AN UN(c)ONSTITUTIONAL RULE

There is now a “rule” in the House of Representatives that I believe to be unconstitutional. No, it does not violate the formal provisions of the US Constitution, but it does violate the rationale that our Founding Fathers expressed for the way they set up our central government. A little background context will help us understand why the Hastert Rule offends our constitutional architecture.

Let's start with Aristotle. He pointed out that there are three types of constitutions: the rule of the one (monarchy or dictatorship), the rule of the few (aristocracy or oligarchy), and the rule of the many (democracy). Each, according to the great philosopher, has its advantages and its deficiencies. Skipping what those are, let me just point out that the Founding Fathers decided that we needed a mixed constitution comprised of a president (rule of the one), a Senate (rule of the few), and a House of Representatives (rule of the many); that is, by having each of these elements we can benefit from the respective advantages each type of constitution provides.

One of the advantages is that representatives could congregate in the Congress, talk to their colleagues and share the wishes of their constituents, their hometowns, neighbors, and friends back home, and by doing so, provide a voice for these constituents at the seat of power. From this process, policy emerges. But the process needs to reflect the will of the majority, at least in the House of Representatives – so as to be that portion of the government in which the “many” are heard. The majority will more than likely reflect the will of like-minded individuals and the institution of political parties facilitates this kind of melding of the minds and the formulation of majority positions, but not always. Actually, there are times when majorities are formulated by groups of factions and from representatives who usually disagree on most issues. For example, right now there is an initial impetus to oppose the death penalty between what we call liberal or progressive politicians and libertarians. Usually, these two groups of politicians are known for their antagonism toward each others' positions, but here is one area in which they agree. Now, I don't know whether there are enough liberals and libertarians to form a majority, but there is the possibility that if not today, maybe eventually. This potential is exactly what the Founding Fathers foresaw and I believe hoped for. But the Hastert Rule makes such an eventuality almost impossible.

Why? The Hastert Rule calls for limiting the bills that come before the House for a vote to those that are supported by a “majority of the majority.” Let me explain. The Constitution calls on each chamber of Congress to form its own rules. The formal rules of the House state that the Speaker has the role of placing on the voting agenda those bills he or she feels should be considered by the membership. So, if the Speaker is against a bill, it will not come up for a vote unless 218 members sign a “discharge” petition – a very unlikely development. In effect, this role gives the Speaker a great deal of power. An informal rule – one not voted on by the membership – states that the Speaker will not call up a bill that is not supported by a majority of the members who make up the majority party in the House – presently, the Republican members. This, in effect, can give as little as one quarter of the members veto power over any considered policy option – a far cry from the rule of the many. That is what the Hastert Rule allows. The Democrats have never implemented the Hastert Rule when they held the majority, but Republicans have, although there have been a few occasions when the present Speaker has brought up a very limited number of bills that didn't have a majority of the majority's support. The Hastert Rule is named after a former Speaker, Dennis Hastert, but it was in effect under a previous Speaker to Hastert, Newt Gingrich.

Whatever its origins, the rule counters a constitutionally conceived quality: the possibility and, hopefully, the likelihood that Congress, particularly in the House, would have rolling coalitions that form over particular issues and policy considerations. These coalitions would form over one area, dissolve, and then other coalitions would form over other considerations. In each, there would be a different collection of members. This reflects a more congregational atmosphere in our Congress and would give meaning to its name: a congress, not a parliament. The Hastert Rule belies this entire conception and, as such, it is un-constitutional with a small “c.”

With the Hastert Rule, the result has been to stifle legislation and, when added to the rules in the Senate – where any one senator can hold up many of the Senate's procedures or a minority can easily “filibuster” pending legislation, – we are going through a time when our Congress seems not to be able to get anything done. Ironically, the party that calls for constitutional purity seems to be the party apt to engage in this “unconstitutional” practice.

HONOR OR INTEGRITY

In the somewhat classic film, Jezebel, a southern aristocrat challenges another character to a duel due to something said – a perceived affront to the aristocrat's reputation. This situation is common enough in old films about our early national history and then there is the very real duel we were all told about between Aaron Burr and Alexander Hamilton – again, over some unsavory comments. Of course, such scenes, either in real life or as depictions in movies are pretty much things of the past. While I believe most of us are relieved by such a development – although we had a prominent politician refer to dueling when his good name came into question recently – I think it is still interesting to ask: what changed in our way of thinking that has made dueling no longer acceptable at any level? This question is relevant to civics in that the change(s) reflects basic belief shifts that affect our civic sensitivities.

In a word, the change has mostly to do with how we view reputation. It used to be that reputation was a product of how we were essentially seen by others. Our reputation had to do with the expected behaviors associated with our standing in society and that, in turn, was derived from the positions we held and the roles we fulfilled within the institutions of which we were a part. Today, this view of reputation has been degraded and in its stead we have a sense of reputation as being a derived function of our usefulness, often in terms of business activity. The first view spoke of honor; the second view speaks of integrity.¹

Words we associate with honor are goodness, glory, distinction. Words we associate with integrity are dependable, ethical, unimpaired. These are not mutually exclusive terms; a person can have both honor and integrity – perhaps the title of this posting should have used the word “and” instead of “or.” The issue arises when the terms are used interchangeably or when they are treated as synonyms. The first, honor, is linked to a person's intrinsic substance, an element that goes toward his or her character or lack of character. The second has more of a practical bent.

Honor is attained by holding and keeping in good standing the roles one has in relation to the institutions one is in such as family, vocation, church, gender, and the like. Honor is also more definitive in terms of expectations. For example, fathers and mothers have definite roles that are well-established within cultural norms and one's honor is unequivocally ensconced in expectations regarding the behaviors and dispositions within the context of those roles. That is why when one's honor was questioned, satisfaction called for an extreme response such as dueling.

As for integrity, while one can attach expected behaviors to people of integrity, they are more situational and apt to be less rigid. When assessing the costs of someone lacking integrity, the talk is not of the person's moral standing, but of the effect the damage has caused others. The question is not so much about the moral shortcomings, but the costs the affected parties will bear. I admit the difference can be very subtle, but I believe the distinction is real and is reflected in such civic realities as judicial reasoning.

Consider cases relating to defamation. Michael Sandel points out that in cases when one party is found to libel or slander another, it is not enough to prove the libelous or slanderous statements were printed or said, not enough to prove the statement is untruthful, not even enough to prove maliciousness; rather, one needs to prove actual harm in concrete terms; what the lawyers call special damages. The terms most likely to be considered are those that are financial in nature or can otherwise be monetized. And while hitting the pocketbook can be painful, it is not the same as bringing into question our sense of value as a connected person within our community. In other words, having our integrity questioned is a far cry from hearing, “Meet you at sunrise; will it be pistols or rapiers?”

I am not advocating a return to dueling, but I do believe it would be good for our commonwealth that we find a way to reintroduce in a meaningful way a notion of honor, at least be able to give it more importance. Yes; honor is a term bandied about, but does its current meaning really affect behavior? My sense is that it does not, at least to any meaningful degree. I remember once saying to a business person on the phone who was treating my mother, then over 80 years old, in an unscrupulous way, “Shame on you.” The response was laughter. We should hold each other to expectations that certain institutional roles entail desired behaviors and that those among us who fail in meeting those expectations are, in proportional terms, dishonorable. They do deserve to feel shame, at the very minimum. I saw Anthony Weiner on a TV show recently and of course his escapades were brought up. Whether sincere or not, his body language communicated shame – I hope that was truly the emotion he was experiencing. It does not mean one cannot work toward redemption – it could be that was what Mr. Weiner was working toward. It does not mean we should change our legal perspectives regarding defamation and the like. But it does mean we can communicate, without embarrassment or hesitation – once the facts of a case are known – how disappointed we are when individuals don't live up to their responsibilities, and that communication should matter! It also behooves us to review what our institutional expectations are. Are they petty? Or perhaps they might be regarding immaterial or unsubstantial issues. We should reserve such judgments to important matters. Like what? How well are kids being taken care of? How honest are our business practices? Do we have a meaningful and useful safety net to help and provide opportunity for those who are running into hard times? Are those in power or with excessive wealth taking advantage of their position to further their interests at the expense of the common welfare? These are the types of issues that affect how well people live, how they can contribute to society, and how they can go about fulfilling their potential. Society depends on non-legalistic institutional processes to inhibit unwanted behaviors – such as infidelity in marriage or irresponsible parenting behavior or abusive practices in the workplace – and it also counts on them to promote those behaviors that are desired. As a social mechanism, we should reflect on what we say and do as we utilize these mechanisms. And while we are about that, we should see if we can develop a healthy sense of honor and recognize it in those who are worthy and withhold it from those who are not.

1The distinction made in this posting relies on the work of Michael J. Sandel. See Sandel, M. J. (1996). Democracy's discontent: America in search of a public philosophy. Cambridge, MA: The Belknap Press of Harvard University Press.