Tuesday, October 28, 2003

Controversial Succession Plan for Congress in Emergencies

In an article by JIM ABRAMS, Associated Press Writer, entitled "Congress Criticized Over Succession Plan" we have further evidence of planned usurpations of the U.S. Constitution - here again involving a proposed amendment to the U.S. Constitution contrary to all of the principles for which that wonderful document stands.

As Abrams reports, "The Continuity of Government Commission", headed by former Senator Alan Simpson from Wyoming (here is a sample of Mr. Simpson's "erudite" remarks) as well as Lloyd Cutler, former presidential adviser to various presidents, have backed approval of an amendment to the U.S. Constitution according to which the governors of the individual States could appoint members of Congress in an emergency situation.

This absurd idea has been opposed, even by Republicans.

Below are two men you can add to your list of the really "good guys". [Note that I personally have no partisan preference, but on the pages of LawPundit, we will separate the "good guys" from the rest, regardless of their political party.]

As Abrams writes:

"House Judiciary Committee ... Chairman Jim Sensenbrenner, R-Wis., and Rules Committee Chairman David Dreier, R-Calif., prefer quick elections of new members instead of allowing governors to appoint House replacements. Appointments would erode the House's status as a fully elected body, they said."

further, quotes Abrams:

"I am concerned that beneath its plain-brown wrapper lies the constitutional equivalent of a computer 'virus' or 'worm,'" Dreier said at a recent hearing on the issue. Dreier and Sensenbrenner have proposed that elections be held within 21 days in the event that 100 or more members are killed."

And finally,

"A constitutional amendment," Sensenbrenner said at a hearing, "would accomplish what no terrorist could, namely striking a fatal blow to what has otherwise always been 'the People's house.'"

Hear, hear, Mr. Sensenbrenner and Mr. Dreier. You are apparently men who understand the superb and necessary legal structure underlying the United States government, which can not be torpedoed for the sake of ephemeral problems.

The Perfidious Senate Bill S 1558 IS

In my previous posting on Spam and Spam Laws, I already noted that the US Congress had adopted a path of encroachment on the powers of the other branches of government, one path of encroachment being the numerous fairly recent Constitutional Amendments passed regarding the Presidency and the other path of encroachment being the legislative assault on judicial review, i.e. the means by which the judiciary department of the U.S. government performs its "checks and balances" on the legislative department, as forseen by the logic of Madison's Federalist Paper Number 51, as reproduced in part in my previous blog posting.

Let us take a look at the perfidious bill, S 1558 IS, introduced in the Senate by a man named Wayne Allard of Colorado as the so-called Religious Liberties Restoration Act. You can find this bill at the graciously named website, Stop Liberal Judges, which by its very name already shows that the powers of the judiciary are intended to be encroached and usurped by this bill.

Section 3(d) of that bill provides:

EXERCISE OF CONGRESSIONAL POWER TO EXCEPT- The subject matter of subsections (a), (b), and (c) are excepted from the jurisdiction of Federal courts inferior to the Supreme Court.

In other words, all of the provisions of this bill are to be excluded from judicial review by the Federal courts.

I could not imagine that any man trained in law and having even the remotest understanding of the structural system of American government, as explained by Madison in the Federalist Paper Number 51, could sponsor such a perfidious bill in the name of religion, so I looked at this man's biography, finding indeed that he was not trained in the law, but rather in veterinary medicine.

Let me say this, as someone trained in the law, that I would not feel competent to be administering medicine to your pets at home or to your animals on your farm. That is not my expertise, but the realm of the vets. I wish vets such as Mr. Allard would take the same view with respect to the law and with respect to the fabulous structural legal system in America, as described by Madison, which has made the United States such a great country for more than 200 years.

The sadness of this story is that Mr. Allard is trying to do what he thinks is the "right" thing and in the process - if successful - is destroying the very foundations of that very same great country that he thinks he is trying to defend.

If these kinds of assaults on the separation of powers and the system of checks and balances are ever successful, then the United States will cease being the leader of democracy in the world, but will join the ranks of tyrants, with majorities exerting their ephemeral whims on the populace, just as a herder of animals does on the ranch. Animals are not subject to the rule of law, but humans, at least in the United States, still enjoy its protections.

When judicial review is eliminated, the tyranny of legislatures is not far behind and the rule of law will disappear.

I suggest Mr. Allard stop campaigning ceaselessly in Colorado (his own website boasts that he spends more time there than in Washington) but rather that he make himself familiar with the Federalist Papers, read them, and try to understand what Madison was talking about. Indeed, this suggestion goes out to all members of the US Congress, regardless of your political party. FIRST, understand your job. THEN, do your job.

Separation of Powers - Checks and Balances


Whatever the advantages of blogs may be, one of the disadvantages is that it gives many people the opportunity to express opinions on subjects which they have not studied in sufficient detail and about which they are thus resultantly less competent to pass any informed judgment than if their voices had come from the standpoint of considered and well-researched reason. Blog postings on the Presidency abound - but of what value are they?


I am in the process of reading The American President by the Kunhardt clan, ISBN 1-57322-149-X (it was also televized). It is better to FIRST understand the Presidency (something not apparent in many blog postings about US Presidents) and THEN to voice one's opinion on the subject. [Please note in Amazon that if you enter ISBN numbers with the dashes included you will get ZERO results - you have to write the ISBN together without hyphens as 157322149X in the search box].

In a chapter entitled "The Balance of Power", the Kunhardts discuss the Presidents James Madison, James K. Polk (greatly underrated President whose expansion of US territory during his administration "made" America territorially what it is today), William Howard Taft, and, surprisingly, perhaps, under this heading, William Jefferson Clinton.


In discussing the brilliant James Madison, the Kunhardts refer to the Federalist Papers, eighty-five essays which Madison coauthored with Alexander Hamilton and John Jay in the years 1787 and 1788 in order to convince New York State delegates to adopt the US Constitution.

In one of these papers, Federalist Paper Number 51, Madison writes as follows under the title "The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments": [this is our selection of text and it is our emphasis in block type - you MAY have to concentrate a bit to understand the text, it is out of another era]:


TO WHAT expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places....

In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others....

But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions....

But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified. An absolute negative on the legislature appears, at first view, to be the natural defense with which the executive magistrate should be armed. But perhaps it would be neither altogether safe nor alone sufficient. On ordinary occasions it might not be exerted with the requisite firmness, and on extraordinary occasions it might be perfidiously abused. May not this defect of an absolute negative be supplied by some qualified connection between this weaker department [the President] and the weaker branch [Senate] of the stronger department, by which the latter may be led to support the constitutional rights of the former, without being too much detached from the rights of its own department? ...

There are, moreover, two considerations particularly applicable to the federal system of America....

First. In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments [LawPundit note: Federal and State governments], and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself...."

We will in future postings address some modern issues in light of Madison's statements in the above Federalist Paper.

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