Growing the US Constitution Prelude Index Other Constitutional Sites Political Book Summaries 2/28/24 |
1. Our Founding Fathers Feared Direct Democracy
17th-century
Liberalism
came from John Lock and other
Age of Enlightenment
philosophers. These beliefs began a U.S. political discussion which centered on minimal state liberalism (today's conservatism) vs. active state liberalism (today's liberalism). |
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Controls included Separation of Powers in that authority was divided among three branches of government, the legislature, the President, and the courts. Within the legislature, power was again separated such that the Senate could stop a bill passed by the House of Representatives which initiated all revenue legislation. The President could veto a Congressional bill, Congress could override said veto with a 2/3 vote, and the Supreme Court soon found it could stop the President and Congress by declaring a law unconstitutional. which created a third separate power. These checks and balances among government branches were to protect minority rights from majority factions.2) Framers’ arguments as to how the US Supreme Court would function:
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The Electoral College was another control over concentration of power. Some founder/delegates to the Constitutional Convention feared Direct Democracy. What became known as the electoral College was a compromise between a true Republican election bythe people and an electorate consisting of citizens that are more qualified. However, there were other reasons. Slave states with large populations but far fewer eligible voters wanted a compromise like the one used to determine state House of Reprehensive representation. This 3/5 comprise counted some slaves as population for representation purposes. High population states such as Virginia which had many House of Representative members would also have a large number of Presidential electors. House members were not used as electors because maintaining presidential independence would be difficult if a small continuingly elected group like Congress electing the President. See Americans Are Poorly Informed About Basic Constitutional Provisions |
2. Maintaining A Republic Required Compromise America s Democracy had a difficult political beginning because of the violence and anarchy of the 1789-99 French Revolution. Many Americans were uneasy about their republican democracy. This helped Federalist and their active state liberalism ruled to control national politics.A new tax was the first of many major controversies . It came when Secretary of the Treasury Alexander Hamilton orchestrated the 1789 import tax. Many believers in minimum state liberalism were unhappy. The tax revenue was needed to pay Revolutionary War debt of both state and federal governments. Relative to GDP, it was the largest federal debt to exist until 1933 when revenue collapsed causing D3 (deep-do-do). Thus Hamilton began the continuing practice of increasing taxes (though not enough) to pay for war. Repayment of resulting long-term debt was spread over many years allowing repayment in cheaper inflated dollars. This minimized, some would say postponed, the Nation's financial sacrifice.A new practice of refinancing principal with new bonds to pay maturing bonds began after WWI. Some call this passing debt to our children but it has been seventy-five years and none has been paid. In terms of today's dollars, the WW2 created debt could be considered minimal. The practice of lowering taxes during war began when Bush II cut taxes while starting two wars. He also expanded the social safety net by creating Medicare Part D. This added to our large future liability compared to Social Security because changing demographics will solve potential SS liabilities. Hamilton to the dismay of Jefferson, also began the practices of the federal government paying state debt. Source |
Philosophical change, which would happen often, began with Jefferson when he purchased Louisiana even though he believed in minimal state liberalism. Others, Jackson being the most notable, followed minimal state liberalism. Then Lincoln used a strong federal government to preserve the Union. This lasted until the end of reconstruction when limited government helped by the Supreme Court fostered the Jim Crow Laws and the Gilded Age. The court did so by making owner property rights more important than worker personal liberties. The new century brought Progressivism from Teddy Roosevelt and Windrow Wilson. Both believed in active state liberalist. The First Red Scare and unionism following WW I brought back minimal state liberalism. The Great recession allowed FDR to use active state liberalism to tame our Greatest Depression. Active state liberalism ended with the Second Red Scare. We need guns not butter. The Korean War and The Cold War contributed to the feeling we needed security more than individual liberty. The 1962 Kennedy assassination gave LBJ the support needed to pass The Great Society anti-poverty programs. Active state liberalism was back. Stagflation of the 1970's allowed Ronald Regan to reverse course. He blamed active state liberalism for creating excess government regulation which slowed the economy.A new century brought back Active State Liberalism. First another Scare, this time from terrorism made maximize public safety more important than. Active State Liberalism returned to solve the Great Recession which required government corporate bailouts and health care expansion. |
3.
The Power Grab Begins Rulings Established Power Centers-partial list
Sovereignty of Federal Government Over Sates Governments Protection Individual Rights From Arbitrary Governmental Actions 1810 Fletcher v. Peck affirmed inevitability of contracts between individual and between governments. 1819 Dartmouth College v. Woodward protected contractual property rights from arbitrary governmental seizure 1821 Cohens v. Virginia extends SC protection to every citizen in every court of the land 1876 U.S. v. Cruikshank ruled protection of rights were protected from state law infringement not from individuals. 1928 Olmstead v. United States allowed wiretapped without judicial approval reversed 12/18/67
Supreme Court as "Supreme Constitutional Authority"
Protecting Business
Some Just Took Power Congressional Power Grab 1798 Alien and Seditions Act attacked anti-federal government activist by eliminating their Bill of Rights. 1801 Judiciary Act ignored the Constitution and removed Federal judges. Reversed by 1802 Judiciary Act.
Post WW 2 Power Grab |
A. Conservatives are Winning the Battle
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A. Conservatives are Winning the Battle The right has demonstrated that winning this kind of institutional fight takes years, even decades, and requires a ruthless disposition." Conservatives invested heavily in organizations that would nurture and support lawyers and justices who stuck to an “originalist” interpretation of the Constitution. This means their understanding is theoretically derived from the original meaning of the Constitution at the time it was written. 1945 Foundation for Economic Education began the push for Laissez Fair Capitalism. Business Interest decided to unite after Conservative L. Johnson accomplished J. Kennedy Liberal Agenda.
1971 Powell Manifesto, a memo from soon to be Supreme Court Justice in which Louis Powell advised the Chamber of Commerce that it had to organize businesses into a political force because, he claimed, corporations and the free market system were “under broad attack, ..." 1972 Business Round Table created to encourages business political activity. The Chicago Boys represented another consortium fostering neoliberal/conservative economics. |
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1982 "A consortium of students and professors based at Yale Law School founded the Federalist Society in 1982" to helped recruit and provide career support for bright legal minds. It provided social-professional networks to connect law students with influential senior mentors. Reagan's Attorney General Edwin Meese helped with the administration’s selection of 400 federal judges using ideological profiling that made a conservative criteria | important. Meese succeeded in the selection process and convinced many they were fulfilling founding father intentions. The Institute for Justice, the Center for Individual Rights and rightward philanthropists/organizations Joseph Coors, Charles, David Koch, and the Olin Foundation contributed much money to law schools like George Mason University. Schools with supportive of conservative professor whose research and ideas would educate students. |
See
How the Republican Party Took Over the Supreme Court
How Supreme Court Confirmation Fights Got Ugly? 1/29/22
A brief history of the Judiciary under
Republics; |
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Democrats answered with the 1969 McGovern Commission which reformed the rules that would govern the 1972 Democratic convention. It attempted to give greater influence to those in the past that had a marginal voice, mainly women, blacks and young people (defined as those under 30). The choice of McGovern indicated a new direction for the party's primary constituency, affluent, very well educated suburban liberals.
The history of this new
direction is explored by Thomas Frank
Listen Liberals.
Success is earned with merit, the ability
to win in a globalized world. These highly educated technocrats
were also described by George Friedman in his 2020 book,
The Storm Before the Calm:
America's Discord, the Coming Crisis
of the 2020s, and then Triumph. |
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C. Swing Votes exemplify our "managed constitution." Current swing vote is Justice Sandra Day O’Connor was preceded Justice Anthony Kennedy as the “swing vote” votes of the Supreme Court.Some feel a swing-vote brings greater responsibility because their existence come into being in close and therefore consequential decisions. This generation has seen Justices O’Connor and Kennedy cast the deciding vote making said decision possible and in doing so kept alive the Court’s non-partisan legitimacy. For two generations the court has made decisions that changed the original written document, its amendments, all unwritten agreements and court decisions that determine how those documents were to be interpreted.Controversial decisions needing a swing vote exemplify our "managed constitution." Court expanded corporate personhood by including money as political speech in a group of decisions that led to citizens United v. Federal Election Commission. Bush v. Gore decided the 2000 election by awarding it to the second place finishers Bush 2 and Cheney. Some feel the courts legitimacy was hurt because the ruling followed along partisan lines. Barre Seid, an electronics manufacturing mogul, donated $1.6 billion to a new conservative nonprofit group for 2021 campaigns. The cash infusion was arranged through an unusual series of transactions that appear to have avoided tax liabilities. |
Readings
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D. Many Legislative Challenges
Prelude:
In 1917, it required 2/3, LATER 3/5 majority to end debate ("cloture"). |
Before 1900 Court reversed Legislation 5 times 20th Century Court reversed Legislation about once a term. 21st Century Court reversed Legislation 4-5 time a term Increased Legislation reversal led to more Nuclear Options. It allows a simple majority to force process completion. This leads to easier approval by a mere majority.
It also leads to a more contentious ratification process |
E. Epitaph Judicial supremacy began with
Marbury v. Madison. |
5.
Political Discussion Had
American Exceptionalism
exists because the country was formed at a unique time and place.
This allowed America to be special with a responsibility to
provide an appropriate government example
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Since the mid-1980s, largely
at the urging of Justice
Sandra Day O’Connor, some
jurists have held that the
Establishment Clause is best
understood as prohibiting
governments from doing
things that a reasonable
observer might understand to
be endorsing religion.
This approach
is sometimes merged with the
Lemon Test, as it was by the
U.S. Fourth Circuit Court of
Appeals in
The American Legion v.
American
Humanist Association.
In spite of, or because of,
all of these tests, many
observers agree with
Justice Clarence Thomas’s
remark last year
that “this Court’s
Establishment Clause
jurisprudence is in
disarray.”
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6. Appointing New Justices Always a Battle See Controversial Supreme Court Nominations Through History
1) Property vs. individual rights went to property
until Gilded Age 2) Which Rights? To what degree should government be involved with protection of individual natural rights.
3)
Individual
economic and social equality
should receive
what |
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8. Did You Know Democracy and a Republics are often used interchangeably though they represent two different political philosophies.
A
Republic
has
"power
controlled by the
people."
Founding father Madison ...defines a faction as "a number of citizens, whether amounting to a minority or majority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community". Last term, in addition to overruling Roe v. Wade, the conservative majority expanded gun rights, imposed severe new constraints on the power of regulatory agencies and further dismantled the wall of separation between church and state.
Historically,
sovereign could both appoint and remove judges at pleasure,
Executive branch enforced the law. Sometimes the senior
legislative body, like the Senate in Rome or the House of Lords
in England, were the court of final appeal. Judges changed with
each change of government.
Independent judiciary thinking started with John Locke and Briton's 1688 Glorious Revolution. After the revolution, the sovereign appointed judges on the recommendation of Parliament. Judge served “on good behavior,” but could be removed by a sovereign petition agreed to by a majority of both Houses of Parliament.
The US Constitution allowed removal
with a 2/3’s Senate approval upon a majority of the
House recommendation. The Supreme Court would determine if a statute was
inconsistent with the Constitution. Problem arose
because inconsistencies between two prior statutes can
easily be legislation but it is monumentally difficult
to overcome a Supreme Court interpretation by amending
the Constitution.
Federalist George Cabot of Massachusetts feared"...the terrible evils of democracy..." and felt Jefferson was unstoppable..." From p368 of Thomas Jefferson: video Religious Identity And Supreme Court Justices - A History
The framers also envisioned that the Court would be bound by its precedents. They never envisioned that there would be wildly different schools of how the Constitution should be interpreted, let alone that a Court majority would use a new theory of construction to overturn long-existing precedents. The idea of a judicial retirement age was specifically rejected as candidates would need a lifetime of experiences to govern their decisions. Federalist Number 78 made clear that the Court was to have the power to set aside unconstitutional laws passed by Congress and the States. “Judicial supremacy”Perceived framer design errors for the Supreme Court are coming to fruition as average tenure of a Justice has dropped from <10 years to Justices commonly serving for 25+ years. A new theory of construction is now used to overturn long-standing precedents. Statutes are declared statutes unconstitutional at a rate never before seen. Fundamentally, there are 3 approaches that can be used to change this evolving court dynamic. a) Make all circuit court appellate judges members of the Supreme Court, and delegate their jurisdiction to the Supreme Court on a rotating panels basis (just as the Circuit Courts of Appeal operate now). b) A single 18 year term appointments would require a Constitutional Amendment. c) Have the President nominate two Justices during the 1st and 3rd term years meaning the Court would probably have an even number of justices about half the time. More split decisions would result causing the lower judgment of to stand. Potentially the first and third approaches could be combined, so that panels of 9 Justices would hear any given case. If some got tired of
this arrangement, then they could sign on to a
Constitutional Amendment enacting the second option
(a single 18 year term).
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9. Other
Conservatism vs. Progressivism
Constitutional History of the US
From Jamestown
to Selma, Alabama
Restrictions on the Northern Press
during the Civil War
Presidential Impeachment
Coding Law and the
U.S. Government and
Politics Course
Constitutionalism and
Democracy
Political Book Summaries
Turning Points-American History