Monday, October 10, 2011

Explaining the Senate to the Senators

Justice Scalia spoke before the Senate Judiciary Committee last week and explained to the Senators the fundamental idea of the Senate, a subject that they should be well aware of. Karl at Hot Air has the text of how he explained to them that our bicameral legislature and three branches of government.
I ask them, “Why do you think America is such a free country? What is it in out Constitution that makes us what we are?” And I guarantee you that the response I will get — and you will get this from almost any American *** the answer would be: freedom of speech; freedom of the press; no unreasonable searches and seizures; no quartering of troops in homes… those marvelous provisions of the Bill of Rights.

But then I tell them, “If you think a bill of rights is what sets us apart, you’re crazy.” Every banana republic in the world has a bill of rights. Every president for life has a bill of rights. The bill of rights of the former evil empire, the Union of Soviet Socialist Republics, was much better than ours. I mean it. Literally, it was much better. We guarantee freedom of speech and of the press. Big deal. They guaranteed freedom of speech, of the press, of street demonstrations and protests, and anyone who is caught trying to suppress criticism of the government will be called to account. Whoa, that is wonderful stuff!

Of course, it’s just words on paper, what our Framers would have called a “parchment guarantee.” And the reason is that the real constitution of the Soviet Union — you think of the word “constitution” — it doesn’t mean “bill” it means “structure”: [when] you say a person has a good constitution you mean a sound structure. The real constitution of the Soviet Union *** that constitution did not prevent the centralization of power in one person or in one party. And when that happens, the game is over, the Bill of Rights is just what our Framers would call a “parchment guarantee.”

So, the real key to the distinctiveness of America is the structure of our government. One part of it, of course, is the independence of the judiciary, but there’s a lot more. There are very few countries in the world, for example, that have a bicameral legislature. England has a House of Lords, for the time being, but the House of Lords has no substantial power; they can just make the [House of] Commons pass a bill a second time. France has a senate; it’s honorific. Italy has a senate; it’s honorific. Very few countries have two separate bodies in the legislature equally powerful. That’s a lot of trouble, as you gentlemen doubtless know, to get the same language through two different bodies elected in a different fashion.

Very few countries in the world have a separately elected chief executive. Sometimes, I go to Europe to talk about separation of powers, and when I get there I find that all I’m talking about is independence of the judiciary because the Europeans don’t even try to divide the two political powers, the two political branches, the legislature and the chief executive. In all of the parliamentary countries the chief executive is the creature of the legislature. There’s never any disagreement between them and the prime minister, as there is sometimes between you and the president. When there’s a disagreement, they just kick him out! They have a no confidence vote, a new election, and they get a prime minister who agrees with the legislature.

The Europeans look at this system and say “It passes one house, it doesn’t pass the other house, sometimes the other house is in the control of a different party. it passes both, and this president, who has a veto power, vetoes it,” and they look at this, and they say (adopting an accent) “Ach, it is gridlock.” I hear Americans saying this nowadays, and there’s a lot of it going around. They talk about a disfunctional government because there’s disagreement… and the Framers would have said, “Yes! That’s exactly the way we set it up. We wanted this to be power contradicting power because the main ill besetting us — as Hamilton said in The Federalist when he talked about a separate Senate: “Yes, it seems inconvenient, inasmuch as the main ill that besets us is an excess of legislation, it won’t be so bad.” This is 1787; he didn’t know what an excess of legislation was.

Unless Americans can appreciate that and learn to love the separation of powers, which means learning to love the gridlock which the Framers believed would be the main protector of minorities, [we lose] the main protection. If a bill is about to pass that really comes down hard on some minority [and] they think it’s terribly unfair, it doesn’t take much to throw a monkey wrench into this complex system. Americans should appreciate that; they should learn to love the gridlock. It’s there so the legislation that does get out is good legislation.
As Karl points out, there are quite a few voices on the left today who love to lament how things take so long to get done in Washington and how gridlock is preventing great policies from being enacted. What they really mean is that Republicans in the Senate are blocking policies that the Democrats like. They were quite fond of gridlock when it was Democrats blocking Republicans under President Bush.

But Scalia is absolutely correct about the thinking of Madison and the other Founders to allow ambition to counteract ambition. They established a system that would protect the political minority and prevent a tyranny of the majority. We should be dang thankful that we still have that system today.

Think of how European leaders ignored the wishes of their populations to spring into a system of a common currency and the disaster that that has wrought today. Their leaders are still ignoring the popular will on the Euro and bailouts of the PIIGS nations. It would be a lot more difficult for American leaders to ignore the populace and give up American sovereignty to an international organization. There are still attempts to do more of that and sacrifice more American power to the United Nations and other international groups. We'd slide into that morass much more easily without our system of checks and balances.

We're seeing how dangerous it is to our political system when the Senate Majority Leader made a power grab to curtail the rights of the minority. The Republicans will retaliate by slowing everything down and making the Senate even more unwieldy than it was before. They are almost obligated to act that way in order to serve notice that Reid won't get away with any more use of his nuclear arsenal. And deep down the Senate Democrats must be hoping that this can get fixed up and Reid backs down before they are the party in the minority and they wish to use all those tools that they're moaning about the GOP using now. And when the roles are switched the Republicans will be the ones eying their nuclear arms. It would be better to follow Scalia's advice and learn to love the gridlock.

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