OBAMA MUST NOW RULE BY DECREE
NOTE WELL: THIS ARTICLE PRECEDED THE NEW YORK TIMES ARTICLE ATTEMPTING TO STEAL MY THUNDER. REMEMBER, AS YOU READ THIS, I GOT HERE FIRST. Author's Note:HH
Of Man’s First Disobedience, and the Fruit
Of that forbidden Tree, whose mortal taste
Brought Death into the World, and all our woe,
With loss of Eden, till one greater Man
Restore us, and regain the blissful Seat,
Sing Heav’nly Muse, that on the secret top
Of Oreb or of Sinai, didst inspire
That Shepherd, who first taught the chosen Seed,
In the Beginning how the Heav’ns and Earth
Rose out of Chaos: Or if Sion Hill
Delight thee more, and Siloa’s Brook that flow’d
Fast by the Oracle of God; I thence
Invoke thy aid to my adventurous Song,
That with no middle flight intends to float Above…
John Milton, “Paradise Lost,” London, 1667.
Our Constitution, born of the Age of Reason, that produced Milton, Newton, Locke, Voltaire, Sheridan, Kant, Montesquieu, and Beaumarchais, in addition to our founding fathers, was fascinated by the concept of the machine. The true savior of the American Revolution, King Louis XVI, was himself a fancier of clockworks: he bought and tinkered with clock mechanisms, even as his people were in the throes of starvation and revolution and his monarchy lay nearly moribund.
The framers of the Constitution believed that they had succeeded in creating a form of government that represented near perfect clockwork. While our system might thereafter need light tinkering, no complete overhaul or replacement would be necessary. Democracy having reemerged from the model of ancient Greece could not be improved. Using the model of the Ancients many of the early statesmen of America could not even imagine democracy without a concurrent system of slavery that would allow the rich and landed to contemplate philosophy, science, the arts, and government, without having to tend to the more onerous labors of husbandry and manufacture. As I have pointed out before, slavery created a theoretical conundrum first recognized by Thomas Jefferson. Having written “all men are created equal,” he was left with the contradiction that if he followed Locke, and wrote in the same sentence, that unalienable rights included property, he would be saying that all men are created equal, but some folks could be the property of others. So he engaged in a brief flight of poesy by including the alternative phrase, “pursuit of happiness.” Over the course of the next century Americans would struggle with this contradiction that finally took a great Civil War to resolve.
Some contradictions post-dated the adoption of the Constitution. The progenitors of our form of government simply did not believe in the establishment of political parties nor that political parties could serve to advance the needs of the new Republic. Perhaps they were influenced by the internecine strife engendered in Europe between Guelfs and Ghibellines and believed that democracy might be suffocated by partisan gentry turned against the masses. When Thomas Jefferson ran for President in 1800, he called himself a “Republican” [historiographed as “Democratic Republican”]. His principal rival was Aaron Burr. When the two men tied the electoral vote, and Jefferson was elected after a fierce battle in the House of Representatives, it became clear that the original method set forth in the Constitution of electing the President and Vice President was faulty. The clockwork could not chime in unison simply by employing a system where the candidate with the most votes became President and the candidate with the second greatest number of votes became Vice President. Not with the emergence of political parties.
The Twelfth Amendment made clear that contestants for the Vice Presidency must be labeled as such. So-called historians who seek to finesse the issue tend to teach their students that the Twelfth Amendment requires the President and the Vice President to run together on the same ticket. That is false. The framers of the Twelfth Amendment were as dead set against a party system as were the original signers of the basic Document. What the Twelfth Amendment stands for, rather, is the persistent belief that there is something impure about a democracy (or a republic based upon democratic principles and institutions) that in any way references party politics. Therefore, there is NO mention of the political parties anywhere in the Constitution. This doctrinaire omission still leaves, for example, the irrational possibility that the removal or death of a Vice President could lead to his or her replacement by a Vice President of a party other than the President’s, where the Senate is controlled by a party in opposition to that of the President, see, Amendment XX.
The stubborn failure of the Congress to address the party system as part of the language of the Constitution has led to the subversion of democracy. Without a party system, there would simply be no need to raise vast amounts of money to defeat candidates in opposition to each other merely on issues. It is the hoped-for triumph of political parties that animates such gigantic spending that the framers of the Constitution would stand aghast. Supreme Court Associate Justice, Antonin Scalia, whose professional co-dependency with Justices Clarence Thomas and Samuel Alito grants him three automatic votes on the Court, can easily ignore the provision of the Magna Carta (1215), which deprived Prince John of the privilege of buying and selling public office, and get away with declaring, according to the mythic 18th Century his brain inhabits, that the framers of the First Amendment intended that free speech is coterminous with money.
The refusal of Congress and the country to deal with the party system at a Constitutional level has now reached an impasse of unprecedented Constitutional significance. The work of government the People so desperately need has been stymied in the Congress by a system that has, in its partisan rigidity, far outdistanced our anarchic, anachronistic apolitical premised Constitution. Therefore, pursuant to Section Three of Article Two of the Constitution, the President should prorogue the Congress, suspend the Constitution, and Rule by Presidential Decree, until a new Constitution can be voted upon by the People. The embarrassment and disgrace of the American system by ridiculous, immutable controversies over spending, revenues, debt, and forfeiture of the fiscal good faith and credit of the United States of America must be brought to an end. Partisanship, without A SINGLE CHECK OR BALANCE IN THE CONSTITUTION must be ended!
A new Constitution should create single five-year terms, based upon the election of ONE of any number of parties, absolutely coterminous, effecting the tenures of the Presidency, the House and the Senate. No committee or commission or convention should be established to draw up a new Constitution. The President should present the new Constitution for referendum within six months of the forced adjournment of the Congress. The new Congress should, pursuant to an articulated exception to the First Amendment, have the power to regulate the length and financing of every election in the country.
An independent judiciary should be split in two. One half to deal with claims against the government and the other to adjudicate private disputes. A judicial commission should be instituted to assign Constitutional issues to an independent judicial forum to be established for such purpose. The right to privacy against warrantless searches and surveillance should be reestablished. The Fifth Amendment should make clear the abolishment of torture and rendition for such purpose. The First Amendment should preclude ownership of the news media by foreign born entrepreneurs and international corporations, including the military-industrial complex and the medico-hospital-pharmaceutical complex. The Second Amendment should be repealed and replaced by a Constitutional guarantee of state-of-the-art health, mental health, and preventive care. Finally, the power of a newly formed Congress to Declare War and Conclude Peace, should be reinforced by a provision immediately removing from office any President who takes Americans into harm’s way without an explicit Congressional Declaration of War.
At the heart of the failure of the Obama Presidency is his petrifying fear of spontaneity. Adjudging the reign of Pope Julius II to have been a success [with apologies to women who have pioneered a long, long way], Niccolo Machiavelli concluded:
“I conclude, therefore, that since Fortune changes and men remain set in their ways, men will succeed when the two are
in harmony and fail when they are not in accord. I am certainly convinced of this: that it is better to be impetuous than cautious, because Fortune [ahem!] is a woman, and it is necessary, in order to keep her down, to beat her and struggle with her. And it is seen that she more often allows herself to be taken over by men who are impetuous than by those who make cold advances; and then, being a woman, she is always the friend of young men, for they are less cautious, more aggressive, and they command her with more audacity.”
From “The Prince,” 1532, tr. Bondanella & Musa, 1978 (emphasis added).
Harvard Hollenberg is a writer and an appellate attorney in New York City.
© Copyright Harvard Hollenberg 2013. All rights reserved.