Madison’s revenge

It’s still considered respectable to be above party. It shouldn’t be.

Except for George Voinovich, who didn’t vote (and is retiring in any case) every Republican in the Senate, including alleged “moderates” Grassley, Snowe, and Collins, voted against even allowing debate on the health care bill. This after every Republican in the House save Anh Cao voted against reform; even Cao’s vote didn’t come until after the bill already had the 218 votes it needed to pass from Democrats.

Your high-school civics teacher no doubt told you that you should “vote for the person, not the party.” Madison and Hamilton, who hated what they called “faction,” would have agreed. All three of them were wrong. Party is the only mechanism by which voters can influence actual outcomes.

Alas, the idea that nonpartisanship is somehow the morally superior position lingers in our civic religion. Just the other night an otherwise intelligent dinner companion proudly informed me that she was an independent.

Even if you prefer to vote for a politician who genuinely thinks for him- or herself, at the national level that option is no longer available. There used to be  genuine Republican liberals (such as Jacob Javits, Mac Mathias, Mark Hatfield). No more.
Every Republican on the Hill was happy to stand back and let the Beloved Leader and his wrecking crew trash the Constitution.

When push comes to shove the Republicans all vote like reactionaries, and the “centrist” Democrats are mostly worthless opportunists with “for rent” signs on their foreheads, on the Joe Lieberman-Ben Nelson model.

On Election Day, there’s only one question to ask: “Which side are you on?” If the Democratic candidate in your district is a flat-out crook or lunatic, good partisan hygiene may require that you vote against him. But don’t be seduced by a “moderate” Republican. As the yokel said when he saw the rhinocerous, “They ain’t so such animal.”

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact:

26 thoughts on “Madison’s revenge”

  1. As a sometime citizen-who-contacts-his-elected-representatives, I often ask myself if it really matters to do so. Sure, if they're a democrat and I have a bone to pick with their stance on some issue, I might be interesting to hear from. But what would a republican care if he votes opposite me?

    I had a robocall recently urging me to stop by the office of Rep. Mary Bono (R-CA) and give her a piece of my liberal mind regarding the health care vote. Mind you – this was after the house passed its version – without her vote. I've corresponded with my Republican state senator regarding the legalization of marijuana.

    But these people were elected by a majority, and thus – we're going big picture here – are going to express their point of view. Sure – a brilliant twist of pen might sway them into my camp. But I doubt it. In fact I would hope I'm not the lone citizen out here that is the difference between them shifting on a position. This is after all, what they get paid to do.

    Who the hell am I?

  2. Eli,

    I live in Dallas, Texas, so believe me, I know whereof you speak. Sadly, I just moved out of the admirable Eddie Berniece Johson's district and into Jeb Hensarling territory. Hensarling will vote with the right wing every single time. Needless to say, Cornyn and Hutchison are in safe conservative seats and Hutchison needs to go as far right as possible to beat Rick Perry for governor. There is no way in or out of hell that my opinion will change their vote. But I call and write and stop by their offices anyway, and I know I'm far from the only one. At least this way, they have to lie if they want to say that no one in their district disagrees with them; and maybe if enough of us do this, we can put the fear into 'em and force some concession. This is especially true when it comes to an issue like health care or the Sotomayor nomination, in which so many of their constituents have some personal stake or interest. And because Hutchison, Cornyn, et al have now voted against the interests of such a sizable portion of their constituency on both these issues, they may be more vulnerable in their next campaigns.

    As they say about football, it's a game of inches. Plus, I think it's a good thing to remind our Congress that there are real people who care about these issues, not just the beltway echo chamber of whores and thieves who fund their campaigns and write their talking points for them. And besides, giving my elected reps a piece of my mind is an American prerogative I'm delighted to have, as disheartening as it can sometimes be in red territory.

  3. "Every Republican on the Hill was happy to stand back and let the Beloved Leader and his wrecking crew trash the Constitution."

    ??? Um, I'm pretty sure they voted against cloture, so haven't you got that backwards?

  4. "Take the two old parties, mister,/no diff'rence in them I can see;/but with a farmer-labor party/we could set the people free."

    So the Repugs become the party of one section of the country and one narrow faction of the voting populace. Meanwhile, the Dems inherit the mantle of the "big tent" party, meaning that they are not only representing farmers and laborers but also business, i.e., the bosses. The reason for Democratic incoherence is that a party cannot serve two masters. And as more "liberal" Republicans are forced to join the Dems or waste their votes (under our insane winner-take-all system), the Democratic Party is pulled even farther into the middle of the road–you know, where the yellow stripe is.

    It's a nightmare the Framers didn't think of, one reason that virtually no country that's adopted a new constitution since ours was written has chosen to follow the American system.

    And what are you going to do with a system in which a single senator–say, the moron Chuck Grassley–representing all the Iowans has as much power as one of the senators who represents all the Californians? Do ya call that "one person, one vote?" I don't.

    Luckily, no empire lasts forever.

  5. THANK YOU! I am SO sick of the idiotic "it's the person not the party and oh aren't I so morally and intellectually superior because I'm an INDEPENDENT" meme. I tell my students to look at it this way (yes, a "civics" teacher here who does NOT tell kids the line of garbage) – if a Nazi or Communist candidate was a really smart, successful, smart family man who you admired personally, would you ignore THEIR party affiliation? Of course not. Same with the 'D' and the 'R' next to their names. They MATTER. Party is everything.

  6. “Every Republican on the Hill was happy to stand back and let the Beloved Leader and his wrecking crew trash the Constitution.”

    Brett Bellmore says: "??? Um, I’m pretty sure they voted against cloture, so haven’t you got that backwards?"

    He is, of course, referring to your Dear Leader, George W. Bush. Whom you deny, while pusshing right-wing sh*t, because you're just that kind of guy.

  7. So, you're mad because they stood by while their guy trashed the Constitution, and mad that they don't pitch in when YOUR guy trashes it. Ok, I get it, it's not about the Constitution, it's just about whether they're on your side.

  8. At the national level, I agree with Mark's advice: friends don't let friends vote Republican. However, I am willing to vote for Republicans at the state and local level, especially for executive positions. Governors and mayors have largely operational jobs, and are judged accordingly. There is no Republican or Democratic way to fix a pothole, although Democrats are more likely to use union labor. But I do want my potholes fixed, and occasionally think that a Republican might be a better pothole-fixer.

    This habit of mine has two externalities: one positive and one negative. The positive externality is that I live in a pretty blue part of the country, where some Republican votes are needed to keep the Democrats honest. The negative externality is that the better pothole-fixer might also be a Talib, and angle for higher office, where Taliban predilictions are harmful.

  9. Joe S.: "There is no Republican or Democratic way to fix a pothole."

    Generally speaking, there will be one difference: The Democrat will use current tax revenues to pay for fixing the pothole, whereas the Republican will find a way to get future taxpayers to pay the cost. But this doesn't seem to be uniformly true at the state and local level, so I agree that trying to judge the individual politicians makes sense.

  10. I refer you to Article 1 Section 8: "The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States;…To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;…To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."

    So Congress has the authority to provide for the general welfare of the United States. Of course, the power to provide for the general welfare is not plenary, but we can rely on the clause that explicitly provides that Congress has the authority to regulate interstate commerce. Moreover, the Constitution grants Congress the authority to enact laws proper for the execution of this power. Since the 1930s, the Necessary and Proper Clause has been interpreted to give power to Congress to regulate activities that affect interstate commerce and not just commerce across state lines. Not surprisingly this is based on the theory that to properly regulate interstate commerce, Congress necessarily needs power to regulate activities that while do not themselves involve cross-border transactions do affect such transactions. See e.g. workplace safety, minimum wage, and various environmental laws.

    Surely, healthcare implicates–what?–16% of the GDP and that share is growing. Medical devices and drugs are developed and sold by multinational corporations. Health insurance as an employee benefit is already subject to Federal regulation. The insurance companies such Cigna and Wellpoint operate across state lines. The Federal government also provides healthcare coverage to veterans and through the Indian Health Service and operates effectively a single payer system through Medicare.

    Under the circumstances, I would say the constitutional hooks for Federal regulation of healthcare are well-established precedent.

  11. Purchasing land is not among the enumerated powers in the Constitution. Therefore the Louisiana Purchase was unconstitutional (as the New England Federalists pointed out at the time). So the part of the country I live in, which drains into the Mississippi, is properly part of France, and that means national health care for the lot of us. Maybe Brett lives in one of the original thirteen states. So he may have every right to object to the shredding of our founding document.

    As for that damnable usurper Obama, who was born in the Sandwich Islands, as they were known at the time of the framing of the Constitution…

  12. ["Perhaps Rob will cite the enumerated power to enacting it."]

    As Rob says: Article 1, Section 8, Clause 1.

    Seriously, Brett, you really should read the Constitution *before* bloviating on it.

  13. Voting for "the man, not the party" actually made sense ca. 1870-1932, when the Democrats and Republicans were much closer together (and conservative), and the real action was the struggle between progresssives and populists in both parties and third parties against the corrupt Republican and Democratic machine politicians.

    I personally recommend this kind of inside-outside strategy, working formally within the Democratic Party while ignoring or defying the leadership. Wellstone did that, for example.

    But unfortunately, the Republicans are insane, and you can't playe the parties off against one another.

  14. Ok, you've established that if you pretend powers which aren't plenary are, if you pretend the power to regulate commerce that's interstate is the power to regulate non-commerce that isn't, then Congress has the power to enact health care reform. I'm not impressed, and I'm not obligated to pretend I respect the New Deal precedents as a legitimate reading of a Constitution intended to institute limited government.

  15. "I’m not impressed, and I’m not obligated to pretend I respect the New Deal precedents as a legitimate reading of a Constitution intended to institute limited government."

    Honestly, Brett, what impresses you just doesn't matter a whole lot. Whether you respect those legal precedents or not, those ARE the legal precedents that determine what is or isn't constitutional.

    Anyway, there's a substantive difference difference between liberal complaints against Bush's infringements of the Constitution and what you claim the Obama administrations are. Warrantless wiretapping was/is a violation of the 4th Amendment, assertions of the unitary executive theory were in contradiction to the war powers enumerated in the Constitution (Art. I, s. 8, paragraphs 11-16) and elaborated on in Youngstown, and the "it's not a treaty" Status of Forces agreement with Iraq would have been a violation of the Senate's right of advice and consent had he (W.) been able to get away with it, etc. On the other hand, you claim that health care reform goes beyond the explicitly authorized powers of the federal government (despite decades of precedent saying it's OK). Bush's violations amounted to doing what had already been clearly prohibited, Obama's alleged violation is not having express authorization. Even accepting, for the sake of argument, your assertion that the necessary and proper clause means, apparently, nothing and this LAW being passed by Congress (not Obama, BTW) is unconstitutional, the two sets of violations still aren't equivalent.

  16. Going away from the constitutionality of health-care reform for a moment:

    Is this post holding derision against the views of Hamilton, Madison, and high-school civics teachers everywhere? Or is it deriding the sad state of our two-party system in which one party seeks to automatically gainsay on everything the other party says?

  17. Democrats have controlled both House and Senate for almost 3 years and currently own a very large majority. Stop whining and blaming Republicans. Dems only have such a large majority because Democrats were willing to sell their soul and recruit moderates and conservatives to run in GOP districts. You live by the sword and you will die by the sword.

  18. "those ARE the legal precedents that determine what is or isn’t constitutional."

    No, they're the legal precedents that determine what the courts will say is or isn't constitutional. There's a difference, unless you're going to take the position that the courts are, by definition, right, no matter WHAT they say the Constitution means. A position few people outside the legal community have any respect for. The rest of us recognize that courts, even supreme ones, are capable of error, and even sometimes bad faith.

  19. So, Brett, how about that Louisiana Purchase? There is no enumerated power in the Constitution to purchase land. Were those New England Federalists right to oppose the Purchase on constitutional grounds? Are they still right today? Or does the passage of time turn wrong into right? Is truth eternal or not? Is constitutionality an eternal property, or a passing one?

  20. Brett,

    I am not taking this position, and I do not think anyone else here is either. The New Deal precedents do not derive their legitimacy simply because they appear in dusty court reporters. They have become customary through the operation of the other two equal branches of government. Both Congress and the Executive Branch have acted as if these decision are constitutionally legitimate. They have enacted and enforced laws regulating discrimination at housing, restaurants, and temporary lodging and establishing a healthcare network for the elderly based on the expectation that it is constitutionally permissible to do so. In other words, all three branches of government accept this interpretation of the Commerce Clause except at the margins as within the Federal government's constitutionally permissible powers.

    Moreover, both political parties in the main accept this proposition. The Nixon administration presided over the establishment of the EPA and OSHA. Many Republicans supported the expansion of the American with Disabilities Act that occurred during G.H.W. Bush's administration. The last Bush administration oversaw and supported the expansion of Federal power into education and the creation of a prescription drug plan.

    The parties disagree at the margins, but generally accept the legitimacy of asserting broad regulatory powers under the commerce clause. Ultimately, this interpretation of the commerce clause in combination with the necessary and proper clause is not just a dry legal precedent; it is the settled expectation of the participants in the system.

  21. Brett: "The rest of us recognize that courts, even supreme ones, are capable of error, and even sometimes bad faith"

    Yes, such as appointing Bush president? I have to grant you that one.

    You can argue all you want that the constitution says this or that — in fact, I encourage you to do so. It might even make a difference someday.

    But the constitution we HAVE is the one the courts say we have.

    I would prefer a stricter construction of the Constitution (big C — the document) myself, with a bias toward restricting government from intruding on personal liberties.

    If we'd been operating under a strict construction all along, we could amend it as needed to add specific powers. It would then be less in the hands of the courts just what powers government has — and more in the hands of the people.

    But I note that we never did amend it to give political parties a role in the process. Why should Congressional rules have ANY recognition of political parties? Why should ballots list party affiliations? Why should parties have a role in getting people onto ballots — and their own ballots, the "primaries"? I hold that giving political parties a role in the election process goes well beyond the framer's intent.

    If you haven't done so, you should read George Washington's 1796 farewell address. I quote a paragraph of it here:

    "The alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders and miseries which result gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of public liberty."

    With the benefit of over 200 years of experience, I think we can safely say, he underestimated the danger. When the party comes between "representative" and "electorate", we no longer have a representative democracy, but rather, something quite different.

    So vote the party, if you must. These days, there are clear and stark differences. But do not do so quietly, willingly. Rail against the need to accept rule by a political party. Rail against the slow suicide of the Republican party with their rush to the fringe. Rail against the loss of genuine conservative voices of restraint.

    Most of all, rail against the co-opting of a form of government, we never really got to know.

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