Federal Government too large/powerful

biochem wrote:

I held my nose and voted for him because the alternative was worse. If you prefer Obama to Romney, then I suspect your definition of moderate leans quite a bit to the left. My point is that there are moderates and they can win. Nobody believed Romney was a conservative. He didn't have to play up to the right wing to win. They would not have voted for him in the primary regardless. He won without their vote.

Remember how every week the story was: Mitt is inevitable but the voters don't like him and are searching for an alternative. Every week it was a different candidate: Michelle Bachman - nope she's crazy, Rick Perry - nope he's an idiot, Herman Cain - nope sexual harassment scandal, Newt Gingrich - nope he's mean, OK we're stuck with Mitt - do we really have to pick him....

Matt P from Baen's Bar wrote:Pardon the lecture, but I have never seen all that follows compiled in one place. My recent replies to Doc and TGreen in other threads about Baltimore made me decide to put all of this in one place. What follows is a brief recitation of how the people were given ultimate authority by the Constitution, so you all can see how the loss of that power as we have deviated from the framers' intent has led to the situation we have now--where the people are more or less completely powerless.

Basic American theory: The people are sovereign. They are the source of all governmental power. Government derives its power from the consent of the people. Government is the agent of the people, and the people can revoke their grant of authority to government at any time, for any reason.

Grade school stuff.

Part 1: The Power Retained by the People

But it's more than just theory. A careful reading of the Constitution, together with some historical knowledge, shows that the Constitution explicitly retains to the people legislative, judicial and executive powers intended to give them actual influence over the operation of all three branches of government. As Jefferson put it, "It is necessary to introduce the people into every department of government." The Constitution did so.

A. Let's start with the legislature, because it's super easy. The people have the power to check the power of the Congress by direct elections of the members of the house of representatives. That's easy. The people participate directly in the legislative process by deciding who gets to write the laws. Bicameralism is an important aspect of this check. The people had two concerns in creating a national legislature: That their local interests be protected, and that their state's interests be protected. The Senate was intended to represent states, and the house was intended to represent local communities. So "the people's house" was there, every day, representing the interests of the people.

B. The people's power to check the judiciary is less obvious, but it is actually there in about 5 different places. The fact that the people's power to check the legislative branch shows up in only one place, and is only a partial check--voting for representatives--while the people's check on the judiciary shows up in about five different places, reflects a very common view of the framers which Jefferson described thusly: "Were I called upon to decide whether the people had best be omitted in the Legislature or the Judicial department, I would say it is better to leave them out of the Legislative." Think about that; Jefferson, who styled himself as a democratic republican, considered it more important for the people to participate in the judicial branch of government than for them to actually vote for their legislative representatives.

The people's check on judges--the jury system--was more important to the framers than the right to vote. That is a literally true statement; Jefferson is saying that it's more important for the people to sit on a jury than it is to have the right to vote.

And that's why the jury system shows up in so many places in the Constitution. It's right there in Article 3--"the trial of all crimes...shall be by jury..." It's in the 6th amendment, and again in the seventh amendment.

The petit jury, the jury that hears a criminal trial or a civil suit, can be thought of as the lower house of the judiciary. It is the house of representatives and the judge is the senate. Today's bifurcation of duties--the judge expounds the law and the jury determines the facts--did not exist as a clear division of power at the founding. SCOTUS ruled in 1794 that juries could decide issues of law (constitutionality) as well as fact, and even Alexander Hamilton advocated this position in 1804. So, as originally intended, juries had the right (not just the naked power, but an actual legal right and obligation) to acquit not just if the facts merited it, but if they viewed the law as unjust or unconstitutional. This is a powerful check on the power of judges.

C. Which brings us to grand juries. At the founding, grand juries had a very broad mandate. They investigated all manner of public issues, not just criminal misconduct. Indeed, it was a Georgia grand jury that demanded, on behalf of the citizens of its county, that the US Constitution be amended to include a bill of rights. But of course, it is their investigatory power and power of indictment that operates as a significant check on both the executive and judicial branch--no felony prosecution can begin unless a grand jury--a group from the people--expressly authorize it.

But the big gun in the people's executive power arsenal is--guns. The people's guns show up not just in the second amendment, but also in the constitutional institutionalization of the militia in article 1, section 8. With those guns, citizens were expected to enforce the laws (there were no police, and only usually a sheriff), put down (or stage) insurrections at need, and represent a countervailing force to the national government's army.

I've only hit the high points, just laying out the bare bones. But these three or four powers (depending on whether you count grand juries separately from juries) show that the people were intended to have, and to exercise on a regular basis, the power to intervene to check the power of the government officials elected or appointed to do the heavy day to day lifting.

Part 2: How We Lost Our Power

A. Does anybody else find it interesting that when the framers wrote the constitution, they referred to the people who would choose our representatives as Electors with a capital E, and we now refer to our relationship with Congress as us being the "voters?" This represents an important attitude shift, I think. By capitalizing Electors, the framers were signaling that it was an office. The word voters just describes us with reference to the fact that we vote. The difference is that an Elector is someone who is fulfilling a specific role; it leaves open the possibility that he has other roles. Using the word voter suggests that's all you do--you vote and you're done with it. It's subtle, but I think it's telling.

But that's not really how we lost our voting power. We've lost our voting power mainly by dilution in a bunch of different ways. The separation between house and senate is gone, we indirectly vote for the president by one intermediate step rather than the original two intermediate steps, donating money became constitutionally considered to be the same as political speech (making rich people super voters, and similar type changes).

But to be candid, I'd say that of these three powers, the people have retained more of their legislative power than any of their other constitutional powers. And isn't it interesting that the power we have retained the most of is the one that was used least often? Juries at regularly; grand juries often, militias trained routinely. But the people only voted once every two years. I suspect there's a cause and effect there; that our government agents have whittled away at the powers that could really effectively check their power, while allowing us to retain the power we used least frequently and that has the least effect on the institutional accumulation of power to government. I suspect that has been purposeful--"let the sheep retain the form of a democracy while we take all of the real power."

B. There were three big changes to the jury system that marginalized the importance of jury duty in ordinary life, thereby emasculating the jury as a check on the power of judges:

1. The power to decide the law of the case was stripped from jurors around the 1830s by, you guessed it, judges;
2. Legal positivists of the post civil war era, well, really the early 20th century progressive era, conducted a winning campaign to delegitimize jury nullification; and
3. The big change occurred in 1930, when SCOTUS ruled that the right to a jury trial was the right of the accused, and not a structural requirement of the court system. What that meant was that criminal defendants could waive a jury trial, and prosecutors could and would induce them to waive trial with negotiated plea bargains. Prior to Patton, SCOTUS had read article 3 literally; it was not possible for there to be a criminal trial in the absence of a jury. Article 3's requirement of a jury trial did not exist to protect criminal defendants; it existed to preserve the people's check on the power of judges.

Grand juries have mostly died off to their current status as rubber stamps as a result of two things: the growth of professional police forces and a fundamental misreading of the 4th amendment to pretend that warrants, which the framers looked at as occasionally necessary evils, are the heroes of american search and seizure law. That doesn't seem immediately obvious, so let me spell it out: At the founding, grand juries had sweeping powers and were convened regularly. It was very common for grand juries to conduct the functions of police investigators and a trial court. The grand jury would investigate, and if it suspected a crime, would issue an indictment, which served to empower the sheriff or whoever to then arrest the suspect. This procedure has been completely supplanted by an investigation by the police followed by an arrest warrant issuing from a judge, a procedure that was literally unknown to the framers, who didn't have police.

C. The militia powers of the people have been the victim of assault from many directions. Gun control laws, the creation of a national guard, the creation of professional police forces, and malicious apathy on the part of the government agents who had a choice--keep the militia a powerful countervailing force to my own power, or encourage the people in their sloth and tell them that the militia is a quaint and obsolete relic of a bygone era. Even today, when gun rights are growing, the whole discussion is being framed by SCOTUS and the media as an issue of self-defense, rather than what it was at the founding--a way to ensure that the people were directly involved in the execution of the laws, so that they could restrain executive excesses.

OK, so that was a wall of text, but I hope it wasn't a complete waste of time. I hope to have shown that the fact that government today is so far removed from what it was intended to be for this reason--that they people have allowed themselves to be systematically stripped of much of the day to day power over government the Constitution envisioned them exercising.

Daryl wrote:Thanks for that PeterZ, as it does explain much about the US mindset (particularly the conservative mind set).

Not judging the relative merits of the different philosophies, but it does seem that the US has over time moved somewhat towards the "generic" developed democratic style.

I (and I believe other outsiders) find the concept of individual citizens being superior to the legally elected government, and entitled to use lethal force to change it, bizarre. We elect our governments, bitch about what they do, then change them at the next election, but in between we acknowledge their supremacy and authority over us.
Different if we did have a coup and a dictator imposed, but otherwise we respect the current government, even if (as currently here) we despise the individual politicians.

Daryl wrote:I do think that we are "on the same page", each knowing the facts. Basically it comes down to who is "sovereign" or supreme. You believe it is the citizen, we believe it is the government. Seems to work for both sides.

We elect the government and expect it to govern us. The use of force against the elected government would be considered treason in our culture.

Your reverence of your constitution is different to our attitude as well. We tend to regard our constitution as a living document that was written by fallible humans, and it is not particularly revered. Just a high level set of guidelines that should be challenged and changed as circumstances and values change.