Cross-posted from dailykos.
If I were Harry Reid, I’d use the Alito nomination as a golden opportunity to drive a stake through the heart of the Republican Party. As we are all aware, a perfect storm of scandal, corruption, and impeachable offenses is bearing down on the Republicans. Even if a filibuster against Alito fails, Reid would at least have demonstrated resolute opposition to the Republican assault on the Constitution. It would position the Democrats perfectly for this year’s mid-terms, set the stage for Bush’s impeachment, and define the party for the ’08 presidentials. But “Democratic senators” are predicting a filibuster will fail, which means Reid isn’t pushing one, and wavering senators clearly aren’t feeling enough heat to fall in line behind a principled Democratic stand against tyranny. So, the tyrants will win. And our Constitution – separation of powers, checks and balances, Bill of Rights – is on its way to becoming a dead letter.
If it really is on its way out that really raises the question for progressive democrats whether it is actually worth saving. I’ll address that on the flip…
Now, it’s possible to make any number of criticisms of the Constitution. Republicans and libertarians routinely, and correctly, attack the federal welfare state on the grounds it violates the commerce clause of Article 1, Section 8 (just how do the OSHA regulations governing my workplace in the State of Massachusetts involve “commerce with foreign nations, among the several states, [or] with the Indian tribes”?). We could even dust off William Lloyd Garrison’s antebellum critique, that the Constitution provides specific and unique protection for the institution of slavery – an argument so accurate that in the hands of John C. Calhoun (D-SC) and Chief Justice Roger Taney it became a powerful weapon used by the Slave Power against those who sought to restrict slavery’s spread into the western territories.
My criticism, however, is different. The Constitution was designed to provide the United States with a powerful central government, and at the same time to protect the liberty of the citizens of the United States. Yet the theory underlying that balance is, in fact, fatally flawed.
James Madison, the intellectual author of the Constitution (New York conservative Gouverneur Morris wrote most of the actual text following the outline Madison had presented to the Constitutional Convention), laid out a central element of his theory for a federal republican state in Federalist #10. In this essay, required reading by the way for high school students in the state of Massachusetts, Madison argues that the most serious danger facing “popular government” is the tendency of like-minded people to form themselves into factions. For Madison, a faction is a group of people whose interests are opposed to the rights of other citizens.
If a faction succeeds in taking power, he says, it will necessarily “sacrifice to its ruling passion or interest both the public good and the rights of other citizens.” In a “pure democracy,” such as Athens where citizens govern directly without elected officials, majority factions will always form, and “there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual.”
The purpose of republican government, that is one where elected officials make public decisions, is clearly to ensure that the individual rights of all citizens are protected to the fullest in all circumstances. Madison argues that republics will not prevent factions from forming, but rather that a large republic can prevent them seizing power. It can do this, he writes, for two reasons: first, because elected officials in a large republic will more likely be virtuous (or, as he says, “it will be more difficult for unworthy candidates to practice with success the vicious arts by which elections are too often carried”); and second because factions tend to form around local interests. In a large republic, the territory will simply be too extensive for national factions to form.
The historical experience of the United States proves Madison wrong on both points. The modern Republican Party is only the most recent machine to have routinely and successfully practiced “the vicious arts by which elections are too often carried.” (For a provocative discussion of the kinds of “vicious arts” Madison had in mind, see Edmund S. Morgan’s Inventing the People; it turns out that modern election shenanigans aren’t so new…) As for national level factions, well Federalist 10 was written in November 1787. Less than ten years later, in 1796, the country’s first political parties – Jefferson’s Democratic-Republicans (today’s Democrats) and Adams’s Federalists (in many respects, today’s Republicans) – were contesting the presidential election of 1796. A key organizing figure in the Democratic-Republicans was none other than James Madison himself; in 1808, he would be elected president as the Democratic-Republican candidate. Now a political party is, by any reading of Madison’s definition of faction, perhaps the archetypal example of a faction, and there is no question that for pretty much the entire history of republican government our nation has been dominated by factions.
As the Republicans make a mockery of the constitutional separation of powers, and the Democrats acquiesce in the charade, maybe it is time to ask whether we really need it. In Common Sense, Tom Paine argued for a unicameral legislature, no executive or judiciary, and annual elections. Add to that a strong bill of rights, and we can almost certainly guarantee our freedom at least as well as the current Constitution, and probably even better.
That’s really interesting. That’s a great example of really “thinking outside the box.” An idea like this can never gain traction during more-or-less usual circumstances. But if there is a really great disaster, such as a nuclear strike on Washington, D.C. that wipes out most of the government, people might be willing to start talking about something like this. Of course, if things were to change really radically in the government, it would probably be in favor of an autocratic executive.
I’ve thought for some time now that your title question deserves priority consideration. I’ve gotten about as much response as your diary has enjoyed so far. There is a disconcerting lack of interest in fundamental questions in this country, including the liberal/left side of things. Blogs offer many benefits, but slow discussion of complex topics is not one of them. I hope you’ll consider starting a website where this matter can be discussed at length and in depth. I believe we have reached a point where the viability and usefulness of the current Constitution must be seriously questioned.
I’m not sure your prescription of a unicameral legislature with no executive or judiciary is the ultimate answer, but it’s certainly an interesting “gordian knot” kind of approach. Much good might be done by far less drastic change, seems to me. The Supreme Court nomination system, lifetime terms, and judiciary impunity have always been deeply flawed and counterproductive. Then there’s the corporate personhood nonsense, the right to privacy, the difficulty of Constitutional amendment, and the electoral system that has produced a monopoly by two deeply unsatisfactory upholders of the status quo. I think taking the money out of elections and criminalizing acceptance of lobbyist “gifts” would go a huge way toward fixing what’s so wrong with this country today.
One of the great parts of the Constitution is the provision for constitutional conventions. I think our best shot for long-range activism would be to promote a national popular convention, starting with local discussion and representation by everybody interested and culminating in a national convention with everything on the table. This would be, finally, a meaningful project to mark the millennium. Maybe such a Convention would just ratify the current document as is, maybe it would agree on radical change, maybe it would make a few tweaks. The outcome at this point is less important than beginning a process, the only remaining process I can think of, to save this nation from its entrenched “leadership”.
I read this diary some time ago. I was just giving it some thought. There is much to be considered here. A dialog is a great idea for input as to things that are on ppl’s minds tho. I hope you all know and remember that we do have a shadow government already set up in case of a nuclear problem as said in on comment. I would hope you would know this, and if not research it. I believe Cheney and rummy are the ones who were instrumental in setting it up for this adm. does that not tell you something??!!!
BTW, by what I have gathered to this, tommy franks has already address it at one time.
I love my Constitution as is. It is needing looked at by the powers that be more often tho, IMHO! Maybe I am just a hardheaded old fool tho..who knows. I could be wrong.
Biggest problem of corruption is massive ignoring of the Constitution, in no small part because the world is moving into areas where it doesn’t apply or reach.
There’s no way for the people to form a consensus contrary to the aristocracy who own the information infrastructure. They create the common experience of the overall society, and almost completely prohibit societal discourse and debate.
That’s why we’re stuck dreaming up 2 syallable phrases and infantile emotions for every problem, from the response to an attack on science and reason to campaigning for office.
The main problem with the Constitution is that it’s irrelevant in the world of information which is run as private property.
Find a way to establish democracy and a commons in the information world we’re entering, and the parchment Constitution will make vastly more sense than it does at the moment.