Let’s start in Congress
Robert Byrd (D – KKK) wants to mandate that schools devote at least part of a day each year to teaching about the document. I think it might take more than a day. I also think members of Congress should be forced to attend that class at least weekly. A member of a school organization doesn’t agree:
“It’s the kind of intervention from the federal level that really has no place in our system of education,” said Vincent Ferrandino, executive director of the National Assn. of Elementary School Principals. “If there is concern on the part of members of Congress that the Constitution is not being taught in our schools, I think that’s an issue that ought to be raised in other venues.”
I don’t know guys. If you mandate that it is taught people might wake up and realize that the Congress violates it on at least a quarterly basis.
December 7th, 2004 at 5:20 pm
[...] cle|
If you’re reading this blog, some of the best arguments occur in comments. Like this one.
| Link | | Category: Blog Matters |
Comm [...]
December 6th, 2004 at 12:26 pm
Quarterly??? It’s more like daily.
December 6th, 2004 at 1:06 pm
Congress violates it on at least a quarterly basis
Why are you so soft on the Executive or Judicial branches? They’re just as bad.
I think robotically reciting the plege of allegiance is for jingoistic numbnuts. Reading the Constitution, on the other hand, is a splendid idea.
However, it shouldn’t be compulsory. Instead, congresspersons, the president and all judges should be required to pass a test on the Constitution in order to be eligible to run for office. There could be an oral exam option so that illeterates aren’t automatically excluded (people learn the Bible by listening, why not the Constitution?)
Entrance into taxpayer funded High Schools should also require passing a test on the Constitution, though less rigorous than the one for office holders.
December 6th, 2004 at 1:13 pm
Why are you so soft on the Executive or Judicial branches? They’re just as bad.
Obviously, you’re new here :p
December 6th, 2004 at 1:56 pm
I think Congress should pass a federal law requiring all state run schools to teach pupils about the Tenth Amendment and the doctrine of enumerated powers. Any pupil who notices the irony gets an easy A, while everyone else flunks.
December 6th, 2004 at 2:19 pm
You know, I’m not so sure the Tenth Amendment is violated anywhere near as often as some claim. After all, we have a representative government: the people are represented by the house, and the states are represented by the senate. If the people (through their house representatives) and the states (through their senate representatives) permit the federal government to take on a particular power, where’s the foul?
December 6th, 2004 at 2:37 pm
Tgirsch, surely you jest. But in case you’re serious, try this: We have a representative government, the people are represented by the House, and the states are represented by the Senate. If the people and the states permit the federal government to prohibit Islam and declare Lutheranism the official religion, where’s the foul?
December 6th, 2004 at 2:55 pm
Xrlq:
Nope, no jesting from me. And the answer to your example is easy: the foul comes in because the government is explicitly prohibited from taking such action. Not just the federal government, but the state governments as well. Whereas neither state governments nor the people are prohibited from ceding certain powers. Just like there’s nothing that prevents an individual from waiving his or her fifth amendment rights.
I actually wouldn’t mind seeing an amendment that disallows certain rights and responsibilities from being waived. But right now, there’s no such requirement.
December 6th, 2004 at 3:59 pm
Tgirsch, now I’m confused. Didn’t you just get done arguing that Congress can circumvent the Tenth Amendment simply by pretending it isn’t really the federal government? If so, why can’t it pull the same stunt on the First Amendment, the Second, or any other? And if not, then what on earth is your argument? Bear in mind that no federal law can ever be passed without going through both the House and the Senate, so under your theory, Congress would be incapable of violating the Tenth Amendment even if it wanted to. If the bill passes, it’s constitutional. If it doesn’t, then oh well, it never became law anyway. As to my above example, note that the federal Constitution contains no explicit or implicit prohibition on the states establishing their own religions. All we have is a series of tortured court decisions with a chutzpah index rivaling Roe’s. Besides, the people aren’t barred from choosing religions for themselves, so under your theory, the House of Representatives – acting not as “Congress” per se, but as a stand-in for “The People” – should be allowed to declare a state religion on its own, without involving the Senate or the President at all.
Short of amending the Constitution, states don’t have the power to waive the Tenth Amendment even if they wanted to. Even if they could do such a thing, it would be up to their respective legislatures to do it, not their Senators, who have no power to pass state laws. And it sure as hell wouldn’t be up to a Senator from State X to “waive” anything on behalf of State Y, as would inevitably occur each time a bill passes the Senate other than unanimously.
Your example of the Fifth Amendment is a red herring. If called to testify against my own penal interests, I may of course choose to waive my Fifth Amendment privilege in that instance. My right to not incriminate myself does not entail a constitutional obligation to refrain from doing so, any more than my right to dissent requires me to dissent or my right worship bat guano obligates me to go out and become a guano worshipper. That doesn’t mean I can sign a document tomorrow that will waive all my rights in advance, obligate me to join a particular church, prohibit me from invoking my privilege against self-incrimination in the future, etc. And it certainly wouldn’t obligate Congress, as my alleged representative, to waive such rights for me.
December 6th, 2004 at 7:05 pm
Xrlq:
No. What I just got done arguing is that the federal government isn’t circumventing the tenth amendment. When congress collectively passes a law, the states and the people — through their representatives — have allowed the federal government to do so. And that is within the rights of the states and the people to do. If the federal government were to try to take for itself some unenumerated power without involving the congress — say, through an executive order — then that would run afoul of the tenth.
But not everything the federal government does is done by Congress, now is it? See above executive order example.
Actually, we’ve got Amendment XIV, section one, which pretty clearly states that if the federal government can’t impinge on my personal freedoms, then neither can the states. That’s a pretty cut-and-dry argument against banning Islam.
The argument against establishing Lutheranism is a bit less straightforward, in that one must establish that such an establishment “abridges … privileges or immunities” of the citizens. But even that case is not so indirectly made; as a resident of state X, my tax dollars would support that state’s official religion, and it abridges my free exercise rights to force me to financially support a religion to which I do not ascribe.
In any case, the states and the people could decide to ban Islam and establish Lutheranism, if you got enough of them. They’d simply have to repeal the tenth, and the process for them to do so is spelled out.
Non-sequitur. Again, note the explicit prohibition. And in any case, the free exercise clause is explicitly an individual liberty.
It’s no different in my example. If the states and the people (through their representatives) choose to cede a particular power to the federal government, then they’ve only ceded that particular power to the federal government in that instance. There’s nothing that obligates them to cede all other powers to the feds.
Let me put it to you in a different way: if the intent of the Tenth Amendment is to prohibit the federal government from taking powers not explicitly granted to it within the constitution, then why doesn’t it say so? The framers were not shy about explicitly prohibiting the federal government from doing this or that, so why the kid gloves in that particular case? Why not say that powers not explicitly granted to the federal government by the Constitution are explicitly prohibited from it?
And in any case, the ever-present “general welfare” clause of the constitution leaves it pretty vague as to which powers are delegated to the United States.
December 6th, 2004 at 7:09 pm
Sorry, above concerning religion should read “simply have to repeal the first amendment” (not the tenth)
December 6th, 2004 at 7:14 pm
tgirsch,
Amendment X: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Oddly, I see the word prohibited rather clearly in the text of the Tenth. Suggested future procedure:
1. Examine the document.
2. Write about what it means.
3. Begin waving hands dramatically to emphasize your points.
I think you may have gotten the reverse order.
Yours,
Wince
December 6th, 2004 at 8:53 pm
Maybe it works that way in the People’s Republic of America, but it doesn’t work that way under the U.S. Constitution, thank [censored by ACLU].
Um, no. The 10th Amendment is limit on the entire federal government. It has nothing to do with the separation of powers. The original Constitution takes care of that.
It’s also a gross missstatement of the text of Amendment XIV, section one. You didn’t actually read it, did you? Go ahead and read it now, then tell us which part you think “pretty clearly states that if the federal government can’t impinge on my personal freedoms, then neither can the states,” and why you think that is so clear. Bonus points if you can explain why these tortured cases extend even to the Establishment Clause, which has nothing to do with individual rights at all.
It does. It states quite explicitly that the powers not delegated to the federal government by the U.S. Constitution, nor prohibited to it by the states, are reserved to the states and to the people. No serious legal scholar would even entertain the idea that “the people” means the House or “the states” means the Senate. You simply made that up.
I’m still holding out hope against hope that I’m being punk’d, i.e., you know you are full of crap, and are just stringing me along for fun to see how long I’ll go on providing serious responses to your transparently non-serious constitutional analysis.
Which one are you talking about? The preamble, which authorizes nothing, or the tax and spend clause, which only authorizes taxing and spending? There is no “general welfare clause,” as such.
December 7th, 2004 at 1:15 am
Xrlq:
OK, since it doesn’t “work that way,” then give me several discrete examples of times when federal laws have been stricken down on tenth amendment grounds. If it works as you say it works, then there should be plenty of examples readily available. Unless, of course, you’re talking about how things ought to work instead of how they do work — that’s a different conversation. (In fact, it seems that historically, the Tenth Amendment was more frequently used to curtail powers that were explicitly granted to Congress.)
Of course, I’m not saying that my interpretation of the tenth isn’t without its flaws. As with several other amendments (the second, for example), the intent isn’t precisely clear. The problem with your interpretation is that pretty much everything the government has ever done (besides, say, wage war here and there) was not allowed. The Louisiana Purchase strikes me as an example. And since that was done while the framers were still around to bitch about it, had they so chosen, it would seem they didn’t object terribly, or if they did, their objections were drowned out.
Also, the early Congress, in ratifying the tenth in 1789, debated putting the word “expressly” before “delegated” and voted that down by nearly a two-to-one margin. Why did they vote to exclude that word, if that’s what they intended (as you claim they did)?
Seems pretty straightforward to me:
What am I missing?
Nothing explicitly in the text does, but I’ve already made the case. If my religion forbids me from supporting or acknowledging other religions, and the state establishes a religion and compels me to support it (financially or otherwise), then it has abridged my free exercise rights.
You’re right, I did. But if you’re allowed some leeway in ignoring the “well-regulated militia” stuff, then I ought to be allowed some leeway in my interpretations of various amendments.
Oh, it’s quite serious. For me it’s actually a case study into why people (conservatives and liberals alike) want to have their constitutional cake and eat it, too, calling for very strict interpretations of certain parts of the Constitution, and very loose interpretations of others. (Witness how liberals interpret the first amendment versus how conservatives interpret the second, and how both generally disregard the tenth.)
What’s of more concern to me is that if the tenth amendment were interpreted as you claim it was intended to be, the ratifiers should have readily agreed to the “expressly” verbage, and the country would have fallen apart before it got to be a century old; probably even before the civil war.
Specifically Article I, Section 8 (which you would describe as the “tax and spend” clause). It doesn’t make very much sense that the government should be allowed to raise funds to pay for “[providing for] the general welfare” but not to determine what the “general welfare” actually is. But as I alluded, it’s vague, and that’s precisely my point.
The bottom line is that our Constitution is a document rife with compromises and with vagueness that stems from those compromises. A too-narrow reading of the document gets you into the same kind of trouble that a too-narrow reading of scripture would.
December 7th, 2004 at 3:52 am
Thanks to the quasi-dictatorship of FDR, I can only give you two that happened in my lifetime: U.S. v. Lopez and U.S. v. Morrison. Lopez involved a federal ban on guns in school. Morrison involved a federal statute that created a private right of action for rape. A third case, Raich v. Ashcroft (medical marijuana) is currently pending.
Pre-FDR, and early New/Raw Deal, there were plenty of other Tenth Amendment cases, all of which involved federal statutes that had been voted on by both houses of Congress (and thus would have been considered constitutional under your theory).
Two things: clarity, and historical accuracy. As to clarity, it is arguable that the “privileges or immunities” of the citizens of the US should be read to mean the individual rights protected by the Bill of Rights and/or the original Constitution (and, BTW, I happen to agree with that view), but it’s hardly a slam dunk). As to historical accuracy, no court has ever agreed with you (or me) on this issue. Instead, the Supreme Court judicially nullified the P&I clause in The Slaughterhouse Cases, which was never overruled. They have since “incorporated” most, but not all, of the Bill of Rights under the due process clause, instead. In other words, courts have ruled that this:
means this:
Oh, please. By that reasoning, if your religion forbids (or requires) you to support the death penalty, then having the state have (or not have) a death penalty abridges your free exercise rights. The difference is that there is no Establishment Clause on politics, but that hardly means anyone’s right to freedom of expression is being curtailed as a result.
You’ll have to elaborate. What I witness is almost certainly NOT the point you intended to make: liberals think the Establishment Clause is the only part of the First Amendment that really matters, and argue that the Second Amendment doesn’t mean anything at all. Conservatives, meanwhile, support the basic idea of the First and Second Amendments, though many of them tend to interpret both a bit more narrowly than I’d prefer. As to the Tenth, I agree that most political conservatives are almost as bad as most political liberals are. I don’t think the same can be said of judicial liberals vs. judicial conservatives.
You’re the one getting hung up on “expressly,” not me. So what if a few more powers get delegated implicitly? That’s small potatoes, especially compared to your theory, in which one house of Congress gets to pretend it is “the people,” and the other gets to pretend to be “the states,” which would produce the exact same result even if the word “expressly” had been added.
Fine, but we still have to be clear about the fact that we are talking about Congress’s power to tax and spend, which is emphatically NOT the same as its power to regulate directly. For better or for worse, courts have consistently interpreted the former, but not the latter, as a plenary power.
Funny you should mention that. My take is quite the opposite. If a “too-narrow reading” (read: actually reading the damned thing) of the Constitution and the scripture leads to an absurd result, the rational response is to amend the Constitution and the scripture. The difference is that the Constitution contains a mechanism to allow for such amendments, while scripture does not. Meaning, if the scripture says something you think is wrong, the only thing left to do is to declare shenanigans on the scripture and go on with your life. But if the Constitution is bad, fix it. Don’t lie and pretend it says what you wish it said.
December 7th, 2004 at 1:08 pm
Wince:
Actually, in the Tenth Amendment, the word “prohibited” is clearly referring to the States, not the federal government.
Xrlq:
Umm, you start talking about the “quasi-dictatorship of FDR” and you claim that I’m the one who’s not serious about this discussion? That’s rich. So reviled by the people was FDR, they only elected him to four terms, and would almost certainly have elected him to a fifth, had he not died in office.
Whoa, whoa, wait a minute. I thought that court precedent wasn’t part of this discussion. After all, if court precedent is admissible, then it’s plenty clear, legally speaking, that states may not abridge the free exercise or establishment clauses. I thought we were talking about what the document says rather than what you (or I, or some court) suppose it means.
Not quite. At least, not unless the death penalty is established (or abolished) on purely religious grounds. There will always be conflicts between certain rights and prohibitions, so the best we can do is separate out the easily distinguished ones. Since our (federal) government was established as a secular one, establishing religion serves no purpose, and can be prohibited without abridging any rights. Establishing a religion, however, does abridge some rights. So the error in this case must be on the side of not establishing or endorsing religion.
(As a side note, there are plenty of reasons to oppose the death penalty, many of them having to do with personal freedoms and liberties, but that’s a completely different discussion.)
Huh? Now it’s you who can’t be serious. Unless you think the ACLU somehow isn’t “liberal.” Censorship, church-state intertwinement, quashing dissent… these are all far more associated with conservatives than with liberals, thank you very much.
I’ll agree that liberals tend to read the second amendment too narrowly, but conservatives tend to read it too broadly. Conservatives tend to interpret the amendment as if the “well-regulated militia” bit simply doesn’t exist, whereas liberals tend to interpret it as if “the right of the people” bit doesn’t exist. As it turns out, liberals and conservatives both hate my views on the second amendment (liberals think I’m not strict enough, conservatives think I’m too strict).
Actually, I think it can be. At the end of the day, the Tenth Amendment and States’ Rights have become something of a red herring. Almost no one really supports either. What people support is a state’s right to defy the federal government where those people themselves favor the state’s position over the federal government’s position. I don’t see any evidence that the judiciary is any different in this regard, unless you’re using the terms “liberal” and “conservative” dramatically differently with respect to justices than when you use those terms to describe someone else.
We may not be as far apart as you might think. However, (political) conservatives often seem to ignore the fact that the rights, powers, etc., enumerated in the constitution are often in conflict with one another, and that some determination must be made as to how to resolve such conflicts. Simple (if somewhat absurd) example: suppose my religion requires me to establish my religion within government. At that point, the establishment clause is in conflict with the free exercise clause: by prohibiting me from getting my religion established, it prevents me from freely exercising my religion. A more realistic example might involve a conflict between free speech rights and free association rights. Can my employer fire me for saying something (off the job, not related to my job) that he doesn’t like? If yes, then my free speech rights have been indirectly abridged. If no, then his free association rights have been indirectly abridged. Some resolution of those conflicts must come, and if we tried to codify all of them with amendments, we’d have a long, convoluted document indeed. (Well, we still do, but most of it exists as judicial precedent rather than in the constitution itself.)
In that case, original intent is out the window, as is all subsequent judicial precedent. We could only go based on what the document actually says, which means we’d have a whole lot of amending to do. If we were to take your view, we’d essentially have to start over, because the document as written is virtually unworkable in modern society.
You may not like more pragmatic interpretations of the document, but the fact remains that much of it was left open to interpretation, and probably intentionally so.
December 7th, 2004 at 1:16 pm
To get back to the Tenth Amendment for a moment, XLRQ’s arrogance is kinda oustounding. There is nothing in the Tenth about how the people or the states may choose to exercise their powers. Nothing in the COnstitution prevents the people from invesitng those powers in legislature, a judicial body, or an executive. And yet, to XLRQ, anyone who notes this very obvious statement is lying about what the Amedment says. Either the amendment has special ink that only XLRQ can read, or he isn’t actually reading the thing and is simply arguing for what he think s it should have said and thus what the people are allowed to do. For someone who claims to be a conservative, I find it odd that he would be so willing to deny the people the power to order their affiars as they see fit.
December 7th, 2004 at 1:23 pm
tgirsch,
Your interpretation of the tenth renders it totally ineffective in restricting Congress. Yet it clearly limits the United States, not just Congress. This is not a narrow interpretation. It’s the obvious and meaningful interpretation.
The Louisiana Purchase was a treaty. Agreements about which nation has sovereignty over particular territory including purchases has been a feature of treaties at least since Sumer. The treaty powers are very broad. But, you say, did Congress have the power to pay for it? See Article I, Section 8, Clause 18: “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
If I, with only fifteen minutes study can figure out this simple justification, perhaps constitutionality of the Louisiana Purchase is not horribly tricky. I’m aware that Jefferson himself wished to interpret the Constitution more narrowly but not the particulars. The Court affirmed the purchase in 1828 in AMERICAN INSURANCE COMPANY V. CANTER.
I believe Jefferson wished to limit the implied powers in, for example, the Treaty power. Had he been a computer programmer, this would not have bothered him, as he would quickly have figured out that ALL the powers in the Constitution contain implied powers. Had they not, it would be a whopping big document, not the consise instrument of which we are so fond.
Of course, when one’s party is out of power, one may seek a narrow interpretation of the Constitution, and then reverse oneself when one’s party is in power. Either way, the interpretation I’ve given is pretty straightforward, and seems to have occurred to his Cabinet and the Senate.
Yours,
Wince
December 7th, 2004 at 1:25 pm
Irony alert: Kev criticizes XRLQ’s reading ability then misspells his name repeatedly.
As you were.
December 7th, 2004 at 2:33 pm
“Irony alert: Kev criticizes XRLQ’s reading ability then misspells his name repeatedly.”
That’s not irony. Spelling and reading are distinct skills
December 7th, 2004 at 2:38 pm
Wince:
“Your interpretation of the tenth renders it totally ineffective in restricting Congress. Yet it clearly limits the United States, not just Congress. This is not a narrow interpretation. It’s the obvious and meaningful interpretation.”
Harldy. Congress cannot do anything that it is explicelty prevented form doing, it cannot usurp powers granted specifically to other branches of the government, and it cannot use powers that are not given to it by the people. If the people decide that they no longer want Congress to exercise a power they have formerly given to Congress, then the people can remove that power from Congress. That is the point, after all, of elections. The obvious meaning is that the founders were smart enough to realize that they did know everything, and so they created a Constitution that allowed for the citizenry to react to a changing world. The Tenth is part of that.
December 7th, 2004 at 2:42 pm
Since when does quasi-dictator mean unpopular? Many real dictators are quite popular. Quasi-ones have to be to get re-elected. That doesn’t change the fact that FDR often behaved like a dictator, particularly toward the Supreme Court, over this very issue. Seeking a third and fourth term is another example of his arrogance. He wasn’t the first President who could have been elected three times, Washington was. FDR just seemed to think he was greater than Washington. I beg to differ.
You’re very welcome. You’ll be even welcomer to provide evidence that it’s true. I’ll concede that the average conservative more keep on the one type of censorship I care the least about, i.e., porno. I do not concede that about political censorship. Campaign finance “reform” had a lot more Democrat than Republican support in both houses.
Then you’re not paying attention. I just gave you two examples: guns in school, and rape, both of which all nine Justices agree should be prohibited by law. Both were, unsurprisingly, prohibited by both federal and state law, and both times, the state in question had no objection to the federal law. But that wasn’t the issue. The issue was that the federal government exceeded the powers delegated to it under the Constitution.
I agree that there are situations where rights conflict, and something has to give. I don’t see that here, nor in your other examples. Generally, the right to free exercise of religion only means the government can’t go after your conduct because it’s religious; it doesn’t mean the government has to create a religious exception to a law of general applicability (though it often does so voluntarily). As to free speech vs. your employer, that’s easy. Unless you work for the government, the First Amendment (and the Second, and the Third…) does not apply to your employer at all.
Last but not least, I don’t object to interpretation per se. That’s the court’s job. What I do object to is courts “interpreting” laws to give them a meaning neither their text nor any plausible explanation of their original intent will bear out.
Kvein: you’re a funny guy. Come back if/when you have any real arguments that bear on anything I’ve actually said.
December 7th, 2004 at 3:51 pm
kevin,
You said: “Congress cannot do anything that it is explicelty prevented form doing,”. OK, but we don’t need a Tenth Amendment to say that. It’s already covered. You said: “it cannot usurp powers granted specifically to other branches of the government,”. OK, but we don’t need a Tenth Amendment for that. It’s already covered. You said, “and it cannot use powers that are not given to it by the people.” The Constitution does not contain powers of petition and referendum. There is no mechanism in the Constitution for the people to grant powers to Congress, other than via a Constitutional amendment or convention, and that certainly is NOT what the Tenth says. You said: “If the people decide that they no longer want Congress to exercise a power they have formerly given to Congress, then the people can remove that power from Congress. That is the point, after all, of elections.” The Consitition does not read like this. The point of elections is to remove Congressfolks who exercise their powers in ways we don’t like, not to change what powers they execute. I will stipulate that I think voting against a Congressman because he has usurped some power is a fine reason. You said: “The obvious meaning” but in fact it is not obvious.
The obvious meaning of the Tenth is that Congress does not possess all powers except which it is forbidden. The obvious meaning is that Congress possesses only those powers, expressed and implied, which the Constitution allows it. Otherwise, the Tenth is completely unnecessary. What do you think “reserved to the States respectively, or to the people” means? It means that the U.S. governement, including Congress, doesn’t have the power.
Yours,
Wince
December 7th, 2004 at 4:07 pm
Wince:
“There is no mechanism in the Constitution for the people to grant powers to Congress, other than via a Constitutional amendment or convention,”
That is not true. Congress is the people’s representative — and if Congress exercises powers grnated to the people, then by defintion, the people have granted OCngress the power to do so. If they don’t like it, they can retract their authorization throw the power of voting the bums out.
“The Consitition does not read like this. The point of elections is to remove Congressfolks who exercise their powers in ways we don’t like, not to change what powers they execute.”
No, the point of elections is to put people in power to exercise the will of the people — including the people’s will to execute some power in their stead. Only if the people were expressly forbidden form doing so — which they are clearly not, as the Tenth demonstrates, would that be a problem.
“The obvious meaning of the Tenth is that Congress does not possess all powers except which it is forbidden. The obvious meaning is that Congress possesses only those powers, expressed and implied, which the Constitution allows it. Otherwise, the Tenth is completely unnecessary. What do you think “reserved to the States respectively, or to the people” means? It means that the U.S. governement, including Congress, doesn’t have the power.”
Only kinda true — what good is a power that cannot be delegated or exercised? Your reading of the Tenth is obviously incorrect becasue it does not reserve powers to the people — it forbids them to everyone, because your reading does not allw for the people to decide how to exercise that power. Your reading is a contradiction. If the Constitution was intended to keep the people from deciding for themselves whether or not a certian power they are vested with could be executed through the Congress, then it would have explicitly stated so, just as it explicitly prevented the Government form doing certian actions like force people to testify agaisnt themselves. The tenth does what is clearly says it does: invests the ultimate power of governancne not with the government but with the people who can determine who to exercise that power as they see fit within the limitations of the Constitution. It cannot vest those powers with the people and then tell the people that they cannot use those powers. That makes the amndment meaningless.
December 7th, 2004 at 4:08 pm
Wince:
An interesting interpretation of the Louisiana Purchase, and not necessarily an invalid one. However, according to Xrlq’s interpretation of the tenth amendment, a land grab is not a specifically enumerated power, therefore it should have fallen to the states or to the people.
December 7th, 2004 at 4:21 pm
“Kvein: you’re a funny guy. Come back if/when you have any real arguments that bear on anything I’ve actually said”
1)Did you spell the name wrong on purpose? Cause if so, that’s kinda funny. I wouldn’t have expected it from you, so fair play to you.
2)The argument started over the meaning of the Tenth. Your position has consitantley been that the Tenth does not allow the people to exercise the powers reserved to them through institutions in the federal government despite the fact that no such language actually exists in the text of Constitution. Either you are reading a different Constitutionthan the rest of us, or you are arguing that the people cannot be trusted to make those decisions for themselves. I found that an odd argument for a professed Conservative you so loudly trumpeted his desire to look at what the Constitution actually said. If that charecterization disturbs you, then I would suggest that instead of ignoring it, you try and figure out why.
December 7th, 2004 at 4:28 pm
How about a specific example: suppose the people collectively decide they want something like strict environmental regulation; something which the federal government has no explicit power to implement. By what mechanism can the people then exercise their will, if not by electing congresspersons who will “make it so?”
December 7th, 2004 at 4:35 pm
Oh, and Xrlq, I would give your judicial examples more weight if the judiciary (even the conservative judiciary) consistently behaved that way, but they don’t. Bush v. Gore 2000 springs to mind, wherein the state’s power to determine how to assign its electors (explicitly the state’s authority, if I read article II, section 1 correctly) was usurped by the federal Supreme Court, with the most “conservative” justices ruling on the side of overriding the state.
December 7th, 2004 at 5:31 pm
kevin,
Quote some text to support your extremely novel interpretation. It certainly isn’t one the Founders held, I have never seen any Constitutional scholar hold it, and I see no means of extracting it from the Tenth, or any other portion of the Constitution. Your language isn’t there.
The powers reserved for the people are the non-coercive powers that all people hold. There is no mechanism in the Constitution for the people, per se, to exercise regulatory power. If you were correct, there is no point to enumerating the Congressional powers. The founders could simply have said, “All powers not reserved to the Executive, the Judiciary and the States, except those expressly forbidden to it are vested in Congress as the representatives of the People.” The Constitution could have been MUCH shorter and far easier to understand. They did no such thing. You may be using a different meaning for “obvious” than I. I require some words in the document which mean what you say, or an obvious argument that what you say is true. If indeed the meaning is obvious, quote the obvious text, or give an argument which makes your meaning obvious. Right now, it falls prey to some obvious contradictions of its own. For one thing, there is no need to have a cumbersome amendment process. Just have Congress vote! After all, Congress is the people, and the people can simply vote out the Congress if they don’t like the change. Another is that the Tenth says that it restricts federal power, not that it grants power to Congress.
I’d say your obvious meaning is not obvious, it’s twisted and very corrosive of out rights. The Constitution does not use Congress as a synonym for the people. It is quite explicit about keeping them seperate. Your novel interpretation would allow Congress to override the First Amendment (for example) at will. If the Congress is the people, than it may regulate speech as it sees fit, subject only to being voted out of office.
Are you British? You seem to be describing the British Constitution, not the U.S. Constitution.
Yours,
Wince
December 7th, 2004 at 5:49 pm
TGirsch-24: Land grab is an enumerated power of Congress. See Article IV, Section 3, clause 2.
Kevin: Yes, “Kvein” was deliberate. It was payback for “XLRQ.” On the substance, the argument is that the 10th Amendment means what is says. Rights reserved to the people cannot be usurped by the federal government simply by calling Congress a representative of the people. If they could be, they wouldn’t be rights at all. The end result would be unrestrained democracy, not a constitutional republic.
TGirsch-26: if the people want to enact any unconstitutional law, the answer is to amend the Constitution. Then again, if the only constitutional defect is the 10th Amendment, an easier and probably better approach would be to express themselves through their state and local politicians, whose powers are not limited by the Tenth Amendment.
TGirsch-27: Oh, please. No serious legal scholar has ever argued that Article II, Sec. 1 shields a state from the 14th Amendment, which was the basis of the ruling in Bush v. Gore. All nine Justices agree that state elections are reviewable under the Fourteenth Amendment; that’s not an issue. The only issue was whether or not the ad hoc recounts ordered by the Florida Supreme Court were bad enough to be struck down under it. Seven Justices said yes, the other two said no, but either way, there is no “states’ rights” issue. The 14th Amendment applies by its terms to the states. Thus, your (in-)consistency objection is bogus.
As an aside, a careful reading of Article II, Sec. 1 will reveal that no power regarding federal elections is conferred on the state, as such. The power belongs specifically to the state legislature. If the Florida Supreme Court had abided by Article II, Section 1 and followed the clearly written statutes laid down by the Legislature, there would have been no need to make a federal case out it – literally or figuratively.
December 7th, 2004 at 6:10 pm
Wince:
See, there’s the problem. The Tenth doesn’t explicitly say what Kevin says in means, but it doesn’t explicity say what you say it means, either? Where in the tenth does it say anything at all about non-coercive powers? And if all people hold them, then why bother to enumerate this in the tenth? Apply the same logic to your interpretation as you do to mine and Kevin’s, and you come up with exactly the same problem.
December 7th, 2004 at 6:14 pm
Wince:
How do you figure? Unlike the tenth, the first amendment explicitly prohibits Congress from taking such action. And frankly, the people aren’t allowed to take such action, either, barring them amending the constitution to repeal the first. That’s the whole point.
The tenth, on the other hand, ascribes power to the people, but does not explicitly state by what means they can exercise such power. There’s where it gets problematic. It’s fine to say that a power falls to the people, but what good is it if they have no means by which to execute that power?
December 7th, 2004 at 6:37 pm
If that’s the whole point, it’s not much of a point. The First Amendment does not apply to the people, nor, for that matter, does most of the rest of the Constitution. By blurring the distinction between the government and the people, your argument would invalidate the Constitution almost in its entirety. Short of owning slaves or importing liquor into a dry state, there’s not a hell of a lot the people can do that would violate any part of the Constitution.
December 7th, 2004 at 6:37 pm
Xrlq:
That was far from the prevailing view at the time, and there’s nothing there that says it can expand its territory. It looks to me as if it discusses only territory that already belongs to the United States. In any case, the Federalists of the time argued that the purchase was unconstitutional, and Jefferson himself was unsure of its constitutionality:
Moving on:
There’s that pernicious 14th again.
I would argue (and many would agree) that Bush v. Gore was an affront to the equal protection clause — something the justices themselves seemed to realize when they went out of their way to establish that their ruling in this matter was not intended to set any sort of precedent.
In any case, I’m sure there are other, better examples of the SCOTUS crapping on states’ rights. I have a feeling we’re going to see it real soon with medical marijuana and assisted suicide cases pending.
But the check on the state legislature — and the arbiter of state-passed legislation — is ultimately the state supreme court.
I’ll leave the relative merits of the Bush v. Gore ruling to others to discuss. But I think it qualifies as one of those “tortured” rulings you were complaining about earlier.
December 7th, 2004 at 6:39 pm
Tgirsch,
The Constitutional way to protect the environment is to have the states regulate it, except in the case of water, ground water and air pollution which cross state boundaries. Congress has the power to regulate such as follows:
Article I, Section 8, Clause 3: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.
I’d call pollution with a commercial source which crosses a State line inadvertant interstate commerce, but interstate commerce even so.
The Judiciary also has the power to judge such cases under Article III, Section 2, Clause 1: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;–between a State and Citizens of another State; (See Note 10)–between Citizens of different States, –between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
But if I understand it correctly there is a mechanism which the States developed and used to make their laws regarding Commerce more uniform, the Uniform Commercial Code. This mechanism is essentially an unbinding process for the states to develop relatively consistent laws. It works pretty well, and could easily be adopted for environmental use, with no Constitutional implications at all.
We don’t need federal regulation to protect the environment for the same reasons we don’t need international regulation to protect the environment. We just need voluntary cooperation among equals, which we might have gotten in the case of Kyoto, for example, if it had not been so clearly designed to implement trade and economic policy rather than environmental policy. I should note that the States work togther rather better than the Nations.
However, if federal environmental regulation was the only thing keeping us from adopting the original meaning method of interpreting the Constitution, I’d support an amendment allowing Congress the power to impose federal environmental regulation in a heartbeat.
Yours,
Wince
December 7th, 2004 at 6:41 pm
Wince:
“It certainly isn’t one the Founders held”
Of course it is — they put it in the document, after all.
“If you were correct, there is no point to enumerating the Congressional powers. The founders could simply have said, “All powers not reserved to the Executive, the Judiciary and the States, except those expressly forbidden to it are vested in Congress as the representatives of the People.””
Well, no. The consitution has to explicitly lay out enumerated powers to make the balance of powers between the branches of government work. it also has to explitly forbid certian things to certian insitutions for the same reason. It also has to explicitely forbid the government from doing anything at all in certain areas to ensure civil rights and that minorities are not run over by the mob.
“I require some words in the document which mean what you say, or an obvious argument that what you say is true. If indeed the meaning is obvious, quote the obvious text, or give an argument which makes your meaning obvious. Right now, it falls prey to some obvious contradictions of its own. For one thing, there is no need to have a cumbersome amendment process. Just have Congress vote!”
I don’t think your logic holds up here as well as you think it does. How can a people have a power that they cannot exercise? And why would a document that is about governmental power suddenly, and in one place only, refer to power as something intrisic to people, not a governmental power. Furthermore, there are very clealry things that the government cannot do, and very clealry things that certain aspects of the government cnanot do. If the people elected representatives in order to carry out their will to abridge the right to refuse self-incrimination, they obviously could not do so. The Constitution forbids it. if they elected people to carry out their wish to have the Speaker of the House be the commander in chief of the armed services, they could nto do so — the Constitution forbids it. If they wished the President to be ble to declare war without the consent of COngress, theoretically, they could not do so; the Constitution expressly forbids it.
“Another is that the Tenth says that it restricts federal power, not that it grants power to Congress.”
Actually, it makes express the notion underlying the Constitution — that the ultimate power of government resides in the people, subject to the limitations of the Constitution that they have agreed upon. The people are the ultimate source of governing power, and as long as they do not step over the bounds of the Constitution, they have the power to exercise that power as they see fit. In short, show me where it says the people cannot delegate their powers to the Congress or to the head of the Caost Guard of they so choose — subject to the express constriants of the OCnstitution.
You are asking me to beleive that a document concerned with the self governance of people gives powers of government to the people and the gives them no way to exercise those governmental powers. That is a quite a stretch, and I frnakly don’t see how anyone can come to that conclusion.
“On the substance, the argument is that the 10th Amendment means what is says. Rights reserved to the people cannot be usurped by the federal government simply by calling Congress a representative of the people. If they could be, they wouldn’t be rights at all. The end result would be unrestrained democracy, not a constitutional republic.”
First, we ar enot talking about rights, we are talking about governmental powers. Second, it cannot be usurption if it is not expressly forbidden by the Constitution, either directly or by vesting those express powers in a secific institution. You are arguing that the Constitutuion should treat its citizens as children — that it should never allow them to decide for themselves how a particualr power should be delegated or exercised. How you can read the entire Constitution — a document deidcated to the notion of self rule — and get that conclusion is beyond me.
Oh, and by the way:
“If the Florida Supreme Court had abided by Article II, Section 1 and followed the clearly written statutes laid down by the Legislature, there would have been no need to make a federal case out it – literally or figuratively.”
Crap. There were conflciting laws and the State court did what all courts do: balanced the laws and the state constitution. Pretending otherwise now is deeply, deeply dishonest. And there was a states rights issue. You should know that in other election cases, the conservatives on the courts left similiar rulings go by, becasue the proper place for hashing out state election laws is the states. In fact, you should have also known that the 5 justices in question used the equal protection argument as their basis for stoping the vote counts — the only argument that could trump the states execution of its own laws.
December 7th, 2004 at 6:45 pm
“However, if federal environmental regulation was the only thing keeping us from adopting the original meaning method of interpreting the Constitution,”
BTW, this is pretty much the source of our disagreements. I consider OI a horribly subjective method of interpreting the OCnstitution. Frnakly, it seems little more than a historical treasure hunt by ameaters to find just the right historical nugget to proclaim as the truth. The words of the Constitution are the original meaning, as far as I am concerned.
You, obviouly, disagree
December 7th, 2004 at 6:49 pm
Wince:
I appreciate what you’re saying here, but it fails to address how the people can do anything. It simply argues that the power lies elsewhere, therefore dodging the point of the question. The tenth amendment, read as you and Xrlq read it, says that certain powers fall to the people; presumably, if the federal government and the states cannot (or do not) take certain actions, then the people have the power to take them. Except that your interpretation leaves the people with no recourse for doing so.
December 7th, 2004 at 6:53 pm
Wince and Xrlq
Everything after ““On the substance, the argument …” is addressed to xrlq. Sorry.
December 7th, 2004 at 7:26 pm
kevin,
Since you have failed to expose your language in the document, the Founders most certainly did NOT put it there. If you want me to be certain that the Founders meant that all powers which are reserved in the people are vested in Congress, find actual language saying that in the Constitution, OR quote a Founder. You can’t simply make assertions without evidence or argument. Everything I’ve read by the Founders indicates, umm, the exact opposite. The Founders were rather leery of mob rule. I’ve seen no indication they consider Congress a proxy for the people.
Perhaps I can clarify your position:
Here is Amendment X: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
You contend that Amendment Ten says that the powers not delegated to the Federal government belong to the States, except those which are forbidden the States, and those belong to the people, which they can express via Congress.
OK. Let’s take some practical examples.
The Constitution does not forbid the States to:
1. Regulate public education.
2. Regulate the environment.
3. Regulate intrastate commerce.
4. Regulate health care.
5. Create government run pension plans.
6. Create government run health care.
Therefore, those powers are not delegated to the people, and Federal regulation of education, the environment, intrastate commerce and health care are not allowed, except where they involve interstate commerce. Similarly, Social Security and Medicare can be state programs, but not Federal ones.
The Constitution forbids very little to the States. In fact, I can’t think of anything forbidden to the States which isn’t also forbidden to the Federal government. Find me such, and Congress can pass laws about that.
Yours,
Wince
December 7th, 2004 at 7:45 pm
kevin,
I don’t disagree at all with your critique of original intent. I said original meaning, not original intent. There is a profound difference. To devine meaning one can use a legal dictionary and other documentary evidence of the day. To devine intent requires very subjective mind reading. To be more specific, we should use the original PUBLIC meaning, as understood by the PUBLIC. That means a legal dictionary of the day trumps a letter by Jefferson on what he meant, unless perhaps that letter was made public before ratification. The writings of the Founders made public before ratification about the meaning of the Constitution are useful guides to its public meaning. They form part of the public debate, and may be regarded as the sort of reliable documentary evidence which a legal linguist would use.
This prevents language drift from changing the Constitution. It makes the Constitution stable, so that only amendments change its meaning. It prevents judges from changing the meaning at will, which is a significant barrier to judicial tyranny.
OTOH, are you actually claiming the judicial process is objective? I’m not interested in buying that suspension bridge, even if you waive the title at me.
Yours,
Wince
December 7th, 2004 at 8:05 pm
No, we’re not. We’re talking about a structural limitation on the power of the federal government, which you are attempting to circumvent by pretending that the federal government equals “the people.”
Which is exactly what it does, as to the federal government. As to the states vs. the people, it’s a bit dicier, since these powers/rights are reserved “to the States respectively, or to the people,” with no further clarification as to which of these rights belong to the states, and which ones belong to the people. As the federal government, it’s quite clear: if the Constitution doesn’t affirmatively authorize it, the federal government has no power to do it. If the people don’t like that result, let the people amend the Constitution so that it will give the federal government whatever powers the people want it to have. But until they do that, the federal government must live within the boundaries the Constitution imposes now.
What the hell are you talking about? I am arguing that the Constitution should be respected. I don’t know how enforcing the rights of the people translates into treating them like children. It’s the government I’m trying to rein in, not the people.
You’re the one being dishonest here, or at least horribly uninformed. The Florida Constitution has no bearing on this issue, being trumped by the U.S. Constitution, which delegates that authority directly to the Legislature. There was no “conflict” between the statutes. All there was was a clearly written statute, which the trial court judge and the appellate court had no trouble understanding, and a political result that the Florida Supreme Court wanted desperately to avoid. If the same court had interpreted an identically worded federal statute the same way, the U.S. Supreme Court would have overruled them unanimously.
Kevin, you obviously don’t know nearly as much about this subject as you seem to think you do, so feel free to lose the condescending attitude yesterday. Rather than focusing on what I “should have known,” let’s focus on what I do know. First, there weren’t five Justices who thought the ad hoc recounts violated equal protection. There were seven, including one of the two most liberal Justices (Souter) along with one of the two registered Democrats (Breyer). The 5-4 split was limited to a much a narrower issue: what exactly to do about that constitutional violation.
Second, the reason why the court ruled under Amendment 14 rather than Article II, Section 1 (as they should have done IMO) was because the three moderates and the four liberals didn’t want to touch Article II, Section 1. It wasn’t because anyone thought a challenge under Article II, Section 1 couldn’t “trump the states execution of its own laws.” Any violation of any part of the Constitution will do that.
December 7th, 2004 at 8:10 pm
Wince and Nod:
Actually, there’s quite a lot that the federal government can do but the states can’t. Examples include printing money, passing bankruptcy laws, deciding which states’ rulings to give full faith and credit to, setting immigration policy, issuing patents, raising armies, or overriding any valid federal statute. Even the Fourteenth Amendment does not apply to the federal government directly. Courts have ruled that it does, but only by issuing decisions that are even more tortured than the incorporation doctrine.
December 7th, 2004 at 8:30 pm
Xlrq,
Phooey. I knew I should clarify that. The Federal powers are forbidden to the States. Of the remaining powers very little is forbidden to the States, and every example I can think of is also expressly forbidden to the Federal government in the form of Rights. I await an example of a power which is forbidden to the States but not the Federal government and which is not expressly delegated to the Federal government. I think we may be arguing about a very small set of powers, maybe even the null set.
Yours,
Wince
December 8th, 2004 at 12:24 pm
Wince
“Since you have failed to expose your language in the document, the Founders most certainly did NOT put it there. If you want me to be certain that the Founders meant that all powers which are reserved in the people are vested in Congress, find actual language saying that in the Constitution, OR quote a Founder. You can’t simply make assertions without evidence or argument. Everything I’ve read by the Founders indicates, umm, the exact opposite. The Founders were rather leery of mob rule. I’ve seen no indication they consider Congress a proxy for the people.”
No, the words in the document stasnd by themselves, Wince. I should also point out that they ar the words of the Founders. please show me in the OCnstitution where it states that the people cannot exercise their powers through whatever means they feel apprporiate (not jsut Congress, by the way — thats ajust a handy shorthand) as long as it does not violate the explict restritions of the OCnstitution. Anf, frankly, all the informaiton on the Tenth pretty agrees hat everyone just tought of it as a truism, that the Document would be the same if it wasn’t there. My point here is simply that you are making rather srong claims for the meaning of the Amendment — claims that are neither obvious or strongly supported by the document.
“You contend that Amendment Ten says that the powers not delegated to the Federal government belong to the States, except those which are forbidden the States, and those belong to the people, which they can express via Congress.”
Not quite. Youa re trying to establish a heirerachy of power, particualrly between the States and the people, that the language of the amendment does not support. The phrase is “or the people”. That does not mean that the SDtates comes before the people. The people are the ultimate source of governing power, so they may choose to exercise that power eithe rin the State structure or in the Federal structre subject to the express limitations of the Constitution. Again, the state of Mass could not decide to have a tarrif, becasue intrastate commerce is expressly granted to the Federal government.
“This prevents language drift from changing the Constitution. It makes the Constitution stable, so that only amendments change its meaning. It prevents judges from changing the meaning at will, which is a significant barrier to judicial tyranny.”
Well, not really. See, there are plenty of places where the words chosen are deliberlty vague. Cruel andunusual punishment, for example. If you mean whatI think you mean, then we those words must always mean what the public allegedly thought they meant (and that is still quite a historical treasure hunt you have set upon yourself, considering the parcity of sources and they very different groups of people covered by the Constitution), or the 14th Amendment, and I think that is a terrible mistake. The Constitution must be a living document because the country is a living country. By your defintion, the 14th would only protect blacks from discrimination, as that was the public understanding of it when it was passed. And that is a disater for both feedom and the country. The Consitution must be able to adapt to the times, or it becomes a shackle and not a contract. The Fonders were smart enough to realize that they did not know aeverything and could not anticipate eveything. Essentially, it appears to me that your argument would prevent a culture and the antion form growing. I am not as wise as I was when I was 18. Time has taught me things, just as it has taught the country things. Not allowing for that growth is a recipe for disastor. Your reasoning, it seems to me, does nto alloow for Lawrence or Griswald or Brown v. Board. Those three case go to the heart of what freedom and equality should be in this country. If your philosophy cannot support them (and correct me if I am wrong), then I cannot support it.
“OTOH, are you actually claiming the judicial process is objective? I’m not interested in buying that suspension bridge, even if you waive the title at me.”
LOL — no, just that OI is the least objective of the ways to do it.
December 8th, 2004 at 12:47 pm
“No, we’re not. We’re talking about a structural limitation on the power of the federal government, which you are attempting to circumvent by pretending that the federal government equals “the people.””
The people are the government, Xlrq. The government is not some strage edifice that grows out of the ground. We create it, and we manage it, and it expresses our collective will.
“As the federal government, it’s quite clear: if the Constitution doesn’t affirmatively authorize it, the federal government has no power to do it.”
Show me where the Constitution says that expressly. If you are going to say the tenth, I have already shown you that all the tenth does is reserve for the people the right where to decide — the States or the Feds — the remaining governmental powers will be exerised, if anywhere at all.
“What the hell are you talking about? I am arguing that the Constitution should be respected. I don’t know how enforcing the rights of the people translates into treating them like children. It’s the government I’m trying to rein in, not the people.”
No, you are not. You are trying to prevent the people from exercising their powers as they collectively see fit. To me, you are acting as if the people have to be protected form their selves, or they will exercise those powers badly.
“The Florida Constitution has no bearing on this issue, being trumped by the U.S. Constitution, which delegates that authority directly to the Legislature. There was no “conflict” between the statutes. All there was was a clearly written statute, which the trial court judge and the appellate court had no trouble understanding, and a political result that the Florida Supreme Court wanted desperately to avoid. If the same court had interpreted an identically worded federal statute the same way, the U.S. Supreme Court would have overruled them unanimously.”
Bullshit. First of all, the SC held that the Florida court did not chabge the rules of the eelxtion, so your nonsense about a political result they did not like is just that — nonsense. In fact, the SC told the FSC that it should have ignored the legislation in question — which said that the “clear intent of the voter” was the standard — and applied a statewide standard itself. THAT is why the 14th was invoked and the ActII could not be — because the FSC did nothing that impugned upon the legislature.
“First, there weren’t five Justices who thought the ad hoc recounts violated equal protection. There were seven, including one of the two most liberal Justices (Souter) along with one of the two registered Democrats (Breyer). The 5-4 split was limited to a much a narrower issue: what exactly to do about that constitutional violation.
Second, the reason why the court ruled under Amendment 14 rather than Article II, Section 1 (as they should have done IMO) was because the three moderates and the four liberals didn’t want to touch Article II, Section 1. It wasn’t because anyone thought a challenge under Article II, Section 1 couldn’t “trump the states execution of its own laws.” Any violation of any part of the Constitution will do that. ”
The five justices in question, as I thought clear from the part of the comment you left out, were the five conservative justices who had never ever taken this particular stance in an equal protection case before. The last sentance was regarding the case at hand — as I have already shown you, ART II did not aply to this case, and the five knew it.
The fact that you can defend that horrible decison when even Posner could only come up with “Well, we coulda had a crisis” as a defense is telling.
December 8th, 2004 at 2:05 pm
kevin,
Your interpretation makes nonsense of the enumerated powers of Congress. Your contention is that Congress possesses all the powers reserved to the States and the people by virtue of being a proxy for the people. If that is the case, no enumeration of powers possessed by Congress is necessary, merely a list of powers denied, and the Tenth Amendment itself serves no purpose. This is elementary set logic. Do the math.
OTOH, if there must be a proxy for the people, the States make a much better one. The State powers are not enumerated. Instead, some are forbidden. The only interpretation constitent with the entire document is that the States possess the unenumerated powers.
Your contention rather dramatically contradicts history. Were you correct, the argument over States Rights would have been still born. OTOH, my interpretation agrees rather better both with history and with the entirety of the document text.
The sole exceptions would be powers which were not enumerated as belonging to the Federal government but are denied to the States. Those, according to the Tenth, must reside with the people. OK. Find one. I think you will see that they are also denied Congress, in the form of individual rights.
If you prefer a living document, judges should be elected nationally like the President, with political parties and limited terms. I, like Jefferson, am not interested in judicial tyranny. Since you believe in a living document, you have no argument against Bush v. Gore. None at all. The Constitution means what the Justices say it does, and nothing more. The advantage of original meaning NOT intent (and there are PLENTY of documentary sources available) is that it gives a standard which can be applied. The living document theory applies no standard at all. It is therefore the LEAST objective standard. I’m glad you are happy with Bush v. Gore. I am aware that the language is sometimes deliberately vague. That vagueness was part of the original meaning, understood by the public at the time and by everyone up to the present. I hope you are not contending that anyone thought that the words “cruel and unusual” have a precise meaning.
The 14th Amendment was actually written rather broadly and the public meaning at the time reflected this. But your living document judges promptly emasculated it, especially the “privileges or immunities” clause. Had they been forced to apply an original meaning standard the protections it affords would be much broader today. Look at the text:
Neither the original meaning (not intent) not the current meaning of the text says anything about African Americans, except for a provision forbidding compensation to slave owners. Had the Courts enforced the 14th, we wouldn’t have needed the Voting Rights Act. The privledges and immunities clause under the original meaning should have caused all the Rights in the previous amendments to be be applied to the States. Instead the Court invalidated the privileges or immunities clause and we got those rights much more slowly under the due process clause. To bad those living document judges were able to change the meaning of the amendment to match their own preferences.
Yours,
Wince
December 8th, 2004 at 6:38 pm
This has got to be the dumbest comment I’ve read in the entire thread. If you really believe that you are a government, I’d invite you to test that theory by taxing your next door neighbor, declaring war on Liechtenstein, enforcing some random law you just made up yourself, or exercising any of the countless other powers that governments enjoy but individuals do not. Then try re-writing the Constitution to conform to your theory. The Tenth Amendment, for example, would read like this:
Doesn’t make much sense, does it? It would, though, in the “people’s republic” you seem to be advocating here.
Perhaps you’d care to quote the portion of Bush v. Gore in which you think the court held this? Or just admit that you either made this crap up.
I take it back, that comment is even stupider than the first one I quoted above. Of course Article II applied to this Presidential election, just as it applies to every other. Even the court’s per curiam decision clearly states as much. The issue is whether or not the Florida SC violated Article I, Sec. 1, not whether Article I, Sec. 1 applied in the first place.
Kevin, the only thing more appalling than your ignorance of basic civics is your eagerness to debate a subject you obviously know next to nothing about. Doesn’t this get embarassing after a while? Or does being “liberal” mean it’s OK to be “liberal” with the facts, too?
December 9th, 2004 at 11:48 am
XLRQ:
“If you really believe that you are a government, I’d invite you to test that theory by taxing your next door neighbor, declaring war on Liechtenstein, enforcing some random law you just made up yourself, or exercising any of the countless other powers that governments enjoy but individuals do not.”
Nice strawman — did you build it yourself? The quote is “the people” people is a plural. I am not the goverment, but the entire collection of the people of he United States of America are the government. We had an election last month, as I am sure you noticed. We electe people to represent us. We are the government, xrlq. The government is not the strange and all powerful monster of Ayn Rand and Michigan Militia fantasies — it is you and me and all our neighbors.
“Perhaps you’d care to quote the portion of Bush v. Gore in which you think the court held this? Or just admit that you either made this crap up.”
Sure:
Menaing, of course, that they found no Art II violation, and thus the FSC didn;t chage the rules of the eelction.
More:
I.e — nope, no problem with the FSC ordering recounts, just the way the recounts were done.
More:
Again, the FSC did what it should have, it just did it wrong.
So, yea, the SC pretty much accpeted the power of the FSC to do what it did — it just said it did it wrong.
“I take it back, that comment is even stupider than the first one I quoted above. Of course Article II applied to this Presidential election, just as it applies to every other. Even the court’s per curiam decision clearly states as much. The issue is whether or not the Florida SC violated Article I, Sec. 1, not whether Article I, Sec. 1 applied in the first place.”
LOL. C’mon, “applied in this case” is clearly refering to whether or not a violation took place. Man, you are getitng pathetic — pretending that obvious conventions do not men what they mean so you can attempt to belittle someone. And its the second time you did so. Weak.
December 9th, 2004 at 11:56 am
Strawman, you keep using that word. I do not think it means what you think it means. And, for the record, in the case of the president, the people did not elect him. The electoral college did. If it was the people, we might still have gore in office.
And the people are not the government. I know this because I am pissed at the government but i’m not pissed at me.
December 9th, 2004 at 12:11 pm
Wince:
“Your interpretation makes nonsense of the enumerated powers of Congress. Your contention is that Congress possesses all the powers reserved to the States and the people by virtue of being a proxy for the people. If that is the case, no enumeration of powers possessed by Congress is necessary, merely a list of powers denied, and the Tenth Amendment itself serves no purpose. This is elementary set logic. Do the math.”
No, on both counts. My contention is that the people are the ultimate source of governmental power, subject to the contstraints of the Constitution (which, in the end, was ratified by the people through their representatives, so the people are still the ultimate source of governmental power) and the Tenth merely recognizes this, as does the rest of the COnstitution. The enumerated powers serve several functions: they set a starting point for the government, they make clear that there are things that one branch or segment can do that others cannot, they establish the checks and balances neccesary for the governemtn, and they establish limits to the powers of a given branch, regardless of what the people want. The people cnanot decide to have COngress preside over treason trials, since that power is explicitly granted to the Courts, and thus explicitly denied COngress. the people cannot decide to have a state tarriff, since interstate commerce is expressly given to Congress, not the states. Etc. I go back to my original point: show me where the Constitution says X cannot be done by Y. If you cannot, then the states or the people — acting through their representatives at either level — may do so.
“If you prefer a living document, judges should be elected nationally like the President, with political parties and limited terms. I, like Jefferson, am not interested in judicial tyranny. Since you believe in a living document, you have no argument against Bush v. Gore. None at all. The Constitution means what the Justices say it does, and nothing more.”
Oh, stuff and nonsesne, and intellectually dishonest stuff and nonsense. A living document just means that we don’t shackle ourselves to dead men’s meaning of amigious terms. Cruel and unusual punishment means what society at the time says it means. The 14th applies to gays whether or not the people who wrote it intended it to aply only to blacks (which they did). It doesn’t mean that justices decided what the COnstitution means. And, frnakly, read an OI decision and tell me that the justice wasn’t decididng what the document means. A living document means looking at the whole document and taking everything in context, not despertly trying to parse out one word or phrasde form some Founder’s diary.
“he advantage of original meaning NOT intent (and there are PLENTY of documentary sources available) is that it gives a standard which can be applied. The living document theory applies no standard at all. It is therefore the LEAST objective standard. I’m glad you are happy with Bush v. Gore. I am aware that the language is sometimes deliberately vague. That vagueness was part of the original meaning, understood by the public at the time and by everyone up to the present. I hope you are not contending that anyone thought that the words “cruel and unusual” have a precise meaning.”
Nonsesne. Original intent and meaning give no standard. None. They are cheap historical treasure hunts where conservative justices desperately try to dig up some pieceof history and use it — out of context — to try and prove that the OCnstitution means what they want it to mean. You can — and justices have — looked at the hisotry of an issues and come to completely different A living document has the words in front of them, and what the words actually mean today. The fact that cruel and unusual was used and the fact that they are amigious is a god thing — its gives the COnstitution room to adapt to society. Societies learn and grow — and cruel and unusual does not mean in this society what it meant in 1789. Pretneding that it does, pretending that the Founders would have even ever tried to claim it should, is dishoenst and dangerous to the country.
“But your living document judges promptly emasculated it, especially the “privileges or immunities” clause.”
Well, no — it was your conservative, the words mean what the words mean judges. There are only a few privieges and immunities enumerated in the Constitution for citizens. Therefor, the 14th must aply only to those explicitly stated things. That was how the decision came about.
Now, I hink we may be discussing two different things, here. You say that the intent was meant to be broad. That is not actually clear form the records of the time — many, perhpas even a majority, of people thought that the 14th refered to black people. And this continued for quite sometimes — now one, after all, used it as an argument for female sufferage. On the other hand, you say that the meaning is broad. Yes, but only if you apply today’s understanding to the document — only if you use a living document standard. At the time, it was widely publically understood to refer to blacks. So either your argument does not get you where you want to go, or I am misunderstanding what you are driving at.
So, in effect, you cannot get to what you want using your own standard. You can only get to where you want using mine — the living document.
December 9th, 2004 at 1:09 pm
No, you did, when you got onto this “we are the government” kick. We’re not the government. The government is the government.
That’s debatable, but assuming that you’re right, it’s the plural of “person,” of which I am one, and I presume you are, too. So if you think you are a government, feel free to go out and act like one. Just don’t be too surprised when the real government steps in and reminds you it is, and who it’s not.
I’m not even sure I want to know what planet you live on, where “we find a violation of the Equal Protection Clause” means “we find that the Florida Supreme Court did not change the rules of the election.” It certainly doesn’t mean that on earth. Why don’t you just do the adult thing and admit you were full of crap?
No, it isn’t. All it refers to clearly is your legal illiteracy.
You’re the posting ignorant ramblings about stuff you know nothing about, not me. And somehow this is supposed to be MY fault? Oh wait, I almost forgot, you’re a liberal. Everything is somebody else’s fault. Never mind.
December 9th, 2004 at 3:14 pm
Uncle and Xrlq:
Sorry, but what Xrlq made was clearly a strawman argument. Saying that “the people are the government” is not the same thing as saying “I personally am the government,” yet it is clearly the latter (unmade) statement that Xrlq attacked. When you use such obvious strawman arguments and then have the cojones to deny doing it, it hardly seems worthwhile to even argue any more: you’re clearly not interested in honest debate.
Xrlq:
I know you are, but what am I? My uncle can beat up your uncle! Jesus Christ, man, go back to the third grade.
December 9th, 2004 at 3:45 pm
Tgirsch, you’re killing me. You and Kevin willfully blur the distinction between the people and the government, I point out how ridiculous that is, and suddenly I’m the one not interested in an honest debate.
Gee, I wonder where that notion that liberals routinely blame others for their own failures may have come from. Hint: not third grade.
December 9th, 2004 at 3:53 pm
“You’re the posting ignorant ramblings about stuff you know nothing about, not me. And somehow this is supposed to be MY fault?”
You are getting tiresome. You haven’t the character required to debate honestly, and when I point it out, you whine about how it isn’t your fault.
“I’m not even sure I want to know what planet you live on, where “we find a violation of the Equal Protection Clause” means “we find that the Florida Supreme Court did not change the rules of the election.” It certainly doesn’t mean that on earth. Why don’t you just do the adult thing and admit you were full of crap?”
Notice, please, that I provided the quotes that dealt with the SC’s decision regarding the FSC decisions as being allowed in principle but flawed in practice. And you ignored them. And that pretty much, sums up your entire debating style: accuse your opponent of not having support for what they say, then ignore the evidence they provide, and whine when you are called on it, and then build strawme out of your inability to understand something in context. Sheesh.
Wince
I am done with this thread, but if you want to conitue, please feel free to email me. I am interested in hearing your differnetiation between OI and original meaning. I think you are trying to say something interesting that I am not quite getting from your posts.
December 9th, 2004 at 3:57 pm
Xrlq:
Gee, I guess that makes George W. Bush the most liberal guy on the planet, then, huh? (With Rumsfeld right behind him on the liberal-o-meter.)
December 9th, 2004 at 4:58 pm
I guess maybe I’m just falling into the same trap as that idiot Lincoln: buying into the “of the people, by the people, and for the people” crap, eh? I thought the power of government derived from the people. Stupid me.
December 9th, 2004 at 6:06 pm
Xrlq:
Also, I must be missing something: U.S. v. Lopez doesn’t even mention the tenth amendment. Nor, for that matter, does Morrison. Certainly nothing is stricken down “on tenth amendment grounds.” Nitpicky? Maybe, but neither case fits the bill. (Sorry, I just now got a chance to look at these rulings.)
After browsing those rulings, however, it does make me curious about other commerce clause rulings, because “tortured” (to use your word) seems to be a common thread there.
Concerning Bush v. Gore, does the ruling say anywhere that the FSC violated Article II, Section 1? From what I read, they do find an equal protection clause violation, but they do not find an Art II, Sec 1 violation (or if they do, they don’t bother to say so). Unless, of course, I’m missing something, which is always possible.
December 9th, 2004 at 7:25 pm
I ignored anything. Quite the opposite, unlike you, I actually took the time to read and understand the portion of the opinion you quoted, first in your block quotation alone, and then, again, in context. If you had done the same yourself, you’d know that what the USSC described as as acceptable in principle was the substantive question of whether a law may rely on the clear intent of the voter, not a question of whether or not the Florida Supreme Court had changed that rule, or if it was allowed to do so. That issue is not addressed in the decision at all.
That’s just rich. First you lie and claim that the Tenth Amendment doesn’t prevent the federal government from doing anything, which it clearly does. Then you lie again, claiming that Bush v. Gore involved a conflict between two statutes, which it did not. Then you throw in a real whopper about the U.S. Supreme Court ruling that the Florida Supreme Court didn’t change Florida’s election rules retroactively, when in fact the majority made no finding on that issue one way or the other. And finally, to top it all off, you compound that last lie with even more lies, accusing me of ignoring a block quotation that you yourself obviously haven’t read, and one that has no bearing whatsoever on the topic at hand.
You are in no position to lecture anybody about being tiresome, lacking character or refusing to debate honestly.
December 9th, 2004 at 7:35 pm
Xrlq:
Let me see if I get this straight: If someone interprets something differently than you do, they are “lying?” If someone disagrees with you about points of detail, they are “unserious?” Why do you seemingly feel the need to impugn the intelligence and the integrity of those who disagree with you, at pretty much every turn?
You might not agree with the conclusions we’ve come to. You might even think we’re bat-shit loony. But nothing we have posted here even remotely suggests that we are intellectually dishonest, as you repeatedly seem to like to claim.
I’ve tried very hard not to be insulting, to make personal attacks, or to impugn your integrity. Obviously, you feel no need to return that simple courtesy.
And somehow, the “liberals” get painted as the “elitists.” How the hell does that work?
For the record, if you want to prove Kevin wrong on Bush v. Gore and send him proverbially crying to mommy, just point out the part of the ruling where they state that there’s a Art II Sec 1 violation. Kevin’s whole argument on Bush v. Gore would be eviscerated in one fell swoop, just that easily.
Alternatively, help me understand why the Supreme Court would look at the case, find an Art II Sec 1 violation, and then not bother to mention it in the ruling. It can’t be that challenging, can it?
December 9th, 2004 at 8:38 pm
This is a common logical fallacy, known as “affirming the consequent.” While it may be true that all liberals refuse to take personal responsibility, it doesn’t follow that all people who refuse to take personal responsibility are liberals, any more than it follows that if all people who jump out of airplanes die, all people who die must have jumped out of airplanes.
BTW, I don’t think liberals have a monopoly on bad logic, either, BTW. A disproportionate market share, perhaps, but not a monopoly.
It does, at least a moral level. No one disputes that. But it’s one thing to say the government derives its powers from the consent of the governed, and quite another to pretend that the government and the governed are one and the same. If the government were us, and not just a separate entity that is kinda/sorta accountable to us, there would be no need for a Constitution, except maybe to provide for regularly scheduled elections. And maybe not even that; surely “we” can trust “us” to hold elections as often as needed, right?
Technically they don’t, but really, they do. The court starts with first principles of enumerated powers, citing Article I, Section 8 instead of Amendment X. I’m not sure why they did that, seeing as Article I, Section 8 merely states many of the federal government’s powers; it does not expressly forbid it from exercising unenumerated ones. However, some legal scholars believe that the Tenth Amendment is largely redundant, as the doctrine of enumerated powers was implicit in the original Constitution even without it. Either way, the basic issue is the same.
Note, however, the reason why the court devotes relatively little attention to the principle of enumerated powers: it’s not controversial. All nine Justices agree that if the U.S. Constitution doesn’t affirmatively authorize the federal government to do X, the federal government can’t do X. The issue at hand is whether or not any part of the Constitution (read: the commerce clause) did in fact provide such authorization. Both times, five Justices said no, four said yes, and zero said it doesn’t matter since those powers ultimately rest with the people.
Yup. Prior to Lopez, the leading case was Wickard v. Filburn, a New Deal era case that upheld the power of the federal government to limit the amount of wheat a farmer can grow for himself and his own family, on the theory that growing one’s own wheat substantially impacts the amount of wheat one would otherwise buy on the open, interstate market. Very tortured indeed. Yet, despite Lopez and Morrison, Wickard generally remains “good” law to this day.
What’s saved Wickard, I think, is the fact that rape and guns in school are both activities that are non-economic, in a way even growing one’s own wheat is not. I don’t think the court will be able to draw such a fine distinction between growing one’s own wheat and growing one’s own pot. Thus, if the states do prevail in the current case, I have to think it will be the last nail in Wickard’s coffin. Not that I’m predicting this result, mind you. My take is that Justices Stevens, Souter, Breyer and Ginsburg will rule that everything is interstate commerce, Justices Rehnquist and Scalia will uphold Wickard under stare decisis, Justices Kennedy and O’Connor will declare marijuana unconstitutionally icky, and Justice Thomas will be the lone dissenter.
No. IIRC, Justice Rehnquist did say that in his concurring opinion while Justice Breyer denied it in his dissent, but the per curiam majority decision made no findings on that issue one way or the other.
December 9th, 2004 at 9:26 pm
No, and no. There are plenty of things rational people can disagree about. However, if a person states that 2 plus 2 equals 5, he is unserious. If he states that so-and-so has proven 2 plus 2 equals 5, when so-and-so has not in fact proven or even claimed any such thing, he’s either a liar himself, or an idiot repeating someone else’s lies. Either way, he adds nothing of value to the debate.
I don’t. I don’t remember accusing you of dishonesty, except when I probed you early on to make sure you were expressing a sincerely held view rather than jerking my chain. My more recent remarks were directed entirely at Kevin, not at you. Not because he disagrees, but because in a single thread, he made repeated statements that he either knew, or certainly should have known, to be false. It’s one thing to say “I agree with the Florida Supreme Court in Bush v. Gore,” and argue the pros and cons of it. It’s quite another to make factually incorrect statements about it, stated as though they were facts, and chide the other person for not “knowing” the phony “facts” you just got done making up. When called on an honest mistake, the thing to do is to own up to it, not to compound it further by making up even more facts, such as to falsely claim that the U.S. Supreme Court “held that the Florida court did not change the rules of the election” when it fact it issued no ruling on that issue at all. But when, having done all that and more, Kevin had the audacity to impugn my integrity and accuse me of dishonesty, well, I’m sorry, but that was beyond the pale.
I never claimed that the court ruled there was an Article I, Sec. 2 violation. Kevin’s lie/falsehood was in claiming that the court had ruled the opposite way, when in fact it declined to rule on that issue at all.
Like I said, they didn’t rule on the issue at all. That is not remotely equivalent to affirmatively ruling the way Kevin falsely claimed they did. Nor is it particularly uncommon for courts to pick and choose which issues they want to rule on, when a law can be struck down on one basis and the less desirable issue thereby mooted. My take: only the three relatively strict constructionist judges are comfortable ruling that any judge has ever “changed” a law merely by ruling on it. One of the things you learn upon joining Fight Club is that judges never “make” law, they merely “discover” what it has really meant all along. If the Supreme Court had ruled on Article II, Sec. 1, it would have had to do one of two things:
If I’m right, it figures that Justices Rehnquist, Scalia and Thomas, strict constructionists all, would be fine with Option 2, since the U.S. Supreme Court cases they’d be implicitly attacking are cases they don’t much like anyway. But it’s not hard to see why the other six would prefer to avoid this difficult choice if they can rule on a less controversial (to them, not necessarily to the general populace) issue.
December 10th, 2004 at 12:36 am
Xrlq:
I would have thought it was called “failing to have a sense of humor.” I stand corrected.
Well, there’s the whole “preventing mob rule” thing…
That’s an easy standard to apply when things really are that cut and dry; when things are ambiguously phrased and open to disparate interpretation, it’s not so simple.
Getting (way) back to the original subject, do I really think it’s as simple as my original “House = people, Senate = states” formulation? Of course not. But it still leaves open the question (asked WAY earlier) that if certain powers are reserved to the people, by what means may the people exercise that power? You claim that pressuring their (federal) representatives to do things on their behalf is verboten (unless the representatives are otherwise explicitly allowed to do them anyway).
Things like federal environmental regulations (which I assume you would classify as unconstitutional) didn’t happen in a vacuum. They’re not things that the congress just up and decided to do one day because they were bored. In many cases, there was tremendous public pressure for the government to do these things. (Yes, I acknowledge that there are some cases of the tail wagging the dog — witness estate tax repeal as a ready example).
But that’s largely what I’m getting at when I say that “we are the government.” Politicians simply do their best to figure out where the parade is going, and get in front of it.
As to Bush v. Gore, I think Kevin’s point was that if the justices had found (and agreed upon) an Art II, Sec 1 violation, they would have mentioned it. I think what you seem to be counter-arguing is that they didn’t even consider whether or not this was the case?
As I read it (admittedly, I’ve only skimmed it), there appears to be disagreement about whether/how the Florida Supreme Court may have “altered” the pre-existing law. From my admittedly cursory understanding of my reading, it appears as though the Florida law itself was somewhat ambiguously written, making it all but impossible to fully comply.
What may cause some confusion is that the dissents (in particular, Souter’s, in section B) seem to declare that no Art II, Sec 1 violation can be found. In an ironic twist, getting back to my original point in bringing up Bush v. Gore, Justice Ginsberg (who I’m sure you’ll agree is one of the more liberal justices) dissents on states’ rights grounds. (Note also that unlike the other dissenters, Ginsburg does not “respectfully” dissent — she simply dissents.)
To me, the whole Bush v. Gore mess is a great argument in favor of returning to human-readable paper ballots.
December 10th, 2004 at 12:46 am
Xrlq:
And while we’re pointing out logical fallacies, wouldn’t your original “You’re a liberal, therefore everything is someone else’s fault” similarly qualify? Specifically, argumentum ad hominem? (Either abusive or circumstantial depending on context.)
The point was that your tongue-in-cheek (or maybe not) remark was somehow admissible, but my tongue-in-cheek reply was not, because it was logically invalid? That seems odd.
My “sense of humor remark” above, obviously, should have had one of these:
December 10th, 2004 at 1:46 am
Don’t worry, I got the joke, I just felt like taking it to the next level. Idon’t really think all liberals shirk personsl responsibility, only most.
I doubt that. Who types on a computer standing up?
That’s one concern. Preventing a government from becoming too autocratic is another. IMO, both objectives are best served by treating all rights of the people as rights of ALL the people, as individuals, and not as rights of a government elected by 51% of the electorate (or less, in a three-way race) to usurp these rights.
As free individuals. Or, if they really want government to have that power, they can petition their state governments, which are closer to the people anyway, and which are not restricted by the Tenth Amendment (I’m using that as a shorthand for the enumerated powers doctrine). If they really feel strongly that this matter should be decided at the federal level, they can lobby their Congresmen to amend the Constitution. It’s hard to do that, but it’s supposed to be hard to do that.
Like I said, representatives in state governments are not bound by such requirements. AFAIK, no state constitution limits its legislature’s powers the way the 10th Amendment limits Congress’s.
Depends. If they were passed to implement a treaty, they’re constitutional. If they’re not, why can’t the states deal with the issue on their own?
Bad politicians do. Good ones do what they believe will be best for the country, and let the chips fall where they may. When President Ford pardoned Nixon, he made himself a 1/2-term President by pissing off almost everyone in the country except, well, Nixon. But many people who were pissed off then look back today and acknowledge that it was best for the country to put Watergate behind us. ‘Course, Ford was never elected President, so maybe he’s the exception to the government-equals-us rule.
Sort of. I’m sure they considered it informally while debating amongst themselves, but I suspect that they soon realized they would either reach a stalemate or open the can of worms I identified above, and soon found that the 14th Amendment was an easier out. Again, for them, not for us. The statutory deadlines were clear enough, that while an Art. II, Sec. 1 ruling may have thrown the legal community in for a loop, the population as a whole may have had a much easier time accepting it. FL SC rules that 7=17, USSC overrules saying 7=7. Lawyers would complain about federalism, everyone else would say “so what, 7 DOES equal 7, so there.”
BTW, it wasn’t just the dissents that mentioned Art. II, Sec. 1. Chief Justice Rehnquist’s concurring opinion, in which Justices Thomas and Scalia joined, did so as well, and ruled that a violation did occur. It did’t raise the more obvious violation, however, namely the repeated extensions of the statutory deadlines.
December 10th, 2004 at 12:54 pm
Xrlq:Who types on a computer standing up?
As for who types standing up, people who work on production floors (that used to be me, about five years ago); I also assume Rummy would, if he used a computer.
You know, I very nearly typed “I sit corrected,” but decided that would be overly legalistic.
But again, all of these recourses are separately documented elsewhere in the Constitution, so why bother mentioning it again in the Tenth Amendment?
Because it’s impractical to do so. Just as one example, most of Tennessee’s pollution problems are born outside of Tennessee; prevailing winds and multi-state waterways bring a lot of pollution in from the outside. The other problem is the “race to the bottom” that would inevitably ensue. States ultimately compete with one another for jobs, and it’s cheaper for a company to locate itself where there are lax environmental/labor regulations than where there are stricter ones. So the states without such regulation (or with very lax regulation) gain a competitive advantage, and other states are forced to loosen or repeal their own regulations in order to compete. The economies of New York and California are big enough that they can get away with this at the state level to some extent, but there are 48 other states that aren’t New York and California. Further, the states with stricter regulation couldn’t pass protectionist legislation to compensate for the regulatory differences, because the federal constitution explicitly prohibits them from doing so.
As long as we’re talking in hypotheticals here, Santa Claus also brings gifts to all the children every Christmas. Except that in my lifetime, I’ve seen more empirical evidence of Santa’s existence.
December 10th, 2004 at 1:42 pm
tgirsch,
I still haven’t gotten a reason why Congressional powers had to be enumerated if they get broad police power (anything the people want). Congress has never had broad police power before, and they don’t have it now. If they did, they wouldn’t explicitly claim that partial birth abortion was being banned via the enumerated interstate commerce power. They would just claim it was a power delegated from the people and be done with it. Everyone in all three branches of the Federal government is acting as if they do not have broad police powers, and as if the states do, and they are torturing the commerce clause to allow regulation of non-commercial activites. Are you (and the now probably absent kevin) playing devil’s advocate here?
Your environmental problems are the sort that, if they turn out to be pressing, we can amend the Constitution to fix. OTOH, they aren’t as pressing as you claim. Congress is allowed to regulate interstate commerce. If Congress says that all automobiles which are sold, assembled, financed, etc., via interstate commerce must have pollution controls, voila, you’ve covered something like 99.999% of all cars. And that is EXACTLY how Congress has passed environmental legislation, as regulations on interstate commerce, a power they possess. Congress wouldn’t be able to police my leaf burning, or my particular furnace, however. If that isn’t enough Congress also has the power of the purse. They can cut off funds to states which don’t police themselves well enough. So really you are reinterpreting the Constitution when it isn’t needed. Let’s keep the meaning of the document the same and change it via amendment, not unelected judges.
Yours,
Wince
December 11th, 2004 at 2:25 pm
I’m one of those evil Ayn Rand-Michigan Militia reactionaries who believes, with George Washington, that “Government is not eloquence, it is not reason. It is force! Like fire, it is a dangerous servant and a fearful master.”
It was not Ayn Rand who arrested John Geddes Lawrence and Tyron Garner in the middle of the night for making love in their own home. It was not the Michigan Militia who shot Randy Weaver’s wife and child. It was government in both cases. Government is at best a necessary evil and must be restrained as much as possible. And that goes for democratic government most of all. The worst tyranny of all is the tyranny of the majority. That is what our Constitution was written to guard us against more than anything else.
“In questions of power, then, speak no more of confidence in man, but, rather, bind him down from mischief with the chains of the Constitution.”
-Thomas Jefferson
“If all mankind, minus one, were of one opinion, and only one man were of the contrary opinion, mankind would be no more justified in silencing that one than he, if he had the power, would be justified in silencing mankind.”
-John Stuart Mill