What is a Constitutional Crisis? And Are We In One?
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What is a Constitutional Crisis? And Are We In One?


>>Thank you Justin for that introduction. Thank you Kevin for everything
that went into today’s events. Thank you to The Institute for the Study
of the American Constitutional Heritage. It’s actually my third time in
Norman which is a real treat for me. But the first since moving to UT. I have to say, you know, I was really
worried that you guys were going to be really hostile this time around. But, I guess, you just don’t
care about UT football right now. I wonder why? I should actually confessed
I grew up a Michigan fan and so I’m really indebted to all of you guys. Thank you for Ohio’s State. And so, in honor of that I
wore the closest thing I have to crimson and cream for the talk today. If nothing else hopefully that gets me
out of here without too many tomatoes. When Kevin reached out to me about giving
the Constitution Day lecture, I said, “Oh my gosh, that sounds like so much fun. Whatever should we talk about? I mean, there’s nothing interesting going
on in constitutional law right now.” My favorite topic for Constitution
Day lecture actually is — has a pretty straightforward title, is
the Constitution Day unconstitutional? By the way, the short answer is yes. So that lecture is going to be pretty sure. Kevin said, “You know, you might
actually want to have to, you know, talk for more than five minutes.” So I took a look at what was going
on in the headline and what a lot of folks have been talking about. And we thought it would be a good
time to reflect a bit more generally on what is a constitutional
crisis and are we in one? And just to give away the ending, in
case you got to sneak out before hand, The ice dragon burns down the wall. No wait sorry. Too soon. To give away the ending, the short
answers are it’s complicated and not yet. So let me take a few minutes to unpack each of
those points and tell you where I come from and, hopefully, we’ll have some time at the end for
Q and A. So, what is a constitutional crisis? Well, the definition I want to offer today is a
bit wordy but I hope clearly conveys my point. So, here we go. A constitutional crisis arises whenever
one of the institutions responsible for preserving the checks and balances within
our constitutional system loses the ability, whether at its own hand,
or that of others to do so. That told you it was wordy. This may seem like an arrow definition. I mean by that logic there are lots
of things that sound like crises and feel like crises and are not crises. But let me try to use a couple of case studies to illustrate why I think this
narrow definition is, in fact, the proper way to think about the issue. And, perhaps more importantly, why I
think we should keep clear the difference between a constitutional crisis which is
a whole big problem and a political crisis which may be actually more important
in the moment that we live in but perhaps less important in the
long run of our constitutional system. All right. So, four case study. Case study number one, the election of 1800. And here, please forget everything
you’ve learned from Hamilton the musical. A little bit of artistic license in that song. So, if you know your American history, right. This was a battle between the Federalists
and the so-called Democratic Republican. Right. John Adams is seeking a second term versus Thomas Jefferson’s and
a lesser extent, Aaron Burr. Of course, right, what happens if there’s a
tie but the tie is between Jefferson and Burr because under the Constitution as enacted,
electors vote for two people without specifying which one is supposed to be the president and
which one’s supposed to be the vice president. And everyone was so nervous that the
election was going to be close that it turns out that all the Democratic Republican
electors vote for both Jefferson and Burr. Alright, so two interesting things happen. First, this is my favorite part of this story, Thomas Jefferson effectively
counts himself into the presidency. So, how does that happen? We have to do a little bit of math. I know you guys there is no math —
like on the flyer — it said no math. We’ll do a little bit of math. So in the election of 1800, the threshold
for a majority was 70 electoral vote. So 69, you wouldn’t have a majority. If you had 69 or fewer– if no one had 70
or more, then the election went to the house to choose among the top five,
right, electoral vote getters. If there was a majority and there was a tie,
the founders contemplated the possibility, the house would use among
the two top vote-getters. Well, turns out Georgia, thank you
Georgia, screwed up their electoral votes. Right, they were formatted incorrectly. And Georgia had four electoral vote. So if you didn’t count George’s for electoral
votes, Jefferson and Burr would have 69. And then that house would break the
tie between the top five candidate which included Jefferson,
Burr, and three Federalist. The Federalists lame duck
house would break the tie. So you had a real prospect for a crisis. Not to worry, the presiding
officer of the Senate is in charge of counting electoral vote when they’re open. And in this case, the presiding officer
open Georgia’s electoral votes and decreed that they were correct and proper
and there was no problem whatsoever. Who is the presiding officer of the Senate? Thomas Jefferson. Right. So, problem number one, Thomas
Jefferson right into the two way tie by decree of no problem with Georgia’s electoral ballots. Problem number two, deadlock. The problem goes to the house. The house tries to break the tie. The first 35 ballots, right,
there’s no clear victor. Everyone start to get freaked out. It’s February 17th. Inauguration is supposed to be March 4th. What happens if we get to March 4th
and there’s no confirmed president? There’s actually some debate about this. There’s actually a statue called
Presidential Succession Act of 1792. And there was an argument under the statute
that if you got to March 4th with no president and with a new Congress and no vice president, the presidency would fall
upon the Secretary of State. Anyone know who the Secretary of State was? John Marshall. Who was a Federalist. So, we had real trouble. But on the 36th ballot, famously,
Delaware break the tie. Vote for Jefferson. Everyone goes home. Burr goes to kill Hamilton. If you listen to the musical
that’s the order of events. Not quite that easy. Okay. Here’s the question. Was that a constitutional crisis? I want to suggest, perhaps
counter-intuitively, the answer is no. That in fact, the system was working
exactly the way it was supposed to. Even if it was this [inaudible] cockamamie
came to vote for the top two people as opposed to a president and a vice president. Right. But, look how close we were, right, if we had gotten to March 4th
with no resolution in the house. Right. Then, yes, we would have
had a constitutional crisis because the system would
have broken down, right? Because the presidency would have fallen
to someone no one voted for, right, from a party that just got
drowned on the Hustons. And I think you would have seen I think
perhaps even violence and response. We avoided it. We dodged that bullet. Okay. Case study number two. Let me jump over the one thing that, I think,
everyone will agree was a constitutional crisis. The Civil War and let’s fast-forward
to reconstruction. So, Reconstruction, right, Andrew Johnson
succeeds president Lincoln upon Lincoln’s assassination and then the Radical Republicans
win huge majorities in both the house and the senate in the 1866 midterms. So, now we have a Democrat president, Democratic
president, who is not super into the harshness, right, of radical reconstruction. We have veto-proof supermajorities of Radical
Republicans in both the house and the senate. The result is a bunch of, I think, really
positive things like the Civil Rights act of 1866, the Fourteenth Amendment and so on. But also some left positive things such
as the Military Reconstruction Act, right, which turned the South into a series
of military District to be governed by the army not by civil authority. The Tenure of Office Act through Congress
tries to prevent President Johnson from firing any of his cabinet secretaries. So, there’s actually two episodes I
want to highlight within Reconstruction. The first episode is litigation over
the Military Reconstruction Act. So, this begins shortly after the act is passed
with a lawsuit by the state of Mississippi. And Mississippi sues President Johnson directly in the Supreme Court invoking the
original jurisdiction of the Supreme Court. And there’s this remarkable moment — keep in mind Andrew Johnson vetoed
the Military Reconstruction Act, thought they were unconstitutional,
was vehemently opposed to both their policy and their enforcement. And, nevertheless, walks into the Supreme
Court, well he sent his attorney general, but his attorney general to argue
that the Supreme Court has no power to issue an injunction against him. Right. Not because of the statute,
but because he is the president and they are the Supreme Court. And the Supreme Court which is all too happy to
avoid what would have been a cataclysmic ruling, one way or the other, on the merits
of the Military Reconstruction Act, obliges and offer this very terse opinion that the federal courts lack the power
directly to enjoin the president. This case, by the way, Mississippi versus
Johnson being invoked by President Trump on why he can’t be forced to
unblock people on Twitter. So,I guess things come full circle. But know what happened. President Johnson in the midst of what could
have been described a constitutional crisis assert the constitutional
authority of the executive branch to defend again an action
that he completely opposes. Right. And to protect the
prerogative of the executive branch. To me, right, that the structure working the
way it’s meant to, not a constitutional crisis. Fast forward to the Tenure of Office Act. The Tenure of Office Act is
passed shortly thereafter. Again, President Johnson’s vetoes
it on constitutional grounds. This time, right, Congress fires the gun. This time Congress says, “Aha! you’ve committed a high crime or
misdemeanor and we can now impeach you.” And so the House of Representatives votes out
11 articles of impeachment although, honestly, it’s just 11 different way of saying ways of saying he violated you
violated the Tenure of Office Act. Kind of funny. Right? And the Senate tries Andrew Johnson
and comes within one vote of removing him. Right? The vote on three of
the article was 35 to 19. Had one more Senator voted for im — voted for removal that would have
been the two-thirds threshold required by the Constitution. Imagine if that would have happened. Imagine if you had a president who was
impeached purely for political reasons based on a constitutional argument that
was not well received at the time and that the Supreme Court will, in fact, will about forty years later
hold to be unconstitutional. Right? Imagine you had a
purely partisan impeachment of a president based solely
on political differences. I think that would have been
a constitutional crisis. We escaped that one by the skin of our
teeth, but escaped it, I think, we did. And you can say the same for the one
impeachment of the Supreme Court Justice in American history back in 1805
when the Democratic Republicans try to impeach Federalist Justice Samuel Chase. And again, the conclusion was,
impeachment is not supposed to be for pure partisan and political disagreement. That too, was a close call. Alright, so those are our
first two case studies. Right? The election of 1800, Reconstruction,
moments where we came perilously close to what, to me, was the constitutional cliff. But, we’re fortunate enough to not jump off. Forward it to 1937 when we get to, what
to me is it case study number three, President Franklin Delano
Roosevelt court-packing plan. So, a little background. Right. FDR is elected with
huge majority in 1932. Comes into office in 1933. Has this massive wave of legislations a lot of
it is actually relatively novel from perspective of the types of power it was claiming. And, you have a pretty conservative Supreme
Court led by four conservative justices which were known as the time as the
Four Horsemen of the Apocalypse. This was, just to show you how
college football is everywhere, this was not a Biblical reference
this was a reference to the Notre Dame backfield of the 1920s. So, even in 1925, college football was
defining the national conversation. I think in Norman I can say that
without getting into too much trouble. Okay. So, FDR has a really
bad year in the Supreme Court. And the bad year is 1935. The Supreme Court strikes down three of the
major center pieces of the New Deal program. The Supreme Court asserts various
limits on presidential power that had not been previously recognized. And in at least an a couple of cases the courts
were unanimous, forget the four horsemen, even the more progressive
justices were aligned against FDR. So, FDR in the 1936, runs as
much against the Supreme Court as he runs against any Republican opponent. Wins the landslide period is returned
to Congress in huge majorities in both houses and decides the time has come. So, early and 1937 he launches what he styles
as a completely benign effort to account for rapidly aging federal judiciary. And what FDR says is “our judges are old
and we need to help out the old judges.” So for every judge who has reached the age of
70 or above we’re going to add another seat to that court whatever cord it might be
be,– any court, anywhere in the country. What a coincidence, six of the nine Supreme
Court Justices had reached the age of 70. And so, the bill, if passed, would have
expanded the size of the Supreme Court to 15 with 6 brand-new FDR nominees. I’m sure that had nothing to do with it. And this is basically viewed, I think correctly,
as a direct assault not just on the court of that time but on the independence
of the judiciary in general. Had FDR been successful in expanding
the size of the Supreme Court, I think it would have seriously damaged
the Supreme Court as an institution. More importantly, I think, it would have set the
precedent for any party once it gained control of both houses of Congress and the presidency, to expand the Supreme Court
to its own political benefit. The Supreme Court today would have 91 justices. That would be awkward. Instead, right, two things happened. And I think historians are split as to which
was causal and which was more of a byproduct — indeed if as to whether they were even related. The first thing that happens is FDR meets, at
least what was to him, surprising resistance. A surprising backlash from members of his own
party in the House and especially the Senate. Right. For one, the Court as an
institution you appears more important than the politics of the moment. But then, too, perhaps more famously
to students is the switch in time. Where on March 29th, 1937, Justice
Owen Robert switches his vote, right, in the West Coast Hotel versus minimum wage case
which is the harbinger of the fundamental shift in the Court’s approach to economic
regulation and basically por-tens of deference to legislatures that follow
and with it, basically, the withholding of almost all all
of the major New Deal program. So, you know I think there are a
couple ways to look at this episode. One, once again, you came perilously close to
a constitutional cliff where the credibility and the legitimacy of the Supreme Court
would have been damaged if not, you know, indefinitely, at least for a long time. Two, we averted it because one or both of
the institution, not necessarily pushed back, but found ways to abate the crisis. Found ways to at least tone things down. FDR then abandoned the court-packing plan. He says, because he’s become
convinced it was unwise. When, in fact, it had become unnecessary. Okay. Last and perhaps most recently. This might be the one that’s,
sort of, most on everyone’s minds. Watergate. Right. I think there are lots of reasons
to compare Watergate to various things that are going on around us today. So, let’s start with the first,
sort of, moment of real crisis. This Saturday Night Massacre. So, President Nixon want to fire the
special prosecutor investigating Watergate, Archibald Cox. Right. He orders his attorney
general, Elliot Richardson, to do it. Richardson says, no thank you and resigns
or is fired depending on your perspective. I go with resigned. Then, he orders Richardson Deputy, Ruffle Shoust
[phonetic] to do it, Ruffle Shoust says no. He’s out. And then Robert Bork, who
is at the time the solicitor general, and on the line of succession
was the acting attorney general with those two out, says he’ll do it. Right. Was the Saturday night
Massacre a constitutional crisis? I submit to you the answer is no. Right. That under the regulations
as they existed, the president had the unquestioned
power to fire the special prosecutor. He had the unquestioned power
to fire the attorney general for not firing the special prosecutor
with political consequences. And this is one of the point
that really comes through. Right. Sometimes the appropriate response
to what seems like a constitutional is in fact a political reaction not a legal one. Right. That those kinds of measures are supposed to be understood to trigger
a political reaction. And if the president had political support to do
it then we tend to think it’s within his power. Alright? What happens next? Well, there’s political blowback. In response to Saturday Night Massacre. Congress really, I think, at that point dark
to get really, how shall I say it, ornery? — about the whole investigation. Congress really ratchets up its investigation. A new special prosecutor is appointed. This time one who is, there is this sort of
deal made where Jaworski won’t be fired, right? And no one will be instructed to fire him. And what happened? Well, Congress and the new special
prosecutor both subpoena the infamous tapes. So, we have subpoenas for the tapes, the case
goes to the Supreme Court and the Supreme Court in July of 1974 rules that Nixon have to comply with the subpoena and has
to turn over the tapes. Was that a constitutional crisis? I would say no. Alright? What if Nixon ignored
the Supreme Court? Haha this is where now it gets interesting. Well the supreme court orders him to turn
over subpoenas, to turn over these cape and he doesn’t do it that must
be a constitutional crisis. Maybe. But one thing would have happened
for sure if Nixon had refused to turn over the tapes, he would have been impeached. He would have been in at least in part
for refusing to turn over the tapes. Instead, he turns over the tape. The tapes end up inculcating
him rather dramatically and he resigned several weeks
later on the eve of impeachment. Right? Is this an example
of a constitutional crisis? I want to suggest that the answer is no. Right? That the institutions actually worked
the way they were designed to under pressure. The president put pressure on the
institutions by firing his subordinates to achieve a particular if
controversial policy outcome. The political branches, the
House and the Senate pushed back. The Court pushed back. Right? And it culmanated in what was a
constitutionally appropriate de nu mieux [assumed spelling]. So in each of these moments of
unquestioned political crisis, we came perilously close to
a real constitutional crisis. Closer than I think we often accept. Right? One or two things
change in each of these stories and if we had much more serious
of a matter and an episode. But something happened for better or for worse
to prevent us from going over the precipice. Moreover, although the individual actors and, or
institutions may have overstepped their bounds in each of my examples and plenty of others. Right? The Constitution structure
worked in each of these contexts with the relevant constitutional
mechanism serving perhaps more slowly than we might have liked to avoid
for at least a bait the real crisis. Right? I guess all of this is leading toward
this conclusion that we actually have lots of political crisis in this country but we’ve
been lucky, at least so far in our history, to experience relatively
few constitutional crises. So, I guess what all that suggests is that within those contact it was the
Constitution itself that function, for better or for worse again, to prevent
a constitutional crisis. Alright, so let’s take these lessons, such as
they are, and apply them to the present moment. The present moment. I always feel like I have to take a deep
breath when we turn to the present moment. So, for starters, it seems to me beyond that
the president of the United States has gone out of his way to attack each of the institution
that are designed to serve as a check on him including the formal checks
of the legislature and the courts and the informal check provided by the media. I don’t think that is a controversial statement. I think everyone would agree that yes
the president attacks his institutions. But, has he actually done anything? Is there anything beyond tweets to undermine
the actual authority of those institutions to do their job and serve their function? Let’s take them one at a time. So let’s start with the legislature. So it seems to me that there are three
interesting flashpoints When it comes to the president’s relationship with Congress. First, and perhaps least
interesting, is his new found obsession with getting rid of the filibuster. Right? Whatever you think of the filibuster
it is the creature of Senate rules. It is not part of the Constitution. You know, I think that it obviously causes a
huge policy concern no matter whether you’re a Democrat or a Republican or an
Independent or, you know, a Martian, but as a constitutional matter I just don’t
see people getting exercised about having or getting rid of the filibuster or ordinary
legislation especially if you accept, as I do, that the Senate has the power at any moment by
a majority vote to get rid of the filibuster. A better example, I think, is the assertions of what has been called the
non-privileged privilege. So there have been a series of
witnesses, government employee witnesses, who and both well notice and much less
interesting Congressional hearings have invoked a new kind of executive privilege Where
they’re not even invoking privilege, their invoking their right to not
even assert executive privilege. This is a new thing, by the way. In other words, right, the way this
usually the way this is supposed to work is an executive branch witness
goes to Congress, is asked a question he or she doesn’t want to answer, asserts
executive privilege and there’s a fight about whether the privilege is validly asserted. That’s the way the structure
is supposed to work. What happened when you have this non-privileged
privilege issue is you have indications of something that sounds
like executive privilege but, until and unless Congress forces the witness to formally assert executive
privilege, he or she is off the hook. Alright? This strikes me as not
yet a constitutional problem. But note the role of Congress, right. The executive branch, in a way, thumbing its
nose at the compulsory powers of Congress to compel testimony or evidence.,
Congress hasn’t reacted be asserting them. Right? To me, the problem arises if we get to
a point where Congress pushes back and says no, you must assert the privilege
and then things go off the rails. So, again, right, we’re kind of move —
rolling down that mountain, but pretty slowly. Third, right, for all the talk and I
am one who does a lot of this talk, that Congress has been largely
feckless over the last eight months. Consider the Jeff Sessions
firing and trial balloon. Right. So there’s a lot of
talk a couple weeks ago about the president’s desire
to fire Jeff sessions. We learned kind of late last week that the
president in fact had an offer from Session to resign and there was speculation that the
president might do all kinds of shady things to put someone in the Attorney Generalship
who might be much more willing to try to shut down the Russian investigation. What got much less attention was a
statement by Senator Charles Grassley, the chair of the Senate Judiciary
Committee that quote “We are too busy for any more confirmation hearings”. Unquote. Ask to clarify, Senator Grassley said, “There will not be another attorney general
confirmation hearing this year period.” Right? So that sounds like, you
know, okay, politics whatever people. People just saying what they’re going to say. That’s the Republican chairman of the Senate
Judiciary Committee telling the president that if he fires Sessions he’s
not getting him a successor. Right? That’s actually a pretty powerful — I
realize we’re desperately looking for signs. Right? But actually that’s a
pretty powerful one, right. That Congress is not actually
wholely rolling over. That Congress is paying some
attention to what is going on. That Congress is just sort
of at least a little bit of this institutional priority and privileges. So, with regard to the legislature, I
think there’s nothing really there yet. Maybe a better example is the courts. President Trump, not a big fan of the court. Or so his Twitter feed tells me. Of course, right, there’s the whole
judge Curiel [phonetic] situation. There’s this ongoing tweets
about the travel ban. And let me just say, I think Neil
Catial who’s the lawyer for the state of Hawaii has said this best, “The
president has basically become co-counsel to the challengers in the travel ban cases. Every time they need something
he helps them out.” Right. The president attacks on the
court though have been purely rhetorical. He has done absolutely nothing to suggest
non-compliance with these decisions. The government has responded to every
single order in these cases in a matter that was procedurally appropriate. Right. There was compliance all up and down. Even the grandparents. There was this whole stink about
the grandparents and the guidance from the government that act the Supreme
Court, June 26th ruling in the travel ban case, the government was still going to exclude grandparents even though those
are clearly, right, close family members. That’s just a fight over interpretation. Which the government then
lost in court and then comply. Right. So, to me, again, we have
to separate the bark from the bite. The president talks a big game but I think we
will often find with him there’s not much there. Okay. The more interesting moment for me
when it comes to the court is the pardon of former Maricopa County Sheriff Joe Arpaio. I was a law clerk after law school on the
9th curcuit, the federal appeals court for the west coast including Arizona. Joe Arpaio is a jobs program for lawyers. Especially civil rights lawyers. And so the president pardoned Sheriff Arpaio
when the underlying offense was contempt of court because Sheriff Arpaio had been
disobeying court orders and continue to profile what he believed
to be Mexican national as part of his immigration enforcement policies. Of course, this sounds bad. It sounds like it’s an attack on the courts. You have an executive officer, Sheriff
Arpaio, who is disrespecting the courts. Who is held in contempt for doing so
and the president let him off the hook. And my response is that how
the pardon power works. There’s actually a Supreme Court decision
directly on point from 1925 written by Chief Justice, and we might add
former president, William Howard Taft that the pardon power extends
to contempt of court. Right. The theory being that the pardon
in power is actually a check built into the Constitution for abusive by the court. And, if there’s a concern, Taft
literally says this in his opinion in ex parte Grossman 92 years ago. He said a real concern that the powers being
used abusively or in a manner that just designed to help your friends or patronage, then the remedy the Constitution
provides is called impeachment. Right. So, again this is not a breakdown in the Constitutional sure it’s
just a politically objectionable, politically problematic development. Okay, so that’s the court. Of course we’ll see what happens with
the travel ban case is going forward. Perhaps they’ll be moot. Perhaps the president will reinvigorate
the travel ban between now and October 10th but more tweets are surely to come. And let me last say a bit about the media. Because I actually think this
is the area where there’s cause for concern that might be the most grave. So there’s been lots of problematic
commentary and media access policies. The White House, for it time had
stopped allowing a video recordings of the daily briefing. I love the surreptitious video recording. That was hilarious. But, I mean, to be frank, there have been no
actual effort to go after the press whether for libel as the president has repeatedly
promised he would or for its role in leaks which has long been a concern of the media. Right, that the government might ramp up its
ability to use prosecutorial tools especially in National Security cases
for ordinary news gathering. Even the — The only real news story that we
have with regards to the media was last month when the justice department had this
much ballyhooed press conference where Attorney General Session talks about
how much tougher they’re going to be on leaks and reporters and we’re going
to revisit everything. He didn’t actually change any policy. Right. Nothing actually change the
result of that press conference. And so, what we have, right, is it again,
the rhetoric out stripping the reality. Where it sounds like things are
actually much worse than what they are and where the political crisis is being
confused for a constitutional one. Now, let me see — let me sort
of underscore this last point. Right. All of this could change
and in a hurry if, for example, the president starts defying traditional
decision, or refusing to comply with subpoenas, or prosecuting reporters, or
finding ways to subvert Congress. My point this afternoon is
that we’re not there yet. Now, that there’s no constitutional
crisis does not mean that we’re not in the middle of a political crisis. And I do think that we are
in the midst of a sustained and serious crisis of politics in this country. But that crisis predate this president by a fair
amount of time and it will continue after he is out of office, whenever that may be. And whether it’s cause or effect it
seems to me impossible to sever the link between the political crisis and the
polarization of Congress to the point where things that never would
have been viewed as partisan, as recently as a decade ago are
cast today wholly in partisan term. I am looking at you, Russia. The real question it seems to
me then even on Constitution, is whether this political crisis increase
the likelihood of a constitutional crisis at least insofar in particular is unable or
unwilling to use the authority it clearly has to respond to the envelope
pushing executive branch. And here again I would hearken back to
the non-privilege privilege example. Right. If Congress is really going to allow
executive branch witnesses to come proport to testify, not really invoke privilege and not
answer questions, eventually if that repeats in perpetuity, you could get
to a constitutional crisis. We’re just not there yet. So, in this regard, I’m reminded of an old
story about a freshman Democrat in the house. And I actually did some research on this. It actually likely originated as a quote by Sir
Winston Churchill but the West Wing picked it up and turned it into a quote by a House member
and so, today, every reference is to the house and you can’t find any pre West Wing
references to it being an American construct. But, bear with me. So the way the West Wing tells the story,
though it really sounds like Churchill. the Democratic House member is walking around
the hill with a senior member of his party. This guy is a freshman and he
says where are the Republicans? I want to meet the enemy. And the senior member pats their freshman
on this Soldier and says, no no no. The Republicans aren’t the enemy. They’re the opposition. The Senate, now that the enemy. Does anyone think like that anymore? This was whether it’s apocryphal or not how
the separation of powers used to function. The House and the Senate were
almost separate branches. Right. And instead we don’t
ever talk like that today. Ours is increasingly a system
favoring a separation of parties rather than a separation of powers. And when you have divided government in
Washington it tends to work out okay at least in the sense that nothing happens. But, when you have one-party rule, you
have a real concern for break down, right, even in the Constitutional tracks. And it’s so I guess my sort of
bottom line and closing, right, is that we’ve been lucky thus
far that this trend hasn’t cause, or at least hasn’t prevented, Congress
from stopping a real constitutional crisis. But, given the world we live in,
it may just be a matter of time or tweets before our luck runs out. Thank you very much.

One Comment

  • Atom Bigod

    As the intellectual property owner of Modern western law as my family invented it in 1100, 1215, and so one, by writing the Magna Cartas, I can say that I am in agreement with Shakespeare, "kill all the lawyers." "People" are inherently corrupt, so as long as the courts are run by humans, there is no justice. We need an A.I. programmed with every law. No one in the world has any rights, not one. Rights are taken only by the sword in my hand. No laws apply to me because I'm free and I carry a sword.

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