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Reiniers: President Madison predicted this mess

Special to Hernando Today

Published:   |   Updated: December 1, 2013 at 12:12 PM

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Droit du seigneur was the right of a French lord to exercise certain presumptive rights under feudal law, which this writer will leave to the reader's imagination since this is a family newspaper.

Given that Democrats have - for all practical purposes - held onto the levers of political power (particularly the ever metastasizing government bureaucracy), since FDR's New Deal in the 1930s, they have been conditioned to believe they too have the right to rule the common man, much as the lord of the manor believed he had a divine right to rule his vassals.

From time to time Republicans become either a nuisance or a thorn in their side as they continue building their government-centered society.

Taking a cue from their autocratic leader who takes executive action to implement his policies, Senate Majority Leader Harry Reid decided to exercise his putative feudal powers by changing the Senate rules to allow a simple majority vote to end debate. Their calculus was and always has been that a majority of Americans wouldn't even understand or care about this change in Senate rules. It would be a one-day story, assuming a majority of people even read the news.

Democrats were correct. Unfortunately, a majority of Americans either have no knowledge about how government works, or don't care, and get bored by such discussions - just as long as they get "theirs."

Democrats should be aware that their senior senator, Carl Levin, D-Mich., implored his fellow Democrats not to support the nuclear option. Speaking form the floor of the Senate, Levin said, "No Senate majority before us has assumed to change the rules at the will of the majority." He went on to say that the "House of Representatives can change the rules whenever it wants - and they do.This body has never done that.until today."

This is heavy stuff for an old progressive liberal warrior like Levin. He insists that the minority party continues to have a voice in government. Levin reminded his peers that Senate rules have been an integral part of the constitutional rubric since our founding.

The Senate has always taken pride in the fact that the framers intended it to be a deliberative continuing body. Since the Senate is not up for re-election every two years as is the House (which has to re-adopt its rules every two years), senators have not reaffirmed their rules since they first opened for business in 1789. This is a liberal senator who has a deep-rooted belief that the Senate is an iconic American institution that should follow its own rules.

President James Madison, fourth president of the United States, is widely considered to be the chief architect of the Constitution. It is not too well known that he also recorded the Constitutional Convention debates in shorthand and transcribed them every night. Given that history, his contributions to the Federalist papers have unusual value.

In Federalist No. 62 his first substantive comment dealt with "the appointment of Senators by the state Legislatures." The framers envisioned these appointees as being "select" - in other words heavyweights with intellectual heft - who would advance the interests of the states "in the formation of the federal government as must secure the authority of the former [states] and may form a convenient link between the two systems." The word "link" is interesting choice. The founders imagined these heavyweights sitting right up there in Washington with the then virtually non-existent bureaucracy, overseeing the outcomes of the authority they, the states, delegated to the federal government.

That is an absolute joke now that the feds have all the juice, because the ill-advised populist 17th amendment changed what was to have been a deliberative body into just another bunch of elected politicians posturing to get ready for the next election.

Madison then launches into an entirely logical reason for "the equality of representation in the Senate" (two senators from each state), to ensure that sovereignty remains in the individual states, thus avoiding "the consolidation of the states into one simple republic." Madison reasons that the structure of the Senate is in effect a "complicated check on improper legislation." It is no wonder liberal progressives and the president view the Constitution as being as a "flawed document."

Federalist 62 is well worth reading, because it and would give the reader some insight into why Senate rules required a super majority for presidential appointments - or as Madison says, the Senate "must be in all cases a salutary check on the government." The framers envisioned the Senate - unlike the House - as not yielding to "sudden and violent passions and to be seduced by factious leaders." The House was to be an "assembly of men" who would only hold office for a short time and then go back to "pursuits of a private nature."

The reasoning behind Federalist 62 is sound. Its language can be translated into 21st Century American political speech. Above all, the framers wanted order and stability in governance. Since no "merchant" would "hazard his fortune" only to become a victim to an inconstant government."

Senators were to be devoted "to the study of laws, the affairs, and the comprehensive interests of the country." The Senate was to be "well-constituted" to avoid the "present embarrassments of America" with its "many monuments of deficient wisdom..." with "all the repealing, explaining and amending laws, which fill and disgrace our voluminous codes." He questions legislators whose "laws be so voluminous they cannot be read, or so incoherent they cannot be understood.or undergo such incessant changes that no man who knows what the law is today can guess what it will be tomorrow."

Well, this is where we are today President Madison. You must have had a crystal ball. Some 200 plus years later and this great experiment in popular government is still a work in progress. When your colleague Benjamin Franklin was asked whether we had a republic or a monarchy, little did he realize that we could be confronted by an autocratic party of big government seeking total control over the destiny of its vassals much like the feudal lords in times long past.

John Reiniers is a retired attorney and regular columnist who lives in Spring Hill.

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