The Constitution, the law, and freedom of expression, 1787-1987
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But neither of them faced the kind of obstruction that Obama has encountered during his four-plus years in office. In an effort to lower the temperature of his disputes with Congress, Obama initially resisted using recess appointments, but he picked up the pace in Although he has made only thirty-two in total, his adversaries launched an unprecedented legal counter-offensive against him. Rather, they used filibusters to prevent the full Senate from considering them at all. In the instance of the N. In a fairly routine case from , the board filed an unfair-labor-practice charge against Noel Canning, a soda bottler in Washington State, for improperly withdrawing a contract offer to the union representing its workers.
The company charged that the action was invalid, because it was made by board members who had been given unconstitutional recess appointments. Indeed, the court said that all actions taken by a broad swath of recess appointees—literally hundreds of rulings—were unconstitutional. The case has the potential to undo the work of any number of independent agencies whose members were installed through recess appointments.
The Supreme Court will hear the case later this term. Why, in an era of jet travel, should Congress have recesses at all? How can the words of delegates in Philadelphia about recesses illuminate an issue that they could not possibly have anticipated? How can the actions of forty senators prevent an administrative agency from functioning at all?
And how as the D. Circuit ruled can the President remain powerless in the face of this kind of obstruction? This fall, the strife became intolerable to a majority of senators. The trigger was a Republican filibuster of three Obama nominees to the D. Circuit, which, thanks to cases like Noel Canning, is generally regarded as the second most important in the country. Recently elected Democratic senators, who had known only a Senate paralyzed by filibusters, became more aggressive in wanting to do something about it.
We have six-year terms, and have only a third of us up every two years. That insulates us from being a hot-headed legislature. But the system is being abused. Still, filibusters on legislation are unaffected by the new rule, so the legislative agenda of the President or his successors may remain moribund.
Small-state senators still exercise disproportionate power.
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People get very upset, and they become vulnerable to extremist appeals. Not the Constitution. The modern Republican Party asserts itself most clearly in the House, where partisan redistricting has transformed the political calculus for most members of that body.
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And the Supreme Court has said that that is just fine under the Constitution. The system of single-member districts generally suits incumbents. Drawing district lines has always been a deeply political undertaking, because elected officials in every age cultivate a strong instinct for self-preservation.
After the census, which cost the state of Pennsylvania two seats because of population loss, Republicans carved up the districts so that the G. A group of Democratic voters challenged the Republican plan, arguing that the new congressional map deprived them of equal protection of the laws, in violation of the Fourteenth Amendment. The case, Vieth v. Jubelirer, went to the Supreme Court in , and the Justices handed down one of the most important if least known decisions of the decade.
The Justices refused to strike down the Pennsylvania map, embraced the right of political parties to gerrymander for partisan gain, and, in a fundamental sense, guaranteed the polarized House of Representatives that has become so familiar. In Vieth, the Court was badly splintered. We dare say and hope that the political party which puts forward an utterly incompetent candidate will lose even in its registration stronghold.
But the Constitution contains no such principle.
It guarantees equal protection of the law to persons, not equal representation in government to equivalently sized groups. It nowhere says that farmers or urban dwellers, Christian fundamentalists or Jews, Republicans or Democrats, must be accorded political strength proportionate to their numbers. In Pennsylvania, which lost another seat, Democrats still enjoy an advantage in party registration, but Republicans now have a thirteen-to-five advantage in House seats. Democrats made similar efforts in states where they controlled the process, especially in Maryland and Illinois.
Over all, though, Republicans played the game much better. In , House Democratic candidates across the country won about half a million more votes than their Republican opponents, but the G.
Our Broken Constitution | The New Yorker
It is true, as scholars like Nolan McCarty, of Princeton, have argued, that partisan redistricting does not account for all the polarization in the House. In recent years, Americans have tended to live near their political allies more than in the past. Thus, any district lines would tend to clump like-minded voters together. But there is no doubt that state legislators devoted painstaking attention to designing districts for the sole purpose of taking partisan advantage. As a result, incumbents in the House, especially Republicans, fear primaries more than general elections, and thus take pains to avoid being caught in the act of bipartisanship.
What has followed is rancor, extremism, and stalemate. The Constitution may be amended, but the process is arduous. According to Article V, any amendment must receive the endorsement of two-thirds of the House and the Senate and three-quarters of the state legislatures. Article V also limits any change in the makeup of the Senate. Still, like Mark Levin and Randy Barnett on the right, Democrats have long had their own favored constitutional amendments.
In the sixties and seventies, there were attempts to memorialize the welfare state in the Constitution, with guarantees of rights to food, shelter, and health care. The Equal Rights Amendment, guaranteeing equal treatment of the sexes, fell just short of ratification, in More recently, some academics, like Noah Feldman, at Harvard, have entertained the possibility of creating a right to education; others, like Jamal Greene, a professor at Columbia Law School, advocate a repeal of the Second Amendment right to bear arms.
In Congress, a number of senators, including Tom Udall and Al Franken, have proposed a constitutional amendment to overturn the Citizens United decision and allow legislators once again to regulate campaign contributions and expenditures. None of these amendments are likely to become law. I agree with Sandy Levinson that the Constitution could be better. But you have to remember that it could also be worse. There have been only twenty-seven amendments, and twenty-six of them are good.
Prohibition was bad, and it was overturned.
Our Broken Constitution
But the difficulty of the process makes that impossible. Political change leads to constitutional amendments; amendments do not lead to political change. The Constitution can and often does change without being formally amended. This is the real lesson of the past decade or so. Levin and his Tea Party followers have shown that agitation about the Constitution can serve a conservative political agenda. Conservatives also came within a whisker of success in their constitutional arguments against Obamacare. There is nothing inherently conservative about the honorable and long-held idea that citizens can understand, and even change, the meaning of the Constitution.
Liberals, despite themselves, have proved the same point.
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The flourishing of education in this country, from the natural and social sciences to the humanities and fine arts, is due in large part to the support provided by the Constitution and the way of life it makes possible.
It could not have been more appropriate for the first Wallace Conference to be held during the time the nation was beginning its celebration of the bicentennial of the Constitution, the basic document of governance that has provided freedom and democracy to our nation for almost two centuries. No other form of government has been as successful as ours in protecting basic freedoms and no other receives as much critical attention. The freedom to praise or criticize all aspects of our lives, including the very document that supports those freedoms, is precious.
Those who participated in this conference are excellent examples of the theme and the tradition. Macalester College, in the tradition of liberal arts colleges, seeks to educate persons who will become good citizens and leaders in American society. We believe that the best way to accomplish this is to bring together a talented group of students to be educated by a faculty of dedicated teacher-scholars with a broadly based program deeply rooted in the arts, humanities, and sciences.