The Constitution's fatal flaw

[denem]

Last edited Sat Aug 29, 2020, 05:12 AM - Edit history (1)

The Framers, particularly the Anti-Federalists, were aware of the abuse of the pardon power in English history, and were wary of granting too much power to the executive of the new republic. During the deliberations over executive power in the Constitution, George Mason objected to an unrestricted power to pardon, particularly the exception to treason. “The President of the United States has the unrestricted power of granting pardons for treason, which may be some sometimes exercised to screen from punishment those whom he had secretly instigated to commit the crime, and thereby prevent a discovery of his own guilt.”

Later, during the Virginia debates over ratifying the Constitution, Mason continued his arguments against the pardon power. “[T]he President ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself. . . . If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection?” James Madison addressed Mason’s objection to the president’s pardon power by arguing that abuse of he pardon power could be remedied by impeachment: “If the president be connected in any suspicious manner with any persons, and there be grounds to believe he will shelter himself; the house of representatives can impeach him. . . . This is a great security.”

https://www.congress.gov/116/meeting/house/109162/witnesses/HHRG-116-JU10-Wstate-PfiffnerJ-20190327.pdf

As we have seen this year, impeachment by the House of Representatives is no security at all. There have been three impeachment trials of a president in U.S. history. Only one Senator has voted to convict a president from to his own party: Mitt Romney in 2020.

[safeinOhio]

1. Bingo.

“[T]he President ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself. . . . If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection?”

Nail, meet hamer.

[jimlup]

2. Yes!

This is spot on!

[DonaldsRump]

3. There is little doubt that Nixon would have been convicted had he not resigned

In fact, that's exactly why he did resign. Had he stayed in office, he would have been impeached by the House. At the conviction trial before the Senate, at best only 10-15 senators would have voted to acquit. And this vote estimate was BEFORE the formal impeachment proceedings before the full House had even begun. Nixon's case was the textbook example of how impeachment/conviction should work, and how an effective Legislature and Judiciary can serve as a check against an out-of-control Executive.

That being said, the Senate in 1974 bears no resemblance to today's Senate. That's the failure in what the "Founding Fathers" thought would happen: the Framers assumed the electorate would vote out bad folks in Congress to ensure that the Legislature would be a check against the Presidency. It worked in 2018 for the House, but not the Senate. Thus, the Senate did not serve as a check against the Executive.

[Kaiserguy]

6. I wish the founding father

could have anticipated the world of today. Where the spreading of propaganda is to easy and can be spread so far and fast. Had they been able to look ahead and see the world of today I suspect the constitution would look somewhat different. As it is we need to regulate our news sources in such a way as to ensure that it content is honest, truthful and reflects reality. Propaganda outlets like Fox have no business being consider as a real new source, at the very least should have to post a warning about the fact that what they have to say may not be factual. Our MSM has not done it job very well as the watchdog on freedom and truth. Well informed citizens who know what is real and what is a lie are an absolute necessity for any nation to survive and remain free.

[DonaldsRump]

7. "Well informed citizens"...totally agree

That's critical

[Klaralven]

8. Ben Franklin was the biggest "printer" in the biggest city of the Colonies

He not only published material that he wrote himself, but also pamphlets and book by others.

He was the media baron of his day.

[BumRushDaShow]

12. "I wish the founding father could have anticipated the world of today."

By excluding women and non-whites as having the same rights described in the system of government that they drafted, they couldn't or wouldn't even deal with what they had right in front of them at the time - those giving birth to their children or working in their households or fields (often under extreme duress and without pay, after forcibly being brought here).

In fact, I expect much of it WAS done (purposely exclusionary) BECAUSE they "anticipated the world of today" and wanted to ensure that they and their (landed gentry white male) next-of-kin would preserve their exclusive privileges.

They had plenty of propaganda back then, but obviously not electronic, instantaneous, or immediately global.

[BumRushDaShow]

11. "Senate did not serve as a check against the Executive"

Remember at the original ratification, Senators were nominated and voted on by the state legislatures and not elected by popular vote in their states. The 17th Amendment finally changed that practice. With the original setup, you basically had potentials "buying their way into office". This sortof happens today but back then, the nominee only needed to convince ($$$) a relatively "few" number of people (a state legislature) vs trying to convince ($$$) a whole state-wide electorate.

[Bernardo de La Paz]

4. Doubly flawed when the criminal in WH has a majority in the Senate hostage to his base. . . . nt

[Buckeyeblue]

5. The problem is that impeachment/conviction is very difficult to achieve

Whereas a pardon is quite easy to grant. I think if Biden wins, Trump will go pardon crazy.

[nuxvomica]

9. This is probably the flaw logician Kurt Godel found in 1947

On December 5, 1947, Einstein and Morgenstern accompanied Gödel to his U.S. citizenship exam, where they acted as witnesses. Gödel had confided in them that he had discovered an inconsistency in the U.S. Constitution that could allow the U.S. to become a dictatorship. Einstein and Morgenstern were concerned that their friend's unpredictable behavior might jeopardize his application. The judge turned out to be Phillip Forman, who knew Einstein and had administered the oath at Einstein's own citizenship hearing. Everything went smoothly until Forman happened to ask Gödel if he thought a dictatorship like the Nazi regime could happen in the U.S. Gödel then started to explain his discovery to Forman. Forman understood what was going on, cut Gödel off, and moved the hearing on to other questions and a routine conclusion.

https://en.wikipedia.org/wiki/Kurt_G%C3%B6del

[dalton99a]

14. +1. From Morgenstern's 1971 memo (Princeton U.):

[Roy Rolling]

10. All True

But there’s a critical flaw, too. The framers of the Constitution assumed politicians were honorable people. The “honor system” meant successful self-policing.

No more. Republicans are scoundrels, led by a man with no moral compass. They will not act for the good of the country over self-enrichment, when the level of self-enrichment in 2020 is multi-millionaire.

Almost all politicians are wealthy beyond anything ever imagined by the framers of the constitution. They aren’t controlling a rogue politician, they must self-police an army of king-wannabes. Not gonna happen.

[denem]

13. Kick

[Yavin4]

15. Impeachment is supposed to be the remedy to this.

If congress suspects that the president is granting pardons to protect him or heself, then they can launch a formal inquiry and move to impeach and remove the president.