For now, then, Bush retains his powers — including the power to veto legislation. This is another extraordinarily undemocratic element of the U.S. system. It allows one man to override the wishes of strong majorities and, in effect, become an independent third house of an already cumbersome legislative process. This "three-house" aspect of our legislative process is one explanation for the difficulty — often, the impossibility — of passing innovative legislation and having it signed into law.
First, let's set aside the entire mention of Bush, since one of the peculiarities of the current President's administration is that he never uses his veto powers. (Total vetoes by W in six years: 1.) But the rationale for the veto power is clearly stated in The Federalist 73: "It not only serves as a shield to the Executive, but it furnishes an additional security against the enaction of improper laws. It establishes a salutary check upon the legislative body, calculated to guard the community against the effects of faction, precipitancy, or of any impulse unfriendly to the public good, which may happen to influence a majority of that body." Indeed, Hamilton considers the 'one man' and innovative legislation objections explicitly:
But this observation, when examined, will appear rather specious than solid. The propriety of the thing does not turn upon the supposition of superior wisdom or virtue in the Executive, but upon the supposition that the legislature will not be infallible; that the love of power may sometimes betray it into a disposition to encroach upon the rights of other members of the government; that a spirit of faction may sometimes pervert its deliberations; that impressions of the moment may sometimes hurry it into measures which itself, on maturer reflexion, would condemn. The primary inducement to conferring the power in question upon the Executive is, to enable him to defend himself; the secondary one is to increase the chances in favor of the community against the passing of bad laws, through haste, inadvertence, or design. The oftener the measure is brought under examination, the greater the diversity in the situations of those who are to examine it, the less must be the danger of those errors which flow from want of due deliberation, or of those missteps which proceed from the contagion of some common passion or interest. It is far less probable, that culpable views of any kind should infect all the parts of the government at the same moment and in relation to the same object, than that they should by turns govern and mislead every one of them.
It may perhaps be said that the power of preventing bad laws includes that of preventing good ones; and may be used to the one purpose as well as to the other. But this objection will have little weight with those who can properly estimate the mischiefs of that inconstancy and mutability in the laws, which form the greatest blemish in the character and genius of our governments. They will consider every institution calculated to restrain the excess of law-making, and to keep things in the same state in which they happen to be at any given period, as much more likely to do good than harm; because it is favorable to greater stability in the system of legislation. The injury which may possibly be done by defeating a few good laws, will be amply compensated by the advantage of preventing a number of bad ones.
And I find the next point made utterly irritating:
Californians have a particularly overwhelming reason to disrespect the Constitution: Although 35 million people live within its borders, it has the same vote in the U.S. Senate as does Wyoming, which has roughly 500,000 people.
How can you defend a system under which Barbara Boxer was returned to the Senate in 2004 with about 6.5 million votes at the same time that Alaska's Lisa Murkowski won the exact same job and power with about 150,000 votes? No greater deviation can be imagined from what we like to believe is a national commitment to "one person/one vote."
Yes, California has the same vote in the Senate as Wyoming -- that's the whole point of the Senate, that the states vote by state representation, and that the people of a given state elect representatives to represent that state overall. The 6.5 million votes / 150,000 votes comment is a red herring: there is nothing about the elections to the Senate themselves that stand in the way of one person / one vote, if you have a big thing about that. But once elected those votes are no longer in play -- votes are good for the election, and no further. What is significant from then on out is representation, and the purpose of a Senator is to represent the people of a state insofar as they organized into a state.
Granted, this does mean that tax dollars flow disproportionately to states of low populations, but this, insofar as it is a problem, is simply a comment on our government's spending habits. To some extent it need not be considered a problem: the population of Wyoming is not a relevant factor in determining whether Yellowstone is worthy of federal support, and the same could be said of a great many more things. Likewise, the relative populations of New York and Nebraska tell us nothing about how much money should be spent on farm subsidies in those states. And so forth. There is a lot of pork going about, and it's possibly the case that states with smaller populations are more porcine than others, but attributing it to the constitution of the Senate needs a serious defense.
What exasperates me most is the battleground argument. Once and for all: It is not a problem that candidates focus on places that are more likely to get them the extra votes needed to win, and, even if it were, it is not something that can be avoided in any democratic system. It happens everywhere, and the only variation is what, in particular, is fought over. The only thing that's even potentially disturbing about the Electoral College version of it is the size of the units that are fought over (whole states); but if that's a problem, you should focus on having your state divide its EC votes the way Maine does.
And so it goes. I'm a big fan of the Electoral College, as I've noted repeatedly on this weblog, so I won't say more about the other swipe at the Electoral College. But the attack on the extended period between election day and inauguration forgets completely that in a nation of 300 million people it can take time to settle election disputes to everyone's satisfaction (so there is a straightforward rationale for an extended period between election and certification by Congress). Perhaps there is a rationale for reducing the period between certification (January 6) and inauguration (January 20); but since Congress can change the date of the vote-countin, it doesn't appear to be a particularly constitutional problem. And two weeks is hardly a terrible length of time for transition.
Nonetheless, it is true that the Constitution is not perfect. It never has been, as Hamilton and others noted. But most of the serious governance problems we face are not constitutional but purely political, and a genuine remedy at the constitutional level is not easily forthcoming.
