A Letter to Baltimore School of Law

This will be an email to officials at Baltimore Law School I will send after enough time for the peanut gallery to point out any mistakes.

Dear Sir or Madam,

My name is Aaron Walker.  I am an attorney and a graduate of Yale Law School.  I say this not to brag but to make you understand that I am not simply a crank.  I know of which I speak.

Recently one of your professors, Garrett Epps wrote a piece in the Atlantic entitled “Imperfect Union: The Constitution Didn't Foresee Divided Government” that argued, remarkably, when discussing the likely confrontations between the President and the newly-Republican Congress:

What’s coming will be painful, frustrating, and dangerous—and it will illustrate a constitutional malfunction unforeseen in 1787. The country will survive, and it’s possible it can even make progress—but at tremendous cost in polarization and missed opportunity. The country is like a car driving with the handbrake on: Any movement forward will be accompanied by smoke and internal damage.

So we might profitably put a six-month moratorium on paeans to the wisdom of the Framers. The problem of divided government is a bug, not a feature, and the Constitution itself provides no guidance on how to work around it.

Now, if he wishes to argue that as a normative* matter, it is better to structure our system of government in a manner to reduce division, I would not be writing to you today.  I would not agree with that opinion but I don’t think that is an occasion to involve his superiors.  I respect not only the legal right to have a different opinion, but the moral right to do so.

But the problem is he claims this is descriptively true, and it is not.  So this goes to his competence, not the propriety of his opinions.  Rather than expecting harmony, the Constitution itself is written anticipating conflict.  For instance, the veto clause is written with the expectation that sometimes Congress will want laws that the President thinks is unwise.  Note, also, that the veto was not limited to constitutional objections, but any policy disagreement.  And the fact that they also built into the Constitution a procedure for overriding the veto, suggests that they anticipated that the Congress might say, “we know you disagree, but we insist.”  Finally, the existence of the impeachment provision suggests that the founders thought that the disagreement would be so severe that they would have to actually remove him.

There is other structural evidence of the intent to divide our government, which Professor Epps, actually alludes to, but oddly believes that division was an unintended effect, rather than the goal:

The House was the only branch directly elected by voters. The Senate was picked by legislatures, the president by electors. Most of them believed the voters should be represented—a different thing entirely than being asked their “will.”

And he finishes by saying:

Had the Framers foreseen any of that, they might have made different choices. Something closer to a parliamentary system would have been one option; it’s a much more common system than our own. But they might also have given Congress different terms, so that all members and the president would be selected at the same time. Two years is, by world standards, a very short legislative term; politics has become a non-stop exercise. In addition, midterm elections that don’t directly affect executive power create the danger of two antagonistic governments trying to fit into one capital.

In fact, anyone who read the Federalist Papers knows that the different methods of selection and terms didn’t accidentally create division: it was part of the design.  For instance, in Federalist # 63, James Madison (probably) wrote that:

The objects of government may be divided into two general classes: the one depending on measures which have singly an immediate and sensible operation; the other depending on a succession of well-chosen and well-connected measures, which have a gradual and perhaps unobserved operation. The importance of the latter description to the collective and permanent welfare of every country, needs no explanation. And yet it is evident that an assembly elected for so short a term as to be unable to provide more than one or two links in a chain of measures, on which the general welfare may essentially depend, ought not to be answerable for the final result, any more than a steward or tenant, engaged for one year, could be justly made to answer for places or improvements which could not be accomplished in less than half a dozen years. Nor is it possible for the people to estimate the share of influence which their annual assemblies may respectively have on events resulting from the mixed transactions of several years. It is sufficiently difficult to preserve a personal responsibility in the members of a numerous body, for such acts of the body as have an immediate, detached, and palpable operation on its constituents.

The proper remedy for this defect must be an additional body in the legislative department, which, having sufficient permanency to provide for such objects as require a continued attention, and a train of measures, may be justly and effectually answerable for the attainment of those objects.

In the same paper, they explain that if the Senate ever tried to become a tyrannical body, that the very division of government would prevent it:

Without exerting the means of corruption with equal success on the House of Representatives, the opposition of that coequal branch of the government would inevitably defeat the attempt; and without corrupting the people themselves, a succession of new representatives would speedily restore all things to their pristine order. Is there any man who can seriously persuade himself that the proposed Senate can, by any possible means within the compass of human address, arrive at the object of a lawless ambition, through all these obstructions?

If reason condemns the suspicion, the same sentence is pronounced by experience. The constitution of Maryland furnishes the most apposite example. The Senate of that State is elected, as the federal Senate will be, indirectly by the people, and for a term less by one year only than the federal Senate. It is distinguished, also, by the remarkable prerogative of filling up its own vacancies within the term of its appointment, and, at the same time, is not under the control of any such rotation as is provided for the federal Senate. There are some other lesser distinctions, which would expose the former to colorable objections, that do not lie against the latter. If the federal Senate, therefore, really contained the danger which has been so loudly proclaimed, some symptoms at least of a like danger ought by this time to have been betrayed by the Senate of Maryland, but no such symptoms have appeared. On the contrary, the jealousies at first entertained by men of the same description with those who view with terror the correspondent part of the federal Constitution, have been gradually extinguished by the progress of the experiment; and the Maryland constitution is daily deriving, from the salutary operation of this part of it, a reputation in which it will probably not be rivalled by that of any State in the Union.

And the claim that the Founders didn’t consider anything like the British system is laid to rest by this passage, continuing right where the last block quote left off:

But if anything could silence the jealousies on this subject, it ought to be the British example. The Senate there instead of being elected for a term of six years, and of being unconfined to particular families or fortunes, is an hereditary assembly of opulent nobles. The House of Representatives, instead of being elected for two years, and by the whole body of the people, is elected for seven years, and, in very great proportion, by a very small proportion of the people. Here, unquestionably, ought to be seen in full display the aristocratic usurpations and tyranny which are at some future period to be exemplified in the United States. Unfortunately, however, for the anti-federal argument, the British history informs us that this hereditary assembly has not been able to defend itself against the continual encroachments of the House of Representatives; and that it no sooner lost the support of the monarch, than it was actually crushed by the weight of the popular branch.

And of course no discussion of division and disagreement in government would be complete without touching on Federalist #10.  For the most part it is useless to cherry pick one part to quote: one should read the whole thing and see how Madison anticipated disagreement and faction, believed it could not be avoided, and celebrated how the government would control its excesses.  And while quoting entire sections is a useless, a few highlights are worth citing.  For one, while Madison was not a fan of factionalism, he believed it was inevitable:

Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.

And he believed it was useless to just hope we will not be divided:

It is in vain to say that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good. Enlightened statesmen will not always be at the helm.

I would suspect that Professor Epps would agree that Congressional Republicans are not enlightened leaders and that is just my point.  The Founders knew that our leaders would not always be great men; they designed a government that could be run by less than great men.

In other words, the division of this government is not an accident.  It is by choice.  It is by checks and balances.  This may not be normatively a good idea—I happen to like it, but I believe vehemently in Professor Epps’ right to disagree—but it is descriptively the system we have and it is what the founders intended.  The fact is while the founders recognized that inaction could be a problem, they were more willing to risk unwise inaction than wrongful action.  That is why our system of checks and balances exist.

So I write to bring this instance of incompetency to your attention.  Since he displayed his ignorance in a national publication, this school should, in its duty to inform the public, ask Mr. Epps to issue a correction or retraction, lest some unsuspecting reader think that a person of his background must be right.  He is wrong.  Whatever one might think the system should be as a matter of policy, his description of how it works and how it was intended to work is simply wrong.

I thank you for your time and consideration.

Sincerely,

Aaron J. Walker, Esq.

So, dear reader, if I am going wrong, let me know by twitter, email or the comments.  And I hope you enjoyed reading it.

Hat tip: Twitchy.

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* I normally avoid using overly obscure words in my writing on the blog.  Unlike Professor Gruber, I prefer that the masses understand what I am talking about.  But when you talk to academics, dropping these kind of code terms like “normative” is usual.

Normative, is more or less saying, “how something should be.”  Descriptive, a word you will see in a second, is talking about “how something is.”  If I wrote, for instance, that America is a constitutional representative democracy, that is a descriptive statement.  If I wrote, we should be a communist dictatorship, that would be normative (don’t hold your breath waiting for me to say that in earnest).

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My wife and I have lost our jobs due to the harassment of convicted terrorist (and adjudicated pedophile) Brett Kimberlin, including an attempt to get us killed and to frame me for a crime carrying a sentence of up to ten years.  I know that claim sounds fantastic, but if you read starting here, you will see absolute proof of these claims using documentary and video evidence.  If you would like to help in the fight to hold Mr. Kimberlin accountable, please hit the donation link on the right.  And thank you.

Follow me at Twitter @aaronworthing, mostly for snark and site updates.  And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here.  And you can read a little more about my novel, here.

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Disclaimer:

I have accused some people, particularly Brett Kimberlin, of reprehensible conduct.  In some cases, the conduct is even criminal.  In all cases, the only justice I want is through the appropriate legal process—such as the criminal justice system.  I do not want to see vigilante violence against any person or any threat of such violence.  This kind of conduct is not only morally wrong, but it is counter-productive.

In the particular case of Brett Kimberlin, I do not want you to even contact him.  Do not call him.  Do not write him a letter.  Do not write him an email.  Do not text-message him.  Do not engage in any kind of directed communication.  I say this in part because under Maryland law, that can quickly become harassment and I don’t want that to happen to him.

And for that matter, don’t go on his property.  Don’t sneak around and try to photograph him.  Frankly try not to even be within his field of vision.  Your behavior could quickly cross the line into harassment in that way too (not to mention trespass and other concerns).

And do not contact his organizations, either.  And most of all, leave his family alone.

The only exception to all that is that if you are reporting on this, there is of course nothing wrong with contacting him for things like his official response to any stories you might report.  And even then if he tells you to stop contacting him, obey that request.  That this is a key element in making out a harassment claim under Maryland law—that a person asks you to stop and you refuse.

And let me say something else.  In my heart of hearts, I don’t believe that any person supporting me has done any of the above.  But if any of you have, stop it, and if you haven’t don’t start.