The Conservative Constitution, part I.
I have spent a fair amount of this blog mocking conservatives' take on the Constitution, but it seems to me deeply unfair to mock what I have shown no understanding of. So, without further ado, here is part I of my essay from the conservative perspective, on the Constitution:
Conservatives read the Constitution, religiously even. They just don't understand it.
Conservatives think that the Founding Fathers were conservatives. They fervently believe that the Constitution was written in 1786, explicitly to enshrine the kind of modern virtues that conservatives since 1929 have held sacred.
Conservatives believe that the Founding Fathers were men of deep conviction, and they are right. They believe that the Founding Fathers wanted to create a country based on the liberty to seek one's own fortune, without interference from government, especially not a Federal government. They believe that religious liberty is foundational to economic liberty, and that that ethic was at least as strong in the Founders as it is in today's Republican Governors' Association.
Conservatives believe that the US Constitution was drafted, and amended, to create a government and a law drafted and approved by the One True God of the Bible.
In this essay, I will present the conservatives' case for a United States founded by highly religious men, and a Constitution written based upon those men's understanding of the Bible. In my next essay, I will present an alternate case, one which I base on my own understanding of history and the Constitution.
I will begin with Article I, which creates a Congress in two parts. In the larger House of Representatives, directly elected by voters every two years, representation was to be proportional to the total of free Persons, including those bound to a term of service but excluding Indians who were not subject to taxation, and three-fifths of all other Persons who were not free nor bound to a defined period of servitude, i.e., persons who were bound to lifelong servitude, none of whom currently exist under the present Constitution. In the smaller Senate, each State would be entitled to two Senators, selected by the state legislatures every six years, who are now selected by direct vote, and replaced by special election, rather than being selected by the legislatures as called upon either every six years or as required when a vacancy should arise.
Many conservatives believe that the Seventeenth amendment, which requires popular election of Senators, misunderstood the intent of the Founders, which was to create in the Senate a repository of political wisdom that only other politicians and senior lawmakers would be able to recognize for its value, an aristocracy within the Republic that would advise and check both the lower, more political House of Congress and the Presidency. Others believe that reapportionment, the process of dividing Congressional seats according to the census every ten years, should be changed or done away with, or even that the Census itself should not be required, as it unfairly intrudes in the lives of free persons to be counted by their numbers, their ages, sexes, religions, and so on, and requires an accounting of their places of living and employment which is simply not warranted nor merited by the governmental need that it serves: that of dividing representation among the states by how many people live in them. Still others believe that the law requiring the House to limit its membership to 435 violates the Constitution, which allows a maximum of one member per every thirty thousand persons, with no explicit limit on the total number of Members.
Many conservatives also believe that the 26th Amendment, which extends voting rights to all citizens of the United States over the age of 18, was in error as well, supplanting the rights of the states to define voters. The original document never defined who had voting rights under the US Constitution, other than requiring in Article IV that all citizens of the US should have all of the privileges and immunities of citizens of the several states. Some think this clause is meant to include only those privileges collective to all of the states, leaving out rights and privileges granted to citizens of only one state; others insist that any right or privilege granted by one state is retained by the citizen when she travels, or moves, outside of that state. Conservatives hew to the former interpretation, of course, as the latter requires Alabama and Virginia to recognize, for example, education and marriage rights granted by New York or Iowa or Texas to classes of citizens explicitly burdened by other states.
The Congress is required to meet at least once per year. The Congress is also required to keep a journal of its proceedings (known now as the Congressional Record) and to periodically (now daily) publish it, with the power granted to determine that some proceedings must be kept secret from the published Record.
Each house separately determines who is and is not qualified to serve in it (regardless of popular elections, and on at least two occasions, directly in the face of them) and may require attendance of its qualified members, by whatever force it shall determine to be necessary. Each house may also expel a seated member, by a two-thirds vote, and punish disorder by whatever means it determines necessary. Neither house of Congress may adjourn for more than a three-day weekend, while the other house is in session, save with the assent of the other house, nor may either house move by itself, to a different location. The President (yes, I know I'm jumping ahead a bit) may, if the Congress should be divided between the two Houses on when and where to meet and adjourn, may determine when and where the whole Congress should convene, and when it should adjourn. Conservatives praise the inclusion of this power of the Presidency in Article II, as it provides a needed check on the Congressional power to either act in secret, without the assent of the President or the other House, or obstruct the operation of the other House by requiring endless debates on when and where to adjourn or convene.
Likewise, no Person may arrest a Congressman or Senator on his way to attend, nor question his speech or debate "in any other place," i.e., not on the floor of the House or Senate, except in cases of treason, felony, or breach of the peace. What constitutes a breach of the peace that a member may be arrested for, regardless of his attendance or travel to and from a session, was left open to later Congresses to determine, and to my knowledge, never has been. This is an essential check on the Presidency, which may not call a session of Congress, then prevent any Congresspersons from attending who might not vote with the President on the issue called to the floor.
Congress gets to set salaries and compensations for the service of all senior government officers, including those of Senators and Representatives, but may not pass a law changing such compensations which takes effect immediately; the Twenty-Seventh Amendment requires a Congressional election "intervene" before any change in compensation may take effect, i.e., Congress can only give raises or pay cuts to the next Congress, a useful check on Representatives' power to determine raises and cuts (including of course, making some positions entirely voluntary) to senior government officials. Congressmen may not hold any other office under the US government (they may hold state office, as determined by the states, though I am unaware of senior state officials who served simultaneously as US Representatives or Senators.)
The Senate is empowered specifically to try impeachments, which are a legal process of removing officers of the government from their seats for breaches of public trust, but is limited in its power to punish, except to expel officers from the government, and to forbid them from ever again holding any office in the US government. The House of Representatives prepares articles of impeachment, essentially a prosecutorial brief, for the Senate trial, at which no officer of the government may be impeached unless two-thirds of the Senators vote to convict. If the President of the United States is being tried, the Chief Justice, not a Senator, must preside over the trial. This provision checks the Vice President from casting the deciding vote in the trial of the President, who it may be noted, may have recently defeated him in an election (more on the election of the President when we get to Article II.)
Now we come to the second-most important section of Article I for conservatives: the legislative process defined, and the power of the purse strings reserved to the House, with the Senate concurring or amending. Each bill passed then in concurrence (which may originate in either house, if they are not related to appropriation) is given to the President to sign into law. If he should object to the bill, he returns it to both houses for Reconsideration, and if two-thirds of the members of both houses of Congress vote to keep the law as written, the reconsidered bill becomes law over the President's objection. Anyone who has ever met a legislator knows how difficult it is to get two of them to agree; to get 290 of them to agree on the same thing, at the same time, is a Sisyphean task. On the rare instances when it happens, the Congress is given the extraordinary power to enact law unchecked by Presidential meddling or objection. Obversely, when the Congress hands a bill to the President on its way out the door for a holiday or end of session adjournment, and he is therefore unable to return that bill for Reconsideration, if the President does not sign the bill within ten days, it cannot become law: this maneuver is known as the pocket veto, and has been used in the relatively recent past. For a Speaker or President pro Tem to adjourn without the President's assurance that every bill passed on that last day will be law by morning is an unusual event, and indicates a willingness on the part of the Congress to see at least some of their bills not become law. This rule allows a certain amount of leeway on the part of both branches of government, to schedule votes for unpopular bills that are nevertheless important to one or a few Congresspersons' holding their seats very late in a legislative session, which the President may then pocket veto, over no one's objection, and both branches can then claim to have served their constituents well without actually producing any substantive result.
Conservatives, and I would suspect, most voters, hate this clause, especially when their leaders enact a law which conservatives love and the President pocket vetoes it. The likelihood that it will be amended is directly proportional to the likelihood that there will be a Democratic Congress and a Republican Presidency again, which is to say, flip a coin that weighs 2/3 more on the "tails" side and call "heads." We will discuss amending the Constitution once I've dispensed with Article I, Section 8, which I am aware is skipping ahead more than a bit, but trust me, it will make sense once I've written it.
Conservatives read the Constitution, religiously even. They just don't understand it.
Conservatives think that the Founding Fathers were conservatives. They fervently believe that the Constitution was written in 1786, explicitly to enshrine the kind of modern virtues that conservatives since 1929 have held sacred.
Conservatives believe that the Founding Fathers were men of deep conviction, and they are right. They believe that the Founding Fathers wanted to create a country based on the liberty to seek one's own fortune, without interference from government, especially not a Federal government. They believe that religious liberty is foundational to economic liberty, and that that ethic was at least as strong in the Founders as it is in today's Republican Governors' Association.
Conservatives believe that the US Constitution was drafted, and amended, to create a government and a law drafted and approved by the One True God of the Bible.
In this essay, I will present the conservatives' case for a United States founded by highly religious men, and a Constitution written based upon those men's understanding of the Bible. In my next essay, I will present an alternate case, one which I base on my own understanding of history and the Constitution.
I will begin with Article I, which creates a Congress in two parts. In the larger House of Representatives, directly elected by voters every two years, representation was to be proportional to the total of free Persons, including those bound to a term of service but excluding Indians who were not subject to taxation, and three-fifths of all other Persons who were not free nor bound to a defined period of servitude, i.e., persons who were bound to lifelong servitude, none of whom currently exist under the present Constitution. In the smaller Senate, each State would be entitled to two Senators, selected by the state legislatures every six years, who are now selected by direct vote, and replaced by special election, rather than being selected by the legislatures as called upon either every six years or as required when a vacancy should arise.
Many conservatives believe that the Seventeenth amendment, which requires popular election of Senators, misunderstood the intent of the Founders, which was to create in the Senate a repository of political wisdom that only other politicians and senior lawmakers would be able to recognize for its value, an aristocracy within the Republic that would advise and check both the lower, more political House of Congress and the Presidency. Others believe that reapportionment, the process of dividing Congressional seats according to the census every ten years, should be changed or done away with, or even that the Census itself should not be required, as it unfairly intrudes in the lives of free persons to be counted by their numbers, their ages, sexes, religions, and so on, and requires an accounting of their places of living and employment which is simply not warranted nor merited by the governmental need that it serves: that of dividing representation among the states by how many people live in them. Still others believe that the law requiring the House to limit its membership to 435 violates the Constitution, which allows a maximum of one member per every thirty thousand persons, with no explicit limit on the total number of Members.
Many conservatives also believe that the 26th Amendment, which extends voting rights to all citizens of the United States over the age of 18, was in error as well, supplanting the rights of the states to define voters. The original document never defined who had voting rights under the US Constitution, other than requiring in Article IV that all citizens of the US should have all of the privileges and immunities of citizens of the several states. Some think this clause is meant to include only those privileges collective to all of the states, leaving out rights and privileges granted to citizens of only one state; others insist that any right or privilege granted by one state is retained by the citizen when she travels, or moves, outside of that state. Conservatives hew to the former interpretation, of course, as the latter requires Alabama and Virginia to recognize, for example, education and marriage rights granted by New York or Iowa or Texas to classes of citizens explicitly burdened by other states.
The Congress is required to meet at least once per year. The Congress is also required to keep a journal of its proceedings (known now as the Congressional Record) and to periodically (now daily) publish it, with the power granted to determine that some proceedings must be kept secret from the published Record.
Each house separately determines who is and is not qualified to serve in it (regardless of popular elections, and on at least two occasions, directly in the face of them) and may require attendance of its qualified members, by whatever force it shall determine to be necessary. Each house may also expel a seated member, by a two-thirds vote, and punish disorder by whatever means it determines necessary. Neither house of Congress may adjourn for more than a three-day weekend, while the other house is in session, save with the assent of the other house, nor may either house move by itself, to a different location. The President (yes, I know I'm jumping ahead a bit) may, if the Congress should be divided between the two Houses on when and where to meet and adjourn, may determine when and where the whole Congress should convene, and when it should adjourn. Conservatives praise the inclusion of this power of the Presidency in Article II, as it provides a needed check on the Congressional power to either act in secret, without the assent of the President or the other House, or obstruct the operation of the other House by requiring endless debates on when and where to adjourn or convene.
Likewise, no Person may arrest a Congressman or Senator on his way to attend, nor question his speech or debate "in any other place," i.e., not on the floor of the House or Senate, except in cases of treason, felony, or breach of the peace. What constitutes a breach of the peace that a member may be arrested for, regardless of his attendance or travel to and from a session, was left open to later Congresses to determine, and to my knowledge, never has been. This is an essential check on the Presidency, which may not call a session of Congress, then prevent any Congresspersons from attending who might not vote with the President on the issue called to the floor.
Congress gets to set salaries and compensations for the service of all senior government officers, including those of Senators and Representatives, but may not pass a law changing such compensations which takes effect immediately; the Twenty-Seventh Amendment requires a Congressional election "intervene" before any change in compensation may take effect, i.e., Congress can only give raises or pay cuts to the next Congress, a useful check on Representatives' power to determine raises and cuts (including of course, making some positions entirely voluntary) to senior government officials. Congressmen may not hold any other office under the US government (they may hold state office, as determined by the states, though I am unaware of senior state officials who served simultaneously as US Representatives or Senators.)
The Senate is empowered specifically to try impeachments, which are a legal process of removing officers of the government from their seats for breaches of public trust, but is limited in its power to punish, except to expel officers from the government, and to forbid them from ever again holding any office in the US government. The House of Representatives prepares articles of impeachment, essentially a prosecutorial brief, for the Senate trial, at which no officer of the government may be impeached unless two-thirds of the Senators vote to convict. If the President of the United States is being tried, the Chief Justice, not a Senator, must preside over the trial. This provision checks the Vice President from casting the deciding vote in the trial of the President, who it may be noted, may have recently defeated him in an election (more on the election of the President when we get to Article II.)
Now we come to the second-most important section of Article I for conservatives: the legislative process defined, and the power of the purse strings reserved to the House, with the Senate concurring or amending. Each bill passed then in concurrence (which may originate in either house, if they are not related to appropriation) is given to the President to sign into law. If he should object to the bill, he returns it to both houses for Reconsideration, and if two-thirds of the members of both houses of Congress vote to keep the law as written, the reconsidered bill becomes law over the President's objection. Anyone who has ever met a legislator knows how difficult it is to get two of them to agree; to get 290 of them to agree on the same thing, at the same time, is a Sisyphean task. On the rare instances when it happens, the Congress is given the extraordinary power to enact law unchecked by Presidential meddling or objection. Obversely, when the Congress hands a bill to the President on its way out the door for a holiday or end of session adjournment, and he is therefore unable to return that bill for Reconsideration, if the President does not sign the bill within ten days, it cannot become law: this maneuver is known as the pocket veto, and has been used in the relatively recent past. For a Speaker or President pro Tem to adjourn without the President's assurance that every bill passed on that last day will be law by morning is an unusual event, and indicates a willingness on the part of the Congress to see at least some of their bills not become law. This rule allows a certain amount of leeway on the part of both branches of government, to schedule votes for unpopular bills that are nevertheless important to one or a few Congresspersons' holding their seats very late in a legislative session, which the President may then pocket veto, over no one's objection, and both branches can then claim to have served their constituents well without actually producing any substantive result.
Conservatives, and I would suspect, most voters, hate this clause, especially when their leaders enact a law which conservatives love and the President pocket vetoes it. The likelihood that it will be amended is directly proportional to the likelihood that there will be a Democratic Congress and a Republican Presidency again, which is to say, flip a coin that weighs 2/3 more on the "tails" side and call "heads." We will discuss amending the Constitution once I've dispensed with Article I, Section 8, which I am aware is skipping ahead more than a bit, but trust me, it will make sense once I've written it.