Wednesday, April 08, 2009

The Bush administration demonstrated the weakness of the Constitutional system

That is the weakness of the system to protect people from a tyrannical central government. There's a tension in the Constitution between the power that the Federal government can take (as is necessary) and the idea of powers not delegated in the Constitution belong to the States. Historically, whether the central government is able to have lots of powers of if it isn't has depended on who controls the executive. The Federalist Party, who agitated for the Constitution and who assumed power after it was enacted, actually had a very expansive notion of what powers the Federal government had, the tenth amendment talking about the States' rights being considered to really refer to less than what we think it refers to now. Well, this went on for a few terms and then an opposition party to the Federalists, the Democrats, developed and elected Thomas Jefferson President on the platform of reversing Federalist centralization of power. This he did, by interpreting the tenth amendment as referring to many more things than the Federalists believed it did. After Jefferson, though there were attempts at a compromise between the two views, Jefferson's view destroyed the other side until after the Civil War, when the Republicans ran on the platform of a strong central government protecting capitalism. But what can you do when you disagree with an administration's interpretation of the balance between the Federal government and the States?

Well, the reasoning of the tenth amendment is fine and dandy, but the Supreme Court does not give what are known as "advisory opinions". That means that State legislators can't ask the Supreme Court about the constitutionality of a proposed measure that Congress may pass, or preemptively challenge a proposed policy by the administration. Instead, for the tenth amendment to be enforced in a dispute, a lawsuit has to be filed and make its way to the U.S. Supreme Court, starting at the Federal level. The Supreme Court has the option of denying it being heard, which overall it does in the vast majority of all cases that come before it, and if they do that then the policy or the law stands without there being a day in court. If the Supreme Court does hear it, well, who appointed the majority of justices on the Supreme Court? If a Party has been in power for a while they may have appointed all of the Supreme Court justices. So the Supreme Court of the Federal Government rules on whether or not the Federal Government has overstepped its bounds with regards to the States or not. Sometimes, like during the Roosevelt administration, the partisanship leads to the administration being denied their laws, other times not.

In the recent past, during the Bush administration, Congress was a rubber stamp, Bush was proposing and enacting outrageous laws, and the Supreme Court was in his pocket. How would you challenge something like that based on States' rights? If the Federal government just decides that it doesn't give a damn about the balance of power between itself and the States there really isn't a whole lot that people in the States can do about it. Therefore, the way the Constitution handles the distribution of power between the States and the Federal government is seriously flawed, to say the least.

There need to be amendments that give States more direct control of the Federal government, that increase its veto power over the Executive branch, and that clearly make the Federal government subservient to the States and not the other way around. If some mechanism isn't devised to keep the Federal government in check the only thing stopping another Bush administration from coming into power will be a "trust us" attitude on the part of the people who work for the government, who happen at this point in time to not want to extend their power in the way the Bush administration did (although they may want to extend it in other ways).

*on edit: and the Senate is no remedy. It doesn't have power over the Executive beyond a few trivial things. Otherwise, it's a glorified House of Representatives. The reason is that even though two Senators come from each state none of them work for the State government they come out of or are accountable to the State government they come out of. The best thing with regards to the Senate would be to have them popularly elected but legally accountable to the State government, not just the citizens of the State but the State government, that they come from. Otherwise their function in Congress isn't any different from the House of Lords.

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