REARRANGING THE CONSTITUTIONAL FURNITURE

 As I have mentioned in previous posts, I am not a constitutional originalist; in the sense, that what has been written needs to stay written as it currently is or understood as the framers understood it when they wrote it.  When I talk about the framer's original intent, I am seeking to fill in the blanks of things they didn't explain in order to understand the gaps in the Constitution's mortar that one would have thought was needed to hold it together or why later legislation chiseled out mortar with regard to the democratic processes the framers seemed necessary to avoid the extremes of partisanship and the tyranny of the masses.  For example, when the Seventeenth Amendment was ratified in 1913 resulted in changing the election of senators from state legislature to the people.

While few today would question what appears to be an enhancement of our democratic process with the ratification of the Seventeenth Amendment,  it increased the opportunity for enlarging the partisan divide among the populace as senators vied for popular support.   Was the framer's early wisdom knowingly being cast aside when it came to how senators were elected?   Was the legislative procedure in choosing senators side-stepped to make room for special interest to play a greater role in shaping legislation.  One must remember that this Seventeenth Amendment war ratified during a time when the Gilded Age was at its apex.

I believe the framers wisdom in having senators chosen by state legislators was to limit the temptation of those seeking to be a senator for personally profit by allowing moneyed interests to  play a prominent role in being elected.  In a democracy there is no adequate way to totally eliminate such influences, but the principle I believe the framers had in mind was to free the Senate from the distraction of worrying about appealing to a moneyed constituency at the cost of doing what was best for the nation as a whole.  At the time of the Constitution's framing, most politicians were people of wealth who gave of their wealth to preserve the Republic.   How things have changed since then.

"ELECTIPHOBIA"

I believe that what led to the current partisan divide in the United States is the political parlor games that both major political parties in the legislative branch of the government have engaged with throughout its history.  Extreme partisanship is originally rooted in the legislative branch where the concept of the majority party to hold up debate and where each political caucus votes along strict party lines has resulted in damage the democratic process and has weakened the republic.  Congress has also become slack in performing their constitutional duties in order to appease moneyed constituents.  The Presidency. like Congress, is increasingly influenced by moneyed interests in promoting partisanship in order to be re-elected to a second term.  This is not say that every representative, senator, or president has fallen victim to what might be identified as "Electiphobia," the fear of losing an election, but that the fear of losing an election can conflict with duty and what is best for the nation.

How can any politician give consideration to serious matters facing the nation when they always have one eye on being re-elected?  Representatives, with a two year term, are in re-election mode the day they are elected to their seat in the House of Representatives.  There is no limit to the number of terms they can serve and thus they spend a good deal of time improving their chance of reelection in the hope that the longer they are in the House the better chance they have at accomplishing their political agenda.  

Senators have more a six year term and also have no term limits and thus are constantly engaged in parlor politics to fulfill their political agenda and a fair amount of  partisan mud-slinging in order to keep their names in the public's mind.  Where the Senate is concerned,  I would also suggest a repeal of the Seventeenth Amendment  and have state legislatures appoint a state's senators to Congress.  This would help senators in keeping their political priorities straight.  

A president has a four-year term with a limit of serving two terms. Presidents, more than any other elected official are subject to the Lame-Duck syndrome if they win a second term, which often results in more concern about a president's legacy than the nation's welfare.   

Supreme Court justices have a lifetime term.  As the Court becomes noticeably more partisan in its decision-making and has no means of enforcing its decisions,  it has become increasing wary of making definitive rulings that are too open to interpretation.  Partisan sentiments are too apparent in recent Court rulings which brings into question the Court's independence in reaching decisions being based on Constitutional interpretation and precedence. 

In my opinion, I would rather see longer terms and term limits in elected offices rather than constant elections.  For example, representatives might benefit by having a four year term with a maximum of serving for two terms.  Senators might benefit by having an eight year term with a maximum of serving two terms.  A president might benefit by being limited to serving one twelve year term.  The Supreme Court might benefit by its justices limited to serving one sixteen year term.  

Beyond that, the nation might benefit by having all elected federal officials having a maximum retirement age of 75.  I would also suggest having a limited election cycle of six months in which to campaign for the House of Representatives and the Presidency.  The hoped for effect of such limitations would be to limit campaign spending and lessen voter fatigue. It would likely place more emphasis on voting in local and state elections which suffer most from voter's fatigue and it would reduce the entertainment value that current national elections and the news media rely on.

 THE BUREAUCRACY

By its very definition, a democratic republic is big government.  The constant harangue of big government being the problem is simply a partisan ploy to limit the goods and services a republic offers its citizens.  A nation "by the people and for the people." as the Declaration of Independence says can be nothing less than enormous.  This is not to say that there is no waste.  In every human endeavor there is always the potential for waste.  

The question becomes what is being considered as waste and what effect does that consideration have on the people?   Politicians are the law makers whose laws are then carried out by bureaucrats.  Often it is the bureaucrat who knows more about how the government in a particular domain works on a day to day basis better than a politician does.   A good representative, senator, or president knows who within the bureaucracy can help them do their job.  A good bureaucrat is able to ignore partisan politics, as long as partisan politics does not threaten the bureaucrat's job and livelihood.  Without a stable bureaucracy any democratic republic would be weakened immensely.  

That being said, given today's partisan divide, a rearrangement of the Constitution's furniture seems in order.  Various governmental agencies and departments are established by Congress and placed under the purview of the Presidency with congressional oversight.  Each department is headed by a secretary who is appointed by the President and each President has the ability to appoint new secretaries at will with the Senate's approval.  

Each secretary oversees a vast array of sub-departments or agencies of which career bureaucrats make up the workforce.  Being under the executive branch of government, a president can dismiss anyone under  the President can be dismissed at will.    In the early days of the Republic, there were a limited number of departments:  The Secretary of State, The Secretary of the Treasury, The Secretary of War, and the Attorney General.  Over the years the number of departments and agencies have grown exponentially, giving the Presidency a great deal of influence and power in the running of the day to day affairs of the republic.   In addition, the President, has a number of appointed personal advisors who help advise and manage the affairs of the President.  

Recently there has been a move to reduce the size of government, by eliminating some departments established by Congress.  The wisdom of this is questionable as the United States is a large democratic republic.  This questionable endeavor begs the question of whether all departments should be under the purview of the Presidency.  

Consider the Department of Justice, for instance.  It is intended to be a nonpartisan department and. until the present time it was, at least in theory.  Unless the Presidency itself is free of partisanship (see my previous posts), any department under its purview will be subjected to partisan politics or accused of being used as such.   Although practically unavoidable in a democratic republic, every attempt should be made to limit the Department of Justice from succumbing to partisan politics.  

The Justice Department and all its law enforcement agencies; such as, the FBI should fall under the Judiciary branch of government, answerable to the United States Attorney General, who would be nominated by the Court, confirmed by the Senate, and under the purview of the Chief Justice of the Supreme Court.  The Attorney General would be the enforcement arm of the Supreme Court.  Federal Marshalls, as House Minority leader Representative Jeffries recently suggested, would fall under the purview of the Supreme Court, as well as other national law enforcement agencies.  

The Department of Justice is one example were a move to a different branch of government would be beneficial.  Another consideration is whether a President can dismiss, at will, a secretary of a department without cause.  If an appointed secretary needed approval of the Senate, should not the Senate's approval be needed to dismiss a secretary.  

In short, as the Presidency becomes increasingly more powerful, the Congress needs to step up to the plate in a non-partisan way to oversee the day to day working of the government.  Congress must review and eliminate most of  its outdated and dysfunctional parlor games and get down to business.  The Supreme Court must become reticent in taking up cases that are clearly partisan in nature.  It should allow lower appellate court decision to stand or refer such matters to its Attorney General for review before the Court would adjudicate a politically motivated case.

These suggestion are just that, suggestions.   They undoubtedly seem to be an impossibility at the current time.  I offer them here simply as food for thought, something to consider down the road of making history.

Norm

 

FIXING THE CONSTITUTION

The Constitution of the United States is the United States' most revered document.  It has held the republic together for 235 years.   Its framers hoped that what they created would lead to a"more perfect union."   They were under no illusion that what they created was in any way perfect.  Its preamble outlined what they hoped to achieve in the pursuit of a more perfect union by identifying what they saw as necessary goals to ensure an enduring republic.  

That the Constitution was ratified at all was remarkable for the times in which it was written.  It must be viewed as a rare demonstration of the commitment and trust of the wise and virtuous individuals who ratified it on behalf of the people of the United States.  This is not to say, that the U.S. Constitution is perfect.  Paradoxically, any sense of perfection it has is in the fact the framers and ratifiers recognized its inherent imperfections that all human endeavors encounter when planning for the future.

In my previous posts, I focused on what I consider may have been the framers intent when establishing the three branches of the federal government.  Their intent appears to utilize an increasingly representative form of democracy when it came to the Senate, the Presidency, and the Supreme Court.  The reason for the emphasis on representative democracy at the federal level was to avoid partisan intrigue, something both the founding fathers and framers of the Constitution saw as a threat to an enduring republic.  

Since I have addressed what I consider the weaknesses within the Constitution in my last two, posts I will focus on how they might be remedied in order to strengthen the republic with regard to the election of the President of the United States in particular. 

AN ELECTORAL COLLEGE

If one the goals of the Constitution was to protect the republic from the corrosive effects of partisan and populist intrigue by creating a representative democracy at the federal level, it would appear that the framers dropped the ball when it came to concept of electors electing the President of the United States.  Leaving the definition of the electors' role up to each state has proven to be a mistake; in that, it opened the door to what most of the framers wanted to avoid, partisan intrigue.  One can understand why the framers allowed the states to define the role of the electors as a means to encourage the states in ratifying the Constitution, however, by  not defining the role of the electors in the Constitution, the framers opened a Pandora's box of partisan intrigue and manipulation.  

The term Electoral College is a misnomer.  There is nothing collegial about the electors, as they are selected to reflect the outcome of their state's popular vote regarding a presidential election.  The electors do not gather to vet nominees or elect the President.   Current electors are not at liberty to go rogue and vote for their personal preference without risking replacement, fines, or even imprisonment.  One might describe the current concept of an "Electoral College" as a puppet college.  The way the presidential electoral system functions has perpetuated the problem of sectionalism and partisanship that has plagued the United States throughout its history.

To remedy this situation would be to establish a true Electoral College which could reduce the extreme partisan divide this nation is currently experiencing.  My take on remedying the current divide is primarily to start a conversation on what I perceive to be one fundamental flaw amongst others within the Constitution.  Doing so requires revisiting the intent of the framers.  The exact role of the electors is very vague in the Constitution.  

In my opinion, a true Electoral College requires definition in the Constitution as to its purpose and the role it plays in electing a president.  It would seem the primary purpose of an Electoral College would be to ensure that any candidate for the Presidency is demonstratively qualified to be the President.  Article II of the Constitution lists only three requirements for a person to become the President of the United State:  The President must be natural born citizen of the United States, at least 35 years old, and has been a resident living in the United States for 14 years.  

John Jay, the author of "The Federalist 64" made the following statement with regard to presidential qualifications as "those who best understand our national interests . . . who are best able to promote those interests, and whose reputation for integrity inspires and merits confidence."  Jay's comment gives an idea of what the framers were aiming for when thinking of who would best serve as President.  The question becomes who decides "who best understands our national interest... who best promotes those interests" and who has a "reputation for integrity inspires and merits confidence?"  

The framers certainly did not think the majority of the voting populace had the required understanding of our national interests to elect someone with such knowledge and integrity which one suspects is the intent behind the notion of electors.   It seems the concept of electors was intended to debate and discern who best would meet such qualifications and then elect the President on behalf of the states they represented.  Interestingly, the Constitution currently excludes representatives and senators from serving as electors, but who better would know the national interests and the concerns of the states they represent.  

* * *

Not everyone is qualified to be the President of the United Sates.  Along side the existing constitutional requirements, the Constitution could have specified that a candidate should have experience either in governance, diplomacy, or lawmaking.  At the time, the framers they might have thought of that as a "no brainer." The Constitution might have required that a candidate served as a minimal of one term as either a member of the Congress of the Confederation, served as a diplomat, or as a governor of a state.  This was all new turf for the framers.  The thought of someone who was not educated or had not in some ways contributed to the Revolution as a leader in some capacity being the President would have never occurred to them.   

Today, this nation is in a far different place than the famers could have envisioned.  Today, it is evident that a candidate for the Presidency have governing, diplomatic, or law making experience at the Federal level.  An Electoral College would benefit by having each state's senior Senator be that state's Elector with the Chief Justice of the Supreme Court serving as the Dean of the Electoral College.  

The purpose of the Electoral College would be vetting all party nominated candidates for President who had won at least one state's open primary election (received the most popular votes)*.  Failure to win a state's primary election would automatically eliminate a nominee from being a candidate.  An eligible nominee's party would ensure that their nominee would submit the nominee's financial, health, tax, and voting records, diplomatic service record, and/or legislation signed into law or vetoed if a governor of a state to the College.  The College would require a current background check by the FBI of all eligible nominees.  The nominee's party platform would also be subjected to a constitutional review by the College.

The College might also interview all the nominee's to determine their understanding of the nation's needs and their personal vision for the nation if elected.  In a closed session the College would vote on each nominee's eligibility to be a certified candidate for the Presidency by securing a simple majority of the electors' votes.  Should a tie vote occur, the Dean of the College (normally a non-voting position) could cast the deciding vote.  Any nominee who passes the electoral college's review will have her or his name added to the list of eligible candidates for the Presidency to be determined by popular vote in the national election.   Should a nominee fail to pass the Electoral College's review, the nominee would be excluded from the list of eligible candidates in the national election.  The Electoral College's ruling on eligibility would be final.

The above suggestions would require significant amendment to Constitution.  As suggested earlier in this post, there are other areas of the Constitution that need adjustment after 235 years.  I will address some of these in future posts.

Norm

* The concept of an open primary allows every registered voter to vote once for whichever potential nominee a party would allow on a state's primary ballot.  The electoral college would limit its interest to those who would or gather the majority of a state's primary election.