Myrh America II

 Akhil Reed Amar writes in Myth America about the founding fathers.  He emphasizes Washington's importance to the Constitutional Convention and downplays Madison's contribution, sees little difference between "republican" and "democratic", emphasizes the "union" side of the founding, doesn't accept Charles Beard's interpretation, and accepts the Constitution as helping slavery. 

All in all it seems well-argued.  I was surprised by his singling out Beard; by 1960 he seemed no longer prominent.

A New Constitutional Convention? No.

 The Constitution has a provison for holding a new constitutional convention whose powers would be essentially unlimited (just as the original convention far exceeded its authority).  A number of states over the years have called for such a convention, and there's been recent discussion of it.

Lyman Stone doesn't connect the two, but his twitter thread on the faults of the 1982 Canadian constitution provide me evidence to argue against a broadbrush revision:

Canada's 1982 constitution is a lulzy document which was passed with little serious consideration and a large number of wild drafting decisions with massive unanticipated consequences.

— Lyman Stone 石來民 🦬🦬🦬 (@lymanstoneky) November 3, 2022

Rights and Duties of "Natural Persons"

 Apparently there's an environmental/legal movement to grant/recognize rights of natural features, such as rights.  I'd guess it's an attempt by lawyers to sue on behalf of such entities against pollution, etc.  There's controversy, as might be expected, including conflicts with the LBGQ community, which seems to be the subject of this politico post.

But what intrigued me was the phrase in the post--"natural persons".  I thought of the granting of rights to "legal persons"--corporations which has recently been expanded.

Why couldn't we have a constitutional amendment to the effect that nothing in the Constitution requires that "natural persons" and "legal persons" be treated the same?

Holton and Constitution

 Reading Woody  Holton "Unruly Americans and the Origins of the Constitution".  Some arguments he stresses:

• the Founding Fathers wanted to strengthen the national government more than they actually did in the constitution, because they knew they needed popular support to get it ratified, even after they reduced the required number of states to ratify it from the 13 (required in the Articles of Confederation) to 9.  
• Some debtors wanted sound money being optimistic about borrowing in Europe and the prospects for prosperity. 
• Most state taxes were tariffs (disproportionately aiding MA, NY, PA as opposed to CN, DE, NJ, etc.) and direct taxes--poll taxes and property. Founding Fathers assumed that national government would assume debts and pay using tariff revenues, which would mean a transfer of burden from the states with less import activity to those with a lot. 

Overall it's a reminder that what "history" books describe are a selection of episodes and people, but only they only represent the tip of the iceberg.  For example, the Shays Rebellion was the most visible and biggest episode of resistance to taxes levied to support the wartime debts of the states and to fund the government of the Articles of Confederation. But Holton describes a wide variety of actions in the various states with similar motives and causes for action.

KISS and the Constitution

 Reading Woody Holton's "Unruly Americans and the Origins of the Constitution".

I'm about halfway through but already have a reaction.  It's KISS, meaning "keep it simple, stupid'.  And that's what the Constitution did, at least partially. Holton's describing the conditions of the 1780's, and the conflicts which led to the writing and adoption of the Constitution.  Holton describes things, but doesn't see them as follows:

• the state of the currency and of state finances was poor, meaning that state legislatures had tried many measures to obtain money to pay off the obligations from the Revolution and to maintain the government.  While Holton is a good writer, I found the overall picture very confusing.  
• Americans found it hard or impossible to borrow money from the British or on the Continent.  They blamed the devaluing of bond issues and paper currency for damaging American credit.

Seems to me that the Brits, the European bankers, might well have been as confused as I am.  After all, you had 13 different states doing things with no consistency.  I assume that before the Revolution each colony had a network of contacts in the UK government and the banking community which had the knowledge and background to assess what was happening in the colony. That network was disrupted by the Revolution.  The Revolution also meant more interaction among the colonies/states, calling for more knowledge and familiarity with events in the sister states.  The British Empire had had the effect of simplifying things; the Revolution undid things and created complexity.

The Constitution was a step to simplifying things again. We'd still have a decentralized banking system, but by 1800 the issues of the wartime debts were clarified as the federal government took over responsibility.   

Nondelegation Doctrine

 Volkh Conspiracy has a guest poster writing on the "nondelegation doctrine", the idea that Congress should grant power to the executive only with strict guidelines.

For anyone interested but too lazy to go to the Reason magaizine, here's my comment:

1. “Major policy decisions”? Do we know what that means? There’s a standard of economic impact of $100 million for regulations–but that’s been unchanged since it was first adopted in the 1970s in relation to inflation concerns, not policy.

   Arguable the USDA/Trump decision to spend billions from the Commodity Credit Corporation was a major policy decision. But it wasn’t particularly controversial, because it was too esoteric and there were no significant opposing voices to make a fuss. https://www.forbes.com/sites/stuartanderson/2020/01/21/trump-tariff-aid-to-farmers-cost-more-than-us-nuclear-forces/?sh=4fe7a4966c50

   I suspect the operational definition is an issue about which there’s a big fight between the parties and/or interest groups. I think the reality is such issues don’t get resolved in legislation, just kicked down the road to the faceless bureaucrats who can be blamed if they screw up and/or offend people.

   Reply 

The Problems With Executive Action

 Dylan Mathews has a post at Vox: "10 enormously consequential things Biden can do without the Senate".

He writes: "Pushing the limits of executive authority is sure to provoke legal challenges that the Biden administration could lose, especially with a 6-3 Republican Supreme Court. But even if only half of the options below are implemented and affirmed by the courts, the practical effects would still be hugely significant."

I guess my conservative side is showing.  I know the frustrations of facing a deadlocked Congress, a body which cannot decide what laws to pass. But there are problems in going down this road. 

• successful executive actions can be reversed when a new Republican president comes into office.  We can't assume that Democrats will always control the executive, or that the Republicans will come to accede to Dem actions.   Reversals can mean a frustrated and ineffective bureaucracy: one which will know their work is temporary and built on shifting sands.
• using the executive actions increases the power of SCOTUS, meaning it will become more political and fights over filling vacancies even more heated.

I prefer the longer range option of building support in the country which results in electing majorities in Congress which can pass permanent legislation.  That strategy is the one which Dems used for Obamacare.  In the end, it's better to piecemeal our way to permanent reforms than to become wedded to visions of perfect solutions for which the clock will strike midnight.

How Politics Works--Give With One Hand and Take...

USDA this week announced a proposal to limit states ability to grant waivers of some SNAP provisions.

Some weeks ago HHS announced proposals to expand states ability to grant waivers of some ACA (Obamacare) provisions.
:
The lesson for today:  politics doesn't work the way idealistic theory says--structural provisions, like federalism, are used and manipulated to achieve political ends.

Good Things from Trump's Win

Two (sort of) good things from Trump's win:

1. Reading Bill Kristol with a bit more openness to his opinions, since he's a never-Trump.
2. Also George Will, and agreeing with him on civil forfeiture and felon voting.

I think it sort of validates James Madison's insights: multiple interests and viewpoints mean interesting overlaps on the Venn diagrams, resulting in safeguards against demagoguery and extremism.

Security Through Chaos

An Atlantic piece on how our political system is so chaotic there's no way to know how compromised our elections are.

That's the wisdom of our Founding Fathers--by giving us a federal system with elections administered at local and state levels they ensured it would be hard to get an overall view of the system, but it's also hard to subvert the whole system, simply because there isn't one.

Laboratories of Democracy: the Case of the US

Justice Brandeis praised states as "laboratories of democracy", considering federalism is a way for states to experiment with different programs and arrangements before we try them on the national level.  Think of how "Romneycare" in Massachusetts served as a test for Obamacare.  Liberals are reconsidering their belief in federalism as they oppose the Trump administration--it's great for California to lead the way on climate change.

I hadn't considered until I read this post at Jstor how the U.S. itself served as a laboratory for democracy, an example for Canada of what not to do as they constructed their government in 1867. Notably, they wanted to avoid the features of federalism which had cost their neighbor to the south over 600,000 dead.  They distrusted the 10th Amendment and the strong president (the dictator Lincoln).

Imagining the Future--the Founders

John Fea comments on Sen. Mike Lee's Am history--good read.  Lee wrote that Alexander Hamilton could never have imagined the sort of big government we have today, implying that therefore such government was somehow illegitimate.  Fea points out that neither Hamilton nor the other founders could have imagined the society and economy we have today.  I'll go on to note that while Franklin and Jefferson IIRC wrote about the U.S. filling the continent and the expansion of the populace, as is usually the case they just imagined more of the same: more people, more farmers, etc. 

(Some) Founding Fathers Were Immigrants

J.L. Bell at Boston 1775 has a post listing all the founders (i.e. signers of the various documents) who weren't born in the colonies.

The Wonders of the Federal System: Hypocrisy

One of the things the Founding Fathers did to us was to make us all hypocrites.

Politico has a piece on liberals using the same constitutional tactics against the new administration as the conservatives did against Obama's administration.

As I grow older and more cynical, I begin to think one of the virtues of the system is this encouragement of hypocrisy; surely no thinking politician can take herself entirely seriously when she has to change her stripes  arguments every four or eight years.  But then, how many "thinking politicians" are we given?

Stepping on a Stick on a Stone

Sometimes you can walk along and step on a stick, or a board, which happens to be in a seesaw position, sitting on a pivot point.  Your foot goes down on the board, and a short time later the other end of the board flies up and hits you in the face.  Our federal legal system sometimes operates that way in history.

Prof Somin says Trump's sanctuary cities EO is unconstitutional.  One of the ironies of history in our federal system is the way decisions spring back to strike people.  In this case a Supreme Court decision on part of Obamacare which liberals disliked may come back to support liberals.  See Somin's post for the details.  This is another example of how federalism works--James Madison would be happy.

Another outcome of federalism is the promotion of hypocrisy--politicians may be on one side of a federalism issue while in power, the other side when not in power. 

Originalism on the Electoral College

Electoral college voting today.  Some, mostly Democrats, now believe in originalism as it pertains to the college--should be a set of independent judges exercising their judgment.  Others, notably Republicans, now believe the college should vote according to the norms and precedents in history, disregarding the original intent. 

Founding Fathers and Conflict of Interest

For those who believe in "originalism", a cautionary tale on the conflicts of interest between our first president.

Schafly: Losing the War?

I first became aware of Phyllis Schafly from her anti-LBJ diatribe.  Needless to say, I was not impressed.  She is widely credited with stopping the Equal Rights Amendment in the 70's, and pulling the Republican Party to the right.  Corey Robin has an interesting take here.

I won't speak ill of the dead, but I'll muse on the significance of the ERA defeat.  It seems to me that American society has essentially evolved to where it would have been had ERA been passed. Yes, it's been a piecemeal progress, but progress it has been.  If I'm correct, it makes you wonder about the circumstances under which a constitutional amendment is vital, and when it's not.   

President Trump Is Scary?

Ezra Klein is afeared of the prospect of a Trump presidency.

While I bow to few in my dislike of such a presidency, I also remember being upset at the idea of a Nixon presidency in 1968 and a Reagan presidency in 1980.  I'm pretty sure Trump is smarter than Reagan and perhaps a nicer guy than Nixon, even if he's more egoistic than either, which is a high bar.  In the long run our institutions are stronger than any individual. 

Cover Crops

I feels as if I've mentioned this before, but anyway.

Tamar Haspel has an article in the Post on changes in "big ag", which affect the environment, such as "no-till". She focuses on cover crops, noting that sometimes they pay off financially, but often they don't. Also, farmers who rent are less motivated to use cover crops on the rented ground.

I'll quote my comment:

"Once upon a time, there was a program called the Agricultural Conservation Program. It included cost sharing for various conservation practices, including winter cover crops. Then into this idyllic picture came a President, elected by the people. This President refused to spend the money Congress appropriated for the program, thinking it was a waste of money. After much toing and froing, and a few lawsuits IIRC, Congress and the President compromise by calling the program a new name and by killing some of the conservation practices, including the cover crop practice." 

The toing and froing was partly over whether the President had the authority not to spend the money.  IIRC the Supreme Court eventually said no.

The President was Nixon.