Thursday, February 01, 2018

Democrats say Constitution Terrible ... Why they're wrong

By Douglas V. Gibbs.
Author, Speaker, Instructor, Radio Host

Ryan Cooper of "The Week" has launched a war against the U.S. Constitution, calling it an outdated, malfunctioning piece of junk — and he has no idea of what he is talking about because he does not understand that glorious document.

Let's examine his two written articles and see where we can maybe make some sense out of his misguided and ignorant anger.

Article #1: America's Constitution is terrible. Let's throw it out and start over. - Published January 26, 2018

→ Cooper: When written, the Constitution made a morally hideous compromise with slavery that took a war and 750,000 lives to make right.

→ Truth: When written, the Constitution began the process of the abolition of slavery, but the evil intentions of men steered the issue towards a War between the States that resulted in the senseless slaughter of hundreds of thousands of lives.

The Founders did not outright outlaw slavery with the Constitution because of the necessity of protecting the States from the potential rise of a powerful centralized national government.  The purpose of creating the federal government was so that the sovereign states making up the union may be protected by a unifying system, and so that the federal government may carry out the duties of a country's leadership while retaining all interior authorities to the States.  In other words, while the States were separate entities who were unique and different from each other, and they aimed to maintain that individuality, they realized that if they came together as a union there would be issues that the States must not tackle individually, but as a unit; national security, military operations, foreign trade, disputes between the States, communication between the States (postal service), and so on.

If the Founders had extinguished slavery with the Constitution, Georgia, South Carolina and North Carolina would not have remained in the union, and possibly other States would have joined the new southern alliance.  The flow of raw material would have been disrupted between the southern and northern States, and Europe would have made deals to directly deal with The South, cutting the northern United States off and essentially leaving them to fend for themselves without the same amount of raw materials necessary to maintain their economy.  If Virginia were to join their southern neighbors in refusing to remain in the union, it would have been even worse.

Meanwhile, Spain, who surrounded The South with their claims in Florida and Louisiana at the time would have become potential invaders in the hope of controlling the agriculturally rich region.  Therefore, it was important to take actions that, while it was desirous to abolish slavery early on, to allow those States to want to be a part of the union while also giving those same States the option to abolish slavery down the road on their own - without a federal government, who didn't have the authority anyway, forcing them to abolish slavery.

Among the "hideous" and "immoral" compromises that Mr. Cooper is likely specifically referring to probably includes the three-fifths clause located Article I, Section 2 of the Constitution.  The assumption by people like Ryan Cooper was that the clause was a compromise to make the Slave States happy by counting blacks as being only three-fifths of a person.  The assumption is that the clause is confirmation that the people of that era, including all of the participants in the Constitutional Convention, believed that blacks were less than human, and that they only considered them to be 3/5s of a person.

The reality is that all of the States at the time were essentially slave states, though many of them in the north had initiated anti-slave legislation designed to incrementally abolish slavery.  Pennsylvania was the first in 1780, based on Vermont's 1777 law (Vermont was not yet a State when they initiated that law, so that is why Pennsylvania is considered the first State to enact anti-slavery legislation).  However, Pennsylvania's slow abolition of slavery did not finish eliminating slavery from the State until the 1840s.  It was a common belief at the time that rapid emancipation would create animosity between the races, so incremental abolition was the preferred method.

The census was an important part of the U.S. Constitution because it would be used to determine the number of representatives each State would have in the U.S. House of Representatives, and the amount of the federal budget each State would pay in order to fund their Frankenstein creation.  The States with the most slaves (primarily Virginia, North Carolina, South Carolina, and Georgia) argued that all persons should be counted for the purpose of enumeration and apportionment.  The Founders, however, came up with the three-fifths formula to combat the southern States' desire for full command of the House of Representatives, thus reducing the voice of the States most supportive of slavery to one that did not exceed the voice of the northern States, who had less slaves.

In other words, the three-fifths clause was not written as a compromise to give The South more power and to call blacks less than whole human, but to limit the voice of The South in Congress so that they could not control the government's power to legislate.

Another slave-related clause in the Constitution is Article I, Section 9 where, after 1808, the Congress would have the authority to outlaw the Atlantic Slave Trade.  This would make it illegal to continue to bring slaves in from beyond America's shores (a law that took effect January 1, 1808, and would not have been possible if there had been no three-fifths clause because the anti-slavery forces would not have had enough votes).

Finally, there is the final clause of Article IV. Section 2, of which the Fugitive Slave Act of 1850 was modeled after.  The clause basically says, without using the word "slave", that persons held to service or labor (slaves), if they escaped into another State, were to be returned to their owner.  This clause was also not designed to support slavery as much as it was to make the transition from slavery to abolition a smoother ride.  Without the provision in the Constitution, it was believed that as States became "Free States," there would be violence by the slaves in the Slave States in their attempt to escape to freedom.  It was the desire for the movement towards abolition to be a peaceful transition.  They believed that as abolition took hold in the north, the movement would be like a virus, and slowly spread to the south, until all of the States had peacefully decided to abolish slavery.

The theory was sound, and admirable, but the hearts of men, not the pages of the Constitution, caused the path to be slightly different, ultimately leading to the War between the States, and a rapid emancipation.

→ Cooper: While its basic structure sort of worked for awhile in the 20th century, the Constitution is now falling prey to the same defects that has toppled every other similar governing document the world over.

→ Truth: The document is not the problem, the problem is that the document and the original intent has been abandoned.  This country was not designed to be a democracy, it is supposed to be a republic.  The characteristics of our republic goes beyond "representation" in a bicameral congress.  At one point the States had an even voice with the people in the Congress because the Senate belonged to the State legislatures, and the counties had an even voice with that of the people's in the State legislatures in a similar manner.  The mechanisms of the republic have been taken away or altered by judicial opinion that is being treated as the black letter of the law.  Yet, there is no place in the Constitution that allows the judicial branch to have the powers of being the final arbiters of the Constitution, nor interpreting the Constitution to mean anything other than what lies on the pages of the document.  In short, the problem is not the basic structure of the Constitution and any defects it may have.  The problem is that it has been decimated by predators, largely from the judicial branch, and progressive leftist wing of the political system.

→ Cooper: America is going to have to overhaul its basic structure of government, or eventually it will fall to pieces.

→ Truth: The overhaul of the basic structure of government, if it is to be successful, must be back to the original intent of the Constitution (obviously, minus many of the parts that have been made obsolete by amendment).  That said, among the necessary moves to return the Constitution back to its original intent is the repeal of some amendments, with the 16th (direct taxation) and the 17th (vote of Senator) topping the list.

→ Cooper: The major problem with America's Constitution is that it creates a system in which elections generally do not produce functioning governments.

→ Truth: Originally, at the federal level, the only elections by the people were for the House of Representatives; the U.S. Senators were appointed by the States legislatures.  At the State level the people democratically voted for their governor and assemblymen, but not State Senators; State Senators were appointed by the County leadership.  So, the problem with our elections is not as a result of the Constitution, but the fact that we have departed from the original electoral model which did what it could to avoid pure democracy.  That said, the more local the election, the more democratic the vote.  This idea was based on the concept of the importance of localism, and the importance of providing numerous checks and balances at the higher levels as government found itself further away from the local concerns of the people.

→ Cooper: ...there is no mechanism to break the deadlock (like calling snap elections).

→ Truth: If the system resembled what the Constitution originally called for, there would be no need for snap elections (elections held prior than established date).  The democratically elected members of the House only serve two years so that changes are enabled quickly if necessary.  Senators were appointed by the State legislatures, and though the term is six years, if not satisfied with the performance of the Senator, the States could yank their representative in the U.S. Senate on a moment's notice, and send in the new replacement (there's your alternative to a snap election that essentially does the same thing).  The President was elected by appointed electors, but the power of impeachment was granted to the people's voice in the House of Representatives, giving them the ability to remove the President rapidly if, during the subsequent hearing, the members of the Senate concurred with the opinion of the House.

As for breaking a deadlock, that statement is based on a false belief that government isn't working if it doesn't work quickly.  There are governments out there which act rapidly and efficiently in the sense of putting through policy ... they are called "dictatorships."  In a republic, the wheels of government are designed to grind slowly, with much debate, and sometimes the reality of a deadlock.  The reason for such a system was to guard against tyranny, and for legislation to have to fight its way through a difficult process.  Such a system ensures that only the best legislation survives, and the more dangerous tyrannical legislation gets held up at some point in the process.

→ Cooper: Most of the time, control of the House, Senate, and presidency is split between the two parties in some way. Bipartisan compromises to keep government functioning used to be common, but are near-impossible anymore due to extreme party polarization. So as Michael Kinnucan points out, during divided government "there is de facto no legislative body."

→ Truth: During the 1787 Constitutional Convention, while debating the assertion in Article I, Section 4 that "The Congress shall assemble at least once in every Year," there were those who argued that it was too often.  The idea that the Congress would be pumping out legislation on a constant basis was considered absurd, and potentially tyrannical.  The authorities granted to the federal government are so few, that unless the country was at war, the Framers did not believe there was need for them to even be in session.  Now, the politicians seem to think their worth is tied to how many intrusive pieces of federal laws they can pump out.  The problem is not a lack of functioning, but the reality that they are not supposed to be an assembly-line legislature pumping out law as fast as they can – even though people like Mr. Cooper out there has been brainwashed to believe unless a legislative body is pumping out law after law after law, they aren't doing their job.

→ Cooper: This is getting worse over time. Even with unified control of government, a party now only gets one big law per year through the reconciliation process. To actually govern in a way that would be normal for any other country, it takes unified control of government plus a Senate supermajority of 60 votes to get past the filibuster — something that has happened only three times since the Second World War. If Democrats take control of either the House or the Senate in 2018, we are likely in for even fiercer partisan combat and high-stakes standoffs. It's a ratchet that tends to end in constitutional collapse.

→ Truth: Cooper points out what is normal for any other country.  Our system was created to make us as unlike other countries as possible.  We are not a nationalistic top down system where the central government is supposed to hold the reins of internal affairs.  Internal issues are none of the federal government's business.  The authority over internal issues resides in the hands of each of the States.

As for the two-party system and partisanship he is complaining about, the two-party system was created, and then perfected, by people who would be Democrats in today's environment; Alexander Hamilton and Andrew Jackson (also known as the father of the Democratic Party).  That said, a two-party system is a natural tendency of human civilization.

If, hypothetically, we were to get rid of the political parties, and an issue arose, there would be those who would support the issue, and those who would gather to oppose it.  Birds of a feather flock together, they'd organize and pick leaders, and BOOM, you'd have political parties, again.  Even in systems where there are many political parties, they form coalitions, and divide between the left and the right.  Political Parties, unfortunately, is a natural manifestation of human politics.

Cooper also mentions, and complains about, the reality that in today's political world there is a need for a Senate supermajority of 60 votes to get past the filibuster.  The rule of cloture to end debate (60 votes to get past the filibuster) is not in the Constitution, and is not in existence because of the Constitution.  That is a Senate rule that can be changed by the U.S. Senate with a mere simple majority vote.  My message to Mr. Cooper is to not blame the Constitution for a rule that has nothing to do with the document, and everything to do with the rule-making by the politicians in the U.S. Senate.

→ Cooper: To fix the problem, America should aim to make itself more like a proportional parliamentary democracy, by far the most successful and road-tested form of government.

→ Truth: The Framers purposely steered us away from parliamentary democracy.  Pure democracies, historically, are failed systems, and when they collapse they always become tyrannical oligarchies.  John Adams commented that democracy has a historical tendency to "commit suicide", and Madison said that "democracies are short in their lives and fiery in their deaths."  A parliamentary system does not practice a separation of powers, of which the Framers believed was essentially for a system to be successful.  Since then, we've moved away from a separation of powers, allowing the courts to interfere with executive or legislative functions.  Again, to fix the problem we must not abandon the Constitution; to fix the problem we need to restore the original intent of the U.S. Constitution.

→ Cooper: Get rid of the Senate filibuster. This would at least allow a party that got the presidency plus both houses of Congress to govern, and could be passed by a simple majority vote in the Senate. However, that sort of unified control only happens every six to 10 years or so, so this reform would only be periodically useful.

→ Truth: The kind of unified control Cooper suggests we should embrace can also create a condition that allows a tyranny to have its way with our system.  Bickering and fighting and blocking control of unlimited control is a part of what makes this system work well.  But, as I stated before, if you truly wish to get rid of the Senate filibuster, that is not a constitutional flaw.  The filibuster exists because it is a Senate rule.  The Senate can eliminate the filibuster any time it likes, and their decision would have nothing to do with the U.S. Constitution.

→ Cooper: Radically change the way House members are elected. One major engine of political extremism in America is the partisan drawing of district boundaries. The United States has the most entrenched two-party system in the world, partly a result of "first past the post" voting, and partly because the parties have locked themselves into place behind enormous legal barricades to third parties.

→ Truth: The problem is not the House.  The problem is the fact that the other parts of the federal government are now democratically elected.  The House of Representatives was originally given to the people as their representation in the federal government for a reason.  It allows the people to have the power of the purse strings and the power of impeachment.  These powers, however, while beginning with the people, were subject to approval by the Senate (voice of the States).  The bicameral Congress is supposed to have two, different, distinct houses.  With the Senators voted in by popular vote, that distinction has been lost.

→ Cooper: Worse, the ironclad two-party system has proved to be highly vulnerable to an extreme right-wing fringe that protects itself with gerrymandering and other cheating tactics.

→ Truth: Gerrymandering is actually primarily a tool of left-leaning forces, be it the establishment Republicans, or the Democrats.  However, once again, if the Senators were appointed by the States as originally intended, gerrymandering would only be a problem regarding the House.  As for the "right-wing fringe" Mr. Cooper refers to, I am curious what he means by that.  Definitions often change from person to person.  I am guessing Mr. Cooper doesn't even understand the true political spectrum of left and right.

→ Cooper: Where in any other country the 15-20 percent of the national population that makes up Republican primary voters would have their own small party, instead they now own one out of two parties.

→ Truth: A) We are not supposed to have s system like that of other countries.  B) We are not supposed to have a national government, we have a federation of States, so the term "national population" reveals a lot about Cooper's statist beliefs.  C) In countries where there are many parties they get less done because it's harder to build a coalition.  D) Republican Primary Voters make up more than 15-20 percent of the population, his statistic is in error.  E) The Constitution was not written to give the majority population the control of the country, but to protect the voice of the minority (rural States and non-population centers).

→ Cooper: As the folks at Fair Vote demonstrate, one clever way to solve this problem would be to change the way House members are elected. Instead of drawing one district for every representative, make each district have three seats, allocated by a ranked-vote system. Districts would still be geographically contiguous, but much larger and proportionally represented. (For example, Louisiana would go from having six congressional districts each represented by one person to two districts that each have three representatives.)

You can see how this would allow for more than two parties to hold seats in Congress. You'd no longer have to win a congressional district majority — coming in third place would be enough to win a seat. That removes most of the possibility for gerrymandering, and gives representation for partisan minorities even in slanted regions like Alabama or New York. Thus, almost everyone is represented by someone.

And while we're at it, let's change House elections from every two years to every four years. American lawmakers need time to actually govern, and should not be perpetually seeking re-election.

→ Truth: What the plan suggested by Mr. Cooper creates is a larger bureaucracy necessary to administer it.  The larger problem in our current system is the fact that a fourth branch of unauthorized government (administrative branch of bureaucrats and staffers) who never change, and don't get removed, exists.  So, rather than send our system into an upheaval, let's leave the House alone, and get the other parts of government back where they originally belong (Senators appointed by State legislatures, etc.).  The method Cooper recommends creates division, rival districts aimed at attacking each other, and then he wants to give them more time to screw things up (four years, rather than two).

→ Cooper: Neuter the Senate. The Senate is an odious, undemocratic institution in which senators representing about 11 percent of the population can filibuster a bill or those representing about 16 percent of the population can have a majority.

→ Truth: Cooper's idea wreaks of democracy.  First, the Senate has already been altered in ways it should not have been, and repealing the 17th Amendment (thus, returning to the States their ability to appoint Senators) would fix most of our problem.  As for the worry about how the less populated States can have a majority - - - THAT'S THE POINT!!!!  The design is there to protect the voice of the minority so that population centers do not overrun rural areas with legislation and rules that are frankly not in the best interest of the geographic majority.  The system was designed to protect the United States against a mob-rule tyrannical oligarchy controlled by the population centers whose interests are not liberty, often, but what they can get as gifts from the federal treasury.

→ Cooper: The Constitution places high bars to changing the Senate, stipulating that no state can be deprived of its representation without its consent. However, it might be possible to pass an amendment making the Senate a House of Lords-style institution without real power. Senators could still be elected, but not be able to pass a binding vote on legislation.

→ Truth: Cooper's line about how "no state can be deprived of its representation without its consent" is presented with the wrong context.  That line comes from the final sentence of Article V., and was designed to make sure State legislative appointment of the Senators was not taken away without a State's consent - because the Senate was designed to be the voice of the States' legislatures in Congress.  The 17th Amendment changed that.  That said, if we go by original intent, that means that any State who did not ratify the 17th Amendment, be it because they refused to ratify it, or they weren't a State, had their representation in the Senate taken away without their consent.  So, once again, the way to fix the Senate would be to repeal the 17th Amendment.  Then, as originally designed, we would have two distinct Houses of Congress, rather than democratically elected mirrors of each other.

→ Cooper: Elect the president from the House. The point of "separation of powers" was to create a check on tyranny, but it has ironically worked to increase tyranny and undermine democracy. The separate executive branch is a major factor behind the rise of the lawless imperial presidency in the United States, and most other American-style constitutions fell apart due to standoffs between the president and legislature.

→ Truth: Cooper is actually scratching on the surface of what was originally intended with this one.  The Electors for President were originally appointed by the State legislatures.  The people's popular vote was never considered until the 1820s, under the urging of Andrew Jackson (the father of the Democratic Party).  Prior to that, the way the people influenced the vote was by campaigning for their favorite candidate in the hopes of swaying the vote of their Elector.

Because the Framers believed that State-partisanship would heavily influence the vote (something they found to be a wrong assumption during the rise of the first five presidents), they felt no candidate would ever achieve the majority of electoral votes, and it would usually come down to the House of Representatives to vote for who would be President.  That is how it happened in 1800, when Jefferson first won.  That election also had some other caveats involved, as well, largely surrounding Congressman Lyons, his sudden appearance after a series of attempts by the House to get the President elected through their own vote, and the after-effects of the very unconstitutional Alien and Sedition Act that had been put in place by the Hamiltonian Federalists during the presidency of John Adams.

→ Cooper: In normal countries, the executive is simply part of the legislature. Such a system does not create a single powerful figure running the state who can also claim separate democratic legitimacy against the legislature. If the president were elected from the reformed House, the dangerous standoffs created by divided government would not happen. Instead, the leader of each party would be the implicit presidential candidate during each election, as happens in parliamentary systems.

→ Truth: In normal countries?  That is to suggest that the United States is abnormal.  Remember, the intent was to be different from the rest of the world, with a new system that would stand the test of time.  That original system has led us to becoming the leading country in the world, yet Cooper wants us to chase after the systems of countries that have left them below us.  As for his suggestion of abandoning the concept of Separation of Powers - we don't need to make the executive a legislator, we need to get our system back to the idea the branches cannot by law perform any function other than what has been authorized to their branch.  Our problem is not so much the executive and legislative branches as much as it is the judicial branch ... something Cooper has skirted around in his entire article.  Not once has he mentioned the unconstitutional crimes of judicial review, and activist judges.

→ Cooper: Throw the entire Constitution in the garbage. One of the biggest problems with the Constitution as written is it makes changing anything nearly impossible. Other countries regularly ditch or overhaul their constitutions to deal with new problems — and even America has done so in the distant past. When the first stab at a U.S. Constitution proved totally unworkable, Americans of the day didn't fuss around with stipulations that "the Union shall be perpetual." Instead they threw the whole thing out and started from scratch.

→ Truth: Difficulty in making changes to the Constitution is the point.  That is a guard against the rise of tyranny, which rises when there are no obstacles like the Constitution standing in the way.  The Constitution is fine, its the interpretation of it by kooks like Cooper, or our judicial system (and the political establishment) that is the primary problem.

→ Cooper: When it comes to major reform, I reckon this is the most likely actual possibility. One of these days, a standoff will come to a head, and will lead to some kind of total breakdown. Legal mechanisms like a constitutional convention are completely untested and would probably create such explosive controversy that we'd effectively end up with a new constitution anyway.

→ Truth: I think Cooper is referring to an Article V. Convention (Convention of States) in his line about a constitutional convention, which tells me he doesn't know the difference.  The latter creates constitutions, the former proposes amendments by the States, rather than through Congress.  The Article V. Convention is a tool, just like nullification, or Republic Review, which enables us to make the journey towards restoring the Constitution to its original intent.  Cooper, I am guessing, doesn't understand any of that because his interpretation of the document, based on his writings, fail to grasp what the Constitution is truly about.

→ Cooper: Make no mistake, a constitutional collapse would be a tremendously destabilizing and dangerous event, and raise a significant chance of insurrection, civil war, or a military dictatorship. But if and when it comes, it won't be by choice — it will be because the ancient, janky mechanisms of the American Constitution simply failed. If we wish to avoid such a breakdown, moderating reforms like the ones mentioned above must be considered and adopted, posthaste.

→ Truth: Make no mistake, we are in the midst of a constitutional collapse, not because the Constitution has failed, but because We the People, and our institutions, have failed to remain in line with its original intent.  Our best way to avoid the breakdown that Cooper warns us about is not by abandoning the Constitution, but by restoring it.

Now for Cooper's Next Article: The Case Against the United States Constitution, published a year ago, February 1, 2017

→ Cooper: The Constitution is janky. It's antiquated. It's poorly designed. And it's falling apart before our very eyes.

→ Truth: The Constitution as written is brilliantly designed, but the keepers of the flame have not only fallen down on the job, but we've allowed foreign ideas and statist ambitions to invade its original intent, and change the Constitution through judicial fiat.  As for accusations that the document is antiquated, liberty does not go out of style, and if adjustments are necessary, that is the reason the amendment process exists.

→ Cooper: I'll concede that there was indeed a time, hundreds of years ago, when the Constitution was, briefly and for its era, a halfway decent first stab at a workable democratic political system for the Northern states.

→ Truth: The Constitution was never intended to take a "stab" at a "workable democratic political system."  It was designed to establish a republic, based on a system guided by multiple constituencies (people, States), and restrained by limited authorities and a structure of checks and balances.

→ Cooper: (In the South, it organized one of the most brutal tyrannies in history.) Still, it only got close to systemically democratic with the Reconstruction Amendments, half of which were promptly ignored for 90 years. And even with those amendments, it still has three fundamental defects.

→ Truth: The Constitution was not only not an enabler of the institution of slavery, it began the downfall of it, beginning with Article I, Section 9 which authorized Congress to pass legislation to outlaw the Atlantic Slave Trade.  The Reconstruction Amendments have been misinterpreted on a number of issues, and they definitely were not designed to move us towards democracy.  That said, John Bingham's entries in the 14th Amendment were designed to incorporate the Bill of Rights to the States, a dangerous prospect in its own right, but Congress rejected it, as did the States.  The courts, then, proceeded for more than 100 years to do it themselves.

→ Cooper: The Constitution is anti-democratic.

→ Truth: Correct, but that's a good thing.

→ Cooper: Consider the Senate. The Constitution requires that this body vote to approve a law before it can reach the president's desk. Each state gets two votes, even though states vary vastly in population; today, California has about 67 times the population of Wyoming, but the same two Senate seats.

→ Truth: It was designed that way to protect the voice of the minority ... more specifically, the rural States.

→ Cooper: Constitutional apologists justify this with a lot of piffle about how the Senate is supposed to be the "cooling saucer" against the hot-headed House of Representatives. (Historically, this meant "filibustering anti-lynching bills.") In reality, the Senate is the product of a bare-knuckled political power play by the smaller states as they existed in the 1780s. They wanted unfair over-representation as the price of joining the new nation, and they got it.

→ Truth: Does Mr. Cooper then believe that the more populous States should be able to dictate over the less-populated States simply because they have more big cities?

→ Cooper: A decentralized government that delegates much authority to national sub-regions is one thing. But there is no possible justification for allowing certain depopulated states to wield dozens of times more influence than others over national policy due to the sheer coincidence of rapidly shifting population distribution.

→ Truth: Historically, tyranny rises in population centers because those populations tend to be the takers who demand subsidies and safety net programs; the rural areas tend to be the producers.  Why would Mr. Cooper wish for the people who take, but give little to the overall system, to control those who produce the food, and raw materials, so necessary for the success of a prosperous system?

→ Cooper: The House is better, but not by much. The Constitution allows state legislatures to draw their own congressional district boundaries. (In this, America is virtually alone among democratic countries.) In many states, that means self-interested politicians drawing the lines that control their electoral destiny. Is it any surprise that cheating is rampant?

→ Truth: While I agree gerrymandering is a problem, the way to deal with it is not to ditch the Constitution.  Cheating is rampant not because of any flaws in the Constitution, but flaws in human nature.

→ Cooper: Today, Republicans have gerrymandered themselves a roughly 7-point handicap in the House. North Carolina Republicans cheated so badly it was rated "not only the worst state in the USA for unfair districting but the worst entity in the world ever analyzed by the Electoral Integrity Project."

→ Truth: In California, the Democrats have gerrymandered themselves to a supermajority, and the cheating is so bad that some of the districts have broken islands as a part of their district.  California has been sued by the Election Integrity Project over the fraudulent tactics of the Democrats in that State.

→ Cooper: Finally, the Electoral College. I've written about this before, so I won't belabor the point, but suffice it to say that a system that allows one candidate in a two-candidate national election to lose the popular vote by a 4-to-1 margin and still win is bad.

→ Truth: As stated earlier, the Electoral College no longer follows its original intent, but is a brilliant tool to protect the voice of the minority against the mob-rule majority.

→ Cooper: The Constitution's separation of powers is a boondoggle.

→ Truth: The Constitution's separation of powers is not being followed, therefore it is not at fault for anything, the fault is that it is not being followed as intended.

→ Cooper: In a parliamentary democracy, the executive power is exercised by the winning coalition in the legislature. That's how it should work. In an American-style presidential democracy, the executive is elected separately. The idea here, as everyone learns in civics class, is to separate powers to protect the people from government tyranny, as each branch will guard its own power. This doesn't work at all, as we are all right now getting ground into our faces under President Trump.

The executive branch has become steadily more powerful basically since the moment the Constitution was implemented. Since FDR's day it's gotten much more marked, and in the 1970s scholars began to write about the "imperial presidency." This development is, in part, because of the separation of powers. A more complex and urbanized society means governance needs to be agile, and deliberative legislatures are not well suited for that at the best of times. On the contrary, increasing partisan polarization and a bicameral legislature has meant Congress is often helpless to do anything at all, so the executive has often stepped up to fill the void. Polarization has further eroded the logic of separation, as members of Congress look the other way when it's their party's president accumulating power. A hypertrophied executive is common around the world, but it's palpably much worse in presidential systems without their rooting in the legislature or the ability to call snap elections to resolve political deadlock.

Trump has already gone further than any president since Andrew Jackson, directing Customs and Border Patrol to disregard federal court orders, and reportedly even U.S. Marshals (the enforcement arm of the judiciary) too. But he builds on a long tradition of failure rooted in our janky founding document.

→ Truth: President Trump has not been acting outside his authorities.  His job is to "faithfully execute the laws of the United States."  The court system is supposed to be the weakest of the branches, and based on separation of powers they are not supposed to interfere with the President's powers of executing the laws.  The U.S. Marshal is not supposed to be the enforcement arm of the judiciary, but of the federal government in general.  Since all enforcement powers constitutionally lie with the President, that would mean the U.S. Marshals should be the enforcement arm of the executive branch.  The judicial branch has no enforcement power, and they are not supposed to interpret the law, or the Constitution.  Their job is to apply the law to the cases they hear.

→ Cooper: The Constitution is basically impossible to fix.

The Constitution is almost impossible to change, requiring a two-thirds vote in the House and Senate and ratification by three-quarters of states. (Or a constitutional convention, but that has never been tried). It has been amended many times, but the only ones that made really profound changes to the basic structure were the Reconstruction Amendments, which could not have happened outside the context of the Civil War and the occupation of the defeated Confederacy. The last amendment to even moderately change the fundamental structure of American government was passed in 1913 (the direct election of senators). So not only does the Constitution have a bad design, it can't realistically be fixed — and it's getting even harder as partisan polarization deepens and the consensus across so many states becomes further and further out of reach.

→ Truth: The fixes Mr. Cooper suggests are needed to be applied to the Constitution are not based on the original intent of the basic articles.  The fixes we really need would be things like repealing the 16th and 17th Amendments, and disallowing the courts to use the unconstitutional power of judicial review to pervert the Constitution.

→ Cooper: Now, none of this is to say that everything about the Constitution is bad. The Bill of Rights is pretty good, especially for its time (though for my money the South African version beats it handily). But the basic political mechanics the Constitution sets up are utterly stupid. Literally every other country that set up an American-style Constitution collapsed eventually. A proportional parliamentary system would be far superior.

→ Truth: The basic political mechanics of the Constitution only work if they are followed by the black letter of the law.  The Constitution has provided more liberty, and prosperity than any parliamentary system has ever provided.

-- Political Pistachio Conservative News and Commentary

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