A “People’s House” or an oligarchy?

[ParanoiA]

Ummmmm...No. The Senate is not the "upper" house. It has no power over the House Of Represenatives, it is equal. It simply houses the state's representatives while the other houses the people's representatives.

 

But doesn't it essentially function as an upper house? I mean, it's not as if the house of representatives can pass a law without them. They still become the veto check.

[doG]

But doesn't it essentially function as an upper house? I mean, it's not as if the house of representatives can pass a law without them. They still become the veto check.

 

Neither house can pass a law without the other side and it takes both houses to override a Presidential veto. Both houses are equal. Both houses introduce legislation and both review and consider legislation introduced by the other house. They are each simply house of representation, one for the people and one for the states. They do have some separate powers like impeachment. The House Of Representatives has the sole power to bring an impeachment against an executive or a judge and the Senate has the sole power to try such impeachments but it takes the two of them together to impeach and convict.

 

My definition of "upper house" is more consistent with Wiki's:

http://en.wikipedia.org/wiki/Upper_house

 

That's not representative of the U.S. Legislature. The Constitution which forms the basis for two houses in the U.S. Congress makes no reference to an upper of lower house like those in the British Parliament.

[JEQuidam]

The Constitution which forms the basis for two houses in the U.S. Congress makes no reference to an upper of lower house like those in the British Parliament.

It's probably a matter of semantics; i.e., one of those terms that does not have a clear common meeting.

 

Notice the use of "upper house" in the Senate's web site:

http://www.senate.gov/artandhistory/history/common/briefing/Constitution_Senate.htm

[doG]

It's probably a matter of semantics; i.e., one of those terms that does not have a clear common meeting.

 

Notice the use of "upper house" in the Senate's web site:

http://www.senate.gov/artandhistory/history/common/briefing/Constitution_Senate.htm

 

Actually it does have a clear meaning in the British Parliament. If you follow your own link back to wikipedia you will see the upper house has less power than the lower house and that it cannot initiate legislation.

 

The Senate web site you linked to explains the term to describe the fear of tyranny that the framers used as a reason not to have upper and lower houses in the U.S. government.

 

FWIW, this is similar to what I have proposed for two tiers in the people's house except for the reversal of roles with the upper people's house initiating legislation and the lower house voting on it.

[JEQuidam]

...the upper house has less power than the lower house and that it cannot initiate legislation...

The U.S. federal House does produce the budget, so that is certainly one important power that the Senate does not have.

 

But those broad terms (lower and upper) are probably too general, so it's clearer to refer to them as our "House" and "Senate" to avoid confusion.

[Pangloss]

Co-equal with whom? Technically the Legislative branch trumps both the Executive and Judicial branches. The legislature can even pass laws that the Judicial branch has no jurisdiction over.

 

It's an underlying principle of the Constitution. Each of the three branches has a relatively equal set of powers. It's not a completely level measure, perhaps, but it's the general intent.

 

Certainly the intent is not to have the judiciary be an enabler for mob rule, which is how I believe many on the right (and even the left) would have it. Their mob, their rules.

 

 

And' date=' using that example to illustrate my larger point, I have no doubt that a truly representative federal House (e.g., 6,000 districts) would overrule (with legislation) the Supreme Court's decision on that matter.[/quote']

 

This would suggest to me a strong reason for me to oppose increasing the size of congress. I don't know that I agree with the reasoning, but if true then I would consider it unbalancing. The protection offered by an unrestrained, co-equal judiciary is an important constitutional right. In my opinion we don't have an activist judges problem in this country, we have a partisan demagoguery problem. People are real good at getting caught up in events; thinking things through to logical conclusions, not so much. We need the judiciary like it is.

 

--------

 

Regarding the equality of the bicameral congress, my long-term understanding of the issue is that it is purely one of semantics. But by tradition we refer to the Senate as the "upper" house, though only on a social, non-political basis. It is just a recognition that it is the more prestigious and powerful post.

[JEQuidam]

This would suggest to me a strong reason for me to oppose increasing the size of congress. I don't know that I agree with the reasoning, but if true then I would consider it unbalancing.

My point was that concern about judicial activisim is not just some "right wing argument" (as you labeled it). For example, many Americans, both on the left and the right, do not believe that the government should have additional power to seize private property through expanded eminent domain.

 

So that was intended only as an example, but I gather from your reply that you don't object to expanding the government's power of eminent domain. Obviously, I disagree with you, but that could be the subject of a different thread.

[doG]

The U.S. federal House does produce the budget, so that is certainly one important power that the Senate does not have.

 

But those broad terms (lower and upper) are probably too general, so it's clearer to refer to them as our "House" and "Senate" to avoid confusion.

 

Refer to them however you wish. We do not have an equivalent upper and lower house as many parliamentary systems do.

 

Whatever "federal house" you're referring to does not produce the budget either. The U.S. budget process begins with a budget request from the executive branch that is submitted to both houses. The House and Senate budget committees are then each responsible for drafting a budget resolution. Each is argued on its respective floor to reach a concurrent resolution. Once the resolutions are passed a selection of members from both houses prepare a conference report to reconcile the differences.

 

It's an underlying principle of the Constitution. Each of the three branches has a relatively equal set of powers. It's not a completely level measure, perhaps, but it's the general intent.

 

Yes, it's the general intent. Ultimately the power is "of" and "by" the people thus, the legislative branch has the ultimate power over the other two.

 

My point was that concern about judicial activisim is not just some "right wing argument" (as you labeled it).

 

You are correct. Legislation by judicial fiat is not a power the court is intended to have.

[JEQuidam]

Whatever "federal house" you're referring to does not produce the budget either.

Regardless of what the procedure may be, I was referring to what our Constitution mandates:

"All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills." (Section VII).

 

If you read the convention debates related to that particular requirement you'll find it is not a minor point.

[Pangloss]

My point was that concern about judicial activisim is not just some "right wing argument" (as you labeled it). For example, many Americans, both on the left and the right, do not believe that the government should have additional power to seize private property through expanded eminent domain.

 

I agree that the argument against "judicial activism" is sometimes made from the left-side perspective, just not as commonly so. I wasn't disparaging anyone's arguments with that statement, just trying to clearly state my position.

 

The concept of eminent domain is always an interesting one to see come up in discussions of pertaining to judicial review (or judicial activism), because often it's the majority that want the property taken, and the courts that stop that from happening. And it's an interesting mention in this thread, because we're talking about empowering the will of the people, and yet eminent domain is about protecting the rights of the individual.

 

That having been said, I can see where this pertains to your overall subject of increasing the size of the legislature, and I think that's an interesting argument. (And since we're in new territory I'm loathe to close the thread now, although at the moment I think I'm mostly just enjoying watching you guys hash out these interesting points.)

 

 

I gather from your reply that you don't object to expanding the government's power of eminent domain.

 

I was really talking more about the larger subject of judicial review. I'm not in favor of expanding eminent domain, and in fact would even strongly consider supporting tighter controls over its use. But I do support the core concept.

 

Legislation by judicial fiat is not a power the court is intended to have.

 

Nor does it have it.

 

I've said for a long time now that the problem of "judicial activism" is really a problem of not having a strong enough legislature and/or executive. Write and sign a law that directly contradicts the constitution, for example, and what do people expect is going to happen? And yet that judge gets accused of "writing law". Sheer nonsense.

 

I wouldn't say that applies to all issues, though, and valid cases have been made regarding issues like eminent domain, abortion, etc. I recognize that.

 

But even in those cases -- even with abortion -- the power continues to rest with the legislative and executive to resolve the issue, and yet nothing happens. So it cannot be rightly said that the judiciary has acquired legislative power.

 

(I can move some posts into a separate thread about judicial activism if there is an interest in that.)

[JEQuidam]

The concept of eminent domain is always an interesting one to see come up in discussions of pertaining to judicial review (or judicial activism), because often it's the majority that want the property taken, and the courts that stop that from happening.

You're referring to highways, parks, etc., and the guvment already had that power. You need to better familiarize yourself with what is going on behind the expanded eminent domain; it is not for "the people", instead, it is typically for one or two real estate developers who are very cozy with a few local goverment officials. (Google around and you'll find confirmation of this.)

 

I'm not in favor of expanding eminent domain, and in fact would even strongly consider supporting tighter controls over its use. But I do support the core concept.

OK, then what if, for argument's sake, you were as opposed to it as am I, then what would you want to do? Just surrender the matter to the superior wisdom of SCOTUS? Or would you think it appropriate for our elected "representatives" to define limits on the goverment's power of eminent domain? If you select the latter, then you and I are in complete agreement.

 

Write and sign a law that directly contradicts the constitution, for example, and what do people expect is going to happen? And yet that judge gets accused of "writing law". Sheer nonsense.

 

(I can move some posts into a separate thread about judicial activism if there is an interest in that.)

Please do, because your comment above will start a firestorm.

 

I didn't realize that all SCOTUS decisions were divinely ordained to be Constitutionally correct and defensible, and that they are always correct and the laws that they overruled were patently unconstitutional. That view should create a lively debate.

 

If so, you are not allowed to oppose expanded eminent domain! SCOTUS HAS DECLARED IT TO BE SO. BOW DOWN BEFORE SCOTUS!!

 

I have to add two words: "Dred Scott", perhaps the Supreme Court's most infamous decision.

http://www.pbs.org/wgbh/aia/part4/4p2932.html

Edited June 2, 2008 by JEQuidam
multiple post merged

[Pangloss]

I'm familiar with recent expansion of eminent domain, ala Kelo. We've even discussed the issue here before.

 

Yes, I think it appropriate for our elected representatives to define limits on the government's power of eminent domain. So does the Supreme Court. The purpose of judicial review is to ensure that the constitution is followed, not to write new laws.

[JEQuidam]

I'm familiar with recent expansion of eminent domain, ala Kelo. We've even discussed the issue here before.

 

Yes, I think it appropriate for our elected representatives to define limits on the government's power of eminent domain. So does the Supreme Court. The purpose of judicial review is to ensure that the constitution is followed, not to write new laws.

Excellent! So then I assume you would not object if a larger federal House (per the original posting here) constrained the decision of SCOTUS on that particular matter. We are now in agreement!

 

(I refer to a "larger" federal House because the current one, of 435, will never have the balls or iniative to do that job.)

[doG]

I've said for a long time now that the problem of "judicial activism" is really a problem of not having a strong enough legislature and/or executive.

 

I see the problem as poor legislation. Good legislation says what it means and means what it says. It should not so vague that it leaves the court guessing what the intent was when the law was written. When it can be interpreted in more ways than intended we end up with what looks like judicial activism when the reality is that the court has simply found an interpretation that was not intended when the law was written. That was the case in Kelo vs New London when the court determined that the 5th Amendment could be interpreted to mean that "public use" included increased tax revenues. I doubt the framers intended that a man's private property could be transferred to another private party which could pay higher taxes on it but that is the interpretation we ended up with.

 

Regardless of what the procedure may be, I was referring to what our Constitution mandates:

"All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills." (Section VII).

 

Revenue is income, not spending. The budget is about spending money, not raising it. The restraint on bills for raising revenue means that all bills that raise or create taxes shall originate in the House.

[JEQuidam]

Revenue is income, not spending. The budget is about spending money, not raising it. The restraint on bills for raising revenue means that all bills that raise or create taxes shall originate in the House.

Your clarification is, of course, correct. And the fact that the House can orginate bills for raising revenue is a power that they have that the Senate does not.

 

That was the case in Kelo vs New London when the court determined that the 5th Amendment could be interpreted to mean that "public use" included increased tax revenues. I doubt the framers intended that a man's private property could be transferred to another private party which could pay higher taxes on it but that is the interpretation we ended up with.

Well said. And the only way to correct that problem is via the Congress and, as I said earlier, they lack the balls and the initiative to do what is necessary. Why? Because their primary constituency is the special interests that provide them with the financial support and/or voting blocks necessary to maintain their sinecure. We the people are usually, at best, the Reps secondary constituency.

[doG]

And the fact that the House can orginate bills for raising revenue is a power that they have that the Senate does not.

 

So. They each have powers the other does not. That does not make one the upper and the other the lower. In parliamentary systems that do have an upper and lower house only one can initiate legislation, the lower. The upper cannot even block it from passing, it can only slow it down. This is not the case in the U.S. because it IS NOT a parliamentary system.

 

Well said. And the only way to correct that problem is via the Congress and, as I said earlier, they lack the balls and the initiative to do what is necessary. Why? Because their primary constituency is the special interests that provide them with the financial support and/or voting blocks necessary to maintain their sinecure. We the people are usually, at best, the Reps secondary constituency.

 

It will actually take a revision of the 5th Amendment to fix it which means updating the Constitution with another amendment

[JEQuidam]

It will actually take a revision of the 5th Amendment to fix it which means updating the Constitution with another amendment

OK. I thought it might require an amendment (rather than just legislation).

 

Anway, our House of 435 will never propose such an amendment. There are far too many developers and real estate investors who want to maintain this expanded eminent domain.

 

Of course, I believe that we will have to greatly expand our representation in order for this to be accomplished.

 

BTW, everyone should be sure to watch “Porked: Earmarks for Profit”. It is an excellent (and disturbing) documentary produced by Fox News. I assume they will broadcast it again.

http://www.foxnews.com/story/0,2933,361061,00.html

[Pangloss]

Excellent! So then I assume you would not object if a larger federal House (per the original posting here) constrained the decision of SCOTUS on that particular matter. We are now in agreement!

 

(I refer to a "larger" federal House because the current one, of 435, will never have the balls or iniative to do that job.)

 

I agree that checks the federal government's ability to confiscate property is a good idea, that additional ones may be necessary, and that your suggestion is potentially a way to do that. Farther than that I'm not willing to go at this time. Surely you can understand my desire to be more thorough in my comprehension of this interesting subject.

 

 

I see the problem as poor legislation. Good legislation says what it means and means what it says. It should not so vague that it leaves the court guessing what the intent was when the law was written. When it can be interpreted in more ways than intended we end up with what looks like judicial activism when the reality is that the court has simply found an interpretation that was not intended when the law was written. That was the case in Kelo vs New London when the court determined that the 5th Amendment could be interpreted to mean that "public use" included increased tax revenues. I doubt the framers intended that a man's private property could be transferred to another private party which could pay higher taxes on it but that is the interpretation we ended up with.

 

I agree with this. That was well put, doG.

[JohnB]

JE,

Could you please announce your country to the forum? That way, we might be able to admire all the superior virtues of your government in comparison to our republican government.

Well. you could have looked at my profile. I'm an Aussie an our .gov is a Constitutional Monarchy. As to superior? I don't know, but we went 100+ years after Federtion without a Civil War, how did yours do? Our military hasn't killed any University students, how's the Ohio National Guard doing lately? Our .gov does not have the power to call the military out for a student protest.

Your assumption is not supported by the facts; if we compare those state's assemblies with the smallest district sizes to those with the largest, the evidence is contrary.

Yes it is, politics is numbers game. Say your rep wins an election by 1,000 votes, how many people need to change their mind for him to lose the next one? 501. The smaller the electorate, the closer the outcomes are likely to be, this means small interest groups high much higher relative importance. I have seen elections of 25,000 voters come down to a win by 120 votes, this means that if 60 people had voted the other way, the result would have changed.

 

Please note, we use the "Preferential" voting system, so there may be a difference here. I'm not putting it in as a minus for your idea, which seems a basically good one, but more as mentioning that there might be an unintended consequence. When changing a form of .gov, it seems prudent to consider all angles.

 

BTW, I realise I wasn't clear when referring to "your Republic government", my apologies, I wasn't speaking of republics per se, just your particular brand of republic. Any other republics with Electoral Colleges? See what I meant?

If you are referring to judicial fiats by a judiciary which is not accountable to anyone, I agree (and so do most Americans). But that is not a problem inherent in the republican form of government; instead, it is a problem inherent in having a federal House comprised of people without balls.

Actually I was referring to the fact that your Constitution can be changed by your .govs without referendum. I truly believe that a .gov should not be allowed to change the rules (limits) that it works under without the direct, voted consent of the people. To me the idea that "Change in Constitution" = Referendum is axiomatic to a people governed Democracy. How can a .gov be "by the people" if they have no say in the method of government?

 

TBH, I think there are really only two areas where I think your system could benefit by copying ours, the above being one. The other is that our Constitution limits the .govs power in writing Money Bills. A Bill that entails money must be restricted to that. This stops spending on a pet project being added as a "rider" to another unrelated Bill. Your Constitution was one of the ones used as a model for ours and our Founding Fathers had seen what your pollies were doing in this regard. It was put in specifically to stop the "Rider" practice.

 

Re the Electoral College, I just don't see the point. If the people are going to vote on the Presidency, why does the EC exist? If the EC can override the popular vote, then why bother having a general election at all? Far simpler to just let the EC decide.

The greatness of the republic, I think anyway, lies in the principles that aren't readily noticeable, nor apparently obvious in practice. The fact that the power comes from the people themselves - that they invest their governing in an idea (in the abstract)- a document (in the tangible) rather than a man or group of men. So, the laws and so forth are continuous, and follow the document, regardless of the leader who created them.

I fully agree, but from where I sit, the idea applies to Australia in exactly the same fashion. This one of the reasons a change to republic would be problematical for us. The powers of our Governor General are not something that can be written down, so passing these powers to a President would be difficult.

In parliamentary systems that do have an upper and lower house only one can initiate legislation, the lower. The upper cannot even block it from passing, it can only slow it down.

Not quite true. In Oz, legislation except for Appropriation and Taxation, can originate in the Upper House. In the case of "Money Bills" the Senate must either pass or return the Bill to the Lower House with a request for ammendments. Should the Lower House send it back and get a second rejection, then the G-G steps in and dissolves Parliment, calling a general election for all members of both Houses. Remember this applies only to "Money Bills". The logic is that without the ability to raise money or spend it, the .gov has become unworkable and therefore it should be put to the people to choose a new .gov. This has happened only once in our history, in 1977.

 

Normal Bills bounce back and forth from one House to the other, getting ammendments to ammendments until some final form passes both Houses.

 

Seriously guys, you do have a great nation and a Republican system that is extremely good. JE has brought up some damn good points, first and foremost that rediculous limit on representation. To my mind all representative numbers should always be "Until the Parliment/Congress provides otherwise".

 

Please view my comments not as trying to put your system down but more as "Well this has worked well for us, maybe you should at least consider it".

 

On a slightly different note, has anyone ever suggested amalgamating some of your states? Perhaps it's just a matter of perspective, but Anna Downs cattle station would rank as your 42nd largest state, it's bigger than every state from Maryland on down. Except for Alaska and Texas, your states are tiny. Why do you support 50 State .govs? Wouldn't 10-15 be a better number? (and a lot cheaper?)

 

If the answer is something like "State Pride", I understand as we have sometimes too much of that ourselves. (Of course, us Queenslanders have plenty to be proud of, unlike those poor southern states.)

 

BTW, if anyone is wondering why an Aussie is paying attention to this thread, our system isn't perfect either and some ideas might come up that we could use.

[JEQuidam]

I wish I had the time to respond to all that. And, in any case, those points would be better addressed in a new thread (that perhaps you could start).

 

Your contentions were evidently posed to be merely provocative rather than insightful. (Did you ever hear the expression that "sarcasm is the protest of the weak"?) It is further difficult to compare what is essentially a large island nation (with the population of Texas) to a much larger 50-state union.

 

Being a Southerner, I will respond to the following point though.

 

I'm an Aussie an our .gov is a Constitutional Monarchy. As to superior? I don't know, but we went 100+ years after Federtion without a Civil War, how did yours do?

It's been about 150 years since our so called "Civil War" (technically it was a war of secession). Over 600,000 good people died in that battle, the cause of which is best explained by the following quote:

 

"

I have given as fair an idea of the debate on this question, in the convention that framed the Constitution, as possible. It was then and there that the hydra of slavery struck its fangs in the Constitution; and once inoculated with the poison of the monster, the government was only able to purify itself in the flames of a great civil war....

" -- Historian George Washington Williams

[doG]

Re the Electoral College, I just don't see the point. If the people are going to vote on the Presidency, why does the EC exist? If the EC can override the popular vote, then why bother having a general election at all? Far simpler to just let the EC decide.

 

It doesn't sound like you've made much effort to understand the EC or the reason it was chosen.

 

The Constitution grants no right to the people to directly choose the President of the union of the sovereign states. It grants the states of that union the rights to use an election system, the Electoral College, that effectively applies a weighted average to their voting power based on the sizes of their populations. It leaves the method of appointing electors up to the state legislatures. It just so happens that the state legislatures have chosen to use suffrage as their method but they could draw straws if they so chose.

 

The reasoning behind the choice of this manner in electing the executive is found in Federalist Paper 68.

[swansont]

It doesn't sound like you've made much effort to understand the EC or the reason it was chosen.

 

The Constitution grants no right to the people to directly choose the President of the union of the sovereign states. It grants the states of that union the rights to use an election system, the Electoral College, that effectively applies a weighted average to their voting power based on the sizes of their populations. It leaves the method of appointing electors up to the state legislatures. It just so happens that the state legislatures have chosen to use suffrage as their method but they could draw straws if they so chose.

 

The reasoning behind the choice of this manner in electing the executive is found in Federalist Paper 68.

 

A nit: the Constitution grants no rights at all to the people — it assumes they already have them. It grants powers to the states and to the federal government, as an allowable and necessary restriction of the right of the people, and enumerates certain rights that the people have. The 9th and 10th amendments formally recognize this — "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." and "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

 

Anyway, the founding fathers didn't trust the people a whole lot. This was all an experiment of sorts when it first started.

[JEQuidam]

A nit: the Constitution grants no rights at all to the people — it assumes they already have them. It grants powers to the states and to the federal government, as an allowable and necessary restriction of the right of the people, and enumerates certain rights that the people have. The 9th and 10th amendments formally recognize this — "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." and "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

You are correct, and that is an extremely important "nit".

 

Anyway, the founding fathers didn't trust the people a whole lot. This was all an experiment of sorts when it first started.

That is true for some of the FFs, but certainly not all. The "people" they tended to trust least were those who aspired to hold power.

 

In any case, most, if not all of the FFs, certainly trusted "the people" (in the general sense) more than they trusted the goverment.

[doG]

FWIW, Farrand's Records of the Federal Convention make available the debates behind the method chosen. There are no transcripts though. You have to step through images of the records so low bandwidth viewers may find it slow.

 

A nit: the Constitution grants no rights at all to the people — it assumes they already have them. It grants powers to the states and to the federal government, as an allowable and necessary restriction of the right of the people, and enumerates certain rights that the people have. The 9th and 10th amendments formally recognize this — "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." and "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

 

Anyway, the founding fathers didn't trust the people a whole lot. This was all an experiment of sorts when it first started.

 

Small counter nit:

 

In the context of the discussion, the Constitution gave only the states a right to vote for the President and, given all of the amendments to date, that is still the case. Only the states have an enumerated right to elect the President and they are instructed to use a manner as prescribed by their Legislatures. The people have no right of suffrage to elect the President.

 

As written, prior to any amendments, the Constitution assumed the only rights the people had were those they had in their respective states. It was the very lack of rights that caused several delegates at the federal convention to refuse to sign the newly drafted constitution. It was also one of the primary arguments used by anti-federalists to try to convince the people to reject the new constitution. It was the ratification messages sent by the states when they ratified the Constitution that lead to the addition of a bill of rights.

[ParanoiA]

Ok, sorry if this has been covered, but I was talking about this with a co-worker and he brought up the point that the Senate still has just two seats per state, so consolidated power is there for lobbying, special interest and etc.

 

So, it would seem that while we get rid of a large portion of the lobbying and special interest corruption game in the house of reps, it could increase the stakes of corruption in the Senate. Perhaps all of their energies would be spent there instead.

 

So, how does that effect the quality of legislation? Would this help or hurt with our fight against corruption?