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time reading the relevant sections of the Constitution, Wikipedia, some ‘freedom of speech’ rulings by SCOTUS and some historical documents, I have come to the conclusion that the worst aspect of this ruling is that it exists.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!

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.

Hypocrisy and the Obama Administration

The last section of my last blog reminded me of my first letter to the editor wherein I stated that Obama, if he were to become president would probably be the biggest hypocrite to ever hold that position.  That prophecy seems to have a chance of being fulfilled.

We start with the presidential Oath of Office which must be taken before the president-elect takes office:

I do solemnly swear (or affirm) that I will faithfully execute the Office of the President of the United States, and to the best of my Ability, preserve, protect and defend the Constitution of the United States.

We also note that the beginning of Article II states:

The executive Power shall be vested in a President of the United States.

By taking the Oath the POTUS promises to execute and enforce all Congressional laws unless, in his/her judgment, that particular law is deemed unconstitutional.  Rational and reasonable governance dictates that, in the case of disagreement of constitutionality the two sides would get together and resolve their difference with Congress changing the law to satisfy the constitutionality disagreement.  If either side is adamant the result could be the removal of the POTUS through the impeachment process or the repeal of the law in question by either resolution or de facto means (leaving the law on the books and not removing the POTUS).

Leaving aside the details of good governance and getting to the hypocrisy assertion, there have been four instances in the news recently which have charged the POTUS of not enforcing particular Congressional laws: funding embryonic stem cell research; not enforcing “don’t tell, don’t ask”; spending money for promoting Kenya’s new constitution; and funding pro-abortion organizations.  The charge of hypocrisy of the Obama administration stands since there has been no attempt to justify these four violations of Congressional law.  We can only wonder how many other laws have been flouted by this administration.

The Impeachment Process

Of late there have been numerous calls for the impeachment of the current POTUS, President Obama. Most of these are made by noted Republican Party members if one pays attention to the media. Ex-president Bush had the same problem but with noted    Democratic Party members. It is probably true to say that some constitutional experts were/are in favor of such speculation but not having the name recognition as the party members, they were very seldom cited.  Whatever one’s opinion on whether some federal government official should be impeached, it is to no avail because the U. S. Constitution assigns that specific function to the House of Representatives.

Before delving into the constitutional details of the impeachment process, it is probably safe to assume that those persons calling for impeachment are desirous of implementing the entire impeachment process, impeachment being but one step, and hopeful of removing the person impeached.

Impeachment process provisions are  directly mentioned in Articles I and II, and indirectly referred to in Articles I and III.

Article I, Section 2 states,

The House of Representatives … ; and shall have the sole Power of Impeachment.

Article I, Section 3 states

The Senate shall have the sole power to try impeachments.  When sitting for that Purpose, they shall be on Oath or Affirmation.  When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two-thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment according to Law.

Article II, Section 4 states,

The President, Vice-president and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Article I, Section 5 states,

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, …

Article III, Section 1 states,

The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, …

Note: the phrase “Chief Justice” appearing in Article II must refer to the titular head of the judicial Branch, since the Constitution itself does not provide any structure to that Branch.

In a nutshell, the impeachment process is not unlike the judicial process of a criminal suspect. It consists of four stages: Impeachment,Trial, Judgment and Punishment, wherein the impeachment stage corresponds to the arraignment stage of the criminal process, while the other three stages are very much similar to their corresponding namesakes; however, the differences are manifest and so the entire process must be described.

IMPEACHMENT

The House of Representatives is designated as a legislative body and under parliamentary law, any member of the body may submit a resolution to the body and its members can enact resolutions which may or may not be representative of the original resolution since amendments may alter the  original resolution.  The actual rules governing the submission, amending and enactment of resolutions is determined solely by the body itself.  An impeachment is, therefore the enactment of a resolution in the House which states that a specific person is to be impeached, and also sets forth the reasons for impeachment, similar to the section of the Declaration of Independence listing the “crimes” of the King of England.  “Sole responsibility” also means that no one or no body outside of the House need approve of an impeachment resolution.  Strictly speaking, there is no absolute requirement for stating the crimes of the accused but without them the impeachment may be dismissed out of hand.

Who may be impeached?  Any person in the executive Branch–Article II, Section 4–and any judge in the judicial Branch–Article III, Section 1.  Members of the legislative Branch may not be impeached but are subject to each House’s disciplinary rules–Article I, Section 5.  The wording of Article II, Section 4 might be interpreted as not applying to the lowest level executive Branch employees, but that is misleading since the House has sole responsibility for impeachment.  On the other hand, the writers of the Constitution were well aware that court systems include other personnel than judges so that “judge” in the Constitution means a judge and not any of the supporting clerks.

What may they be impeached for?  Specifically, Treason or Bribery for executive Branch Officers as stated in Article II, Section 4.  Since these crimes can hardly be classified as good Behavior, they would also apply to judicial Branch judges–Article III, Section 1.  However, high Crimes, Misdemeanors  and good Behavior are not defined in the Constitution and, hence, can be defined by the House itself.

TRIAL and JUDGMENT

Article I, Section 3 gives to the Senate, a legislative body of the USA, the sole responsibility of the trial and judgment of an impeachment.  Again  there are no specific rules prescribing the manner of trial except that of imposing the Chief Justice as presider over the trial when impeaching the POTUS.  The judgment of the impeachment must be in the form of a resolution stating the guilt or innocence of the person impeached and must be passed by a two-thirds majority of the Senate members present at the voting on the resolution.

PUNISHMENT

If the person impeached has been found guilty by the Senate, that person can removed from their position in the government if they currently enjoy such and are forever barred from holding any government position in the future including  honorary titles–Article I, Section 3.

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While the above description renders the Constitutional aspects of the impeachment process, it must be pointed out that the Constitution does not give any reasons for specifying this particular form.  I’m sure the Founding Fathers had their reasons but I should like to attempt to give my reasons for this particular form being essential to our republican government.

The primary “Truths”  followed by the Founding Fathers in crafting both the “Articles of Confederation” and the “Constitution of the United States of America” can be found in the “Declaration of Independence”.

WE hold these Truths to be self-evident, that all MEN are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness—That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed,…

Obviously, “Truths” , as used here, does not refer to facts, but to beliefs which govern the actions of MEN.  Granted, everything in the above quote can be questioned by individuals who have different beliefs but I find it difficult to devise a just governing system without the above truths.  The last “truth” in the above phrase has been paraphrased in the Declaration itself as “Government of the People, by the People, and for the People”.

The first attempt at devising a government was the “Articles of Confederation”, essentially a pact between sovereign states, which turned out to be ineffective since these sovereign states were very independent minded.  The reality of the situation at the time consisted of sovereign bodies, each having its own citizens, meeting to form a government uniting these bodies, hence, the United States.

The Constitution, which replaced the Articles, still recognized the sovereign states–no name change–but beefed up the Federal Authority over these states.  It created a republican government, democracy being too unwieldy, of three independent branches, wherein the People of the United States of America have direct input into one of the legislative houses, the House of Representatives.  The Senate, the other house, was intended to temper the House by considering the House’s resolutions from the point of view of the sovereign states.  The Constitution provides absolutely no input from the People in the determination of any officer or judge serving in the other two branches.  Amendment XVII provided for the direct election of members of the Senate, and insofar as Congressional law requires certain officials appointed by the POTUS to be approved by the Senate, we may conclude that the People have some input into appointed positions but it is very indirect.  As far as the POTUS is concerned, the Constitution requires no input by the People of the U. S.  The fact that people vote for the President and Vice-president is due entirely to the States who choose the electors who do actually vote.  These States do direct their electors to cast their votes in a certain manner which does not necessarily correspond to the popular election results.

The key to the impeachment process are twofold:  three independent branches  and only one branch, the legislative, which represents the joint will of both, the People and the States; it is the only way to remove executive officers and judges who flout the Constitution and Congressional laws from their posts.

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Let’s consider the most recent calls for impeachment.  One, a military man professed his homosexuality openly and was not removed from the military, contrary to the direct rules of the military under the “Don’t ask, don’t tell” policy.  By all the rules of the law, the man should have been removed from the military, and all officers in the chain of command disciplined.  Clearly, a Congressional law has been flouted but there is no threat of impeachment to anyone involved, and since the POTUS has ultimate responsibility for the actions for all executive branch personnel, he, himself, is subject to the impeachment process.  While I have not researched all the actions of the House since the open declaration of homosexuality, I am not aware of any resolution for  impeachment having been presented to the House members, nor am I aware of any member or coalition of members of the House talking to the POTUS using the threat of impeachment in this matter.

We might ask ourselves why the members of the House do not seem to be interested in pursuing the impeachment process in this particular case.  I would imagine one or more combinations of the following three reasons would be most popular.

1) We are planning to change the law so that openly gay persons may legally serve in the military.                                                                                   2) There is no chance that the Senate would judge the POTUS guilty.          3) I wouldn’t vote to impeach the POTUS since he belongs to my political party.

Now, all three of these reasons are just excuses without merit.  The first excuse assumes that something will happen but there is no guarantee that, in fact, it will.  The second excuse misses the point since an impeachment resolution by the House sends a message from the People to the person being impeached that his/her behavior is considered faulty.  The third excuse is just plain despicable since it puts political party above country, an attitude that is mildly treasonous.

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In summary, members of the legislative branch can be removed from their office by resolution or, since the Constitution is silent, by a recall vote, while members of the other two independent branches can be removed only through the impeachment process.

What’s wrong with the U. S. Constitution?

I.  Complaints.

Many news articles over recent years have bemoaned the low standing of the Federal Government in the eyes of its citizens and Congress fares the worst where only about 25 to 30 per cent of the people polled feel that Congress can be trusted to do its job effectively; this has dropped to 11 per cent recently.  Some have even proposed a constitutional convention.  Now, a constitutional convention is a serious undertaking and in my opinion should not be attempted for  petty reasons; it is warranted only for a change in the type of government–like going from a republic to a constitutional monarchy, a rearrangement of governmental functions–like going from a separation of powers system to a parliamentary system, or for simplifying its language after multiple amendments make some of the sections confusing or even contradictory.  I don’t believe that our American system is in need of any major overhaul yet; so the answer to this post’s topical question is  “nothing”.

Let’s examine the complaints a bit further.

The major complaint seems to center on Congress’s inability to operate effectively.  Consider  health reform.  Most everyone knows that our current system is inefficient, overly expensive and abused by many of its participants, i.e., highly in need of reform, and it has been this way for many years.  When the Democrats had control in 1992, health reform was attempted but was primarily blocked by the Republicans, and the same is happening this time; however, the Democrats persuaded all but a few of their cohorts to vote for a health bill and enacted the same–no Republican voted for the bill.  Personally, I believe this bill is currently unacceptable for many reasons even though some Republican ideas have been incorporated.   The real problem is not the form of government but the inability of the two parties to negotiate and compromise and come up with an effective bill for the good of the country.  I have often wondered why our two major parties never consider the fact that the American voters hardly ever let the President and Congress be controlled by the same party for any length of time–could it be that they don’t believe that either party has their country’s welfare at heart.  If Congress is not filling the expectations of its constituents, the people of the United States of America (voters) have only themselves to blame.  It is to be noted that the Constitution does not forbid recalls–Whomsoever the voters elect can be recalled by those voters.  If Congress is not filling the expectations of its constituents, the people of the United States of America (voters) have only themselves to blame.  It is to be noted that the Constitution does not forbid recalls–whomsoever the voters elect can be recalled by those voters.

The major complaint about the Judicial Branch is that it makes law–“Roe vs. Wade” is a good example (the ruling’s  conclusion might be stated as “No state of the United States of America shall prevent any female citizen from having an abortion).  I have outlined the general status of a Supreme Court (SC) ruling in an earlier blog on the basis of the separation of powers between the branches, but let’s  review what the U.S. Constitution says about the SC.  As explicitly stated therein the SC resolves disputes (Article III, Section 2 and Amendment XI–cases of law and equity arising under  the Constitution, its Laws and ratified treaties; since “equity” in this context cannot refer to its financial meaning, it must refer to fairness of treatment which poses the problem of the necessity of the ” equal protection of the laws” clause of the 14th Amendment).  Due to their equal status, a SC ruling can become a legitimate Congressional law in only one of two ways: Congress passes a law which, in effect, requires the Executive Branch to enforce the ruling or Congress does nothing and the Executive Branch does enforce the ruling.  In the situation where the SC ruling declares a law to be unconstitutional, if Congress does not rescind the law and the President of the United States of America (POTUS) continues to enforce the law, the SC ruling is essentially nullified until the POTUS (the same one or someone different) at some later time decides to enforce the ruling or Congress (the same one or a different set of law makers) decides to pass a law legitimizing the ruling.  POTUS Obama was thoroughly convinced that the SC’s McCain-Feingold ruling was wrong but he could have said, “As the President of the United States of America, I disagree with the ruling of the Supreme Court for these reasons…(states his reasons)…and until Congress changes or rescinds this law, I will continue to enforce it as it is written”, a statement that is fully constitutional.   The kingpin in this process is Congress since it has the power to impeach the  POTUS and keep impeaching successors until it gets one to do its bidding.  Incidentally, if Congress thought that the SC ruling was egregiously unconstitutional, it could impeach those justices who concurred in that ruling.  Unfortunately, our two-party system has a tendency to under use the threat of impeachment as a governing tool.  When the SC ruling involves a state law and the ruling declares that law to be unconstitutional the same mechanics can still happen but what if the State does not accept the SC ruling and Congress does not pass a law legitimizing that ruling and the POTUS cannot effectively enforce the ruling or even decides not to enforce the ruling.  Again a SC ruling can be effectively nullified, at least for the time being.   One might raise the question, “What about those Federal marshals who carry out the judges orders?”  Remember, the Judicial Branch has no enforcement powers, those Federal marshals are employed by the Executive Branch and under the orders of the POTUS.  He has the power to prevent them from carrying out any orders given by the judges.

The SC ruling in the case “Roe vs. Wade” is just one example of many cases where the SC has been accused of legislating.  The current Chief Justice has stated in his confirmation proceedings that “‘Roe vs.Wade’  is settled law” and he is correct since all States have acquiesced to that ruling, Congress appropriates money to support the abortion activities of Planned Parenthood  and similar organizations, and the POTUS has dispersed funds to Planned Parenthood.  Yes, “Roe vs. Wade” is settled law but it is not Congressional Law since there has been no bill passed by Congress espousing this particular ruling.  A puzzling aspect in this picture is the presence of the Hyde Amendment.  If it does say what it is purported to say, how can Congress and the POTUS justify their give-away of Federal funds to an organization like Planned Parenthood, which, in fact, do perform elective abortions?

The legitimacy of elective abortion is an example of a de facto law, in English, a law in fact but not explicitly written as a law.  Some States still retain their criminal abortion statues and it might be interesting to see what would happen if one of them actually challenged the Federal Government for I can envision many obstacles to Federal enforcement.  Back to the point, the SC cannot legislate but they can be the source of de facto laws.  Those who oppose particular de facto laws originating in the SC must either win the support of the other two branches or wait for a reversal ruling from the SC itself.

In summary and only on a procedural basis, a SC ruling can become a de facto law only with the cooperation of a second branch of government and without opposition from the third branch.  Of course, this process does not pronounce any judgment as to the worthiness or unworthiness of the law itself.  Historically, the world is and has been rife with bad laws   and will probably continue to have them far into the future.

There are two major complaints  concerning the executive branch but they are usually directed against the POTUS; not enough emergency powers and too much overall power.  It shouldn’t be difficult to see how the executive branch complaints can be resolved within the Constitutional dictate of the separation of powers.  The Executive Branch of the Federal Government is the only branch having the authority to enforce all the provisions of the U. S. Constitution, in fact, the POTUS is the only member of the Federal Government required by the Constitution to take an oath in defense of the Constitution and its Republic.

As to the POTUS not having any emergency powers. this clam is patently false, since the Executive Branch is fully independent from the other two.  The POTUS can write presidential directives with the full expectation that they will be carried out by his/her employees, even if they do not follow a strict reading of the U. S. Constitution.  Proper manners indicate that a declaration of some sort be presented to the other two branches stating the precise reasons for the POTUS’s action in order to facilitate a unified government response, but there is no constitutional requirement for it.

So, what happens next?  If the SC agrees with the POTUS, they can refuse to hear any case that questions the enforcement or the constitutionality of that directive, and if they disagree they can hear such a case and render their disagreement in a ruling.  Congress, being totally independent from the other two branches can also act independently.  If they agree with the POTUS they need to do nothing, thus nullifying a possible SC ruling to the contrary; however, if they disagree to the extent that something different must be done, they must do something positive, even if the SC has ruled against the POTUS.

And just what are the positive things that Congress can do?  First, they would probably try to discuss their differences with the POTUS in order to resolve their disagreement and have a common understanding of the needed action, probably involving the rewording or cancellation of the concerned directive or the passage of a law or some combination.  In this discussion, Congress can use the threat of impeachment as a tool for persuading a president to change or cancel his/her directive.  It was interesting to note the Republican Party Congressional members’ complaints about President Bush’s memos on how he planned to enforce some particular laws passed by Congress; many members stated that he was subverting Congress’s intent.  Did any of them suggest impeachment?

Similarly, if Congress thinks that the  POTUS is wielding too much power they can pass a bill limiting that power.  Since the POTUS  would probably not sign the bill, the bill will become law after ten days or if the POTUS veto the bill, Congress could then override the veto. In either case the bill limiting presidential power becomes law and then the POTUS could then be impeached for not enforcing the law.

II.  A short summary of the basic rules of operation of the Federal Government.

1) The U. S.  Constitution authorizes three independent branches of the government.  Congressional bills, presidential directives and SC rulings are limited only by the Preamble to the Constitution when there is no specific wording which directly applies.

2) The SC cannot initiate any rulings unconnected to a dispute brought before it and has no power of enforcement for any of its rulings.

3) While Congress is the only branch which is authorized to write laws, a presidential directive by itself or enforcing a SC ruling can become a de facto law when Congress does nothing to stop that enforcement.

4) Congress trumps the other two branches by having the authorization to remove a president and can keep removing them until they get a president who enforces their laws.  They also can impeach any member of the judicial branch–good behavior can certainly be defined by the legislative branch.

5) As the amended U. S. Constitution now states, the American people vote for the members of Congress and, therefore, control its make-up.

6) States, having limited sovereignty but, nevertheless, a sovereignty recognized by the U.S. Constitution, can challenge any Federal action that does not pertain to expressly written provisions in the Constitution.

III.  So, what’s wrong with the U.S. Constitution?

As stated at the beginning of this essay, there is nothing wrong with the U.S. Constitution as it is written but what is wrong is:                                                                                                    1) The U.S. citizen’s and politician’s understanding of how it is supposed to work and acting as if their wrongful interpretations are constitutionally correct.                                                 2) Political parties prioritizing power over the good of the country.                                             3) Political fanatics, both left and right, who know positively what’s good for the American people.  Unfortunately, these are the people who do the most preaching, and yes, it is almost a religion to them.                                                                                                                     4) Dare I say it but voter incompetence.  I must confess that when voting for a candidate who has very little background to judge any of his future congressional behavior, a voter may not know what to expect, but when voters keep electing the same incompetents election after election something is wrong.                                                                                      The only constitutional change that could possibly avoid these wrongs would be a one party dictatorship (of which a monarchy is an example) simply because they could rule without needing the support of its people.  Need I say more.

On Supreme Court Rulings, in Particular the McCain-Feingold Controversy

The recent ruling by the Supreme Court on the McCain-Feingold law has stirred up quite some controversy.  Being a five to four decision makes the ruling far from unanimous and very subject to a reversal later.  Before talking about the particulars of this ruling, let’s review some applicable constitutional matters.

Our American Constitution states unequivocally that Congress and only Congress can pass laws for the government of these United States.  There is provision for a Presidential veto and a Congressional override.  It also states that the constitutionally enacted Congressional laws and the Constitution are the “supreme law of the land”  The Supreme Court is given no legislative nor executive power, but has taken the position that it is the supreme arbiter of the constitutionality of Congressional law, a claim nowhere visible among any of the various sections of the Constitution itself.  However, there is a smattering of truth to this claim precisely because of the manner in which the Supreme Court is expected to operate.

Courts, in general, adjudicate disputes, which, for the Supreme Court, primarily means disputes involving the interpretation of the Constitution or its constitutionally enacted laws and/or how a specific interpretation was applied.  There are other disputes that the Court has jurisdiction over but they don’t pertain to the claim under consideration.  Also, we can ignore the Court’s structure since it is the final ruling that matters.  When a particular ruling is made in favor of the party which claims the unconstitutionality of a law, the Court then sets a precedent which will be used as a criteria for other similar cases.  In effect, the Court says that it will render the same ruling in the same circumstances.  The important point to see in this process is that a ruling of this sort made by the Supreme Court is nothing more than a particular interpretation under particular circumstances of the appropriate section(s) of the Constitution.  To jump from a ruling in a dispute to a general claim of unconstitutionality is unjustified because it does not account for subsequent events such as constitutional amendments, Court make-up and judgmental errors of either omission or commission–after all, the ruling is just an interpretation, and like all interpretations, subject to change.

Since the Judicial branch of our government has no legislative or executive authority, a Supreme Court ruling is then nothing more than a request to the president to enforce their ruling and to Congress or a State, if unconstitutionality of a law was in the ruling, to change or delete the law as appropriate, however, these requests can never be mandatory or binding on the other two branches or a State.  There have been very few times when this separation of powers has been invoked and, generally, there are very few reasons not to grant the Supreme Court’s requests.  Overuse of this power could lead to an ineffective government.  Granted, there are those who believe that our government has reached that stage but it still functions pretty smoothly–no revolutions on the horizon.

As I understand it, that part of the McCain-Feingold Act which barred corporations from advertising for any specific candidate in the thirty days prior to an election in which that candidate has been entered is the part which has been ruled unconstitutional on the basis of the 1st Amendment.  Presumably all other campaign contribution laws are unaffected, in particular, it is still illegal for corporations to contribute anything toward any individual’s campaign.  While this is a necessary and good law it can be very difficult to prove that a violation has occurred.  I also understand that the term “corporation” is used to describe any legal entity that is not a person, which, for clarification purposes, I will use the term “corporate entity”.

When our Constitution was written, its writers had as their foundation the Declaration of Independence, the failures of the Articles of Confederation and certainly the actions of the king of England.  The Bill of Rights came directly out of the Declaration but the phrase ” government of the people, by the people and for the people” was nowhere explicitly written into the Constitution nor was there any allusion to the phrase except in the Preamble.  The Preamble is very clear in that the “word” people stands for the entire population governed by our Constitution, from which it follows that any right belonging to the people belongs to any individual person, i.e., human being, who is considered to be one of the people.  It follows that no corporate entity has any rights under the constitution.

Since the 1st Amendment does not use “people” or “person” w.r.g. to “free speech” the SC wrongly concluded that Congress could make no laws restricting corporate entities from exercising free speech.  However, legal corporate entities have  the right to advertise for anything which will be to their benefit, subject only to the advertising marketplace.  This, I believe, is the correct reason for a SC ruling.

Digging into the controversy, democrats seem to be more perturbed than republicans primarily because they believe that the for-profit corporations will preferentially advertise for republican candidates.  Republicans just smile because they think so too, although that remains to be seen.  Remember, corporations are still barred from contributing to the support of any individual candidate so, there can be no collusion between the two, either positive or negative, where by negative I mean that a candidate cannot even hint that he wishes any particular corporation not to advertise on his behalf.  Before placing an ad for a particular candidate, there are corporate concerns to be considered, and for-profit corporations would probably need their owners permission.

I have used the word “corporations” in the above paragraph because that was the term used while this topic was hot, and this approaches another reason for my thinking that the McCain-Feingold Act is unconstitutional.  In the fifth paragraph I have coined the term “corporate entity”.  Explicitly, a corporate entity is any organization with a membership or ownership, official or unofficial, of more than one person and no corporate entity can claim unofficial membership or ownership by all the people of the U. S.  Popular names for corporate entities are “factions” and “special interests”, not so honorable unless you are a member of one.  Some corporate entities are charitable organizations, non-profit and for-profit corporations, unions and political organizations.  My point is that political organizations are permitted to contribute to a candidate’s personal campaign while all the others are barred, very gross discrimination.   Nothing wrong with a political party or a PAC but they should be treated like any other corporate entity–no contributions to any candidate’s personal campaign–thus making any political candidate independent of any and all special interests.

As indicated in the above paragraph, banning any and all contributions by a corporate entity to a candidate’s campaign would be one element in campaign reform. A more important restriction would not allow residents from one state to contribute to a candidate running for Congress in a different state.  Details concerning corporate entities with foreign connections will need to be resolved, stiff penalties for any collusion between a candidate and a corporate entity will have to be set and measures taken that a candidate does not use gifted out-of-state money in his/her campaign.  I don’t suspect that Congress would enact any of these restrictions–they seem to enjoy the current corruption too much.  I do hope that some of the States consider limiting campaign donations for their own states Congressional candidates to their own State’s residents; the other States just might follow suit.  Clearly this particular aspect of reform cannot apply to presidential candidates.