The GOP Agenda: Permanent Constitutional Crisis

Reading about Newt Gingrich’s latest idiocy (that we should consider altering our notions of free speech in light of the war on terror) and Dennis Prager’s latest moronic statement (that we should institute a religious test for public office), reminds me that the Republican Party’s deepest agenda seems to be the creation of a permanent constitutional crisis. To wit:

1. 1995: Shut the government down.

2. 1998-99: Impeachment over trivial matters

3. 2000: Riots at the Palm Beach County canvassing board and refusal to count Florida votes; party-line SCOTUS vote to give the election to Bush

4. 2001-2002: development of warrantless wiretapping

5. 2001-2002: use of signing statements to violate Congressional enactments

6. 2003: “nuclear option” to end judicial filibusters, based upon facially absurd reading of “advise and consent” clause

7. 2003-2004: development of torture memos: President’s Commander-in-Chief power means that he can unilaterally take any and all measures in the name of national security.

8. 2004: Gay Marriage Amendment endorsed by Bush

9. 2005: Schiavo: federal pre-emption of state family law

10. 2006: President can declare any resident an “unlawful enemy combatant.” No judicial review.

11. 2006: general suspension of habeas corpus without invasion or rebellion

12. 2006: Gingrich declares that free speech provisions must be changed.

I’m sure that I have forgotten several.

Note that while many of these concern presidential power, not all of them do. Many were initiatives taken by the Republican Congress, having nothing to do with the President’s Commander in Chief power.

2007′s version will occur when Henry Waxman subpoenas documents and the administration refuses to hand them over; it will essentially be a replay of the Cheney energy task force scenario. This might have nothing to do with national security, although it will clearly be a separation of powers issue. Waxman is very concerned about clean air and climate change issues.

It does generate an interesting question, though: why has the Republican Party declared war on the United States Constitution?

“Constitutional revision” has long been a rallying cry for conservatives: Bismarck repeatedly threatened it in the late 19th century when it looked as if German social democrats would insist on further democratization of the German Empire. The notion of a “revolution from above” has been a staple of right-wing thought for more than 200 years. But in this case it is particularly intriguing because of the relatively conservative nature of American political culture; we have never had a socialist movement in this country coming anywhere close to taking power. Our Constitution and political system is one of the most conservative of all western countries. I suppose that one could lay a lot of this on American religious conservatism, but that seems too pat.

In any event, we should expect several more attempts by the Republican Party to cause constitutional crises. Bush’s Imperial Presidency is the fullest flowering of the trend, but it extends far beyond the White House.

Comments

  1. pgl says

    Remember – George W. Bush likes to "get things down". Never mind that these things usually turn out to be disasters.

  2. SamChevre says

    The notion of a "revolution from above" has been a staple of right-wing thought for more than 200 years.
    But you are missing a key point. In the US, we already HAD a "revolution from above." It took the form of a complete change in constitutional interpretation, without any actual change in the Constitution.
    In other words–if I want to return to the understanding of the limits that the Constitution put on both national (much more restricted than today) and local (much less restricted than today) governments that prevailed before the "switch in time that saved nine"–how would I get there?

  3. SamChevre says

    yoyo, I'm not making sense of your comment. The industrial revolution happened in the 1700's. The communication/transport revolution (railroads and telegraphs) happened in the 1800's. I can't see how "repealing the long-past industrial revolution" has any real relevance to "returning to recently-past interpretations of the national government's powers."

  4. Hamilton Lovecraft says

    In other words–if I want to return to the understanding of the limits that the Constitution put on both national (much more restricted than today) and local (much less restricted than today) governments that prevailed before the "switch in time that saved nine"–how would I get there?
    I am not a constitutional scholar, but I think you need at minimum for the federal legislature to pass (and president not to veto) laws describing the restriction and for the federal courts to agree that the laws are compatible with the constitution. It may be that you would instead need constitutional amendments to spell things out.
    Which interpretations, exactly, do you object to?

  5. y81 says

    Didn't it take two sides to shut down the federal government? Didn't the same thing happen under Reagan when the Democrats controlled Congress? Was it the Republicans' fault both times? And didn't one of your other "crises" arise on account of perjury by a Democrat in a federal courtroom?
    Richard Posner said that the left "has no moral core." He's a federal judge and probably the most cited academic of our time. You seem to illustrate the truth of his statement. How does that make you feel?

  6. says

    I sometimes wonder if the Republicans, in their far-sighted wisdom, deliberately engineered the Clinton impeachment stupidity as a way to protect their own in the future.
    The main result of that episode, it appears to me, is to raise the bar on future impeachment through creating a situation where, when there is a proposal to impeach a Repub president, the word to be spread out wide is "it's just revenge for Clinton; it has *nothing* to do with the real behavior of our guy".

  7. says

    re "Undoing the industrial revolution".
    I've heard claim that there have actually been three US constitutions,
    - the original one
    - the Lincoln/post-civil war one
    - the FDR one
    I don't know enough about the post-civil war as compared to what went before to comment on whether this is legit; but wrt to rollng back the Industrial Revolution, the point is that we got to where we are today as a result of specific things that happened, not just through random drifting. Throughout the 1870s, 1880s, 1890s, you had tremendous misery and unhappiness in the country, with presidents like Grover Cleveland sympathised (but felt they, constitutionally, could do nothing), or Rutherford Hayes (who hated some of the support of management against labor that he directed troops to take part in, but who felt that was what the constitution compelled him to do).
    All this, of course, culminated in the great depression, when things got bad enough that enough people said, screw this, change is necessary. As has been said "the Consitution is not a mutual suicide pact".
    The experience of 50 yrs from 1870 to 1920 seems to imply that you can't run a modern society on the principles of 1770 (especially when you have run out of land to steal from the Indians, which can absorb whatever unhappiness the system creates).
    Now I am sure someone is going to claim that the internet or globalization or something makes the world so different from 1870 that the principles of 1770 should be reverted to, but the fact of the matter is that most of us are simply not interested in these crackpot ideas. If you want to live in a libertarian paradise without the dead-hand of the state weighing you down, hey, move to Iraq or the Congo. The rest of us are capable of learning something from their experience.

  8. liberal says

    SamChevre wrote, "yoyo, I'm not making sense of your comment. The industrial revolution happened in the 1700's."
    Maybe "the industrial revolution" isn't the right way to put it.
    But it's clear that in a modern economy, there are many things which are just grossly inefficient if put under local control.

  9. liberal says

    Maynard Handley wrote, "I've heard claim that there have actually been three US constitutions…[including]…the Lincoln/post-civil war one…"
    Aside from extending the franchise to black men, and getting rid of slavery, the Reconstruction amendments including the 14th, which extends the rights to due process and equality under the law to the states. From that stems the so-called "doctrine of incorporation," which means that the 14th amendment is interpreted as effectively extending the Bill of Rights to the states.

  10. Anonymous says

    SamChevre wrote, "The industrial revolution happened in the 1700's. The communication/transport revolution (railroads and telegraphs) happened in the 1800's. I can't see how 'repealing the long-past industrial revolution' has any real relevance to 'returning to recently-past interpretations of the national government's powers.' "
    Look at a graph of the fraction of GDP devoted to agriculture, and graphs of the fraction of the workforce employed in agriculture.

  11. liberal says

    SamChevre wrote, "…if I want to return to the understanding of the limits that the Constitution put on both national (much more restricted than today) and local (much less restricted than today) governments …"
    As a normative issue, why would anyone want that?
    Despite all this naive nonsense about local governments somehow being more warm and fuzzy and democratic because they're smaller and hence closer to the governed, I claimed they're _far less_ democratic, and base this on an empirical claim: that voters know less about local office holders and their positions than national office holders; that press coverage of local politics is much lighter than national politics; etc.

  12. Brett Bellmore says

    ":As a normative issue, why would anyone want that?"
    As a procedural issue, somebody could want that because it's what the actual text of the Constitution calls for, and there are all sorts of difficulties inherent in maintaining a legal system which consistantly enforces something different from what the highest law of the land actually *says*.
    I suppose we could fix the problem by amending the Constitution to agree with what the courts have done to it, but nobody who likes the "new" Constitution seems to be enthusiastic about that option… Probably because the public gets an opportunity to *reject* amendments, and avoiding that was the point of not making the changes by formal amendment in the first place.

  13. Brett Bellmore says

    By the way, Johnathan, what's the nuclear option got to do with a constitutional crisis? Were you under the impression that filibusters were a constitutional provision, rather than just one more Senate rule subject to revision?
    And, if Gingrich's remarks on the First amendment are a constitutional crisis, why isn't the BCRA a constitutional crisis with a cherry and whipped cream? The whole campaign "reform" movement is a dagger pointed straight at the heart of the 1st amendment's protection of political speech, and it's not exactly a *Republican* obsession.

  14. zak822 says

    "Richard Posner said that the left "has no moral core." "How does that make you feel?"
    Considering the source, it makes me feel just fine, thank you.

  15. Sebastian Holsclaw says

    How do you know that the Republicans are against the Constitution? Maybe they are just noticing different penumbras and emanations than you do.

  16. Thomas says

    This is so wrong headed it's hard to know where to start.
    The government shut down involved a veto by the then-president, a Democrat. It wasn't an act of Congress. One should avoid believing one's own spin.
    Perjury and abuse of power aren't, in a nation of laws, trivial matters.
    There was no riot in Palm Beach County. The votes were counted in Florida, and recounted. And the Supreme Court didn't vote along party lines and didn't vote to give the election to Bush.
    The use of signing statements predates 2001. Signing statements have been used by presidents of both parties. The effect of a signing statement is not to "violate" any Congressional enactment.
    The so-called nuclear option was never employed. Supporters of the option needn't have relied on any argument about the advice and consent clause, and could instead have relied on the many precedents of rule changes adopted by the majority.
    The Schiavo legislation didn't preempt state family law.
    There has been no general suspension of habeas corpus. There has been an invasion of the country.
    So, what's left? Well, we have significant disagreements left about the scope of executive power, however tendentiously described. The innovations in that area, to my eye, have mostly come from Congress, in the early '70s, and more recently from the federal courts. So it's hard for me to see the impasse–hardly a crisis–as something brought by the Republican agenda. Finally, the mere proposal of an amendment on gay marriage doesn't strike me as a constitutional crisis. (Similarly, it didn't strike me as a constitutional crisis when the Clinton administration joined many Republicans in calling for a victims' rights amendment to the constitution. A stupid idea? Sure. But not a crisis.)

  17. Jonathan Zasloff says

    Brett–
    The nuclear option was a constitutional crisis because it relied upon a patently absurd constitutional "interpretation" by the Vice President in order to circumvent Senate rules. The filibuster certainly is not required by the Constitution; but the Republicans, realizing that they could not amend the Senate's rules under the rules of parliamentary procedure, decided to declare that the filibuster was unconstitutional. This kind of twisting of constitutional language as a way of grabbing power is pretty crisis-like in my book.
    Jonathan

  18. Brett Bellmore says

    Then there's scarcely a day we're not in a constitutional crisis, if you're setting the bar that low. Personally, I'd say the routine practice of holding voice votes in order to circumvent the genuinely Constitutional quorum requirement is a bit more in the "crisis" vein, if you can really call something that continual a "crisis"./

  19. Anonymous says

    Jonathan, have we been living in a constitutional crisis then since 1994, when Tom Harkin (D, IA) argued on the Senate floor as follows: "I really believe that the filibuster rules are unconstitutional. I believe the Constitution sets out five times when you need majority or supermajority votes in the Senate for treaties, impeachment." Where's the outrage?

  20. Arnold Horshack says

    Thomas said:
    There was no riot in Palm Beach County. The votes were counted in Florida, and recounted. And the Supreme Court didn't vote along party lines and didn't vote to give the election to Bush.
    The use of signing statements predates 2001. Signing statements have been used by presidents of both parties. The effect of a signing statement is not to "violate" any Congressional enactment.
    ~~~~~~~~~~~~~~~~~~~
    Not true. The Supreme Court stepped in and ordered the votes to STOP being counted. There was no recount. (see Bush v Gore, but read it this time). Gore's camp went to court on a county level, then state level. Bush went straight to the top. So much for states' rights.
    Signing statements, while used by other presidents, have not been used as much as Bush. Bush 43 has used them more than ALL other presidents COMBINED, and used them to basically state that what was being signed would not be followed by him.

  21. Publicus says

    "There has been no general suspension of habeas corpus." — obviously deceptive; habeas corpus has been partially suspended in direct violation of the Constitution.
    "There has been an invasion of the country."–simply false.

  22. liberal says

    Brett Belmore wrote, "As a procedural issue, somebody could want that because it's what the actual text of the Constitution calls for, and there are all sorts of difficulties inherent in maintaining a legal system which consistantly enforces something different from what the highest law of the land actually *says*."
    Uh huh. Like the right doesn't pick and choose what provisions of the Constitution should be enforced? Here are some that are left by the wayside (by a clear majority of right-wingers, if not the interlocutors in this thread):
    (1) Power to declare war is delegated to Congress, not the President.
    (2) There's no "national security exception" in the Constitution for a proper accounting of government spending. Yet I don't see many right-wingers complaining about the black budget for intelligence agencies.
    (3) How many right-wingers think that federalism doesn't allow the national government to outlaw so-called partial-birth abortion?

  23. liberal says

    Thomas wrote, "The innovations in that area, to my eye, have mostly come from Congress, in the early '70s, and more recently from the federal courts."
    LOL! Uh huh. Executive usurpation of the explicitly mandated Congressional right and responsibility for the declaration of war doesn't count for anything.

  24. liberal says

    "Jonathan, have we been living in a constitutional crisis then since 1994, when Tom Harkin (D, IA) argued on the Senate floor as follows…"
    IIRC the Constitution gives the bodies of Congress some latitude in setting rules.
    Not that I think the filibuster is a good thing in the long run. But IIRC the Senate could always do away with it on a simple majority vote.

  25. Anonymous says

    publicus, there are two concepts of habeaus–statutory and constitutional. Congress is free to tinker with–that is, to expand and contract–habeas rights outside of the constitutional minimum. That is what the MCA accomplishes. Further, I find it as obvious that we've been invaded as you find it that we haven't.
    liberal, the constitutional argument in your last is, I think, further evidence of the Republican war on the constitution. Or, at least some would say.
    on the rest, I'd caution about charges of hypocrisy, one way or the other. We are all stuck with the constitution that the other revises, after all. It does no good to accuse the right of hypocrisy for taking advantage of the broadened scope of federal power arising from new interpretations of the commerce clause. Further, not everything you cite would, even on the best case, be evidence of hypocrisy. For example, the meaning of the power to "declare war" and the boundaries of the executive and congressional spheres hasn't been clear from the beginning.

  26. Thomas says

    I keep expecting the comment form to include my info. It doesn't. Many of the recent anonymous comments are mine (!), including the one above, and the misspellings are mine also. Obviously I don't read things before pressing post.

  27. MarkH says

    I suspect that at least part of the Republican plan is to place the Constitution in crisis so they can argue for a new Constitutional Convention. It's hard to imagine how weird their ideas for a new constitution might be.
    I suspect they also want to move the Capitol from Washington to somewhere in the "heartland", closer to their evangelical base. To that end I wouldn't be surprised if they allowed another 9/11-ish attack on D.C.
    Crazy things are said and done by crazy people.