The Terms of American Government

Item Three: Terms of American Government

Liberal democracy  This is a political philosophy of the Eighteenth Century stemming from the writings of Hobbes, Locke and Mills)  Do not confuse it with the Twentieth Century meaning of liberal vs conservative (Obama vs Bush).  All mainstream politicians in the United States believe in liberal democracy, just in varying degrees of application to a broad spectrum of people.  When you chart the political ideologies of the world on a continuum, liberal democracy lands dead center.  As you move right, you encounter Conservatism, Libertarianism and Fascism.  As you move to the left, you bump into Socialism, Communism and Anarchism   The United States Constitution embodies the political philosophy of liberal democracy:  Representative government (indirect democracy, meaning our representatives vote on issues rather than the people voting directly), political rights (free speech, press and assembly, right against unreasonable search and seizure, due process–basically the Bill of Rights or the first ten amendments to the Constitution), separation of church and state, an independent judiciary.  Historically, liberal democracy grew up with free market Capitalism which guaranteed private property, inviolability of contract, debt obligation.  In the twentieth century, liberal democracy was challenged by Fascism and Communism, the former opting for a military dictatorship and the latter rejecting, in theory at least, free market Capitalism and indirect democracy in favor of a planned economy with the means of production owned by the workers and direct democracy, that is, voting by all the people on all the issues. 

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Federalism is the best curb on democracy. [It] assigns limited powers to the central government. Thereby all power is limited. It excludes absolute power of the majority.        Lord Acton



Federalism represents a system of dual sovereignty, that is, two powers, divided, in the United States, between the federal (national) government in Washington, D.C. and state governments [from 13 in 1789 to 50 today].  According to the United States Constitution, each jurisdiction [federal and state] has different functions, but each has ultimate power over those functions.  A Federalist state gives broad authority to local government in all areas of government except foreign policy.  Historically, both Democrats and Republicans have favored limited federal power and granted broad power to state and local government.  (Please remember that the US Constitution only creates state government.  All local government–country, city, town, village, hamlet–is created by the state.)  A case can be made that states’ rights were dealt a fatal blow by the Civil War (1861-65) when the federal government refused to let the Southern states secede from the Union and form a separate sovereign nation.  In life as in politics, if you enter a union–political, economic or social– from which you are not allowed to leave, all other rights are meaningless.  Basically the North said to the South, If you leave, we’ll kill you.  And it proceeded to take up arms against the rival army which left 57,000 dead and a nation devastated, but united.

Marbury vs Madison: One of the most important landmark cases in the history of the United States Constitutions, Marbury v. Madison,  introduces into the U.S. political framework the right of courts to declare a law of a legislative body unconstitutional.   It stemmed from a dispute over a last minute political appointment which is not important.  What it did was to allow Chief Justice John Marshall who put an indeliable stamp on the nation’s formation in his 35 years as head of the US Supreme Court when the country was in its infancy.  Not mentioned anywhere in the Constitution, Marshall declared the doctrine of judicial review which to the judiciary at all levels (federal, state and local) the power to say that the legislatures made a mistake and passed a law which was not consistent with the federal Constitution.  And since Article Six of the Constitution does declare that the federal Constitution is the law of the land if appeared to leave open that the Court could review a law and find that it violated some clause of the Constitution.  This power has been disputed ever since, but no serious movement has been mounted to overturn that decision.  Other liberal democratic countries do not give the judiciary this power.  If people think a law violates the nation’s constitution, the people have the obligation to vote out the legislators who passed it and vote other legislators in who will repeal it.

Bill of Rights:  The original Constitution as drafted in 1787 did not include the rights of the states and people in relation to the federal government.  They are the first ten amendments to the Constitution ratified all together in 1791.  It was perfectly understandable that the men who wrote the Constitution who were leading political figures in their respective states would believe it was the newly established federal government which had the potential of abusing the rights of the people.  They were sure, since they were the lawmakers of the states, that the states would not abuse the rigths of the people.  Therefore, the Bill of Rights only applied to federal law until after the Civil War in 1865.  The Civil War made it sbundantly clear that the individual states were perfectly capable of abusing the rights of the people.  Four million slaves alone could testify to that.  So three “Civil War Amendments” were passed in 1865, 1868 and 1870–the Thirteenth, Fourteenth and Fifteenth–which freed the slaves (13th), declared the Bill of Rights applicable to the States (14th) and gave Black men–not women–the right to vote (15th).   The most quoted and used amendments of the Bill of Rights are:  the First (free speech, religion and assembly), the Second (the right to bear amrs), the Fourth (the right against unreasonable search and seizure of you person or property), the Fifth (due process, eminent domain, double jeopardy, self-incrimination (please note that former National Security Advisor Michael Flynn may invoke this when he is called before Congress), the Eighth (cruel and unusual punishment).

Electoral College:  The Electoral College derives from Article II, Sectionm 1, clauses 2, 3, 4 and the Fourteenth Amendment to the U.S. Constitution.  It is not an entity or building, but a process and it was not referred to as the Electoral College until decades after the Constitution was ratified.  The Constitution refers to Electors who are responsible for “electing” the President and Vice-President of the United States although those offices were at one time the highest and second highest votes and were separated into two separate votes by the Twelfth Amendment.  Why the framers of the Constitution chose electors rather than direct election by the population has been attributed to many issues:  large vs. small states, the influence of political parties and the fear of the framers as expressed in Federalist Paper #10 of the power of the masses (the majority of the population) disrupting the dominance of the minority (wealthy white men).  In any case, it is clearly an instrument of indirect democracy and has been praised and criticized as such.

The electors for each state equal the number of senators (2) and the number of members of the House of Representative (1/550,000 people).  The total number of electors is 538 (100 Senators, 435 Members of the House–set by law and cannot be increased–plus 3 representatives of the District of Columbia–determined by the Twenty-third Amendment to the Constitution).  Half plus one equals 270.  In the last election, Trump received 306 (but two delegates from Texas refused to case their votes for him leaving him technically with 304) and 227 for Clinton.  Clinton, however, won the popular vote by 3 million.

The electors today are attached to political parties on the ballot for President and Vice-President.  They are chosen by the parties by processes established by each state.  In every state but Maine, the electors are winner-take-all as opposed to proportionally allocated according to the percentage of the vote received by each of the parties running presidential candidates.  The Electors are not legally bound to vote for the party which chose them, but it is rare that they are “faithless.”  There is no general meeting of the Electoral College and meet in their own state on the first Monday after the second Wednesday in December.  A joint session of Congress announces the winner.

Executive Order:  There is no specific “executive order” described in the US Constitution which demands only that the President faithfully execute all laws.  As executive orders of the President have evolved, they have full force of law and are usually considered to be subject ot judicial review.  They are numbered consecutively since the mid Nineteenth Century and are up to 13800 including Trumps 36 (or may be 37 or 38 as i write) Executive Orders.  Executive Orderts are technically a directive to offices and agencies to do or cease to do something.  During the Great Depression, President Roosevelt issued 3727 EOs covering all aspects of the economy and social conditions.  He even tried to change the number of US Supreme Court Justices by this means.  Obama issued 276 EOs.  President Lincoln freed the slaves by Executive Order (but the Thirteenth Amendment made it a constitutional mandate); President Truman seized the steelmills but the Court declared it invalid;  President Trump’s two EOs on immigrations bans have been ruled unconstitional by a series of Appellate Courts.

Other executives (Mayors, County Executives and Governors) can also issue Executive Orders and do on a regular basis.  Until recently very few people were aware of EOs being issued or understood they were laws as soon as they were issued.  Here are a couple of examples of state and local government executive orders:  When he was governor of Florida, Jeb Bush attempted to eliminate affirmative action in hiring and admission to higher education by executive order, but three Florda state legislators staged a sit-in in his office for 72 hours until he agreed to discuss the issue with the State Legislature.  Governor Pataki privatized a detention facility on the grounds of the Westchester County Jail by executive order.  As soon as the facility was privatized, the union that had represented the employees was eliminated.  County Executive Andy Spano issued an executive order declaring zero tolerance of sexual harassment in the workplace.

President’s Cabinet:  The US Constitution does not create a presidential cabinet, but the first president, George Washington, selected four leading officers (Secretary of State, Treasury and War plus the Attorney General) and the Vice President to advise him.  Since then the number of Cabinet members has increased but they are still appointed by the President subject to the approval by a simple majority of the Senate of the Congress.  The Trump Cabinet consists of fifteen “secretaries” by a Trade Presentative, Director of National Intelligence, Ambassador to the United Naitons, Director of the Office of Management and Budget, Director of the Central Intelligence Agency, Administrator of the Environmental Protection Agency and the Administrator of the Small Business Administration.  There are also seven subcabinet councils to advise on policy.  The President may also appoint a Chief-of-Staff a position which does not require confirmation by the Senate.   Salaries are fixed by law, a fixed five level schedule contained in the United States Code Title 5.  Pay starts are $205,000.

Administrative Law:  Sometimes called the Fourth branch of government, administrative law is comprised by the rules and regulations issued by administrative agencies which are created mostly by an “enabling act” of the Legislative Branch of Government or by the Executive Branch.  The agency reports to the Branch which created it.  Every agency contains within it all three branches of government.  That is, every agency can make laws (legislative function), enforce its rules (which have the weight of law (an executive function) and adjudicate (determined the interpretation) its own rules   Agencies are formed on local and/or national levels of government.  The number and breadth of administration agendies is enormous and the subject matter of agencies is  varied but most often deal with aspects of everyday life.  Most people come into contact with administrative law much more than.  Typical agencies are Workers’ Compensation, Unemployment, Social Security, Food and Drug, Federal Communications, IRS (taxes), Homeland Security (including immigration), Labor law, Housing, Education law, Environmental Protection.  

Fascism:  An elitist, militaristic, racist political ideology associated with Nazi Germany, Fascist Italy and Spain in the period spanning 1922 to 1945.  Born of pollitical chaos and post World War I defeat, fascism rejects traditional liberal democracy and human rights in favor of a dictatorship, a single, dominant politcal party and institutionally sanctioned acts of violence against “undesirable” people which historically included Jews, Communists, Catholics, Gypsies (Roma), Jehovah Witnesses and homosexuals.  The ultimate denial of human rights was the deliberate extermination of six million Jews in Nazi concentration camps in Germany and Austira.  Italy also had designated extermination as well as “holding” campus.

Socialism/Communism:   Socialism and Communism are actually progressive poliical iedologies on th political spctrum. In theory thyey both reject liberal democracy in favor of social democracyu, that is, they reject indirect deomocracy in favor of direct democracy in which all issues are voted on by the people themselves as opposed to representatives of the people.  Social and Communism reject the political economic system of Capitalism, private property, free market and production for product and call for production for use.  They differ in that Socialism envisions ownership of all production by the State which then distributes the goods produced equally among the people.  A small amount of private property would be allowed in personal possessions.  Communism envisions ownership of all production by the people themelves with the state disappearing to be replaced by local decision-making.  In contrast to the popular view of Communism as associated with the Soviet Union, in theory Communism does not advocate dictatorship or military rule.


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