A couple of things that aren’t treasonous…

but, boy, do they tread a fine line.
First up is the no-tax pledge Grover Norquist has frightened scores of cowardly Republicans (and the odd Democrat) into signing. I can make a case, if not an airtight one, that taking the oath of office as a rep or senator without forswearing a vow of this kind is an impeachable offense. The oath goes like this:

I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.

The Constitution in question starts out

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Get that part about promoting the general welfare? Should it come to pass that the general welfare (never mind justice, defense, and liberty) requires a tax increase, Norquist’s minions will be bound to violate their oath of office. It’s not hard at all to imagine realistic situations where this need is unambiguous, for example during an expensive war or even if an error in judgment by Congress reduced taxes so much that the general welfare was damaged and needs to be corrected. (Golly, we’ve had both of those already in this century!).
Norquist’s mischief needs to be distinguished from a statement of belief, for example that a pol is quite sure on the basis of available evidence that a tax increase will not increase the general welfare in his term of office; that’s a fair statement of one’s views about the world. The pledge, importantly, promises action, and it promises it without reference to any possible new circumstances. Promising to ignore facts as they may come to be is promising to damage the nation by denying it judgment and reflection.
The second is playing with the new toy the Republicans took out of the box in the last month, threatening not to raise the debt limit; that’s sure cranked up domestic tranquility. The perennially unspeakable Mitch McConnell was smirking yesterday about his plans to wield it again and again. Either they meant the threat seriously, in which case they are purely subversive of the national interest and openly so, or they didn’t, in which case they are cynical, reckless liars. Actual treason requires that you aid and comfort a foreign enemy, but… In either case, they did a lot of real damage.
The damage is not a real risk that we will default on our notes, and Standard and Poor did pooch their alarm play on that technical ground. Their business is rating specific instruments (which they suck at, but that’s a different story) and their move today was presented as a criticism of the general competence of the government to do its work. They shouldn’t have done that, but they were right on the facts [link added 6/VIII], and the stock market swoon is probably another indicator of the larger, enduring, growing problem, as is the FAA fiasco. There will be more of this.

Democrats should be better legislators and better Democrats; Obama should be more like the man we thought we voted for; yada yada. All true. But it is the radical ignorant, hater wing of the modern Republican party that waltzed into Congress prating about jobs and instead of doing a single thing that might address the core, basic, pervasive economic issue of the moment, lied, cheated, and smashed up the institutional furniture in order to put more people out of work. Government employees and the people who sell them lunch and clothes, FAA contractors and hardhats, state and local workers (and the people who sell them lunch): hit the streets.
The Democrats aren’t all they should be, but the GOP is a ruin, a wretched, demented bird down to one wing plus a tattered stump on its left side. It can’t soar or even fly, and runs around in circles squawking. Sadly, it’s not merely ridiculous, but deeply dangerous, and again, teetering on the edge of treason unless you think the “general welfare” means “income of the top 5% of Americans”, perhaps also “docile, cheap labor to clean pools”, because that’s the only thing they’ve promoted. Only; the only thing.

S&P did not diagnose a general governmental malaise, though they phrased it that way. They diagnosed a slow coup d’état by the stupid and the ignorant, the abdication of duty by a whole political party in a two-party system, and its move not just to incompetence but actual malevolence. If I thought they believed that rich people would go on a hiring binge in the US if only they could pay even less taxes, I would give some credit on the stupid and ignorant side against malice, but Heaven help us, I don’t think that. I think the Koch Brothers/Tea Party/banker-trader poodles want to be seen and heard doing stuff that will make the people who give them money happy, and I think that deep down inside, they don’t care if the poor and the old go back to the deferentially wretched state they were in in 1933, homeless and starving. And this is the first time in my life I’ve believed such a thing of more than a few oddballs rightfully sidelined from laying hands on the commonwealth.

Author: Michael O'Hare

Professor of Public Policy at the Goldman School of Public Policy, University of California, Berkeley, Michael O'Hare was raised in New York City and trained at Harvard as an architect and structural engineer. Diverted from an honest career designing buildings by the offer of a job in which he could think about anything he wanted to and spend his time with very smart and curious young people, he fell among economists and such like, and continues to benefit from their generosity with on-the-job social science training. He has followed the process and principles of design into "nonphysical environments" such as production processes in organizations, regulation, and information management and published a variety of research in environmental policy, government policy towards the arts, and management, with special interests in energy, facility siting, information and perceptions in public choice and work environments, and policy design. His current research is focused on transportation biofuels and their effects on global land use, food security, and international trade; regulatory policy in the face of scientific uncertainty; and, after a three-decade hiatus, on NIMBY conflicts afflicting high speed rail right-of-way and nuclear waste disposal sites. He is also a regular writer on pedagogy, especially teaching in professional education, and co-edited the "Curriculum and Case Notes" section of the Journal of Policy Analysis and Management. Between faculty appointments at the MIT Department of Urban Studies and Planning and the John F. Kennedy School of Government at Harvard, he was director of policy analysis at the Massachusetts Executive Office of Environmental Affairs. He has had visiting appointments at Università Bocconi in Milan and the National University of Singapore and teaches regularly in the Goldman School's executive (mid-career) programs. At GSPP, O'Hare has taught a studio course in Program and Policy Design, Arts and Cultural Policy, Public Management, the pedagogy course for graduate student instructors, Quantitative Methods, Environmental Policy, and the introduction to public policy for its undergraduate minor, which he supervises. Generally, he considers himself the school's resident expert in any subject in which there is no such thing as real expertise (a recent project concerned the governance and design of California county fairs), but is secure in the distinction of being the only faculty member with a metal lathe in his basement and a 4×5 Ebony view camera. At the moment, he would rather be making something with his hands than writing this blurb.

24 thoughts on “A couple of things that aren’t treasonous…”

  1. This is still a dumb argument. The Ninth and Tenth Amendments restrict the meaning of the General Welfare Clause to only the enumerated powers. For the reality challenged, that means there’s numbers in front of them.

    Elected officials are free to adopt any policies they want, within the enumerated powers, or new powers granted by constitutional amendment. And, legislators can always chose not to exercise a government power. That’s never a violation of the oath.

    Even Obama gets this. In an 2001 radio interview with NPR he said, “the Constitution is a charter of negative liberties. Says what the states can’t do to you. Says what the federal government can’t do to you, but doesn’t say what the federal government or state government must do on your behalf.” Well, yes. The US Constitution provides for limited government only.

    Now, President Obama has launched a war without a declaration from Congress, has taken over private companies, has violated statutory law protecting corporate bond-holders, overturned common law property tights (a Tenth Amendment issue) – I could go on. Obama has clearly violated the Constitution’s limits. Before taking office, he openly discussed undermining constitutional governance to obtain “redistributive change.” Indeed, this constitutional malfeasance is the basis of the entire Progressive program.

    So, hasn’t Obama violated his oath of office?

  2. This is from the S&P downgrade:

    “Republicans and Democrats have only been able to agree to relatively modest savings on discretionary spending while delegating to the Select Committee decisions on more comprehensive measures. … In addition, the plan envisions only minor policy changes on Medicare and little change in other entitlements, the containment of which we and most other independent observers regard as key to long-term fiscal sustainability.”

    Now how one gets from that …

    “S&P did not diagnose a general governmental malaise, though they phrased it that way. They diagnosed a slow coup d’état by the stupid and the ignorant, the abdication of duty by a whole political party in a two-party system, and its move not just to incompetence but actual malevolence. ”

    … as Mr. O’Hare says above is *syptomatic* of what is broken

  3. “The Ninth and Tenth Amendments restrict the meaning of the General Welfare Clause to only the enumerated powers.”

    Wrong. This was a matter of debate until the Supreme Court settled it in 1936, in United States v. Butler. The Court wrote, “the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.”

  4. I’ll provide a little background to my previous comment, for those who need it. Article I, section 8 of the U.S. Constitution starts by providing that “The Congress shall have the Power To … provide for the common Defence and general Welfare of the United States … .” It then enumerates 17 additional powers of Congress. (These powers do not, as Jeff sarcastically states, have numbers in front of them.) In the Federalist Papers, Madison contended that the powers of taxation and appropriation should be regarded as merely instrumental to the remaining powers, whereas Hamilton disagreed, and his view prevailed.

  5. Henry:

    I need a little help here. I am drawing upon Peter Irons’ book, A People’ s History of the Supreme Court. I got the impression that in US vs. Butler, the Court ruled that Congress had exceeded its powers in enacting the provision of the Agricultural Adjustment Act in which processors of agricultural products were taxed with special fees which were to be paid to farmers to induce the latter to reduce production, raising their incomes and alleviating the great distress of Depression era farmers. Harlan Stone, dissenting from the Court majority along with Cardozo and Brandeis, upheld the constitutionality of the AAA on the grounds that the agricultural depression was national in scope and that the general welfare clause of the Constitution provided grounds for Congress to enact it. But the court majority ruled that the AAA had violated the Tenth Amendment. US vs. Butler was supposedly one of the cases that led FDR to attempt to pack the Court in 1937.

    The Court did, as you point out (and I interpret as your main message), rule that the General Welfare clause “confers a power separate and distinct from those later enumerated, is not restricted in meaning by the grant of them,” but the Butler case was still decided by the conservatives who said that the AAA had tried to use powers reserved to the states. While this could underscore the point that even the conservatives of that time did not think that the General Welfare clause did not restrict Congress to the enumerated powers, the case did overturn an important part of the New Deal program to aid the farmers, whose distress was ruled to be a local and not a national matter.

  6. What am I missing here, Jeff? Taxation is one of the enumerated powers Congress is tasked to exercise to advance the general welfare and the other stuff.

  7. As long as we’re passing blame around, I don’t suppose that even one of the nations 10s of millions of Democrats could possibly be even a tiny bit to blame? Say, for refusing to pass a budget?

    Didn’t think so.

    Also, I can’t wait to see what happens after US goes after the credit rating agencies. Wheeeeeeeeee!

  8. ack, this was supposed to be a comment on Prof. Kleiman’s post. It almost kinda fits here, too, though. (But not really.)

  9. Ed, I am not an authority of U.S. v. Butler or the New Deal cases; I just knew that spending under the general welfare clause is not limited to the enumerated powers, so I checked to find which case settled that question. Now, a quick read of Butler in response to your question suggests that your summary of it is correct, but I am unclear as to your point. I assume that Butler wouldn’t be decided the same way today. After all, the Court in Butler calls agricultural production “a purely local activity,” and Wickard v. Filburn in 1942 held otherwise.

  10. “Obama should be more like the man we thought we voted for…” I know I will be derided for saying so, but Obama strikes me as wily. For example, he has successfully convinced the Republicans to jump into the briarpatch without their even noticing yet that’s where they are; my guess is they will start feeling the pain of those thorns while they are back in their districts this month. I saw on the White House website the other day that part of the “deal” I hadn’t heard about before is that if the so-called super committee fails to come up with a deficit reduction plan that wins approval in both houses by Christmas, Obama will have the authority to eliminate the Bush tax cuts. So he got that and he got putting off another debt ceiling debacle until after the 2012 election. Given the willingness of the media to spend their energies on the crazies, I’d say that’s not too shabby.

  11. Henry:

    I am also a rank amateur in these matters, but from the few New Deal books I have read, I gather that the Court in the first term of FDR was so right-wing that it even struck down state minimum wage laws as violations of freedom of contract. It interfered with the legislative branch’s actions countless times, almost always on behalf of the power of wealth and privilege. Congress could not pass minimum wage laws and neither could the states. This outraged even many conservatives of the day.

    This is what makes Butler interesting; even that most right-wing of Courts ruled that the General Welfare clause in principle allows Congress to legislate beyond its enumerated powers. Therefore today’s conservatives who insist on limiting Congress to enumerated powers are talking through their hats. Or channeling Fox News, which amounts to the same thing.

    There are some lawyers and historians who comment on this site from time to time, and maybe one of them will comment on this point. The General Welfare clause allows Congress to pass some laws without having to conform to what would have made sense to the “Founding Fathers.” Yes or no?

  12. Ed, the grandfather of the sort of case to which you refer was Lochner v. New York (1905), in which the Supreme Court struck down a New York statute that prohibited employees from being required or permitted to work in a bakery more than 60 hours per week; the Court found that the statute interfered with employers’ and employees’ right of contract protected by the Fourteenth Amendment, even though the Fourteenth Amendment does not mention a right of contract. Justice Holmes famously dissented that “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics.”

    I am a lawyer, and, as I noted in a prior comment, Madison and Hamilton disagreed about the restrictiveness of the General Welfare Clause. That’s another problem that “originalists” have.

  13. @Jeff and others: Gee wow, didn’t we used to talk about the “inherent powers of the president” back when there was a republican in the White House? Where’d that idea go? IIRC, in 1861 Lincoln started up a civil war and ran it strictly as an executive enterprise until Congress came back into session in December. Of course, he was a republican so maybe he’d get a pass today. Plus, he was putting down a domestic insurrection and had the Whiskey Rebellion as precedent, and he always said everything he did was subject to congressional review and approval. Slippery fellow, that Lincoln.

    My original point was going to be that prior oaths used to be a really big issue, because they pointed to other allegiances than the republic itself. So Michael is on to something here. John Quincy Adams thought being a Freemason should disqualify anyone from public office because of the blood oath, and he had a lot of company (there was an Antimasonic Party at one time, a lineal ancestor of today’s republican party, and the brotherhood was basically suppressed from about 1825 until after the Civil War). And we don’t even need to discuss Catholicism in this context.

    And I do think we need to stress that it isn’t just the teahadis or Norquist’s bootlickers who insist that the federal government’s taxing authority can never be exercised. It’s the entire contemporary republican party. Not a fringe element but the whole party. That has consequences. It means that any historical or comparative information about tax-to-GDP ratios, or potential taxing ability in a national economy, or anything anyone relies on in that vein, is garbage. Can’t be used. There’s no way to know what these guys might allow, and what our constitutional taxing authority might ever be allowed to yield. S&P even alluded to that.

    And I think that’s the one really valid element in what they said. One of our two great political parties is committed to not exercising the authority to tax. As long as that’s the case, we can’t know where we are.

    Granted this isn’t about US bond issues (and we know that bonds will be the absolutely last things not to be paid as long as money rules politics), but it is about the overall state of the federal fisc. And as long as money rules politics (as long as the sun will shine and the grass will grow, perhaps), it may be that warnings from money agencies are the only things that will get anyone’s attention.

  14. Altoid, just a couple of quibbles about your account of the Civil War. The South started the war by firing on Fort Sumter, so I wouldn’t say that “Lincoln started up a civil war.” And Congress returned in July, and, in a law approved on August 6, 1861, provided: “Sec. 3. And be it further enacted, That all the acts, proclamations, and orders of the President of the United States after the fourth of March, eighteen hundred and sixty-one, respecting the army and navy of the United States, and calling out or relating to the militia or volunteers from the States, are hereby approved and in all respects legalized and made valid, to the same intent and with the same effect as if they had been issued and done under the previous express authority and direction of the Congress of the United States.”

  15. “And I do think we need to stress that it isn’t just the teahadis or Norquist’s bootlickers who insist that the federal government’s taxing authority can never be exercised.”

    I wouldn’t think the difference between no taxes, and not as high as you’d like taxes was that hard to grasp…

  16. Thanks, Henry, I do appreciate being set straight on the timing, which I was too lazy to look up in the heat of the moment. Even though it was July and not December, isn’t it mind-boggling in today’s context to think that the war was prosecuted solely on executive authority for at least three months and that Congress wasn’t even *in town* until July? “Started” wasn’t meant to imply that Lincoln fired the first shot, but that the Union’s response was due to executive initiative. Lincoln was getting a lot of advice to the effect that he should negotiate rather than exercise any military options (to use today’s language). He chose instead to restore federal authority by force of arms. Of course he, no more than anyone else at the time, had no idea what a charnel house it would turn into. The main point is that he acted on the executive’s authority under the constitution. And probably stretched it in doing so.

  17. It isn’t a question of what I’d *like,* Brett. What would you call it when there’s an apparently serious effort to limit, by constitutional amendment, the federal government’s revenues to the lowest proportion of GDP they’ve been at since before the great defense buildups of the 60s, 70s, 80s, 90s, and 00s? Who wants to take any bets that if Norquist, et al, get that kind of ceiling, they wouldn’t immediately press for legislated policies that we should only collect half that level so we’ll have headroom for emergencies? IMHO, it won’t stop until all federal taxation is limited to a VAT on food and clothing, or to payroll taxes on the first 100,000 of income. It won’t be a tariff, as it would have been in the old days, for obvious reasons. Just something that only poor and ordinary people can’t avoid paying.

    Or do you have something else in mind?

  18. Altoid, even in your paranoid fantasy, the federal government WOULD be exercising it’s authority to tax. Just not at a level you’d like.

  19. Notice how no one on here seems to be defending the clowns who took this pledge? Dare I hope that even Republicans find it a little embarrassing to see grown men pawning their family jewels to be elected? I can respect party discipline up to a point, but one would think there could be a role for independent judgment too.

    And of course Democrats bear some blame in the overall spot the country is in, but I don’t think we’re too blame for the debt ceiling embarrassment. Both sides voted to spend the money (on different things to be sure, but so what?)

  20. one reason S&P gave for downgrade

    We have changed our assumption on this because the majority of Republicans in Congress continue to resist any measure that would raise revenues, a position we believe Congress reinforced by passing the act.

  21. “Paranoid fantasies”? Ooooh, that stings so bad I don’t know how I can carry on.

    Briefly. As long as it’s a matter of personal preferences– what you presume I’d “like” (and gee, what would *you* “like”? funny, but you never said)– then my opinion is supposed to balance, say, one of the Koch brothers. But since either of them can afford lots and lots of high-priced and very active lobbyists and maximum legal contributions to many elected officials, and either of them has easy access to said representatives and senators and governors as well as to various executive bodies (not to mention being able to bankroll the occasional astroturf operation), and I can’t do any of those things, I have this “paranoid fantasy” that my opinion counts for less than the opinion of one of them.

    So I’m not willing to let the discussion be dismissed as a simple matter of differing opinions. Sorry.

  22. No, you want to shut down the discussion before it can even get started, by declaring your own opinions to be objective facts. Well, even in the scenario you recounted, fantasy though it might be, there actually were revenues being collected. So, objectively, even in that scenario you pulled from somewhere the sun doesn’t shine, it was not the case that, “One of our two great political parties is committed to not exercising the authority to tax.”

    Even in your fantasy, they were exercising that authority, albeit at a lower level than you want.

  23. If we’re asking these questions, shouldn’t we also be asking whether the pledge constitutes a criminal conspiracy? Usually when a government official promises to use the power of his or her office to help someone make a pile of money — and especially when it’s for a consideration — that’s considered a crime.

  24. What’s not treasonous? That’s easy: Everything besides “levying war against them, (The United states) or in adhering to their enemies, giving them aid or comfort.”

    In this country, absolutely nothing else is “treason”.

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