Tag: constitution

Posted on

Getting in the Gears

The story might be apocryphal. I’ve noticed that the best ones often are. But true or not, it’s still worth telling.

When I was in school, I saw an illustration that has been part of many a civics lesson: namely, the U.S. government as three gears. One toothed wheel was supposed to be the legislative branch, another was the executive branch, and the last was the courts, all of it interconnecting to make a fine machine.

Well, according to the story, someone decided to build a working model of the illustration. They created each gear as described in the drawing, brought them together exactly as shown. Then, when everything was ready, the would-be civics engineer threw the switch.

And the gears promptly jammed.

Whoever had drawn it had been better at cartooning than engineering. As shown, the parts of the “machine” did nothing but work against each other, struggling to progress a single inch.

Yeah. I’m with you. Looking at the last several years – heck, at my lifetime – the artist may have been more accurate than they intended.

The latest version of the illustration has been in the news for all to see, the grounding of the new administration’s executive order on travel. Executive orders are a pretty sweeping power, especially with the extensive bureaucracy that the U.S. has built over the years, and it’s one that has made me nervous no matter who wields it. There’s a lot of power to bypass the normal legislative process there, simply by one man saying “yes.”

But as the courts have proved, it’s not an absolute power. If even a few judges think an action has gone too far for the Constitution’s comfort, they can bring down their gavels, and the gears jam.

I’m sure it’s a frustrating thing for a president to watch. Especially for one used to a privately-held business, where the boss is the boss is the boss, with no shareholders or competing power centers to interfere with the latest initiative.

But frustrating or not, that’s the design. And it’s one with a lot of history (and no small amount of paranoia) behind it.

The Founders didn’t necessarily want a government that did nothing. They’d had a lot of that during the Articles of Confederation, to the point where the U.S was more a loose alliance of quasi-independent states than an actual nation. But they knew too well, or could visualize too clearly, what could happen if any one power center got too effective.

They knew about kings going off on their own. Or Parliaments becoming the center of action. And they certainly had their share of fears about the mob rule that could develop if the people started taking everything into their own hands.

And so, whether by fear, design, lucky chance, or all three, they built a system whose watchword was interdependence. Each piece needed the others, each had a way to stop or slow down something they didn’t like.

It doesn’t sound very efficient. And it’s not, if what you’re trying to produce is action.

But what if the machine’s meant to make something else?

This is a system that requires listening. Conversation. Negotiation. Everyone has to account for each other, no one gets to be left in a corner. When some of the sides are feeling obstreperous, it can mean that very little gets done – but over time, that inaction can prove its own cure, requiring some level of cooperation to do anything at all.

It reinforces one of the oldest political adages: “No one gets everything he wants.” Some folks can get an awful lot out of the machine, but even the best get cooled down by nervousness or jealousy or competing agendas. And sometimes, the machine seems determined to sit and rust, but as the computer engineers like to say, it’s not a bug, it’s a feature. A failsafe, if you will.

It’s meant to work, without working too well.

Gears can jam. Or gears can mesh. It all depends on how well people listen, and how willing they are to account for each other.

If the answer is “not well” – then welcome to the old grind.

Posted on

The Power of “Yes”

Any time we grumble at gridlock, I can imagine the surprise of the Founding Fathers.

“A government that does nothing at all? Sounds like heaven, sir!”

OK, that might be a bit too strongly worded. After all, the Constitution was created because the old Articles of Confederation had proved impotent. Several founders (though by no means all) had realized the federal government needed more authority to act if the system was going to function at all.

Still, they were suspicious of a government that did too much. They could remember Townshend Acts, Tea Acts, and all the rest. So the Constitution was drawn with a bias toward inaction. A Congress that wanted to do something could be checked by the President and the courts. A Congress that wanted to do nothing… couldn’t really be forced to do otherwise.

Given that, I wonder what they would have made of the popularity of executive orders.

First, a little mythbusting. There’s nothing new or unconstitutional about executive orders themselves. The practice goes back to George Washington and began accelerating after the Civil War, reaching its peak in the first half of the 20th century. FDR was the most ardent practitioner (of course), but presidents Hoover, Taft, Truman, and Teddy Roosevelt were hardly shy of independent presidential action themselves. If anything, modern presidents are more restrained about using that power than those from Roosevelt to Roosevelt.

But it’s still an uncomfortable power to me.

In a government designed to default to “no,” this is the power of “yes.” In itself, that might not sound like a bad thing. We all know the image – and the reality – of a Congress locked in inertia, seemingly unable to agree on the time of day, much less anything of substance. So when a major debate goes nowhere, such as the debate on national gun control, it can be dangerously appealing to do an end run around the whole logjam.

The trouble is, the use of executive power rarely stops with the things you love.

Many people know that I’m a Tolkien fan. (I promise, this is relevant.) Between the novels and the recent immensely popular films, there are few people who aren’t familiar with the plot of “The Lord of the Rings” and its quest to destroy a magic ring to save the world.

What’s less familiar to the casual fan, though, is the nature of the Ring. It did more than just cause a wielder to turn invisible. In the hands of someone with enough power, it would grant a power of command – the ability to reorder the world exactly the way you wanted it, overriding the wills of others to do so.

That was the power that made the Ring so tempting, even to the righteous. Heroes fell, desiring it, even those wise enough to know better. The wisest – Gandalf, Elrond, Galadriel – simply shunned it.

“With that power, I should have power too great and terrible,” the wizard Gandalf says. “And over me, the Ring would gain a power still greater and more deadly. … Yet the way of the Ring to my heart is by pity, pity for weakness and the desire of strength to do good. Do not tempt me!”

It’s true that executive orders can and have done good in the past. But they are not guaranteed to do good. What they are guaranteed is to do.

Independent executive action did indeed issue the Emancipation Proclamation. But it also issued the order creating internment camps for Japanese-Americans. Granting freedom, seizing freedom.

The strength and weakness of an executive order is that what one president can do, another can undo. But is that enough of a check? How much can be done in the meantime? How long might something sit before it is undone, by another president, or a dilatory Congress, or the courts?

Democratic friends: Is this a power you would want in the hands of Donald Trump?

Republican friends: Is this a power you would want in the hands of Hillary Clinton?

All friends: Is this a power you want in the hands of absolutely anybody at absolutely any time? Because right now, that’s how it’s potentially entrusted.

I’m not sure how we wind back the clock. I am sure we need to. However desirable the ends may be – and I’ve liked some of the ends a great deal – the means are far too dangerous. The boundaries are too fuzzy, the power too easy.

With this Ring, what have we wed ourselves to?

Posted on

My Rules, Your Rules

My fellow fans of the Colorado Rockies, rejoice. Our suffering is over.

That may sound nonsensical, like saying “Welcome the World Series champion Chicago Cubs.” But you see, I’ve found the way to end our early-season woes, now and into the future.

Are you ready? Here it is.

Every season, from Opening Day until May 15, we declare that runs against our relief pitchers don’t count.

You see, every Rockies fan knows that the three sure things in life are death, taxes and that our bullpen will blow a late-game lead. So we simply don’t let them. Let the opposition do what it can against our starters; once the relievers come in, their batters will be shut down to zero … by decree.

It’s simple. It’s effective. It’s …

What do you mean, illegal?

Well, no, the rule book doesn’t currently allow that. But don’t worry about that. If we don’t like the rules, we can simply ignore them.

Just ask the great state of North Carolina.

For those who missed it, two North Carolina legislators have introduced a bill that would let the state set an official religion. And to those with worries about that pesky First Amendment (and that equally inconvenient Fourteenth Amendment that applies its protections to the states), have no fear – the bill explicitly says the federal courts don’t get to decide what’s constitutional in North Carolina.

That’s right. If we don’t like the rules, we get to ignore them.

Mind you, declaring independence of federal authority used to be called secession, but I’m sure nothing could possibly go wrong with that. Right?

Now, to be fair, no one really expects the North Carolina bill to go anywhere. It’s a statement, sort of like pounding your shoe on the table, only less likely to leave an impression.

And yet, and yet … it’s always tempting to set aside the rules, isn’t it?

Note that I’m not talking about constitutional challenges in the courts. There’s a long and honored place for that. Any rule set can be re-interpreted over time, from theology to baseball, and fresh debates help keep the rules alive, by forcing us to consider what we mean by them.

But interpreting the rule book, even revising it, is a different thing from throwing it out all together. And there’s been a lot of states ready and willing to do just that.

Don’t like the mandated health insurance that the Supreme Court called constitutional? Go ahead, set it aside.

Federal laws on marijuana seem draconian? Repeal them locally and hope the feds don’t care enough to do anything.

Federal tariffs not to your liking? Go ahead and … whoops, that’s the South Carolina nullification crisis of 1832. My mistake. (I guess everything old really is new again.)

To be fair, the feds have the same temptation. It can be so easy to shortcut due process by just sticking a terror suspect in Guantanamo Bay, or to whistle at rules against unreasonable search and seizure while allowing a choice in airports between “virtual strip search” or actual groping. If thy rule offend thee, cut it off.

But it’s only when we agree on the rules that we really have a nation.

Again, I’m not saying the rules can never change. I’m sure we can all agree on many that should. But that’s the point – changing the rules requires agreement. Ignoring them requires a roll of masking tape to mark off your side of the room and a declaration that “I’m not listening to you!”

If we’re going to do that, we might as well call the ballgame. And frankly, I’m not willing to give up on the season yet.

But then, I’m a Rockies fan.

Call me an optimist.