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Political Systems

Joe had a bit more to say yesterday about my post regarding the land of the used to be free:

The bigger problem, as Sebastian pointed out, is the erosion without consequences. In general the only way this problem can be fixed is for there to be consequences other than voter wrath. There needs to be fines and/or jail time for those that violate our rights and some body, such as the courts but perhaps not, that is specifically tasked with doing nothing but striking down laws that exceed the constitutional authority given to the legislature and/or executive branch.

I’ve heard it proposed that we should pass a constitutional amendment that creates a House of Repeal. Essentially a body who’s only job is to repeal bad laws. I’m intrigued by this idea because it provides the right kind of incentive. The great thing about our political system, in historical context, is that we are a nation of laws, rather than of men. The great problem that creates, perhaps not fully envisioned by the founders, is the same as when the only tool available to a carpenter is a hammer; suddenly everything starts looking like a nail. In an ideal world, a House of Repeal would be unnecessary if the Courts were willing to do their jobs. Having sacrificed that responsibility on the altar of the presumption of constitutionality a number of years ago, I’m not sure the Courts are any longer enough.

But would a House of Repeal really help? I’ve also wondered, rather than a House of Repeal, if it would be better to have two Supreme Courts: one Supreme Judicial Court, and one Supreme Constitutional Court, with the Supreme Constitutional Court having jurisdiction only over constitutional matters. In a departure from traditional common law, the SCC would have the ability to review legislation without the need for citizens to bring suit, or to have standing to sue. In essence, all three branches of government would have to agree on the constitutionality of a law for it to be in full effect.

As for consequences for bad behavior, I agree with Joe on that as well. I’ve pondered the utility of a provision that states if an Act of Congress is found to be unconstitutional, anyone sitting in the Congress, having voted in the affirmative for said Act, is permanently ineligible from sitting in Congress for another term. How’s that for term limits? The threat of jail time doesn’t seem to put many elected officials off from current examples of malfeasance, but every office holder out there is scared to death of losing their seat, ending up out of power and irrelevant. This kind of consequence would both provide punishment, and remove the possibility of further damage.

Another possible path to get out of the mess we are in is for the Federal government to go bankrupt and collapse sort of like the USSR did and we end up with only state governments. Many of those state governments would provide a much more free environment than that currently imposed by the Feds.

For a lot of reasons, I think this would be disastrous, chief among the reasons being that we’re sitting on some highly valuable real-estate that other powers would very much like to have. We’re a lot weaker divided. New York City wouldn’t stay free for long without southern country boys willing to defend it with their lives, and southern country boys would find it difficult to maintain 21st Century standards of living without the financial services provided by New Yorkers. Both would starve to death without midwestern farmers, and the midwest is awfully cold in the winter without coal from the West, and oil from Alaska and Texas. That’s not even mentioning monetary issues, like who can issue currency, who is responsible for the debt of the Untied States, etc. Businesses would be petrified while the political system worked out the separation of states. This would mean economic ruin, or economic ruin would already have needed to happen. It would be less of a disaster, in this case, to have another constitutional convention, and amend the constitution to place more firm and unambiguous limitations on federal power.

Joe also suggests that maybe we just need to go elsewhere. There are theories out there that postulate that the option of exit is one major factor that kept our early governments relatively small. Given that we’ve hit ocean, it’s no longer an option. Perhaps people need that option in order not to have their productivity preyed on by others. I don’t have any solutions for that problem.

I don’t think our founders got everything right. Their system was a wonderful example of how to control a government that presided over a largely agrarian society, and with assertive and diverse state governments. That does not accurately describe our society today. I don’t think we should rule out the possibility of making amendments to the Constitution. The progressives did it when they ushered in their era in the early part of the 20th Century, which later laid the foundation for the New Deal. Those of us who wish to see a better federal system, with a more passive and less assertive central government, should not shy away from such ideas.

22 Responses to “Political Systems”

  1. Johnny - Oh says:

    Long-time lurker here, first time commenter (I think). Anyways… I’ve had a solution to these issues rattling around in my head for a year or so. I think that a Constitutional Amendment that stated that all Laws ratified by the Fed-Gov that are not Constitutional Amendments will automatically sunset after a period of say…Five years or so. Due the mass of laws already on the books, the Hill would be chasing around trying to keep “Good” laws on the books, that they’d have less opportunity to create “Bad” ones. I think Five years would be long enough to prove whether a law was effective at it’s intended purpose, and also makes it difficult for our elected politicians to grandstand only during election cycles. I think I’d give them the first Five years to go over everything that’s currently on the books ( I know, I’m generous that way ) before they have to start looking at everything that they likely didn’t get passed during that five years. If they didn’t get to it in those years, it’s just no longer a law, as if it never existed. I think this would force them to prioritize their intentions, and then we’d really get some transparency.

    I dunno. It’s just a thought, that I thought you’d be interested in.

  2. Sebastian says:

    I’ve thought about too, but I think it should be possible to pass a law that doesn’t sunset, with a supermajority. The concern with everything working that way is that you’d have little in the way of legal stability and predictability, which is important for getting business done. There’s still quite a lot of federal law that’s relatively non-controversial, but nonetheless quite voluminous, and affects enough areas that uncertainty about the state of law would create quite a problem.

    But I don’t have a problem with the general concept. I think it could work as long as laws which are necessary and non-controversial have some mechanism for achieving permanency.

  3. David Lawson says:

    Illinois has lots of coal:
    http://www.commerce.state.il.us/dceo/Bureaus/Coal/

    “Illinois has a 250-year supply of coal. With 1.189 billion tons, Illinois has the largest recoverable bituminous coal reserve of any state in the United States.”

  4. ecurbCO says:

    Make the sunset 30 years, based on the old Jefferson line about every new generation being free from the dead hands of the old.That solves some of the stability problem, at least.

    The big problem with the USSA collapsing is the same problem the USSR had: institutions stay powerful after the government that limits them falls apart. That’s why ex-KGB guys with criminal connections run the place these days.
    Just imagine what kind of Putin would come out of the EPA…

  5. Carl from Chicago says:

    Surely there are solutions to these problems that don’t go so far as creating an entirely new branch of government … increasing the size and just as importantly, the complexity, of government.

    Congress already has authority to repeal laws … it’s just that they have no incentive. We the People must make it an incentive if they are to shift part of their efforts toward the repeal of laws.

    But I agree. This function is desperately needed.

  6. Glen says:

    You might want to look at the Repeal Amendment, a constitutional amendment proposed by Georgetown University law professor Randy Barnett.

  7. Richard Allen says:

    There is noting new. Back in the 60s Theodore Lowi in The End of Liberalism spent about 300 pages making a great case for revolution and then spent the last 5 pages saying that sunset laws were the answer. I thought the solution was inadequate to the identified problem then and I still do.

  8. Sebastian says:

    We the People must make it an incentive

    I don’t have any faith that voters are informed or rational enough to hold politicians accountable. The only restraints on government that have ever really worked are all institutional, and I think any reform that puts us on the path to smaller government has to be an institutional reform.

  9. Sebastian says:

    Rather than a sunset clause, maybe the solution is just to require a supermajority to pass any law. What if instead of just half, it took 2/3rds of both houses to pass a law? That might make budgets hard to pass, though.

  10. Tam says:

    Sebastian,

    While we’re pie-in-the-skying, I think L. Neil Smith had an interesting twist to his “House of Repeal” idea, in that the House of Repeal only needed a 1/3rd vote to repeal a law, on the principle that, if one out of every three people thinks a la is dumb, it probably is…

  11. cbunix23 says:

    There are no serious consequences to politicians or bureaucrats for passing horrible laws and regulations. What’s the worse that can happen ? They loose the next election. Big deal.

    We need something with real teeth in it, something like this. If more than 51% of voters in a referendum vote to repeal a law or regulation then any politician or regulator that voted for the law or created the regulation is immediately fined $1000000 dollars. Change the percentages and/or punishment as needed.

  12. TS says:

    Unfortunately so many in congress see themselves as “lawmakers”. They see it as their job to make laws. If they are not sitting around thinking of what laws to make, then they are not doing the job they are being paid for.

    I’d vote for George Constanza on the platform that he will do nothing.

  13. Johnny - Oh says:

    Just read through the above comments, and you’ll see who I’m responding and/or talking to…

    Pie in the skying! You always cut to the quick. Brilliant.

    With the automatic sunset, I’m thinking of creating gridlock. This eliminates the need for a Super-Majority to ensure good laws are passed.

    After a 5-year majority rule that a law is good, then it goes to a 30-year review, with a Super-Majority making the law permanent. Chaos now, with stability to come. (I mean if the .gov is gonna crash over the opinion of a few financial institutions anyway, why not take it all the way?)

    The repeal amendment sounds good on its face, but the fact that at the recording of the video/press conference, only shows the fatal flaw of the idea… only 14 states support it. (not that my idea is any better)

    As for consequences… just take away the ability for them to usurp current law, to vote themselves raises, and their pensions, and I think you’d get a better class of legislators.

    Just another opinion, and I;m tickled that I sparked a debate… Thanks all.

  14. Roberta X says:

    If the FedGov collapses, the states go on as before; they’re getting along now, aren’t they? It’s not like any of them are gonna erect trade barriers and border stations (except CA, which already has them).

    “Borders” are the big deal; short-term, border/seaport states would be begging and bribing the various Border Dudes & Dudettes to stay on the job. But the rest of it? Things can and will run on inertia for quite awhile.

    It’s when that Free Fed Money dries up before J. Random State figures out how to grab the old Fed cut from your paycheck that it gets all sticky.

    I think a Soviet-style collapse is just a matter of time. I won’t be surprised if there is a remnant of Federal States after it all shakes out. But I expect the shaking-out to be relatively slow, a decade or two. I don’t expect “furriners” to “grab our real estate,” to a great extent but I wouldn’t be surprised to see some nibbles around the edges by our neighbors. Canada would do it just to help out…and to get Maine back plus some sections out West.

    It’s going to happen.

  15. Sebastian says:

    I also think it would be worthwhile to have a deep understanding of the Industrial Revolution, and the changes in society that allowed the progressives to accomplish what they accomplished. Think about this:

    • For the first half of the 19th century, there was only one amendment to the constitution, the 12th Amendment.
    • The calamity of the Civil War created 3 constitutional amendments, one of which fundamentally altered the relationship between the federal and state governments.
    • For almost another half-century there was no amendments, then the progressive era spawned 4 constitutional amendments, within the span of less than a decade during the second decade of the 20th century.
    • The rest of the 20th century was fairly active for constitutional amendments until 1971. No new amendment has passed Congress since then, and the XXVII Amendment, ratified in 1992, had been pending since the founding.

    National calamity has generally been what’s spurred serious structural change to our constitution. That the idea seem far fetched to us today tells me it’s going to get worse, probably a lot worse, before real reform can happen.

  16. Bram says:

    I like a House of Repeal better than another Supreme Court – I don’t trust lawyers and don’t want unelected lawyers making it up as they go along.

    A House of Repeal could also overturn Constitutional but bad laws – while the courts will not.

    I like the ideas of sunsetting all laws. If nothing else, repassing old laws will keep the politicians too busy to pass new bad ones.

    I like Term Limits too. Let’s face it, the longer a politician is in power, the worse he gets. Career Politician should be a misnomer.

    At this point, anything that can be done to limit the size and power of the federal government is a good idea. It has become so monstrous that it I truly fear it. They should be fearing me.

  17. Arnie says:

    Absolutely love this post!!!! One remedy to “monstrous” government that is not pie in the sky was proclaimed by Jefferson: “The tree of liberty must be fertilized from time to time by the mingled blood of patriots and tyrants, which is its necessary manure.”

  18. Sebastian says:

    That option, I think, represents disaster more than the United States becoming several new countries. The latter option could work with the right kind of agreements, or some kind of loose confederation.

    The root problem you have is that the people voted for this government. If you violently overthrow it, and institute the founders Republic again, the same people will vote back in the same kind of people, and you’re back to square one. You have to fix the people, and that’s a tougher nut to crack.

    Unless, if course, you want to kill or exile millions of Americans who want a larger federal government, but for various reasons I find that idea distasteful. Though, I’ve wondered if it would be worth it to bribe them to move to Canada. We’d have to incur a lot of debt, but it might be cheaper in the long run :)

  19. Diomed says:

    Fixing the people can be done, it simply requires the dismantling of the government indoctrination system, colloquially known as “public schools”. As public education has become more pervasive and more polarized (in one direction, always), the people have gotten further and further from the sort who established the Republic. Warping childrens’ minds is the easiest and most effective way to bring about massive change – when grown, they can, as a group, think and act only how they have been programmed. Those smart enough not to get sucked into the vortex of mindbending propaganda are utterly outnumbered by the ones who are not. As much as I may like sunsetting laws, Houses of Repeal and term limits, they’re just band-aids on the proverbial sucking chest wound.

    Good luck with fixing the root problems. Never going to happen absent a total collapse.

  20. Arnie says:

    Sebastian, you are right, of course.

    You know, I feel like I’m Sgt. Carter on “Hogan’s Heroes” (yeah, I’m that old) with the detonating plunger in my hand asking you “Now, Colonel? Can I blow it now?!”, even though the Nazi train is still a mile away; and you, as Col. Hogan, keep telling me “Not yet, Carter, not yet!” For which, sir, I am very grateful.
    But, if my memory serves me correctly, by the end of these episodes, Col. Hogan finally says, “Now, Carter! Now!” And Kaboom! Dead tyrants strewn all over the place. Although I pray our circumstances never approach that level of desperation, if the tyranny locomotive ever does come
    charging toward our liberties, “I’ll be ready, boy…I mean Colonel…sir!” Just say “Now, Arnie, Now!” After all, the episode has to end sometime. (I sure loved that show!)

  21. Alpheus says:

    For the past several months, I’ve come to the conclusion that we need to be able to select our representatives immediately, and fire them immediately, independent of what district we may live in.

    For a little while, Gillibrand was my “representative”. Do you know how weird it is, writing to someone you voted against, to protest an action that your “representative” supports? Probably. In any case, whenever someone wins an election with 51% of the vote, 49% of the voters are “disenfranchised”.

    Thus, my amendment would increase the size of the House to 4350 votes, apportion each State by population at 10-representative increments, and then I’d set up some sort of system where I choose my own representative, and each representative would have a portion of the State’s vote reflective of the percentage of the population that supports him; I would also be free to choose my representative at any time, whether or not he has a vote in Congress.

    On the one hand, such a system would have prevented the ObamaCare boondoggle from being passed–too many representatives would have lost their position *immediately*–on the other hand, if people are predisposed to give up their freedoms, having a proportional, continuous representation system isn’t going to change things all that much.

    It all boils down to this: people are a problem!

  22. Arnie says:

    And Alpheus, think of the cost of paying all those representatives and their bloated staffs! But if it would solve the problem, it’d be worth the expense.

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