide organizations can also contact their State’s representative but the national organization itself should be powerless in this regard.  This does not bar them (the lobbyists) from giving testimony in open hearings when requested and any representative from any state can request such testimony.

SUGGESTION XVIII: CONGRESS NEEDS TO SET UP A TRAVEL BUDGET WHICH WILL PAY FOR ANY MEMBERS JUNKET (FACT-FINDING TRAVEL).  EACH JUNKET NEEDS TO BE INDIVIDUALLY APPROVED BY VOTE OF ITS MEMBERS.  JUNKETS, EITHER SPONSORED OR PAID BY LOBBYISTS, ARE TO BE BANNED.

Just to prevent any suspicion of bribery.

CLOSING REMARKS

The above suggestions have been offered on my belief that the founding fathers could not see the unintended consequences of two major political parties vying for power to control the people of the U.S.A.  Our current two party system is a direct antithesis to the principle stated in the Declaration: that government should be of, by and for the people; instead we have government of the people but by and for special interests, those that have plenty of money.  States, while being the only special interest approved by the Constitution, are primarily given lip service when Congress is discussing  bills, after all the States do not contribute to their campaigns.  Each of the two main parties may have different special interests as their base but many will support both parties depending on which one seems to be in power.  The entire drawback of this current system is the dearth of legislation that is directed to the good of the country.

These suggestions are not offered as the only solution to our current Congressional inadequacy; there is always more than one way to accomplish the same objectives.  If one were to ask me what the chances are of getting the government back to the Declaration’s dictum stated above, I would answer ‘nil in the immediate future’.  It took at least a hundred years to get here politically and that cannot be undone in a few moments.

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