Tag Archives: The Federalist Papers

Ugh!! It’s All [expletive deleted] Politics!!  Why Does Politics Have Such a Negative Reputation?

We live in an era in which news, pseudo-news, fake news, opinion are intertwined; Facebook, Twitter, podcasts and websites: who can we believe?  The news cycle never ends, and, we’re never sure what is “news” and what’s campaign rhetoric. We do know that “sex, scandal and violence” garner the most “hits;” sadly, we seem to get the “news” we want!

A president can tweet, dissemble, insult, in past it was the supporters of the president. now, it s everyone.

Politics has always been a rough and tumble “sport.”

The concept of politics has its origins in Athens.  Aristotle, in “Politics,”

 … calls a city (polis), or as he likes to call it, a “political association;” cities are designed and created with the purpose of achieving happiness  …  all human actions have a positive intention. The highest form of community is the polis, standing ahead of other political associations such as the household and village. Aristotle … believes the public life is far more virtuous than the private and because people by nature are “political animals” and goes on to further say that people by nature are worse and more savage than animals.

 Our founding fathers, the elites of our nation, were well-read, from the Greeks to the bible, to Hobbes and Locke; a compendium of scholarly works.

One of the prime purposes of “politics,” the polis, was to restrain the savage side of mankind so that the people could achieve “happiness.”

Our founding fathers, Madison and Hamilton, were well aware of the nature of man.

From April till September of 1787 the fifty-four members of the Constitutional Convention, by the way, a secret meeting, no press, no scrutiny, no minutes, slowly, crafted our founding document, our Constitution.

Prior to the Constitution the thirteen states functioned more like thirteen nations, their own militias, their own tariff barriers under the dysfunctional Articles of Confederation the existing government had no power to tax, states could ignore laws and the consent of all thirteen states was necessary to amend the Articles.

The successor document, the Constitution, required ratification by nine states and its ratification was uncertain.

Madison and Hamilton wrote eighty-five essays called the Federalist Papers, today we’d call them op eds, published in newspapers across the nation urging voters to ratify the Constitution.

 Federalist # 10 addresses the question of factions.

AMONG the numerous advantages promised by a well constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction.

 Madison saw faction as a “mortal disease,”

The instability, injustice, and confusion introduced into the public councils, have, in truth, been the mortal diseases under which popular governments have everywhere perished

 Madison defined faction,

By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.

 Madison had undoubtedly read Aristotle,

The latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society. A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good.

 Madison was well aware of the duality,

  If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

Factions are commonplace throughout our history.

Joanne Freeman, a history professor at Yale, in her recent “Fields of Blood,” describes Congress (1830-60) in which fights on the floor of Congress were common occurrence.

Representatives and Senators were frequently armed on the floor of Congress.

So, you think Congress is dysfunctional?

There was a time when it ran with blood — a time so polarized that politics generated a cycle of violence, in Congress and out of it, that led to the deadliest war in the nation’s history.

Jefferson and Hamilton were bitter enemies, Andrew Jackson was despised, the Civil War rent our nation and ended the stain of slavery, created the 13th, 14th and 15th Amendments, the imposition of Jim Crow reintroduced slavery by another name, the Great Depression, the Ku Klux Klan, the rise of the American Nazi Party, the McCarthy era: the list of factions is long, yet, in each case the nation survived, albeit at a cost.

Winston Churchill’s quip on democracy is widely quoted,

‘Many forms of Government have been tried, and will be tried in this world of sin and woe. No one pretends that democracy is perfect or all-wise. Indeed it has been said that democracy is the worst form of Government except for all those other forms that have been tried from time to time.…’

A few years after the ratification of the Constitution Benjamin Franklin warned future generations,

Our new Constitution is now established, everything seems to promise it will be durable; but, in this world, nothing is certain except death and taxes.”

Politics can be messy, frustrating and, at times, we fear that factions will rip the country apart or one faction will move us from democracy to autocracy.

Too many of us throw our hands in the air and withdraw, we may display our anger for all to see on Facebook; we also fail to vote, we just complain.

Politics in our nation, from its very origins until today, yes,  is messy, and the messiness is one of our strengths, our rights of freedom of speech, of the press, freedom of assembly, allows us to involve ourselves and exercise our rights. Our greatest weakness is our apathy.

Don’t revile politics, involve yourself in the process and make the process better.

We’re celebrating the 100th year anniversary of the passage of the 19th Amendment,

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

From the Seneca Falls Convention (1848) until 1919 women, Black and white, fought for the right to vote, they were a faction, ignored for decades, a thorn in the side of the white, male establishment, until Congress, by narrow votes passed the Constitutional Amendment and the states, one by one ratified.

Those annoying factions have moved out nation, from women’s right to vote, to the civil rights legislation of the sixties to the right to marry whomever you please. (same-sex marriage and interracial marriage)

Vote, advocate, and get involved, apathy is democracy’s greatest enemy.

NYC voters can apply for an absentee ballot here nycabsentee.com

What is the HEROES Bill?  How would it impact schools? Why hasn’t the bill passed in the Senate? [A Civics Lesson]

In May the Democratic-majority in the House of Representatives passed the HEROES bill, a $3 trillion (yes, a 3 with twelve zeros), a bill that included funding for schools and local and state governments

See a summary of the HEROES bill here.

See how the bill impacts New York State here and how bill impacts state and local government here.

Why did the bill originate in the House of Representatives?

Article 1, Section 7 of the Constitution requires,

 “All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other Bills.”

The bill was sharply criticized by Republicans and the President and the Republican-controlled majority in the Senate took no action,

 President Trump sought to draw a hard line on the coronavirus relief bill saying it must include a payroll tax cut and liability protections for businesses, as legislators prepared to plunge into negotiation over unemployment benefits and other key provisions in upcoming days.”

 Why is there so much antagonism? So much partisanship? Why can’t Republicans and Democrats simply sit down and iron out there differences?

Our political system is based on factions, is based on a conflict of ideas, and the Constitution established two houses in the Congress, a President and a Judiciary, the three branches of government must come together to set policy, to make laws.

In September of 1787 the 54 members of the Constitutional Convention after five months of contentious debate agreed upon our constitution; a compromise between free and slave-holding states, large and small states and among geographic regions. The constitution contained ratification procedures, nine of the thirteen embryonic states had to approve the constitution.

Madison and Hamilton wrote eight-five essays, today we’d call them opinion pieces, op-eds, and, they were published in newspapers across the soon to be states, we call the essays The Federalist Papers.

Federalist # 10 could have been written last week, last year, a decade ago or a century ago,

A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good. So strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts. But the most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the government.

 The words of Madison could just as well appear on today’s NY Times op ed page, “… more disposed to vex and oppress each other than to co-operate for their common good;” our forbearers created a system that was crafted to prevent a tyrant or a tyrannical group from seizing control of our government,

While the House passed the HEROES bill the Senate took no action; the rules of the Senate require a two-thirds vote (60 members to close debate and bring a bill to a vote: cloture.

Is it the sense of the Senate that the debate shall be brought to a close?” And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn. (Rules of the Senate)

The “mutual animosities” are not only between Republicans and Democrats; there are animosities among Republicans and between the President and the Senate Republicans.

Hovering over the entire process is an economy tittering on an economic abyss and an election on November 3rd, the presidency, one-third of the Senate and the entire House of Representatives.

Once again our founding fathers were prescient, Madison wrote, “the most common and durable source of factions has been the various and unequal distribution of property, has anything changed?

The lobbyists representing every conceivable industry, representing teacher unions, transit systems, the post office, the list is endless. The following is a section of a letter calling for aid to schools, who do think wrote it?

K – 12 Schools: A safe-reopening will require numerous operational modifications for schools, including health screening, testing, contact tracing, enhanced cleaning, and physical modifications. Schools did so substantial that teachers are receiving layoff notices even though social distancing guidelines would indicate that more teachers are needed in the school building, not fewer. Not only will this immediately impact reopening plans, but it can also affect learning over the long-term. As we learned from the Great Recession not budget for these expenses. At the same time, local education agencies face significant budget shortfalls as a result of the economic downturn. Some local deficits have been, it took years for education budgets to recover. It was not until the 2015-16 school year that per-pupil education spending returned to the 2008-09 level.

 Teacher unions?  School Boards?

How about the Chamber of Commerce!!  The organization representing businesses across the nation,

Read entire letter here.  Politics makes for strange bedfellows (and visa versa, that’s for another discussion)

The Democrats want to hold the line on their core issues in the bill, the Republicans have to satisfy their own members and the President.

Republicans and Democrats are musing: if a bill isn’t passed what will be fall-out? Who will the voters blame in November?  If we don’t pass a bill could the entire economy crash?

Federalists # 10 avers, The regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the government; we are watching the “ordinary operations of government,” the wheeling and dealing that used to go in the cloakrooms now is spun out across Twitter; each faction seeking an advantage, seeking to win over or tarnish this senator or house member.

Yale historian Joanne Freeman, in “Field of Blood,” writes,

“Between 1830 and 1860 …there were more than 70 violent incidents between congressmen in the House and Senate chambers or on nearby streets and dueling grounds, most of them long forgotten.” The wrong word could easily lead to a duel. See which words, https://www.youtube.com/watch?v=I8XdN0MYBUI

Maybe we’re a bit more civilized than our predecessors, or, maybe not …

Supreme Court Nominee Gorsuch: Is “Constitutional Originalism” a Cover for Conservative Judicial Activism?

I hear President Trump was going to make the announcement of his Supreme Court nomination during the Super Bowel half time show – afraid of massive demonstrations  by 300 pound guys in shoulder pads – settled for prime time bumping favorite TV shows.

The Democrats have to decide: political strategy, a game plan, and, the question of the candidate himself.  The New York Times editorial opines the choices.

In spite of the accolades heaped on the nominee I have doubts, serious doubts.

The nominee defined himself as an “originalist” in the footsteps of Justice Scalia.

What is “originalism?”

One definition,

Originalism, in which the meaning of the Constitution is interpreted as fixed as of the time it was enacted, and non-originalism, in which the meaning of the Constitution is viewed as evolving with changes in society and culture.

Another,

“…  there is an identifiable original intent or original meaning, contemporaneous with a constitution’s or statute’s ratification, which should govern its subsequent interpretation. The divisions between these theories relate to what exactly that identifiable original intent or original meaning is: the intentions of the authors or the ratifiers, the original meaning of the text, a combination of the two, or the original meaning of the text but not its expected application.”

How do we know the intent of the framers of the Constitution? From April until September of 1787 the fifty-four  delegates, all white men, mostly wealthy, including slaveholders from the Southern states. drifted in and out of the sessions. They argued, threatened, proposed deals, traded this for that, and, eventually produced a heavily compromised document.

The large states and the small states, the slave states and the free states, farmers and plantation owners, lawyers and fools cobbled a constitution..  In order to gain passage compromises were crafted: in the 3/5 compromise slaves were counted as 3/5 of a person in the computation of population to determine the number of representatives for each state. Although many of the delegates found slavery reprehensible the question of slavery is absent form the final constitution.

(Read Paul Finkelman, Slavery and the Founders: Race and Liberty in the Age of Jefferson, 2001 and a summary and review of the book here).  It took another seventy-five years and a war that cost 600,000 lives to end slavery.

Are there transcripts of the debates at the convention?

No, the Constitutional Convention was a secret meeting, press was excluded, no transcripts were recorded. In fact, the only record, aside from the minutes, are the 600 pages of the journal kept by James Madison. The journal was not released until 1836, and, as we now know, was edited extensively by Madison well after the convention. The edits were made to make Madison look better (Read a discussion here).

Max Ferrand, in 1911, published the Records of the Constitutional Convention 0f 1787, a compilation of both the minutes and the Madison Journals in chronological  order of the events.

Mary Bilder, “How Bad were the Official Records of the Federal Constitution” writes,

… the members at the Convention created the Constitution without solving or even having to think extensively about the problem of constitutional interpretation.

The 1787 Constitution is not a poem, statute or even a modern constitution. It is a series of words, structures, votes, compromises and alternatives done in convention. Constitutional interpretation postdated the Constitution.

The contemporaneous interpretation of the constitution, or at least as close as we can come, are the Federalist Papers, what we would today call op ed pieces written in the fall and winter of 1787-88 by Madison, Hamilton and Jay to urge voters to ratify the constitution. The eighty-five articles are as close as we can come to “interpretations.”

In Federalist 10 Madison wrote,

Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority. 

 A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good.

No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. With equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time; yet what are many of the most important acts of legislation, but so many judicial determinations, not indeed concerning the rights of single persons, but concerning the rights of large bodies of citizens?

Madison’s “interpretation” describes current day politics with eerie accuracy.

Even if the nominee has inherited Justice Scalia’s Ouija Board the term “originalist” is simply  meaningless. What does applying the thoughts of the founders in 1787 mean in 2017? Would we apply the thoughts of the founders to science? to mathematics? Why only to the law?   Are there liberal or progressive “originalist” judges?  The term “originalist” is simply a cover for conservative justices.

We need justices who honor stare decicis, or precedent. We require justices who honor prior decisions. Would the nominee overturn Roe v Wade? Brown v Board of Education? Voting Rights?  Of course: he may have graduated from Harvard Law School (I graduated from the Harvard on the Hudson: The City College of NY), he may write elegant decisions, his views are clearly out of step with the mainstream of our nation in 2017.

I agree, judges should not make law; however, judges have the obligation to remedy injustices.

Section 1 of the 14th Amendment to the Constitution reads,

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Marriage equality, voting rights, labor rights, according to my reading, fall under the protections of the 14th amendment.

The nominee may be the “golden boy” for those on the right, I believe he represents the fears that Madison expressed, I believe he intends to impose his narrow, archaic recidivist beliefs on the nation and for that reason he is not qualified to serve on our highest court.

The Election: Musing on the Future of Politics – Is There a Path to Bipartisan Politics?

Early Tuesday morning, at 6 am in New York City, polls will open across the nation and tens of millions of Americans will choose a president; millions will have already cast ballots in thirty-four early voting states voting. Unfortunately about a third of eligible Americans will not bother voting.
The polling is all over the place, I tried to parse the polling a few days ago (Read here), and, it was nice to see a Washington Monthly agreeing; it’s all about the low and haphazard polling response rates.
As the sun dips early on Tuesday, daylight savings time ended on Saturday, crowds will back up at polling locations as voters return from work. As the polls close, 9 pm in New York City, we’ll be glued to our media of choice. If the map is blue, if Hillary takes New Hampshire, Pennsylvania, Ohio, North /Carolina and Florida, the sweep will be on. If not, a long, long night.

 

A quick lesson: the candidate with the most votes doesn’t necessarily win – each state has a number of electoral votes equal to the members of Congress, fifty-one separate elections.

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

a total of 535 electoral votes plus three for the District of Columbia – 538 electoral votes – a majority, 270, required for victory.

The District constituting the seat of government of the United States shall appoint in such manner as the Congress may direct: A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a state, but in no event more than the least populous state.

Whoever is elected, hopefully Hillary, will face a sharply divided partisan Congress. Politics in this nation is broken, and we broke it.

Electoral politics has always been nasty. Opponents of George Washington called him “King George,” convinced he would rule as a monarch.Jefferson did everything he could to denigrate and damage Hamilton, his bitter enemy (Read The Hamilton Affair: A Novel, Elizabeth Cobbs – 2016). Lincoln was portrayed as a gorilla. Republican candidate James Blaine accused opponent Grover Cleveland of fathering an illegitimate child and marched through the streets chanting, ” Ma. Ma, where’s my pa?” After Cleveland won his admirers marched through the streets chanting, “Went to the White House, ha ha ha.”

Politics in the nation was party politics; we pulled the lever for our party without too much concern over the candidate. Party politics began to unravel in the 60’s; the sharp divisions over the war in Vietnam and civil rights legislation moved the parties in different directions. Tom Hayden and others led a revolt at the 1968 Democratic National Convention that shattered the party and resulted in two terms of Richard Nixon and a party that has never fully recovered. (Sol Stern reminds us of the impact of Hayden here) The traditional Democratic Party: labor unions, the progressive left, minorities, women, the young has been battling internally for the soul of the party. Jimmy Carter won as a reaction to the Nixon impeachment, Clinton and Obama actually ran outside the party, neither was the choice of the party fathers.

The Republicans put together a Southern Strategy, appealing to covert and overt racist sentiments prevalent among whites in the South. Add the gun crowd, the Evangelicals, disaffected white males; a voter base that elected white Republicans throughout the South, and, elected Donald Trump as their candidate, a candidate far outside the Republican camp. The Republican strategy was usurped by a reality star.

In spite of the wails of progressives about the nature of elections today we get the elections we deserve; constant, unrelenting personal attacks erode support for the opposition. If your goal is to lower taxes on the wealthy, outlaw abortion, convert Medicare to a voucher program, recreate segregated schools by supporting vouchers, you can only accomplish it by destroying your opponents. To the public issues are boring, sex, violence and scandal mean eyes on the screen. For eight years the Republicans attacked Bill and Hillary, personal attacks weakened Bill’s ability to pass legislation. Republicans would lose national debates over issues; they have succeeded, to some extent, in impairing Bill Clinton and Obama’s ability to govern. Paul Krugman says it much better than I can here.

Progressive democrats abjure “dirty politics,” and lose elections.

Effective teachers know they have to meet the students where the students are before they can raise them to where we want them to be. Democrats who proudly remained “above the fray,” disconnected from the sans-culotte; politics, from time to time, means rolling in the mud, it is not an intellectual pursuit.

Donald Trump may become president because he tapped in to the dark side of Americans, The harder the hit at a football game the louder we cheer, concussion protocols are booed; smashing an opponent into the boards at a hockey game, or better, a fight, wild cheers. Obnoxious (to me, obnoxious) lyrics in rap are commonplace, TV shows and movies trivialize the most violent acts, and we choose to click on newspaper articles that involve sex, violence and corruption.

Social media provides a platform for the vilest exchange of insults.

Southern strategys within the Republican Party made Donald Trump possible. The Grand Old Party isn’t so grand; Tea Party versus Evangelical versus mainstream (i. e., Paul Ryan) may not be able to dance. On the Democratic side the left, or progressive or Bernie wing, whatever you want to call it, is in combat with the “electeds” wing, the Nancy Pelosi and Harry Reid party leaders. Too many Democrats are sitting on the sidelines during this election cycle, in my view like the angry child crying because s/he didn’t get his way.

A freshman House member met with Speaker Sam Rayburn, “Mr. Speaker, I noticed that in the Rivers and Harbors Bill cities without either a river or a harbor are receiving funding,” Rayburn (perhaps apocryphally) “Young man, you’re messing with the testicles of the universe.”

Lyndon Johnson, with Rayburn as Speaker of the House, passed the most significant civil rights legislation since the 13th, 14th and 15th Amendments to the Constitution. Johnson was able to “wheel and deal,” to offer this thing for that vote, the ebb and flow that had characterized the legislative process.  The progressives ended:”ear marks,” (Read progressive view attacking the process here) that created the space for the deal-making).  Lincoln probably offered jobs in exchange for votes to pass the 13th Amendment in Congress.

All of the above brings me back to Federalist # 51,

Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

 Madison’s simple words, But what is government itself, but the greatest of all reflections on human nature?  is prescient. Anyone can sit at a computer and anonymously spew the most vicious hate.

If we turned off the TV set, refused to buy newspapers that spew hate, conducted civil discourse on social media sites, “unfriended” the haters, maybe, just maybe, the political strategists would change their ways.

Will the Republicans continue playing the attack dog?  Continue to obfuscate, to pursue a path of politics by destruction? Will the Democrats choose party leaders with the ability to negotiate and fight?

The best path for the parties, both Democrat and Republican, to rebuild, to recreate themselves, is to produce meaningful bipartisan legislation:

* A massive infrastructure law: tens of billions to reconstruct highways, bridges and rails.

* Full participation in environmental initiatives: global warming, alternative fuels, energy independence

* Continue to build a coast to coast cyber highway.

  • Figure out ways to fund higher education – graduates without deep debt

Can you imagine President Clinton, Democratic and Republican leaders standing on the same stage, rebuilding their parties and the nation?

Or, another round of self-destructive hyperpolitics.

 

Civics 101: Using The Struggle Over the Reauthorization of NCLB/ESEA as a Teaching Tool

On January 21st the US Senate Committee on Health, Education, Labor and Pensions held a hearing on the long-delayed reauthorization of No Child Left Behind, The committee chair, Lamar Alexander is hopeful that the process will actually produce a reauthorized law,

“During the last six years, this committee has held 24 hearings and reported two bills to the Senate floor to fix the law’s problems. We should be able to finish our work within the first few weeks of 2015 so the full Senate can act.”

Unfortunately, or fortunately, depending on the outcome, the hearing is only one step in the long path from idea to bill to law.

A refresher minicourse: just in case you were daydreaming on that day that your teacher taught “how a bill becomes a law.”

The 435-member House of Representatives and the 100-member Senate must pass the same bill and the bill becomes a law when signed by the president. If the president vetoes a bill both houses must override the veto with a 2/3 vote in each house.

If the houses pass different bills, which is commonplace, a conference committee made up of members of both houses attempts to reconcile the bills, if they are able to agree on a single bill both houses must pass the reconciled bill and send along to the President for signature.

Republicans control both houses which allow them to set the agendas; they control the time frame of hearings and the text of any bill. Due to the procedural rules of the Senate a bill requires 60 votes to come to the floor for discussion and an eventual vote. On the Senate side any bill must be bipartisan enough to gain sufficient Democratic votes to reach the 60 vote threshold and the party members do not necessarily vote as a bloc. The required 60 votes, or the negative 41 votes, can contain members of both parties who, for totally different reasons support or object to the bill, or to some part of the bill.

Sometime later in the session the House committee will begin discussions. The Republicans have the largest majority since the end of World War 2 and can pass any bill they choose to pass; however, there are 30-40 members on the extreme right who may not agree with the mainstream Republicans. The Republican leadership will not bring a bill to the floor for a vote unless the bill has sufficient Republican votes, the Republican leadership would not look across the aisle for Democratic votes, to do so would alienate the right wing of the party.

If the House and the Senate pass reconciled bills and pass along to the President, he can veto the bill, in effect killing the bill. It is extremely difficult to override a presidential veto. The repercussions of a veto could impact well beyond the issue, if the bill was a bipartisan bill, vetoing the bill could alienate Democrats in the Senate, who the President needs to pass, or, to block passage of other legislation.

If all goes smoothly, which is unlikely, a bill could be on the President’s desk for signature within a few months. If the process leaks into the fall it will get caught up in the 2016 presidential primary season and may fall by the wayside. A number of senators, on both sides of the aisle are flirting with a presidential run and the reauthorization bill could easily get caught up in the primary politics. Party primaries attract core voters, on the Republican side, the Tea Party, the anti-government voters; on the Democratic side the most progressive wing. Republican candidates may choose to run on an “abolish the entire Department of Education” platform while a Democratic candidate might run on a “protect the civil rights of students at risk” platform, meaning no bill would emerge.

James Madison, in Federalist # 51 eloquently portrayed the roles of the branches of government,

To what expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places. .

… it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others.

But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

The 387-page discussion draft of the bill begins the political process in the Senate.

Alexander announced the committee’s first hearing this year on No Child Left Behind, and said he would hold additional hearings after conferring with Ranking Member Patty Murray (D-Wash.) He also announced beginning this week bipartisan meetings in the Senate education committee to discuss the chairman’s discussion draft, consider changes and improvements, identify areas of agreement, and discuss options to proceed.

The first hearing included two classroom teachers from New York City, an elementary school teacher who led a grassroots campaign against standardized testing (“Teachers of Conscience”) and a high school teacher from a school that uses a state-approved portfolio/roundtable exam waiver from the state as well as beginning a union contract approved peer review initiative. (Watch hearing here)

The American Federation of Teachers position supports a nuanced position on the use of tests,

We are calling on Congress to end the use of annual tests for high-stakes consequences. Let’s instead use annual assessments to give parents and teachers the information they need to help students grow, while providing the federal government with information to direct resources to the schools and districts that need extra support.

We’re calling for a robust accountability system that uses multiple measures—which could include factors like whether students have access to art, music and physical education, and whether they have support from specialists like school librarians, nurses and counselors. Such a system should allow for ideas like portfolios rather than bubble tests. We recommend a limited use of testing to measure progress—including what to do if there isn’t progress—through grade-span testing. That means instead of annual high-stakes tests, we’d have tests once between third and fifth grades, once between sixth and eighth grades, and once in high school.

Other groups will advocate for a range of approaches, John King, the former NYS Commissioner will be roaming the halls of Congress supporting the core principles of the Duncan waiver system and the continuation of annual testing that can be used for high stakes decision-making. Others will call for the elimination of any required testing leaving all decisions to the states, and, some will call for the prohibition of the Common Core and a few will call for the disbanding of the Department of Education.

Wade Henderson, who leads a civil rights organization, is wary of eliminating annual testing,

Stepping too far back from testing requirements could strand poor and minority students, said Wade Henderson, CEO of the Leadership Conference on Civil and Human Rights. “The bill, as a general matter, bends over backward to accommodate the interests of state and local government entities that have both failed our children and avoided any real accountability for their failures,” he said. “Congress must not pass any … bill that erodes the federal government’s power to enforce civil rights in education.”

Elizabeth Warren, although a liberal Democrat, also questions granting states wider powers over spending federal dollars,

“All a state would have to do to get federal dollars is submit a plan with a lot of promises,” with no guarantee of a follow through, she said. “If the only principle is the states should be able to do whatever they want, then they could raise their own tax dollars to pay for it.”

Republican chair Alexander entered a letter in the record from Carol Burris, a Long Island principal who is a sharp critic of high stakes testing, Burris wrote,

“The unintended, negative consequences that have arisen from mandated, annual testing and its high-stakes uses have proven testing not only to be an ineffective tool, but a destructive one as well,”

The Senate side has always be collegial, up to a point; the rules require cobbling together 60 votes, Republicans need Democrats.

It is likely that a bill will reach the floor with commitments for sixty votes.

In the House minority Democrats have no clout; House procedures allow the majority party to set the rules. The House Education and the Workforce Committee is holding its first organizational meeting on January 21st; there are over 200 bills that are sitting in the subcommittee on Elementary and Secondary Education that were introduced in the last session, the vast majority will die in committee.

James Madison captures the essence, the soul of our governmental process, “… what is government itself, but the greatest of all reflections on human nature. If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”

The internal conflicts within the individual houses, the conflicts between the houses and the ultimate power of the executive, to quote Madison are a “reflection on human nature.” Legislators are bipartisan when it is in their self-interest, and, for the last few years legislators have resisted “coming together,” ideology is trumping pragmatism.

The passage of a reauthorization of the Elementary and Secondary Education Act (aka, NCLB) would be the crowning achievement of Alexander’s career.

I am optimistic.