Monday, August 23, 2010


I haven't read much (maybe any) Heinlein, so I hadn't come across this until just now (and I still haven't read the source material). Evidently Heinlein, in The Moon is a Harsh Mistress, suggests that a Congress should require a two-thirds majority to pass legislation (our own requires nearly that in the Senate, except for Obamacare) but only a one-third minority to repeal legislation. That fascinates me.

Our current system of government places the same strictures on any change to government, but it seems obvious to me that not all changes are the same. Requiring two houses, selected differently, to independently authorize (one by supermajority) and an executive to approve a new incursion on the freedom of the populace seems like an eminently reasonable, and maybe even insufficient, policy. But requiring the same to increase the freedom of the populace, even in a way that might be injurious to society, does seem a bit excessive. And luckily we're provided with a fantastic proxy for what infringes freedom and what increases it. The only lever available to government is the restriction of freedom, so all laws must necessarily impinge on it.

I'll note I'm not arguing that all restrictions on freedom are bad. I'm, rather, arguing that while prohibiting me from stealing things from my neighbor's house is a good idea, it does restrict my freedom to steal things from my neighbor's house. But surely a super-majority of people would agree that the protection of property is worth that restriction and by extension a significant minority would never wish to repeal it.

On the whole I can't think of a good reason why I wouldn't want to see bills repealable by a significant minority. I do question, though, whether parts of bills should also be repealable. On the one hand much legislation going back to the founding has been based on compromises that would fall apart if some of the parties believed that the compromise could be repealed later by a significant minority. On the other hand, maybe not being able to pass a bill that Joe Senator would have voted against if it hadn't been for the promise to build a bridge in his hometown wouldn't be such a bad thing.

Thursday, August 5, 2010


I came across something today I had never noticed before. In the closing of Federalist 81 (about abuse of judicial power), Hamilton says

And the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations. While this ought to remove all apprehensions on the subject, it affords, at the same time, a cogent argument for constituting the Senate a court for the trial of impeachments.

I had two thoughts upon reading this. The first was that modern justices clearly do not live in fear that Congress should punish them for usurpation by degradation from their station, since no justice has ever been impeached. The second is that I don't recall anything in the Constitution assigning such a power to Congress. I checked and I was correct. There are three sections on impeachment in the Constitution (excepting the sections excluding powers during impeachment proceedings from the courts and the executive):

Article I, Section 2:
The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

Article I, Section 3:
The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

And Article II, Section 4:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors

Plus one section on the terms of a Justice staying in office, Article III, Section 1

The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.

Now one might reasonably argue that the arrogation of power not mentioned in the Constitution violates "good Behavior", but I think this clearly falls short of terms that would lead the Justices to fear Congressional rebuke for their actions. I find it rather difficult, then, to square the text of the document with Hamilton's (now I think clearly shown to be false) assurance that the judiciary would never exceed their bounds because of fear of impeachment.