The Green Papers Commentary

First thoughts about the ramifications of the
Democrats' victory in the 2006 Midterm Elections

Wednesday, November 22, 2006

by Richard E. Berg-Andersson Staff


The want of an amount of power in the government adequate to preserve order and allow of progress in the people is incedent rather to a wild and rude state of society generally than to any particular form of political union. When the people are too much attached to savage independence to be tolerant of the amount of power to which it is for their good that they should be subject, the state of society... is not yet ripe for representative government. When the time for that government has arrived, sufficient power for all needful purposes is sure to reside in the sovereign assembly; and if enough of it is not intrusted to the executive, this can only arise from a jealous feeling on the part of the assembly toward the administration, never likely to exist but where the constitutional power of the assembly to turn them out of office has not yet sufficiently established itself. Wherever that constitutional right is admitted in principle and fully operative in practice, there is no fear that the assembly will not be willing to trust its own ministers with any amount of power really desirable; the danger is, on the contrary, lest they should grant it too ungrudgingly, and too indefinite in extent, since the power of the minister is the power of the body to make and who keep him so. It is, however, very likely, and is one of the dangers of a controlling assembly, that it may be lavish of powers, but afterward interfere with their exercise; may give power by wholesale, and take it back in detail, by multiplied single acts of interference in the business of administration... No safeguard can in the nature of things be provided against this improper meddling, except a strong and general conviction of its injurious character.--

JOHN STUART MILL: from Considerations on Representative Government [1861]


It is, admittedly, an oversimplification of English (later, British) Constitutional History to here note that the Anglo-Saxon Witenagemot ("Assembly of the Wise"- made up of the chief men of England's shires) of the late 1st Millenium continued- in modified feudal form under the Normans and the Plantagenets- as the King's "court" of barons and knights, bishops and abbots. Within said "court", the higher-ranking barons (lords) and upper clergy (archbishop) more or less formed what would eventually evolve into the Privy Council (the "inner circle" of advisors to the Crown), while the remainder of the "court" eventually divided into the Courts of Law (King's Bench, Common Pleas) and Equity (Chancery) and other special purposes (most notably, Exchequer) above the local courts at the shire (county) level, with the largest number amongst the King's "court" forming what would come to be called Parliament (which would come to have the all-important "power of the purse" as regarded funding of the Crown's policies and prerogatives), itself divided into two houses- lords and clergy coming together as the House of Lords; knights (baronets) and burgesses (representatives of the freemen in the chartered towns known as "boroughs") constituting the House of Commons.

Into and throughout the period of the Tudors and Stuarts, the King (or Queen) remained "chief administrator" and his/(her) closest advisers within the Privy Council came to form an "innermost circle", the Cabinet, a body which came to be made up of the administrative Ministers of the Crown (the adjective "administrative" necessitated here because the national Judiciary already mentioned were Ministers of the Crown also). With the Glorious Revolution of 1688-1689 ending nearly a century of strife between Crown and Parliament, a struggle colored by religious differences flowing from the impact of the Protestant Reformation upon England and culminating in the English Bill of Rights, the Sovereign was- from then on- compelled to admit to the Cabinet only those whose political faction, or party, was predominant in Parliament.

Where the King (or Queen) might be strong in personality and influence (as was the case with George III himself before mental illness began to overtake him), the Sovereign was still clearly the leading executive fully in charge of policy within the central government; but, where the Sovereign might be weak (or, perhaps, even incapacitated), a principal minister within the Cabinet would almost always come to the fore as filling the Crown's normal role of "chief administrator": from this, the modern office of Prime Minister would so soon evolve. At around the same, as the 18th Century became the 19th, the Cabinet came to be required to have the confidence of Parliament, else new Ministers would supplant the incumbents: with the Reform Act of 1832 (which did away with the so-called "rotten borough" system of representation), this "confidence of Parliament" meant the support of a majority in the House of Commons, a body that was henceforth to be elected freely by at least a substantial portion of the general population which Commons now purported to represent and it was in this latter political atmosphere that Mill wrote that which I have quoted from him to begin this piece.

The Framers of the American Constitution were quite familiar with most of that which is contained in the first two paragraphs of my "mini-History lesson" above but (other than seeing George III as, in fact, the "chief administrator" of that which they saw as the "Tyranny" from which they had so recently freed themselves) knew little, if any, of that which I have written in the paragraph immediately preceding (indeed, how could they- back in 1787- have known the British Reform Act of 1832?). Thus, and however purposefully or inadvertently, they- instead- created a new Federal constitutional system which still survives and in which- to use Mill's own language- "the constitutional power of the assembly to turn [the administration] out of office has not yet sufficiently established itself": therefore, "a jealous feeling on the part of the assembly toward the administration" would- from time to time, if not oftener- arise, throughout subsequent American History, by virtue of the institutional "checks and balances" the Constitution of the United States would itself contain.

Now the Framers were not, as they have often enough been accused, at all anti-democratic: after all, they had no problem whatsoever with the practice of democracy on the local level (so long as the suffrage were restricted to men of property and office-holding to men of more substantial [real] property- i.e. those the Framers considered to be the most responsible voices of the country [in this, they were merely parroting well-established British practice of the time as to the franchise]); in addition, they most strongly supported the free election (again, by the "proper" persons) of the members of their respective State legislatures and, in fact, introduced same into their new Federal system by making the elective franchise for the U.S. House of Representatives the same as that for legislator in each State so electing a Congressman! At the same time, however, they did fear what has been termed the "Tyranny of the Majority" as much as, if not more than, they feared- as individual citizens, as well as on behalf of the States they represented in the Constitutional Convention- "Tyranny" by an executive/"chief administrator" at least somewhat equivalent to the British Sovereign of their time; while they were not against democracy per se, they perceived dangers (imagined, as well as real) in unfettered democracy which implies that a parliamentary system such as that about which Mill was later writing- one in which "power for all needful purposes is sure to reside in the sovereign assembly" (at least on a national level above that of the several States)- would surely have made the Framers blanche.

It is true that, at the time of the Convention, Governors in 8 of the 13 original States of the nascent American Union were chosen, not by the People of those States, but by the legislatures of these States; while this was largely due to the colonial assemblies- from which the State legislatures emerged upon Independence- being among the "heroes" of the Patriot cause, with the Royal Governors playing "villains", it was also at least somewhat due to the idea that the choice of a chief executive- even on the State level- should not be left entirely to volatile political passions of the electorate but, rather, filtered through their representatives chosen on a more local level: this concept would, besides influencing the manner selected by the Framers to originally choose those who would sit in their new United States Senate, also affect the method through which the new "more perfect Union" of States would choose their own national executive/"chief administrator".

Thus, while the Framers limited the term of office of their new "elected King"- the President of the United States- to four years at a time, they also did not make him either directly elected by the People (even in an age where those persons eligible to vote were, for the most part, only men of at least some means) or chosen outright by the membership of their new Congress of the United States (instead, they came up with that rather convoluted "machine that would go of itself" known as the so-called Electoral College and, where the House of Representatives might have to choose the President, the Congressmen would be voting as members of State delegations, not as individual legislators, for a certain number of candidates designated by how well they did- or did not do- re: the votes cast in that same Electoral College). Therefore- and, again, whether by actual design or logical development over its usage- the Federal system created by the Constitutional Convention in Philadelphia would forever have a built-in tension between Congress and the President, one engendered by Mill's "jealous feeling on the part of the assembly" precisely because the President does not- unlike in a parliamentary system- at all answer to Congress but, just like that body, instead only to the American People.

This "jealousy" becomes particularly acute in the American political system immediately after a Midterm Election in which the Party not in control of the White House has been seen to have taken control of one, if not both, chambers of Congress from the President's Party come the January following the November election in question. The incumbent President, on the one hand, is suddenly confronted with the reality that those in charge at the other end of Pennsylvania Avenue will no longer be particularly friendly to his policies and interests; on the other hand, however, the new leadership of Congress is sure to become more than a little frustrated, as the Congress elected in said Midterms continues in session, by their Party's not- at least for the ensuing two years- holding the Presidency itself.

We have already relatively recently witnessed this, if only somewhat, in the wake of the Midterm Elections of 1986 (in which the Democrats took control of the Senate- which that Party had lost as a side effect of the Reagan landslide of 1980- back from the Republicans [Democrats were able to maintain control the House throughout the Reagan years]) and even much more so in the wake of the Midterm Elections of 1994 (in which the Republicans took control of both houses of Congress from the Democrats [while Bill Clinton was in his first term in the White House], control which the GOP has only just lost in these most recent Midterms). But, and this can quite clearly be seen in the political events following the 1994 "Gingrich revolution", such frustration is largely the prerogative of the House of Representatives (it can even be argued that much of the "fire" fueling the Impeachment of President Clinton in 1998 was, indeed, a "jealous feeling... toward the administration" on the part of House Republicans of that time, especially in the wake of Clinton's re-election a mere two years after the big GOP victory in '94).

This is largely because, throughout the period I have described (1980 down to the present day), the United States Senate has remained mostly moderate (albeit moderately conservative in Republican hands [despite the shrillest cries of left-leaning liberals that it has merely been the tool of the Far Right], moderately liberal whilst held by Democrats- as it will now soon be again [regardless of the harsh whining by rightist conservative pols and pundits that it was- and will be- an abject snake pit of the grossest excesses of the Sixties]), largely because a relative handful of centrists in the Senate have ever held its balance of power (but also partially because effective control of that body is, in reality, 60 Senators- the number needed to invoke cloture on debate- not the magic 51 that makes a mere majority able to assign committee chairman and steer legislation: neither Major Party has held at least 60 Senate seats since the Administration of Jimmy Carter!) and this is pretty much by design.

For the Framers, despite their lip service to the concept of Separation of Powers (which necessitated the division of Federal power amongst the familiar three branches of governance- Legislative, Executive and Judicial) intended their Senate to actually be both part executive and part judicial as well as legislative: after all, this was the system with which many of them had been quite familiar on the colonial- and even nascent State- level, one in which the upper house of the colonial legislature (the colonial assemblies- with their own "power of the purse"- being but the lower houses of same) consisted of "assistants" or "deputies" who, in effect, also formed a kind of "privy council" for a Royal Governor acting in the name of the British Crown (this very kind of council yet survives in the form of, for example, New Hampshire's Executive Councillors [though these are not members of that State's senate]).

The "judicial"- if you will- function of the U.S. Senate is most obvious when it sits as a court of Impeachment (as it did so recently in the case of President Clinton mentioned earlier), passing judgment on charges brought before it by the U.S. House (Impeachment being the politicolegal equivalent of a criminal indictment) against Federal judges, as well as the chief executive himself (in the British system, as already noted, both executive and judiciary were considered Ministers of the Crown and, therefore, liable to Impeachment: the President of the United States, being his own "prime minister", is as much the American equivalent of a "Minister of the Crown" as any Federal judge; the independence of the Judiciary from the Executive is, by the way, an American innovation). The Senate's "executive" function, however, is nowadays somewhat the more subtle. It was- for example- given power, under the Constitution, to "advise and consent" to presidential appointments requiring formal nomination followed by Senate confirmation and it is quite clear that the Framers meant the "advise" part of this equation quite literally (that is, they expected the President to consult with the Senate as a body in the manner of a colonial-era council of assistants to a Royal Governor: put another way, they fully expected the Senate to become the President's "privy council"!).

President George Washington- who had been the presiding officer of the Constitutional Convention and, therefore, presumably had no little knowledge as to just what his fellow Framers might have actually intended in this regard- attempted to utilize the Senate in this very fashion (thus, one can so presume the Framers' original conception) but was rebuffed: the Senate, thereby, evaded such a councillor's role and, as a result, whatever "advising" the Senate might now give as regards presidential appointments is not done as a body but is more along the lines of so-called "senatorial courtesy" (in which a President will not appoint someone to, say, a Federal judgeship who does not pass muster with a Senator of the President's own Party from the State that judge would be serving) and, therefore, the role of the Senate is to merely "consent" (or not) to a given nomination- despite the continued application of the fuller constitutional language. Nevertheless, the Senate- originally conceived of as, in effect, a council of "ambassadors" from the several sovereign States of the Union to the nascent Federal system- retains its quasi-executive role in such things as its constitutional power to ratify Treaties negotiated with foreign powers on behalf of the United States by the Executive branch by at least 2/3 vote of that body (else the Treaty is of no legal effect).

Given its thus having at least its constitutional feet in the door of prerogatives normally belonging to each of the other two branches of government, the U.S. Senate- by its very nature- has a rather unique role as a kind of "sifter"- whether it might also function as either "bulwark" or even "referee" depends on the political circumstances of the time, and issue, in question- between the President of the United States and the U.S. House of Representatives. It is, indeed, the "saucer" in which the passions of the People as expressed in Congressional Elections, as well as by those so elected, are "cooled"- acting as the typical "second chamber" of a bicameral legislature, it is the body in the American Federal system that- in essence- says to the "first chamber": 'Wait a minute! Are we so certain we want to do that?!': but it also the body that says to the President pretty much the same thing, even where the President might have the political support of the House.

Thus, the Senate's institutionally more moderate politics as a general rule- retained despite now nearly a century of electing Senators via popular vote (and one based on universal suffrage: regardless of race, gender or amount of property owned) and not by the legislatures of the several States- and, because of this, it would logically be the House, rather than the Senate, from which Mill's "jealous feeling... toward the administration" would be the more likely to obtain, whatever "jealousy" an individual Senator from the Party not holding the Presidency might express. And so it is in the wake of these most recent Elections. As I myself opined in my Commentary posted a few days prior to the voting: [the Democrats taking control of at least the House] would actually be good news for the Republicans heading into the next Presidential Election cycle because a Speaker Nancy Pelosi (who represents one of the most liberal Congressional Districts in the country) would then largely become to conservatives what Newt Gingrich was to liberals a decade ago- a face to put onto the political agenda they so decry.

Despite the fact that the United States does not have a parliamentary system of governance, there is ever the distinct possibility of what Mill- in my quotation from him at the head of this piece- refers to as "multiplied single acts of interference in the business of administration" on the part of a Congress controlled by a Party other than that of the President. One can only (and, in my opinion, vainly) hope for cooperation between a Democratic Congress (especially the House, for the reasons already outlined) and a Republican President- if only during the first year of the new 110th Congress, before the politics of Presidential Election 2008 inevitably ratchet into highest gear- and, if there is a sphere in which "meddling" ("improper" or not) might yet prove to be of at least potentially "injurious character", it is the realm of Foreign Policy and, specifically, the War on Terror and (whether or not the individual reader of this piece might, or might not, consider it part of this last) the war in Iraq.

My own take on the political impact of the war in Iraq (or, for that matter, any other among current issues of the day) will have to be the subject of a future Commentary (to be posted on this site not long before the new 110th Congress formally convenes) but, for now, I'll here note that, while Ms. Pelosi and her fellow Democrats may, for the most part, agree that the current course taken by the Bush Administration in Iraq continues to be a disaster in the making (even with Secretary of Defense Donald Rumsfeld falling on his sword- or walking the plank [pick the analogy of your choice!]), the new majority Party in Congress is badly split on just what to do about it. According to the best polls I've seen, approximately one-third of the electorate who voted back on 7 November want an immediate pull-out (or at least a timetable for withdrawal that deals in months, not years): if one presumes that the vast majority of these voted for the Democratic candidates for Congress in 2006, this still implies that something close to one-third of those who also voted for Democrats in this most recent election do not necessarily agree with this "immediate- or close to immediate- withdrawal" position.

In addition, many of the incoming freshmen Democratic Congressmen and Senators whose victories gave the Democrats their new majority in both houses are not exactly "yer daddy's liberals"! Also, simply look at what happened to the Democratic nominee for the Senate in Connecticut who ran against incumbent Joe Lieberman in the Primary, beat him (forcing Lieberman to run for re-election as an Independent) but failed to ride his anti-war message to victory in November. The election may well have been something of a "referendum" on the war in Iraq as it yet remained the usual "Politics is Local" but the results of said "referendum" merely indicates a Nation that, while it is not at all happy with what has transpired so far in post-Saddam Iraq, is yet lacking in clearest consensus as to just how to go about making things better, let alone bringing its troops home much too early.

This political confusion, right now, permeates both Major Parties- victors and vanquished of Election 2006 alike- for, on the other side of things, the Bush Administration and the President's fellow Republicans, they- too- are going into a period of readjustment on issues such as the war in Iraq as they become the minority Party in each chamber of Congress this coming January whilst Presidential Campaign '08 picks up its pace even before we have flipped the calendar page to 2007! And it certainly doesn't help the GOP that President Bush's comment about the lesson of the Vietnam War (stated while he himself was standing on the soil of that very country) to the effect of 'if we don't quit, we can succeed' is, in the main, so very wrong. As I myself noted within a Commentary for this website I wrote more than four years ago now:

Those of us once educated in the public and private schools here in America have grown up so often hearing the familiar phrase that "in a Democracy, the Majority rules"; of course, the United States is not a Democracy- it is a Republic: that is, a Constitutional Democracy in which Minorities of Opinion, Race and Religion (among others) are at least legally protected from (and, where such protection fails, have legal redress against) what is (too often rightly) referred to as the Tyranny of the Majority. No, Majority does not always rule here... nor should it!

War is one of the best illustrations of this very principle. Arguably, one of the many lessons of the Vietnam War... is that a President of the United States has to have significantly much more than a bare majority in support in order to well prosecute a war: President Richard Nixon was doubtless correct when he so often talked about his "Silent Majority", that which he saw as the counterweight to the Anti-War Movement so active during his first term; those who were opposed to American involvement in the conflict in Indo-China were (by even the admission of most of the leaders of that movement) never ever a majority: however, they were a large enough minority, and were so often enough- particularly during the Nixon Years, to make it difficult- where not nearly impossible- for the Administration to do quite a lot of whatever they wished to do in Vietnam and its neighbors as part of that war (and where the Administration sought to squelch opposition- with the gravest overtones as regarded civil liberties- it usually only tended to increase opposition to the war and was, thus, largely counterproductive).

No, Mr. President, the real lesson of the Vietnam War is this: "if you are going to prosecute an undeclared war in the name of a People governed by a constitutional system in which civilians ultimately oversee and control the military, you had better have a Supermajority (at least two-thirds of the electorate) in favor of what you are doing!"-- to continue my own words of 13 September 2002:

[I]f a President can gain (and, more to the point, maintain) a supermajority in support..., then he can prosecute a war even if he doesn't necessarily get Congressional authorization...; where a President runs into trouble is if he loses, or even never ever has, that supermajority in favor of military action- both Lyndon Johnson and Richard Nixon could have attested to that, were they each to have given us an honest appraisal instead of being forced to justify their actions the way they each did in their respective memoirs!

But real debate (beyond mere political posturing) on all of this now waits for a bit, for the new Democratic Party-controlled Congress does not officially take office until Noon Eastern Time next 3 January. Only after that moment in time will we be able to clearly see just how jealous a feeling future Speaker Pelosi's House of Representatives might actually have toward the Bush Administration. And in the middle of it all will be the United States Senate, relatively unchanged in its usual tone of moderation by the switch in Parties leading it, as well as producing many of the dramatis personae of Presidential Election 2008- persons with names such as John McCain and Hillary Rodham Clinton and even Barack Obama (though, in my opinion, this last one mentioned is still too lacking in national political experience to be a serious player in the presidential sweepstakes upcoming).

Stay tuned!


Commentary Home