Monday, March 28, 2011

Further Thoughts on the Rule of Law in Teabagistan

Article IV, Section 4 of the United States Constitution begins with the following clause: “The United States shall guarantee to every State in this Union a Republican Form of Government.”

This has nothing to do with the modern Republican Party and therefore does not mean that the Teabaggers get to do what they want and the rest of us have to bend over and take it. Not that you would know that, given the general arrogance and tendencies of the Teabagger movement, but there you go.

Someone had to say it.

No, this particular requirement is what keeps the separate states from becoming communes, aristocracies, or even direct democracies. It is meant as a structural safeguard of the liberties of American citizens against the depredations of their own state governments – and in point of fact, regardless of what any pundit will tell you, a quick look at American history will conclusively demonstrate that the states have always been the greatest threats to individual liberties in this country, not the federal government. With a few notable exceptions, it is the federal government that has had to force the states to recognize the rights and liberties of American citizens, not the other way around.

We have no idea what this clause in the Constitution means anymore.

Republicanism – “neo-Harringtonian republicanism” or “classical republicanism” or any number of other subvariants of the term – is what this country was founded upon in the late eighteenth century. Nobody believes in it today, nor have they since the 1820s or so, when Lockean Liberalism won its half-century-long struggle for dominance in the American political mind. And yet it remains a powerful force in American law, for the simple reason that it is enshrined in the structure of government erected by the Federal Constitution of 1787, the one we still use.

Republicanism is a complex and subtle thing and even its adherents often found it difficult to define, but at its core was the simple idea that politics was an eternal struggle between Liberty and Power. It was a zero-sum game – where one gained, the other lost. And the central task for any properly constructed republic, therefore, was to set up a system whereby Power could be checked and Liberty secured.

There are any number of ways one could do this, theoretically, but the one favored by eighteenth-century republicans was structural – arranging the institutions of government so that they would check each other and prevent each other from crushing the Liberties of citizens.

A properly constructed, balanced republican government had three branches. In England, where this theory originated as far as the colonies were concerned, they represented the One, the Few and the Many – the monarchy, the aristocracy, and the democracy. In the new United States, which was for all practical purposes all Many, they represented functions rather than sociological groups. Instead of the One, the Few and the Many, we got the Executive, the Judiciary and the Legislature.

In its most simplistic form, that’s what you need to comply with the structural requirements of Article IV, Section 4.

But there’s more.

Each of these three branches must have the power to check the others, otherwise the whole point is lost.  That's what the whole "checks and balances" thing you learned in fifth grade is all about, after all.

Moreover, when one or more branches begins to overstep its bounds – when they stomp on the turf of the others – that is “corruption” (a jargon term back then, not a catch-all condemnation of moral or financial sins) and that undermines and ultimately destroys a republican form of government.

A “corrupt” government is not a republican government. In order to comply with the full breadth of the requirements in Article IV, Section 4, the State government in question must not be “corrupt” in that eighteenth-century sense. There must, in other words, be a strict accounting to the rule of law – one where each branch is tightly bound by legal and constitutional principles, particularly those which force it to respect the rights and prerogatives of its sister branches and those of the citizens as well.

Which, once again, brings us back to the disgracefully un-American banana-republic junta running Wisconsin at the moment.

That this group has no respect for the rule of law has been made manifestly clear over the last two months.

They have forced through bills in the legislature without letting opponents vote.

They have forced through bills in the legislature without giving legal notice, as required.

They have violated ethics laws, electioneering laws, and campaign finance laws, even after being elected.

They have instituted their own palace guard in the Capitol to enforce their will, in opposition to the Sheriff and State Police.

They have violated the First Amendment rights of American citizens by forbidding political speech in public areas, the one thing that the First Amendment unequivocally was designed to protect.

They have violated the Wisconsin Constitution’s provisions regarding fiscal bills, quorums and legislative votes.

They have violated the Wisconsin Constitution’s provisions regarding the open access of the Capitol, not only to the citizens of Wisconsin but also to opposing lawmakers.

And they have done so in violation of court orders.

In fact, their latest stunt was such an egregious violation that it rises to the level of a fundamental crisis.

To recap:

The main thrust of the plan instituted by Governor Teabagger (a wholly-owned subsidiary of Koch Industries) was never financial. It was political. By destroying public-service unions, he simultaneously rid himself of an organized opponent and weakened the Democratic Party in the process. But in order to get this through the legislature, he spent weeks claiming that this move was an integral part of the budget process – that it was, in other words, a purely fiscal bill.

Under the Wisconsin Constitution, all fiscal bills must be passed with a quorum of legislators in attendance. Democratic senators withdrew from the state, making the quorum unreachable, and so the situation remained for some time.

Governor Teabagger (a wholly-owned subsidiary of Koch Industries) then had his cronies, minions and lackeys in the legislature strip out the union-busting parts of the budget bill, repackage them into a separate bill and pass it without the quorum necessary for a fiscal bill. Leaving aside the obvious question as to whether this was constitutional (which could only be true if it were not a fiscal bill and the Teabaggers had been lying all along) or not, the fact is that they forced this bill through the legislature without complying with any number of open meeting laws.

Laws passed by the legislature and signed by the governor do not go into effect in Wisconsin until the Secretary of State – an elected official – has them published in the Wisconsin State Journal, the newspaper of record in this state.

Given the momentous issue at hand and the shady, underhanded way in which it was foisted off on the citizens of Wisconsin, a Wisconsin state court agreed that the methods involved in the passage of the bill raised serious questions of law, and ordered the Secretary of State not to publish it.

Cue the Teabaggers.

The Senate Majority Leader, in what he has publicly and proudly labeled an end run around the courts, ordered the nonpartisan Legislative Reference Bureau to publish the union-busting bill on the legislature’s website on March 25.

The Secretary of State - who should know, after all - has clearly stated that only he has the statutory power to “publish” legislation in the Constitutional sense of the term. The Legislative Reference Bureau itself agrees, noting that its putting the bill on the legislature’s website was a “ministerial” act, essentially notifying the Secretary of State of the existence of the bill officially, and therefore did not rise to the Constitutional level of “publishing” the bill.  In other words, the people who actually know what they are talking about all agree that the union-busting bill is not legally valid and won't be until the restrictions imposed by the judicial branch of the Wisconsin state government are lifted.

Governor Teabagger (a wholly-owned subsidiary of Koch Industries) and his cronies, minions and lackeys in the legislature disagree and intend to move forward enforcing the provisions of what is not, legally, a law.

All of this means that they have deliberately and knowingly violated a court order to get their pet project forced into law, and will now deliberately and knowingly force Wisconsin citizens to conform to what is merely their diktat, in violation of currently valid law and court decision.

This, in eighteenth-century republican terms, is corruption.

It is one branch of the government stomping on the turf of another, with the explicit consent of the third.

As such, it is a violation of the republican form of government demanded by Article IV, Section 4 of the United States Constitution.

And it is typical of the way this banana-republic junta operates.

At some point, given current trends, the State of Wisconsin will no longer have a republican form of government, and at that point it would be appropriate for outside powers to step in and remove those who have brought this upon the Badger State.

And won’t that be interesting.


Unknown said...

How would one know exactly where the breaking point is, or in other words, when the administration goes far enough to invalidate the republican form of government? As we've discussed previously, my personal view is that if the measures currently in the courts determine Walker acted in accordance with the law, irreparable damage would indeed be done to our system of government. I'm just curious where you stand personally, and what would have to be done in your eyes to reaffirm that a republican form of government was indeed no longer in place?

Also, relevant to the conversation is the following article:

While this article doesn't present any new ideas (I've heard proposals of eliminating the Secretary of State position before), I think in light of recent events, the importance of the Secretary of State position has been shown. Thankfully, such an action would require amending the state constitution, which would likely not happen. I guess my question is if, in your eyes, the hypothetical elimination of the Secretary of State position -- and in its place an appointed official -- would constitute destruction of the republican form of government as well?

David said...

I would disagree that irremediable damage has been done if the courts find for Walker. All that means is that there has been a lousy court decision. We’ve had lots of those over the centuries. Those get appealed, and eventually overturned through the courts or through legislative measures. That takes time.

What would be a problem would be if the decisions went against Walker and his minions and they refused to obey them. In that case the republican form of government would be corrupted, and stronger measures would need to be taken.

I’m not sure what those would be. We’ve removed foreign dictators through military force, but to my knowledge we’ve never tried that with domestic ones. It would be interesting.

The elimination of the Secretary of State position would be problematic on many levels, but not on the level of destroying the republican form of government. Official positions get created and eliminated all the time. It would be stupid, and it would certainly make the crisis of the rule of law in this state deeper, but in itself it would not be an insurmountable problem.

KimK said...

Removal of Larry, Moe, and Curly from our Statehouse can't happen soon enough. A giant hook from backstage, house left.

tom said...

Speaking of Juntas, do you recall when Jim Sensenbrenner (during the previous dark age when repubs were in charge) allowed a Democratic hearing in a sub sub basement somewhere and when he did not like what the witnesses were testifying to he turned off the lights and the power to the microphones...tyranny
Oh, I'm not a historian but would love to play one on TV
(he he ) glad I found your blog

David said...

Hi Tom - welcome aboard!

I don't actually remember that, unfortunately, but it wouldn't surprise me in the least. The actual messy process of democracy does seem to be a bit more than the right wing of this country can handle.