Diatribes of Jay

This is a blog of essays on public policy. It shuns ideology and applies facts, logic and math to economic, social and political problems. It has a subject-matter index, a list of recent posts, and permalinks at the ends of posts. Comments are moderated and may take time to appear. Note: Profile updated 4/7/12

12 July 2007

A Necessary Heresy

Warning to readers: what you are about to read is heresy. Not religious heresy, but American heresy. I am about to question our Constitution.

If you believe our Constitution is perfect, the living essence of Truth, then skip to another blog. If, on the other hand, you believe that most things can be improved, and that human history did not culminate in 1791, then read on.

In a bit of humor, I recently suggested one way in which our Constitution is defective. The Great Compromise gives people like Jeff Sessions equal power and prestige with thoughtful leaders like Richard Lugar, Hillary Clinton, Diane Feinstein, John McCain and Barack Obama.

Sessions represents the great state of Alabama. According to the latest Census Bureau figures, it is third among our fifty states in poverty and fifth in violent crime. It is third from the bottom in median household income and (according to a more recent independent analysis) fifth from the bottom in brains. If Alabama were a separate country, it would almost certainly belong to the third world.

With that sort of record, a senator of intelligence and decency might keep his mouth shut, his hands open for federal dollars, and his mind open for ideas to improve his constituents’ sorry lot. Instead, Sessions proudly touts their backwardness as a model for the rest of us. If you get tired of hearing his thick accent pushing his constituents’ prejudice and xenophobia as family values, then perhaps you’ll join me in regretting the Great Compromise that gave people like him a crack at the Senate.

But awful as it is, the Great Compromise is small potatoes compared to our Constitution’s other deficiencies. The Great Compromise weakens democracy but probably won’t kill it. Our Constitution’s other deficiencies might keen our democracy’s death knell. This essay explores one of the worst. A future essay will discuss a second.

Today our Constitution’s chief deficiency is painfully apparent. We have no way of getting rid of a sitting president, before his term is up, just for doing a terrible job.

We now have the lamest duck in our history. Polls show that George W. Bush would lose a recall election in a heartbeat. The Democrats would love to see his back. So, too, would most of his own party. Thoughtful conservatives now believe their party must suffer not one but two electoral debacles just to restore its traditional principles and common sense after the disaster of Bush’s and Cheney’s rule. Only a tiny minority, it seems, wants Bush or Cheney to stay in office, but we’re stuck with them for eighteen more months.

Eighteen months were not a big deal in Colonial times. Things moved more slowly then. It took as much as three months just to send an ambassador to Europe.

But today the pace of life is different. Think of all the things that could go wrong in the next eighteen months. We could suffer another September 11, or something even worse. We could have a second Katrina and lose New Orleans forever. We could find ourselves in a shooting war with Iran. Pakistan’s government, including its nukes, could end up in the hands of Islamic extremists. Iran could attack Israel. Extremists could invade or sabotage the Saudi oil fields, producing a worldwide economic catastrophe. Avian flu could mutate into a worldwide pandemic. Our monstrous deficit or imbalance of payments could precipitate a worldwide economic crisis. Do we really want Bush and Cheney still at the helm if any of this happens?

Pundits have noticed the extraordinary condition of our electoral politics. Several states have pushed their primaries forward, challenging New Hampshire for primacy. Full-blown campaigns are in progress in both parties, sixteen months before the general election. None of this has ever happened before.

Has anyone stopped to think why now, why this year? Isn’t the answer obvious? The whole country is tired of Bush and Cheney and can’t wait to see who will be next. Think how bad things might get if we had three or four years to go, rather than “just” eighteen months.

The real culprit is our Constitution. Its standard for impeaching a president—“high Crimes and Misdemeanors”—is utterly defective. No one knows what these words mean, but they sound legalistic. So in our over-lawyered society, we think we have to ask lawyers what they mean.

Our lawyers in Congress—of which we have far too many—take a legalistic tack. They wanted to impeach Bill Clinton because they understood the technical crime of perjury: a lie under oath that was knowing or deliberate. “Gotcha!” they cried, thinking they could prove that Clinton lied deliberately.

But what did Clinton lie about? Fellatio—in vulgar terms, a blow job.

Now just imagine yourself transported back to 1791. You’re asking Thomas Jefferson, James Madison, and Ben Franklin whether lying about fellatio was the kind of “high Crime and Misdemeanor” they had in mind. Assuming you could get them to talk about that kind of sex act at all, what do you think they would say? Most likely, they would answer noncommittally, shaking their heads and wondering whether you had taken leave of your senses.

Now consider Bush and Cheney. Nearly three quarters of the nation understand that they misled us into the War in Iraq and continued to mislead us about its progress for several years. So do most thoughtful Republicans. Everyone understands the result: over 3,600 American deaths, countless Iraqi deaths (estimated at from 59,000 to 654,000), a devastated nation suffering a civil war, a colossal waste of money and American prestige, and no end in sight.

Yet the lawyers in Congress think Bush and Cheney may be unimpeachable because it would be hard to prove that they lied knowingly or deliberately. So we have this odd juxtaposition: a sitting president was impeached because his lie about fellatio appeared to be deliberate, while others are immune for “innocently” misleading us into a disastrous war. Only a lawyer could imagine that Clinton was guilty of a “high Crime and Misdemeanor” while Bush and Cheney are not.

Yet there is more. Bush insists he can, by labeling you an “enemy combatant,” lock you up and throw away the key, without lawyer, trial, or contact with family or friends. Cheney, who created this dark vision, applauds. How would our Founders react to their claim? Even before our War of Independence, they would have decried it as an abrogation of their “Rights as Englishmen.” After 1791, they would have found it a clear violation our Bill of Rights. Isn’t that what they fought the real King George (III) about? Does anyone really think they would have considered lying about fellatio more important than that?

In truth, protecting us from tyranny has little to do with crimes, criminal intent, or legal technicalities that lawyers worry about in criminal trials.

The leader of a democratic society loses the right and power to lead upon losing the people’s confidence. If he somehow manages to remain in power, he becomes a monarch in all but name. That’s what Bush is now, with Cheney his grand vizier.

To remove such leaders, there should be no need to prove a violation of some specific statute, far less beyond a reasonable doubt. The question is political, not legal or criminal. We don’t need lawyers to tell us who is fit to govern us. Nor do our representatives.

The British recognize this point. When a prime minister loses a vote of “no confidence” in Parliament, they boot him out and call elections. They don’t leave the fate of their nation in the hands of a person they no longer trust for years on end. We shouldn’t either.

Leaving Bush and Cheney aside, I can think of no argument for allowing a president who has lost the people’s confidence to remain in office. The “stability” of bad government is not something we should endorse by law. The two parties might play games by throwing each other out of office with little notice, but those games would be short lived. Cooler heads would prevail, just as cooler heads preserved the filibuster recently in the face of radical Republican zeal.

In any event, shorter average presidential terms might produce better governance. Since Franklin Roosevelt, no president (including Reagan) has served two terms to the people’s complete satisfaction. Even Reagan gave us the Iran-Contra scandal and the hyperinflation of the mid-to-late eighties. The presidency is an exhausting and draining job. It has aged both Clinton and Bush visibly, and Franklin Roosevelt’s unprecedented four terms literally sucked the life out of him. Maybe eight years is simply too much time in office for all but the superhuman once-in-a-century president.

Today we have little reason to expect a president to do a good job through a whole term of four years, let alone eight. As currently configured, our political system rewards (with election) skill in demagoguery and political manipulation, not skill in governing.

This discrepancy is well known and oft remarked. Yet we are not likely to repair it until we get money out of politics. Doing that will probably require changes in our First Amendment, instructing our Supreme Court how to distinguish money from speech. In the meantime, we must solve an important problem: insuring that people who are skilled at manipulating voters but not so skilled at governing have some oversight.

Our most crying systemic need is for real checks and balances. As the Bush Administration has so effectively demonstrated, what passes for checks and balances today is a joke. The executive owns the military, the intelligence services, nearly all of the regulatory agencies, a huge bureaucracy, and hordes of government scientists. In addition, it has (or claims) the power to distort or suppress the information they generate. In our so-called “information age,” the executive’s near-total control over information is a decisive advantage.

An example may be helpful. The former Surgeon General of the United States, Richard Carmona, just testified under oath about consistent political interference with his attempts to inform the public about matters of medical science. According to the New York Times, he was (among many other things) “ordered to mention President Bush three times on every page of his speeches.” If that doesn’t sound like the Soviet Union to you, you’ve got a short memory of the Cold War and the reasons why we fought it.

Neither Congress nor the judiciary has (or claims) any such power. Among the three branches, the executive is the 800 pound gorilla. In comparison, Congress is a puny marmot. It has no bureaucracy, no soldiers and few scientists on its payroll, and few independent sources of information. It can’t even expect the judiciary consistently to take its side. When the executive and Congress clash, most of the time the judiciary calls it a “political question” and ducks the issue entirely.

In theory, Congress has the power of the purse, but that is a blunt instrument. In practice it has no real power even to stop a war, let alone an expensive program on which the people or a strong special interest depends. If nothing else, Congress’ recent cowardice in continuing tax subsidies to the oil and gas industries that perpetuate our energy dependence taught us that.

All Congress has real power to do is call hearings and expose the executive’s misfeasance and malfeasance. But if the people have to wait up to four years to make a change, what good is that oversight and the public exposure that it creates? When it comes to politics, people’s memories are notoriously short.

As for the judiciary, it has always been the “least dangerous branch.” Congress has the power to restrict its jurisdiction, and Congress has already done so at the executive’s behest. In the Detainee Treatment Act, Congress tried to deprive the Supreme Court of the power to hear cases arising out of military detention of so-called “enemy combatants.” As future presidents use their lopsided power to reward or punish future Congresses and their members, we can expect greater use of the power to narrow the courts’ jurisdiction.

The gloves are now off. Directly or indirectly, the executive has the power to make both other branches its vassals in all but name. Anyone who thinks it won’t use that power is dangerously naïve. That is just the type of naïveté that our Founders designed our government to reject. Yet there are still so-called “thinkers” in our land who want the executive to have even more power.

If this trend continues, both Congress and the Supreme Court will become mere appendages to executive rule. This result is not only foreseeable, but likely, unless there is dramatic change.

Only the ability to remove a sitting chief executive has a chance of redressing the gross imbalance in power among the three branches that prevails today. To be effective that power must be plenary; it must not depend upon legal technicalities or proof of violation of any law. What we need is a vote of “no confidence,” like the British, by a bare majority. If we do not amend our Constitution to give Congress that power, we may soon be living in an authoritarian state.

Fortunately, that sort of amendment might be possible even today. Under Article V of the Constitution, Congress and the state legislatures can amend the Constitution without the president’s consent. Perhaps our states, which are now addressing global warming and immigration on their own for lack of competent executive leadership, can do what needs to be done. Their action may be the “check and balance” that saves us all.

Bush may be one of the worst, but he was not the first president to make a dangerous grab for power. He certainly won’t be the last.

You have only to think of September 11 to imagine how quickly we might lose our Republic. Perhaps a nuclear strike in New York or Washington, perhaps under a volatile President Giuliani, could cause us to lose all our checks and balances, and all our rights, for our own security of course. Just imagine the justification for continuing martial law that an open-ended war on nuclear terror would provide. From there it would take only a baby step to cancel elections “in view of the present emergency.” It can happen here, and nothing now in our Constitution could stop it.

It may be heresy to follow the British in dumping leaders who have lost the people’s confidence for whatever reason, including misleading the people or forgetting what democracy is all about. But don’t say you haven’t been warned about the probable consequences of avoiding that heresy. Bush and Cheney are neither bad dreams nor complete historical anomalies. They are products of our system. Only by changing our system can we avoid repeating their sad histories.

Addendum on Energy Independence

A recent analysis posted on the Wall Street Journal’s energy blog makes my July 4 post on energy independence all the more urgent. In the WSJ post, Jeffrey J. Brown, an independent petroleum geologist from Dallas, emphasizes one key point.

Brown accuses conventional energy analysts of neglecting an important factor in calculating the amount of world oil production likely to be available to importers like us. Conventional analysts, he claims, project increases in world oil production based on estimates of recoverable reserves. Then they compare the projected increases in production against projections of worldwide demand for oil.

What they neglect, Brown says, is “captive” production, i.e., production reserved for the exclusive use of the exporting states as they grow. He claims that three of the world’s top four oil producers—Saudi Arabia, Russia, and Iran—are themselves developing nations, so their oil exports will decrease as their own domestic needs increase. After including projections of their own internal needs, Brown estimates that net world oil exports will drop to zero in nine years.

If he is right, the more-than-half of our transportation energy that comes from imported oil will disappear (or get radically more expensive) in less than a decade.

If normal market forces prevail, producing nations that want to support their internal use of oil will simply bid for the oil on the world market, driving up oil’s price. If their own internal needs already have been included in projections of world oil demand, then the estimates of oil prices derived from those projections should be accurate. Then Brown would be wrong.

But might Brown be right? What if some producing countries never put their “captive” oil on the market at all?

That’s exactly what Russia did during most of its Soviet period. It ignored the market and allocated oil based on central planning and its desire to support friendly Communist economies like Castro’s Cuba. The prices that it charged for oil allocated internally or to Communist allies had nothing to do with the market. Those prices were consistently well below market prices, but only to favored buyers.

Who can say that Russia, Iran, or Saudia Arabia won’t act similarly in the future? Each of them has, at times in the past, valued ideology over market economics. A coup or revolution, for example, might cause Saudi Arabia to stop allocating its oil based on the market and begin rewarding religious or military allies.

As for Iran, its government has a number of reasons having nothing to do with economics for depriving the West of its oil. Quite apart from a desire for nuclear weapons, a possible reason for Iran seeking nuclear energy is to save its oil for use as local political leverage among Middle Eastern nations that do not have their own sources of energy. Nations like Syria and Jordan have no oil, and selling them oil at below-market prices could give Iran considerable political and economic influence over them.

For political or religious reasons, one or more of the big producers might value their own or their allies’ internal growth more than earning market returns from selling oil at world prices abroad. If that happens, Brown could be right. In that case, the fraction of world oil supply representing producers’ non-market allocations would, in effect, be withdrawn from the world market and unavailable to importers like us at any price.

This risk is more political than economic, but it is still real. It accentuates the urgency of comprehensive and radical reform of our national energy policy. We don’t want to be vulnerable to shocks in foreign oil producers’ sales, whether the shocks are economic, political or religious in origin. That’s what energy independence is all about.

Ten years is enough time to switch to an electricity-hydrogen transportation economy as described in my post, but only if we start right away and really put our backs into it. Since nothing will happen before the 2008 elections, we really have only about eight years; so we ought to get started soon. An Obama Administration with Richard Lugar as energy secretary might give us a quick start.

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