OK

The framers of the Constitution did a lot of things right. The system of checks and balances was a brilliant departure from the notion of government that prevailed elsewhere in the world in 1789. Unfortunately, they made an error; their error was to assume that elected officials would naturally do what is best for the country in order to get reelected. The unfortunate truth is that some politicians would murder their your grandmother to get reelected.

The Preamble says: "We the People of the United States ... [six aims enumerated] ... do ordain and establish this Constitution for the United States of America." This paragraph is stunning; it is awesome; it is inspiring. It is the most important 52 words in all of government.

But the problem is that We the People, contrary to the the lofty aims of the Preamble, have no voice in how we are governed. We the People might clearly recognize that this or that feature of government is actually a bug, but we are powerless to change it.

The recent fiasco is just further evidence of how distant our elected officials are from We the People. We would quickly put an end to the Hastert rule if we could, because it has just cost us $24 billion—$77 for every man, woman and child in the country. It's not even a rule; it's just an idiotic tradition that we have no control over. But the Constitution gives all rule-making authority to the legislators in each chamber. We the People have no say in the matter even when legislators make patently stupid rules.

Below the fold, I will try to develop this idea, and hint at the solution.

I could cite several constitutional amendments that would surely gain the approval of citizens if they had a chance to vote on them: Popular vote for president. Eliminate gerrymandering. Eliminate lobbying or political donations by corporations. Write sane rules for both houses that assure respecting minority rights, but also assure actual decision making. Set up uniform standards for determining voter qualifications and conducting elections.

None of the above have the slightest chance of passage because they are not in the interests of legislators, but merely in the interest of We the People. What the framers of the Constitution neglected is the first three words of the Preamble. I can understand that the founding fathers were reluctant to put We the People in charge of the details of government, and for good reason. I certainly don't suggest that a direct democracy would be a better system. However, the founders should have put We the People in charge of governance—how government works, while our elected representatives should control policy—what government does.

In a previous diary, I made a proposal for the sort of governance that we need. That proposal was not practical because it depends on national and state legislators voting against their own reelection interests.

Well, it's water under the bridge. We seem to be stuck forever with the electoral college, and with gerrymandering, and with corporations running the government instead of We the People. We seem to be stuck with states that concoct ingenious ways to prevent brown people from voting. We seem to be stuck with states that deny women the right to control their basic reproductive functions. But things are not always what they seem.

There are things we can do to mitigate the damage. For example, an enlightened judiciary could eliminate gerrymandering. Just as the Supreme Court in Brown V. Board of Education, established forever the precedent that "separate educational facilities are inherently unequal.", the courts could establish forever the principle that allowing legislators to draw their own district boundaries is bad governance. But to get there from here, we must retain the Presidency and the Senate. Imagine what would happen if the Republicans gained both of these. We would find that every judicial appointment would be a young ultra-conservative, insuring decades of decisions like Citizens United. To me, this is unthinkable.

As vexing as it is that Republicans control the House, it's not the end of the world. It would be the end of the world if they got both the Presidency and the Senate.  Why do you suppose that they have been so obstinate in filibustering so many judicial appointments? Obviously, because they hope to eventually fill those vacancies themselves. I think the most important filibuster reform is to invoke the constitutional option when it comes to presidential appointments. The Constitution says: "Advice and Consent"; It doesn't say "Obstruct". Does anybody doubt that Republicans would invoke the constitutional option in order to appoint the next several decades of our judiciary if they had the opportunity? Then why shouldn't we? Political power, if not used, is meaningless. Isn't that what we learned this month?

How different would the political landscape be if we could assemble a Supreme Court with six or more reasonably liberal justices? Right now, we don't want to see an abortion case before the Supreme Court, for fear the current court would overturn Roe V. Wade. The same is true of gerrymandering, lobbying, or voter rights (as we have recently seen). We are hamstrung by the current composition of the court. We dodged a bullet when we got a favorable ruling on the Affordable Care Act. But if liberal justices were a majority of the Court, we could make real progress on multiple fronts. The courts, if they had the will, could put an end to gerrymandering in single election cycle. We the People haven't the slightest chance to do so with a constitutional amendment.

We Democrats, aided by demographics, will eventually solve the problem of the House, but it won't mean very much if we lose control of the judicial system. The judiciary should be our primary goal. We need to make checks and balances work in our favor. Long term trends favor Democrats as long as we stay focused. Maybe we cannot regain the house in 2014, but we must be sure to retain the Presidency in 2016, and the Senate as well. If we do both, the House will eventually fall into our hands.

I certainly don't mean to suggest that we give up on 2014. Fight like hell for every seat. If we gain but one seat, that is immensely better than losing one seat. But the reality, and the conventional wisdom, is that it will be an uphill battle. If the Republicans maintain their majority in 2014, I think we should try to form a coalition with moderate Republicans to elect a speaker who is not a water boy for the Tea Party nut jobs. This is just common sense. We cannot make progress legislatively with the likes of Boehner holding the gavel in one hand and a martini in the other.

Maybe I'm fantasizing, but I would think that if the Republicans continue their "government by crisis" strategy, that the moderate wing of the Republican party (Is there such a thing?), perhaps the 35 Representatives closest to the center, could turn Independent en bloc (just after the 2014 elections), break with the Republican party, and caucus with the Democrats as a means of restoring the Republican party to a modicum of sanity.

If I were a moderate Republican (perish the thought), I would prefer this to living with the biennial threat of being primaried. As a side benefit, this hypothetical "Gang of 35" (Let's call them the Coffee Party) would wield the balance of power in the House. I suspect that the Coffee Party would have broad appeal among voters, and be therefore immune to primary threats by the crazy right wing.  

OK, enough of my fantasizing. There are probably not enough sane Republicans in the House to realize the opportunity they have, much less to have the political courage to stage a rebellion. My sense is that they are just not smart enough; maybe it's just as well.

The bottom line for Democrats is this: It's all about the judiciary. Keep the Presidency in 2016 as well as the Senate. Craft a progressive judiciary will assure a lasting government by We the People.

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