Final Chapters and appendices
Sean Wilentz characterized the federalist in history as that politician who ran the we know what is best for the country type of government and the only time we expect to hear your voice is when you vote for us every two, four, or six years. In the interim, just sit down, shut up and attend to your own affairs. But even the historical federalist understood the limitations that the U.S. Constitution put on federal power. Today’s concept of “federalism” does not. Not when you take into consideration what John Dean was to write in the concluding chapters of his book “Broken Government.” The “new Federalism” was prepared utilize a federal role to do what was best for the special interests and their own party, never mind whether the rest of the nation might benefit or not.
Mr. Dean described the various types of judges known to inhabit the U.S. Supreme Court once their appointments were confirmed, among his definitions of political types were minimalists (such as Sandra Day O’Connor) and fundamentalists (such as Scalia, Thomas, Roberts). But the whole idea of a “fundamentalist” on the bench, if in fact the judge was expected to “interpret the law” with respect to its constitutionality, then the “fundamentalists” failed in any such endeavor more often than not. What they were however guaranteed to do was actively work on the behalf of the special interests who brought specific cases to the court. And act against ordinary citizens who had a legitimate grief about what the special interests were doing in damage to themselves. Take the right of property that is found in the U.S. Constitution, indeed is part of the Bill of Rights in the U.S. Constitution. Dean did not cover this case at the time he wrote his last book on the GOP administration of GW, but it is still a case that I recall very well. Eminent domain is covered in that particular amendment to the U.S. Constitution, that property can not simply be “taken” without “due compensation” except by eminent domain. Try a number of city councils then that condemned neighborhoods on the behalf of well-heeled business interests, literally taking property without appropriate compensation and simply forcing people off the property they had owned for years. Nor was it for “eminent domain,” precisely for the use of the public. When these homeowners turned to a supposedly “we support property rights” court of law however, the Justices on that court sided with the businesses against the property rights of the home owners. Obviously, “fundamentalism” wasn’t going to apply in the case of ordinary people. Which really should say a great deal. That chapter on actual activist judges that more often than not both re-interpreted the law and the U.S. Constitution as they saw fit was fairly short. The next chapter that had to do with repairing broken government was quite in-depth and expanded upon the GW’s expansionist (what would once have been called a “liberal to radical” role if committed by a Democrat) view of his own presidency, the GOP who literally did not care to do actual work, of ultimately, restoring the necessity of process to the entire function of government.
In the appendices that followed however, were as much of a must read as all of the rest of the book combined. Here are some highlights:
1. The difference between the “new federalist” view of a “limited government” (one that is forced to operate from very specifically and very severely interpreted constitutional limits) and a government of “limited powers.” Very specifically as it would apply to the President of the United States. And this was arguably where war making and faithfully executing the law was concerned. That yes, actually, if you have laws against torture and warrantless wiretapping, then you can not simply utilize “national security” as an excuse to set them aside.
2. The history of the final draft of the U.S. Constitution that Congress is authorized to declare war. That James Madison changed the wording from “make” to “declare” that as Dean reported, Congress would be too slow to act in [a time of national emergency] since it only meets but once a year and then only briefly. —Wouldn’t that be an argument for balancing the budget, that Congress is granted what, at most two months to pass meaningful legislation and then spends the rest of their time tending to personal business and meeting with their constituency. But of course, government was not as big or as complex for an ever changing society then as it is today. —And as Dean was to acknowledge, that the POTUS could indeed act (without Congressional approval) to repel foreign attacks. In short, an acknowledgment of national emergency. However, given the age of terrorism, we are fully aware that GW prior to 9/11/2001 seemed to not be all that concerned about repeated warnings of a prospective Al Qaeda attack on American shores. Although GW was fully briefed and forewarned, certainly had the tools at his disposal to “repel the attackers,” made no concerted move to do so. But afterwards, politicized the attacks to advance his own agenda of an expansionist presidency. And undoubtedly wanted a U.S. Supreme Court that would protect him from unlawful and extra-constitutional conduct.
3. The use of budgets and continuing resolutions to literally turn on the opposition party. Dean spoke of Reagan who did this against the Democratic-controlled Congress and the GOP under the leadership of Newt Gingrich did this against then President Bill Clinton. However, Dean also made it clear that such shut downs of the federal government also wasted a lot of taxpayers’ dollars. In the millions by his calculation. Bottom line, to shut down the federal government because one party is having a childish spat with the other party is hardly fiscally responsible.
4. Dean also had a lot to say about John Yoo, one of the White House counsels for the GW administration and who’s liberal interpretation (meaning expansionist) of the U.S. Constitution with reference to what Republican presidents can have as to actual power regardless of what the actual document declares are the president’s limited powers.
So, what by definition is a “limited government” that today’s “TEA Party” and the GOP now say they favor? Or should we simply make that, we hates the fact that the Dems actually got back in control at the federal level, not that we are actually any more inclined to push for a “limited government” ourselves given our recent history. It will be interesting indeed to see what happens next in the aftermath of what Dean wrote. As Leonard Pitts, jr. was to write in his (republished to the Spokesman-Review) column, (25 October 2010) how quickly people forget from the last two years, with immediate reference to Christine O’Donnell.
Oh, yes; Dean’s book is still relevant for today.