Thursday, December 23, 2010

Comment on RedState: The Wheels Are Coming Off:
Senate Democrats Poised for Power Grab

Senate Democrats Poised for Power Grab | RedState

Most Democrats up for reelection in 2012 might consider this the end of their political career. The biggest surprise is that Manchin let himself get roped into this. Right now it looks to me like the GOP has 2 vulnerable seats coming up and the Donks have 8-10.

This does matter because of the appointments power of the Senate. All that the House could do if there really was an existential crisis of tyranny, in the strict sense of an arbitrary government at variance with traditional constitutional principles, from the Executive in collusion with the Senate Majority Leader is simply refuse to fund said positions or the enforcement of any such laws or treaties based on such a procedure. This would produce a crisis unprecedented in American history.

(further comment under the title "Try the Conservative Answer")
Rather than push for risky innovations that are likely to empower the Democrats by feeding the voters worst preconceptions of the conservatives, which is what any effort to enact "Nullification" will do, instead try a winning strategy to restore the Constitution. Any effort to enact a States Rights Veto on the Federal government will immediately produce a rejection by the vast majority of teh population. It will be demonized as proof that the Republicans are racists who want to restore the Confederacy. Never mind that it was the Democrats who ran that regime. Nullification is a waste of time and it will fail.Any energy spent on it is wasted and irrational to the point of being juvenile.

What will work? Restoring the Constitution as it was intended to function can be done much more easily and it does not demand a novel or discredited doctrine. Repeal the XVIIth Amendment and the Senators will be restored to their proper roles as the State's emissaries and tribunes to check the power of the Federal government. No federal appointment, no bureaucrat or ambassador or judge could take office, no treaty could be enacted, or law passed, against the wishes of the states.

Elsewhere I have called for consideration of a different innovation that does not expose supporters to the historical baggage associated with terms such as nullification. Currently the power of Judicial Review as practiced by the Judiciary is unregulated and unsupported by any text other than the opinion of Chief Justice Marshall. It was an unused doctrine for decades that has taken on a life beyond all reason, turning judges into legislators. Also of concern is the fact that the selection of the President under the Constitution was intended to be placed under the supervision of the States through the agency of the Electoral College. That body however was so ill defined that it almost immediately became a dead letter and is widely viewed as an anachronism. The Democrats are pushing to circumvent the restrictions it places on their ambitions by chaining states to commit their Electoral College votes in advance to the winner of the popular vote.

My suggestion is that we solve both problems, that of Judicial Review and that of the selection of the Executive, together. Instead of abolishing the Electoral College make it a permanent standing body. Make the heads of the 3 branches of government for each state ex offcio members and then have other members of a states delegation assigned for staggered terms of 3 years. Ensure that such appointments, except for the filling of a vacancy, be made 4 months before the EC selects the President. Grant the Electoral College the power to act as a Court of Judicial Review. Give the President as well as the Supreme Court and the Governors of a third of the States by petition all the power to submit an Act, Treaty or other instrument of the Federal government for Review. It should not be necessary for the entire EC to assemble to accomplish this task, as long as provision is made for all to review the matter before submitting their decision.

Third I would support increasing the number of Representatives. If possible double them. This would not only make each more closely tied to their community but it would cut down on the vices of gerrymandering and group disenfranchisement.

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