FUNCTIONAL CONSIDERATIONS OF THE BILL OF RIGHTS

Sometimes, as a civics teacher, I had to think hard about whether to include some concept or other in my lesson plans. Any teacher has to consider the level of abstraction that his or her students can handle. Yet what might seem too abstract or perhaps too obscure might be some basic notion that if not addressed, could cause students to formulate faulty assumptions or otherwise make unfounded conclusions. So, before a teacher might gloss over or not expand on some distinction for fear that the students before him or her might not appreciate it or understand it, he or she should consider what the student could possibly derive from the omission. This posting is about such a situation.

In the field of political science, there is a bit of a disagreement over the function of the Bill of Rights. The disagreement, at first glance, might be judged to be a bit esoteric by those who don't consider the document too often – meaning most of us. But here is an issue that if misunderstood can have repercussions in both political advocacy and in policy formation. Is the Bill of Rights a document that is to protect individual rights or to restrain government – to help make our government a limited one?

In our current era – an era dominated by the mental construct, natural rights – the general conclusion has been formulated that the first ten amendments to our constitution were there to protect what we seem to consider our individual rights. If you read the Bill of Rights, you might determine that that is its primary purpose. With such a view, the general cultural proclivity that we seem to be bent on expanding in every aspect of life, we find justification in granting license for just about any behavior and we find it more and more difficult for the majority to pass laws that might stifle any personal choices individuals might feel inclined to exercise. Or, another expression of this proclivity, is how a minority of the electorate is protected from the majority when the majority might want to implement policy that even hints at any concern which the Bill of Rights mentions. This might include unwanted expressions of speech (pornography) or of religion (nativity scenes in public places during Christmas). I am writing these thoughts with mixed feelings. I enjoy my rights and I enjoy the majority not foisting its bias on me – even when I might agree with the majority. On the other hand, I do believe in a government that can govern.

My attention was drawn to this distinction when I became aware of a recently released book that addresses it. Limited Government and the Bill of Rights by Patrick M. Garry¹ is dedicated to this topic. He argues – and based substantially on extensive research – for the idea that the Bill of Rights was proposed, written, and ratified not to promote individual rights, but to add to the overall constitutional makeup one more element that limits the power of government. This extra element is added to other ones: separation of powers and federalism. And so, when considering these amendments, one should not consider them legal licenses to do what one wants to do or be protected from majority whims, but instead one should see these amendments as constitutional provisions that reign in government from doing certain things.

Let me illustrate. Garry argues that the First Amendment guarantee of free speech is to protect primarily political speech because the people's right to criticize their government is an important way to limit its power. What is not so protected under the original purposes of the Bill of Rights is nonpolitical speech such as sexually oriented publications or entertainment, commercial speech, violent films, and the like. Here, Garry would argue that the founders would have no problem in outlawing this type of material. He also says that the amendment was not meant to create what is called, minority “dissenter's right.” The case of a minority prohibiting the majority of supporting religious expression, for example, was foreign to the intents of these founders. Ralph A. Rossum's review on the Garry book points out “[l]iberty, the Framers believed, was best secured through limited government and through those constitutional structures that checked, diffused, and divided governmental powers.”² This is what James Madison explained in The Federalist, No. 51.

So how did we go so far adrift from the original intent? I have, in previous postings, explained how difficult it is to decipher the intent of the founders. One thing is to analyze the motivations of the Framers, but they are not the ones ultimately responsible for our constitution. That honor should be bestowed on those who ratified the Constitution and all of the subsequent amendments, including the first ten. Having said that, I do think that the burden of proving a disagreement between the Framers and those who voted for ratification should be on the scholar who makes that contention. Is there sufficient evidence that a rift existed between these groups of actors? In terms of the original constitution, there is evidence: records of the ratifying conventions in the separate states – a topic I have addressed in a previous posting. But in terms of the individual amendments – a piece of constitutional material limited in its concerns – it would be harder to find much variance in how these voters understood the basic concepts involved. In terms of the distinction described above, there is none as far as I can determine. I state this while finding myself at odds with Garry's contentions – not from a historical point of view, but from my own sense of individual rights. Still, we owe it to our students to present and explain Garry's argument. Actually, in terms of a federalist perspective, the more conservative view of granting communities more say in determining policy over speech and religion is in line with traditional federalism.

My position is that even if the goal is to limit government, a healthy positioning of individual rights is essential. Perhaps one can conclude that a basic distinction between traditional and liberated federalism is the extent that individualism is promoted. While both types of federalism find the individualism of the natural rights perspective to be too extreme, the liberated federalism view is that there is a balance to be achieved between the concerns of local, communal beliefs – they can be too parochial and stifling – and individual choices – they can be too self-centered and narcissistic. This nuanced distinction is not easy to reconcile or determine what exactly is prudent or constitutional. My purpose here is not to settle the issue, but to present it as a legitimate issue for students to consider.

1Rossum, R. A. (2013). Book Review: Limited government and the Bill of Rights by Patrick M. Garry. Political Science Quarterly, Winter 2013-2014, 128 (4), pp. 773-774. Facts about Garry's book derived from this review.

2Ibid., p. 773.

BIG BROTHER ON A CELL

A new technology challenge is before us. And the implications are far reaching. It presents dangers and it also provides a crucial tool in rendering life saving results. Before I describe it, let me just mention that those who control it today might not be the ones who will control it exclusively in the future. The new technology is a simulator, a fake cell phone tower. Its capacity was described in a Tallahassee Democrat report as follows: “government investigators and private individuals can locate, interfere with and intercept communications from cellphones and other wireless devices.”¹ Apparently, this capability has been in the hands of the FBI since 1995. The most recent twist is that the technology is available to local police forces.

Has this sharing been done in the open? Has it been announced with fanfare and gratitude celebrated in our local media? Not quite. The technology and its dispersing to local authorities came to light as a result of a 2008 rape case in which the accused rapist was identified as a result of the simulator's use. The problem was that its use was not authorized with a warrant or permission. The simulator was used to identify the person of interest and the officers, investigating the case, went to the person's domicile and they, in effect, broke in and found the suspect and personal items of the victim. But since they lacked the warrant or permission, the resulting conviction was thrown out and the court ordered a new trial. Now the question is whether the obtained evidence can be used in a new trial. But that's not the issue here.

My concern here is what this technology means to our sense of a mutual fate. How does a policy shrouded in secrecy help or hinder our ability to feel we are all in this together? And according to American Civil Liberties Union statements, the secrecy could be motivated to avoid complications with Fourth Amendment protections of privacy. Needless to say, government's ability to know what we say on a phone is quite invasive into our private affairs and can be used by unscrupulous politicians to advance their aims illegitimately. The point is if evidence is gathered by the use of this technology and a less than ideal investigative process – such as with the cited rape case – is followed, perhaps a lack of knowledge of its existence could save cases that would otherwise be lost on appeals. Also, if law enforcement capabilities are secret, would-be criminals will not be able to make arrangements to counter the entailed procedures. At present, 29 law enforcement agencies have use of the simulator technology. We now know all of these facts not due to officials informing the public, but because of the attention that the appeal on the above rape case drew and the request for information appeals that ensued by the news media outlets. So, there are two dangers: one, government having unconstitutional access to our private affairs and, two, unscrupulous agents – who some day might include private individuals or groups – having information that can be used to commit crimes, political or otherwise, that could victimize any one of us.

What about the positive uses? According to law enforcement officials, due to the ability to track and decipher cell phones, lives have been saved. The Florida Department of Law Enforcement official said that its uses of the simulator are always done with a warrant unless there is an emergency situation such as a murder, kidnapping, sexual assault, or other violent situation. According to a police spokesperson, in these extreme cases, lives have been saved due to the use of simulators. As it turns out, to use or not to use this technology is a classic case of weighing security versus liberty. Which way should we go? Obviously, this is a discussion we should have.

But how can you discuss something if you don't know that that something exists? And further, the negative effects of secrecy are compounded when the technology comes to light. We should assume that eventually such capabilities will be generally known – information is like water; it is bound to find those cracks that exist and work its way out of any enclosure. This is especially true in a relatively open society. When it is found out, then its attempted cover-up just adds to our collective sense of mistrust. In this case, should we be wary of public officials knowing too much about our affairs? Can we trust them if they are gathering personal information in ways that we have not been informed about, much less given our consent? Mistrust undermines federal unions. Yes, there are legitimate instances for secrecy – nuclear secrets come to mind – but, in general, we should limit access to public policy information in only the most sensitive situations – where lives are at stake if the information were known. The general goal should be to open up as much as possible even if political costs are involved. After all, we are all united for the common good as participating partners. Partners need to know what's going on.

1Portman, J. (2014). Invasive or essential? Tallahassee Democrat, March 16, pp. 1A and 4A. Quotation on p. 1A. The facts related in this posting are derived from this article.

FEDERALIST COURSE OF STUDY

Since the beginning of the this blog, I have been promoting a newer curricular view, one based on a mental construct I have dubbed liberated federalism. The curricular area in question has been civics or government. I have dedicated many postings to going over the different elements of this mental construct and you are invited to hit the archive feature and see past postings or visit the website, gravitasarchives.blogspot.com to review those descriptions and explanations. This other site has a listing of ninety – to date – postings that I have deleted from the site you are on now. Just to give you some context, this blog began on September 6, 2010. While I have commented extensively about the theoretical content of the construct, I have not written about how a civics or government course, based on a liberated federalist view, would be organized; that is, how the units of study would be arranged in such a course. In this posting, I will address this topic.

There are several options for how such a course could be arranged and these options call for different preparations of which curricular workers, school administrators, and teachers need to be aware. Let me start by confessing that I don't see a vast change over to a federalist approach as being imminent. It's not even on anyone's radar. The most I could hope for is that a teacher here and there is taken by liberated federalism and decides: “You know, I feel that this construct could be helpful in my class. It is a useful way to look at governance and politics and I'm going to incorporate federalist concerns into my lesson plans.” That teacher would begin to notice that many of the generally discussed issues of the day have a federalist side to them. He or she might be motivated to insert questions or research topics that reflect federalist concerns. In many of my postings, I write my pieces with this type of teacher in mind. That is, I address some contemporary issue and describe and explain it from the federalist perspective. Now I must add a clarifying statement – it's one that regular readers of this blog will find familiar. But for new readers, by stating that civics material should be guided by liberated federalism, I am not using the term federalism as it is usually used. Usually, people who refer to federalism are talking about the structural arrangement between the central and state governments. While this is an aspect of federalism, on a more theoretical level, federalism refers to people coming together for a purpose and agreeing to remain united, under the auspices of a covenant or compact, no matter what any individual member might do. In this blog, in short, I usually become aware of some problem or event that endangers the federal union of which we are all a part – the good old USA. I try to explain what the situation is and then I try to make the connection to federalist thought explicit. By doing so, I am justifying the inclusion of the issue or event by an educator into his/her plans – class time is a limited resource and should not be taken up by whimsical concerns a teacher or some student might have. Perhaps this – a sporadic teacher taking up the cause – is the extent to which I can realistically hope that federalist ideas might make it into our classrooms. But let me be idealistic and project more thought-out curricular options.

Option one: Maintain existing course structures and use federalist issues to illustrate how our system of governance operates throughout the course. The advantage of this option is that classroom teachers could not only use standard civics and government textbooks, but could also probably finesse any needed accommodations with curriculum policy of the school district and/or state department of education – not that such a level of supervision is common enough to engender such a concern. What might be changed with this option is the questions that students would be asked to answer. Most textbook questions are written by curriculum workers who are influenced by natural rights thinking. There, the emphasis would be on functional concerns: what is the function of a particular element of the system (e. g., department, agency, voter, political party, etc.)? How well has this element performed its function? What recurring problems does this element face in performing its functions? What changes/reforms are being considered regarding this element? These types of questions lack normative concerns other than a concern for efficiency in meeting various governmental functions by the government itself or by some person or group that deals with government.

A liberated federalist approach would ask more normative questions: how is this element meant to advance social capital; that is, a society characterized by having an active, public-spirited citizenry, egalitarian political relations, and a social environment of trust and cooperation? What are the relationships among the different players within a particular element – promoting mutual interests or promoting competitive interests? What is the social environment within which an element functions? Is it one of trust, cooperation or of acrimony, deception? I can add many more questions, but I believe you get the drift. Of course, the exact questions would depend on the federalist issues under discussion and/or analysis.

Option two: Forget the textbook and the structure that the textbook outlines for the course and develop a course entirely on federalist priorities. Here is where I am a bit in a quandary. If you give up on the existing structure, you have to invent one. Here's my first try. Begin with each element of a federal union from the most basic to the most complicated. From the individual – the most basic, but still complicated – to international arrangements such as the UN. Let me present a list of these elements and an accompanying federalist issue for each upon which a unit of study could focus:

• The individual – short term interests vs. long term interests
• The family – the effects of divorce
• The neighborhood – responsibilities toward problem children
• A small business – treatment of employees
• A labor association (such as a union) – efficiency practices or product quality
• A large corporation – product safety
• A local government (either city or county) – zoning or racial/ethnic divisions
• Law enforcement agency – judicial rights applicable to an accused
• White House – federalist meaning of leadership
• Congress – the extent that money is influential
• The courts – the role of interpreting a federalist compact
• Society during wartime – special demands on citizenship
• International association – levels of interdependence between nations

That makes thirteen units to be covered in an eighteen week semester at the high school level. Middle school civics courses last the entire academic year, so the list can be longer or each item can demand more time (or a combination of the two). The point is that a purely federalist approach gives low priority toward “teaching” the structure of government, per se, and a higher concern for the federalist character of our government and our society. I assume the structure becomes instrumental in dealing with these issues and that students will learn the structure as a matter of course. By taking this approach, units of study would incorporate the type of questions I listed above. But in this option, the overall aim is to have students know, understand, and appreciate the bonding among citizens that our form of government demands and how the related political activity under analysis advances or detracts from those demands. Many of my postings relate to situations in which I believe some people are not living up to the compact that forms our federated union. These are offered, in part, to help any teacher who wants to walk on the federalist side.

PRAYING WE DON'T REPEAT A MISTAKE

Do you agree that you have the right to practice your religion no matter what the majority of your neighbors' religious beliefs are? Do you think the state has the right to promote religious beliefs with which you might not agree – how about those with which you agree? The history of our constitutional thought has led us to at least voice the opinion that there should be a separation between church and state. Not all of us seem to agree with this, but generally, if asked, Americans think the best policy for government is is to stay away from attacking or promoting any religious belief or activity. This tradition began way back and is a product of a history of violence between religious zealots and their political spokespersons, including kings, dukes, and powerful noblemen. In the western world, the Treaty of Westphalia began a long string of compromises that finally led to our more modern view. A lot of blood bought us our more accommodating and tolerant view of others' religions. Should we hold vigilance against any back-tracking and/or look the other way when those who want to push their views about the supernatural among not only their fellow believers but the rest of us seem to be getting their way?

In Florida – a recurring site for so many of our current troubling news – we have a program that tests our commitment to this modern view. The governmental program provides vouchers to families so that they can send their children to private schools. The glitch is that these public funds, for over 80% of the 60,000 youngsters involved, go to religious schools. The goal is not subtle; it's to promote religious morals among the impressionable students. The reason this is a current issue is that the state legislature is considering expanding the $300 million program. Under the control of conservative Republicans, the bill will probably successfully make its way through the Legislature and be signed by Governor Rick Scott.

Given our constitution's First Amendment with its sanction against the establishment of religion by the state, how can such a program be legal? There are two cases that seem to give such a program the green light. The first is Zelman vs. Simmons-Harris in which the Supreme Court found such a program – one existing in Cleveland – to be constitutional. In doing so, the Court established a five element test for such programs. They ruled the Cleveland program okay because it met the following requirements: (1) program has to have a legitimate secular purpose, (2) needs to provide assistance to parents, with no funds going directly to schools, (3) must have a “broad class” of beneficiaries – as opposed to a specific group(s), (4) the vouchers must not be reserved for a particular religion and, therefore, favor any one faith, and (5) the program must be offered where there are sufficient non-religious options. A second case, Arizona Christian School Tuition Organization vs. Winn, limits who can bring suits against such programs. This case was thrown out because it was brought by taxpayers, per se, and they did not have standing – any one taxpayer does not have enough skin in the game to claim enough harm. In the case of Cleveland, the program was initially geared to help low income parents get their kids into schools other than the low preforming public schools and, therefore, judged to be secular in its intent.

But in Florida, we see the proponents tip their hands with the new proposal before the Legislature. They want the expansion of the state's program to include parents with incomes over $60,000 a year. The median household income in Florida in 2012 was $47,000. So one can question this expansion's “valid secular” purpose. As Pasco County pastor, Alfred Johnson, proclaimed, “[t]hese programs are bringing an angle that the public schools cannot …”.¹ A delegation of parents, students, and teachers appeared at a legislative hearing that discussed the proposed expansion. They are reported to have “praised the existing program as a lifeline for families seeking an alternative to public schools, either to escape crowded schools or to attend a school that emphasizes religious values.”²

Individually, I am offended by this program. But that's me. I can't claim that it sends us back to those days when believers of different faiths fought over religious disagreements. It does, though, begin a process that could potentially lead to more virulent relations among the faithful. It also spends tax money of those who do not believe in any religion; I can't see where these people would not see the program as promoting religion – the program simply does that no matter how secular the original purpose of such a program is. This can be questioned in terms of justice. It serves to undermine and corrupt a governance based on equal protection. Atheists are not being equally protected by such a program especially when the law is intended to “bringing an angle that the public schools cannot.” In short, the program is dangerous and we all, including the religious, should be wary of its effect on our level of tolerance for those who do or don't agree with us when it comes to other worldly beliefs.

1Fineout, G. (2014). Private school voucher bill moves ahead. The Tallahassee Democrat, March 9, p. 15A. The facts of the Florida program reported in this posting are derived from this Associated Press article. Emphasis added.

2Ibid.

VIEWS OF EQUITY THROUGH GOOD TIMES

I have made the case in this blog that the prominent view of politics among our citizens is the natural rights perspective. To summarize this view, it is a highly individualistic perspective in which we believe governmental action should be kept to a minimum. The emphasis is on the right to choose and do those actions we, individually, see as best for us as long as we do not interfere with anyone else enjoying the same latitude in his/her choices. Under such a view, we promote competitive relations usually under the auspices of a free market. The view is highly associated with capitalism. We have adopted this view to such a degree that we have begun to call it the “American way,” as if this bias has always been the way we see politics and, in general, social arrangements. While American culture has been from its very beginning a relatively individualistic one, to the degree this view has “taken over” is a product of the last fifty to sixty years – since the end of World War II. In terms of more specific policies, this view has encouraged reduced governmental regulations – which have increased, but mostly as a result of the globalization of the economy and the resulting worldwide markets. It has also encouraged a weakening of labor unions and of the role of government in determining labor relations between workers and employers. Overall, the strength of labor laws has been weakened. Oversight of markets became much looser. All of this gained impetus in the years leading up to 2008.

Then came the financial crisis that led to the worst economic recession since the Great Depression of the 1930s. This development brought into question, among informed circles, the prudence of a view that promotes such a hands-off approach by government in relation to economic activity. As a result, the Congress passed the Dodd-Frank Act to reimpose regulations on the buying and selling of securities. But what of the general public and its views regarding how free economic actors should be? Have the American people, in general, been able to turn on a dime and seek another view to replace the extremely laissez-fare attitude that had become so prevalent?

According to Leslie McCall,¹ the public had reached the highest point of support for laissez-fare in 2008 – at least as measured by available survey data on our tolerance of inequities, a by-product of a laissez-fare economy. But this high point was not reached in a straight line over the years and analysis of this progression provides evidence that suggests a period of time in which the whole view came into question not during a time of economic distress, but in a time when economic conditions were good and improving. She points out that during the nineties, when the nation was enjoying a healthy economic uptick, that there was an increase in questioning the results of this uninhibited economic policy. That is, people began to question the level of inequality that was increasing since the seventies. Robert Y. Shapiro, reporting on McCall's research, writes

… there is an unfairness suggested in the more-pronounced beliefs in the 1990s, in which rising income inequality is seen as benefitting mainly the rich and not producing prosperity for all. … [This time of improved economic conditions] signifies opportunity, so that what has changed in the public's mind … is that rising income inequality can affect individuals' perceptions of opportunity.²

Shapiro points out that this finding goes contrary to what was previously understood to be the relation between economic conditions and the public's view of opportunity. That is, it was believed that good economic conditions would correlate with a higher sense of opportunity and therefore a higher level of tolerance toward or, at least, ambivalence over degrees of inequality in regard to opportunity – that such views would hold off calls from the public for a redistributive policy response to meet existing inequality. Instead, and one needs to remember that inequality grew in the 1990s, McCall finds that the improving economic conditions coexisted with a more prevalent belief that there was no longer a rich segment of the population that deserved its riches. What seems to have come under question was whether the contemporary rich should be “celebrated” for ushering in equitable growth – a tide lifting all boats. The general public seems to have begun establishing a general view of the rich as undeserving “who are implicated in producing a form of inequality that is perceived to either symbolize or directly contribute to limited opportunities”.³

What I see is a tension among the populous or among different segments of the population. That tension is between what has become more and more obvious, the extreme inequality of income between the very rich and the rest of us, and the prevailing political view of the natural rights perspective. When the financial crisis hit, I would argue that the popular view was still under the influence of the heightened support for the more individualistic perspective. What complicated the distinction between views of individualism and a more collective, government friendly view were a few economic and social conditions. One, the crisis and the resulting recession did not reach Great Depression levels of misery. Yes, the recession was severe, but we did not have the bread lines and other extreme deprivations that the American society suffered during the Depression years. Two, despite its salutary effect, the bailing out of the Wall Street banks and the auto industry united the dismay of both extreme right-wingers and many on the left, an anti-corporatist faction of the political spectrum. Both of these factors muddied the waters concerning the justification for strong governmental response in regard to the economic dangers facing the nation. There resulted no clear lesson as to the need for a strong government presence in the operations of the economy. Therefore, in 2008, the public which became enamored by the more laissez-fare policies of the George Bush Administration did not find it easy to give up on those biases through the time when the dam burst and the economy fell into the Great Recession.

Since then, we have had the Occupy Wall Street movement which has brought to the fore the inequality issue in a much clearer perspective. It has become common knowledge of how unequal income has become. We are even becoming aware of how unequal wealth is. While the defenders of the inequity have tried to steer the language of the discussion in terms of “either/or” – either we have an economy that rewards those who run businesses and create jobs or we don't – many more Americans are becoming aware that the question has more to do with the extremity of the disparity than whether we should reward the successful. What I find worth taking away from McCall's research is how expectations, especially during better economic times, are affected. Increased economic activity does not help in hindering our perception of how opportunities are affected by a mal-distribution of income and wealth. Perhaps, as the economy improves, we will not forget about this issue of inequality and begin to demand, from the rich, behaviors and policies that will lead us to the judgment that they are, in effect, deserving.

1McCall, L. (2013). The undeserving rich: American beliefs about inequality, opportunity, and redistribution. New York, NY: Cambridge University Press. The presentation of the study in this posting is based on a book review by Robert Y. Shapiro which appears in Political Science Quarterly, Winter 2013-14, 128 (4), pp. 750-753.

2Ibid, Shapiro, p. 752.

3Ibid.

HOT STUFF

This blog has been dedicated, in part, to promoting a mental construct that can function as a guide in determining what substantive content should be included in our civics curriculum. I will not rehash all that has been written about this promotion, but rather say that a central part of my effort has been to make the case that any construct that attempts to guide civics instruction will, by necessity, have a moral position. After all, the reason we offer civics to begin with is to encourage good citizenship. The “good” presupposes a sense for the good and therefore reflects what the creators of the curriculum consider to be moral.

The prevailing construct that guides our civics efforts has a moral posture and I have identified that moral outlook as the natural rights perspective. That moral stand holds liberty as its trump value. What I have been promoting, the liberated federalism construct, has its trump value, societal well being. This federalist value consists of a commitment toward securing the survival of the society and advancing toward those aims and goals that the society has identified for itself.

Let me focus on the first concern, societal survival. As for further explaining societal survival, when I state that that is central to the construct's value scheme, I am not saying other orientations don't concern themselves with this value. The question is one of focus or priority. The value for survival doesn't seem to be highlighted in other constructs. You see, especially among people who have never had to face survival head on, it tends to be easier to promote other priorities such as liberty or equality or religious precepts or whatever a given, other orientation might emphasize. Or the concern over survival might be taken for granted, not worth mentioning because, of course, everyone wants to survive. Finally, some might think that given our level of advancement in terms of technology or our military prowess, we are collectively well protected against any force or enemy that might bring our existential existence into question. But is this true?

In a recently released book, Elizabeth Kolbert,¹ points out how our advanced technologies and economy are producing the conditions that are very well bringing our safety into perilous danger and yet our dominant values seem to be standing in the way of our meeting this challenge. Here are but some of the particulars concerning this threat. The planet is warming up. Because of the excessive heat we are generating, our water cycles are being affected. The extra warmth leads to higher humidity – globally 4 percent higher – which results in larger rain storms with accompanying floods and mudslides. The top layers of the ocean are becoming hotter, again leading to larger and more destructive storms. With the excess heat, the oceans have become more acidic. This excess acid is threatening an array of ocean life such as coral reefs. Whole ecosystems are endangered. Land areas are not immune to the deleterious effects. Heat quickens evaporation, leaving drier conditions. Longer droughts take place; dry conditions cause more and larger fires. Dryness causes lower food yields as we have seen with wheat, corn, rice, and other crops. As we have all heard, the melting ice caps in both polar regions have caused ocean levels to rise. In addition, we are beginning to experience resulting shifts in the usual paths of our major jet streams. More conducive to this abnormality has been the Northern Hemisphere jet stream. This results in not only unusual, higher temperatures, but also lower temperatures in areas that have arctic conditions pushed to more southern areas, giving those areas closer to arctic temperatures during the winter months. Sound familiar? A warmer planet doesn't always mean hotter temperatures, but it does mean more extreme weather conditions. And all of this leads to changes not just in weather, but also to the fauna and flora of the earth. For example, macro organisms which cause diseases might be more prevalent as the number of their carriers, such as mosquitoes, ticks, and others, increase.

These changes don't sound ominous just for today's weather reports; they are promising to be highly consequential in the years ahead. Kolberg warns us that we are in the beginning phase of a “mass extinction event.” This will be the sixth in the history of the planet since life first appeared 3.8 billion years ago. The last such event, 66 million years ago, caused the extinction of 75 percent of all living organisms, from those so small we would not have been able to see them to those of mammoth proportions. And yes, this all refers to conditions threatening societal survival.

As opposed to previous mass extinction events, this one is being caused not by some meteor, but by one of the planet's living forms – by humans – more specifically, by humans from the “advanced” societies, including us. As an issue, this whole condition falls under the federalist concern over survival in the most direct way.

1Gore, A. (2014). Without a trace. The New York Times, February 16, Book Review section, pp. 1 and 22. This is a review of Kolbert's new book: Kolbert, E. (2014). The sixth extinction: An unnatural history. New York, NY: Henry Holt and Compnay.

EL PRESIDENTE?

Recently, we have been “warned.” President Obama has told us: “I've got a pen and I've got a phone.” That is, if Congress, because of its inability to act, can't address the pressing issues before us, then he will act through executive orders. The cry from the opposition party is that the President is acting in dictatorial fashion and his actions will be illegitimate and unconstitutional. Is this right? Whether it is or not is a matter of reviewing each of his actions and analyzing it – not my purpose here. My purpose is to add some context to this whole question and establish some ground rules as to the notion of an imperial presidency.

My first introduction to this term, at least as it was being applied to contemporary conditions, was its use in describing the presidency of Richard Nixon. Symbolically, the concern was illustrated when he ordered the uniforms of the White House guards changed to resemble, to some, nineteenth century imperial uniforms and, to others, marching band uniforms. The get-ups were described as “palace guard” uniforms. Apparently, Nixon was inspired by uniforms he saw in Europe. But the move fed the general impression, mostly fostered by his opposition, that this sartorial move simply reflected the President's desire to institute an imperial presidency. The newer uniforms didn't last very long. As for my awareness, I probably already had been introduced to the concept of a strong presidency in my political science classes.

In the political science literature, there was – probably still is – a strong bit of reporting and explaining about the difference between what is called the “strong presidency” theory and the “weak presidency” theory. Weak presidency refers to the view that holds that our Constitution created the presidency to be of very limited powers. In effect, the powers of the office solely derive from his/her duty to carry out the wishes of Congress. The president, under this theory, simply awaits what Congress wishes, in the forms of the laws it passes, and merely carries out those wishes in a fashion that is as true to the intentions of lawmakers as possible. The use of the veto by the executive – the ability of the executive to say no to a particular bill – should be reserved for only the most extreme cases in which the Congress has passed an obviously unconstitutional bill or in which the bill would cause untold damage to the nation or to the security of the nation, especially in terms of foreign relations. This view of the presidency was very much in line with traditional federalist thinking and, as I have pointed out, in vogue long into the history of the republic. If that be the case, then one would expect the use of the veto to have been very limited during the years in which the traditional federalist view was dominant. From the presidency of Washington through that of Chester Arthur (1789-1885), there were 206 vetoes – including regular vetoes and pocket vetoes. Ninety-three of them were issued by only one president, Ulysses S. Grant. I cut it off after Arthur because the next president, Grover Cleveland, issued 584 vetoes. One needs to remember that Cleveland is the only president to have served two non-consecutive terms – he won one election, lost one, and then won one. In his first term, he issued 414. What is interesting about this turn, from Arthur to Cleveland, is that since then we have had a significantly higher frequency of vetoes by the executive branch. The all time record holder is Franklin D. Roosevelt with a total of 635. Then again, FDR served quite a bit longer than any other president, but ironically was graced with a Congress controlled by his own party. In any case, I believe the numbers support the general notion that early in our national history, our bias toward the presidency was to see the office as subordinate to Congress. Slowly, but unrelentingly, our acceptance and then our expectations for an active president grew and with that we had a change of heart. Consequently, the institution of the presidency has become the dominant branch. This shift began, ever so modestly, with the dramatic administration of Andrew Jackson (he issued 12 vetoes; significantly more than all six previous presidencies which totaled 9 vetoes). In contemporary times, since the Truman administration, the average number of vetoes per presidency is 66 1/4 vetoes. The highest numbers were recorded during the Truman (250 in eight years), Eisenhower (181 in eight years), and Reagan (78 in eight years) administrations. Of note, the Ford administration issued 66 in roughly two years and five months. In our current Obama administration, there have been, in five years, TWO. Perhaps the current president wants to reintroduce the weak presidency theory?

Of course, opposing the weak presidency theory is the strong presidency theory. Here, the idea is for the president to challenge Congress in order to implement the president's agenda and where Congress does not act, to take the initiative and act. The first annunciation of this theory was given to us by Andrew Jackson. He not only challenged Congress; he also challenged the Supreme Court by refusing to refrain from a policy the Court had ruled unconstitutional¹ – a challenging strategy against the Court not followed by any succeeding president with the exception of FDR with his “court packing” scheme. In terms of relations with Congress, the question is: what are the initiating powers of the president to develop and carry out policy not authorized by Congress? For example, Theodore Roosevelt wanted to spend monies already allocated to send a fleet of our navy ships, the White Fleet, around the world – a showing-off gesture to promote our military prowess. Some said Congress had not authorized the expenditure. TR simply responded to the critique: “try and get it back,” referring to the money. Instead of a subservient role, the strong presidency theory calls for a cooperative relation between Congress and the president in determining what national policy will be. Sometimes, that cooperation reflects a coordination, and sometimes it is better characterized as a competition for power and influence. It is this sense of competition, many argue, that is more closely in line with the intention of the Constitution. It reflects the Madisonian ideal of having the branches of government compete so that excessive power would not fall on any one of them – “absolute power corrupts absolutely.”

As for the charge of whether the Obama administration is trying to reintroduce a weak presidency, not so, say his critics. I was watching a C-SPAN broadcast the other day of a Congressional hearing in which constitutional scholars were invited to testify as to whether the Obama administration was usurping too much power. With only two vetoes, the focus was not on stopping legislation, but on the President and his administration's execution of the laws. The charge is that through the actions of the President and his interpretations of the law, he is not executing the law as written. By behaving in this way, the President does not have the legitimate power to do what he is doing. An often cited example is his administering the Affordable Care Act in which he has delayed the implementation of certain mandates written into the law. I will not pretend to know enough about the law to determine whether he is guilty of using unsupportable power to delay those mandates, but there are certain guidelines by which to determine if that is the case.

Fortunately or unfortunately, laws at any level – national, state, or local – usually cannot be written with such specificity so as to spell out exactly how the law will be administered in its execution. Also, laws don't always come to the executive fully funded. That is, for every law that authorizes something to be done, such as the ACA, there needs to be an accompanying, but separate, law that appropriates the funds from the Treasury to pay for it. Often, that amount is not equal to the task. Hence, this usually gives the administration power in determining what parts of the laws to implement. This is the case unless the law specifically identifies a priority in spending choices. When the President states that he has a phone and a pen to carry out executive orders, in order to be legal, the authority to do so comes from the lack of specificity in the law or from a lack of funding provisions. Oh yes; there are times when the law specifically calls on the executive to determine the actual method by which the law goes into effect.

Take the issue of whether the administration will enforce anti-marijuana laws in Colorado where the recreational use of it has become legal under state law, but not federal law. The Obama administration has announced that it will not enforce those federal laws; that is, it will not spend its limited funds on policing statewide law breaking. Now, unlike a law, such executive decisions are easily reversed by subsequent administrations by the equally simple use of a pen and phone by a new president. Any executive action, which is a product of a law's lack of specificity or lack of funding, is in force only during the life of that administration, assuming the President doesn't change his/her mind and get rid of the order him/herself. The moment a newer administration decides to rescind it, it is no longer in effect.

Therefore, as a tool in implementing an “imperial” presidency or a “dictatorship,” executive action is a relatively weak one. The veto is much more effective and this president has been quite weak in its use.

Note: My use of the term, el presidente, is not meant as a slur of the Latino/a culture – heck; I'm a Latino. I just think it sounds more imperial, doesn't it?

1This had to do with the removal of the Cherokee – native American tribe – from the East to territories out West.