> given the utter absence in the text of the Constitution of any plausible guidance to what is,

This is such egregious nonsense that I can't believe anybody takes it even the slightest bit seriously. The constitution enumerates the powers of the federal government. Anything not in the enumeration is unconstitutional. Most of the modern regulatory state is therefore unconstitutional. No amount of fancy judging and lawyering and lawprofbloging is going to change what the text clearly says in plain English.

I would think you of all people would be able to just admit this and add it on to your list of the constitution's obvious flaws.
 

The 10th Amendment has no meaning that isn't read into it by judges with their own political views about what's best for America. It is, as both Marshall and Stone, suggested, otherwise a "tautology," telling us nothing whatsoever about the actual division of authority between national and state levels of government.

Shouldn't there be a presumption against concluding that a constitutional provision is meaningless?
 

With regard to Mr. D'Anna's comments: Yes, the Constitution ostensibly sets up a "limited national government of assigned powers." But, of course, the assigned powers include regulation of interstate commerce, defined very broadly indeed by John Marshall, a war power, and the power of Congress to tax and send for "the general welfare," defined very broadly by Alexander Hamilton (and, ultimately, the Supreme Court). But even if one stipulates that the "original understanding" was for a more modest national government than the one we now have, I presume that Mr. D'Anna will admit, however regretfully, that there is no serious political movement in this country that truly wants to return to a pre-1937 understanding of limited powers. Liberals and conservatives today disagree on how they want to use the national government; they don't disagree that the national government indeed has extremely broad powers.

As for Mr. Cohen's point, even if one presumes that the 10th Amendment isn't "meaningfless," it provides no scintilla of evidence as to what precisely its meaning is. It is nothing more than a Marshallian "great outline" that has to be filled in by later interpreters, including, of course, federal judges with whom one can agree or disagree. Can anyone seriously disagree with this description?
 

Of course you're right that the 10th Amendment is extremely vague, but I don't think it's inconsequential for the purposes of this discussion. I would agree with Larry D'Anna (and you don't seem to disagree) that it suggests the framers saw the federal government as having specific, enumerated, limited powers, in contrast with the broader powers of the pre-existing states. That seems like at least an important background fact about the Constitution. So I would maintain that the 10th Amendment is relevant to this post, which I read as a very general discussion of how important federalism is in our legal system rather than any specific interpretive question.
 

Sandy:

In it they argue that no truly rational constitutional designer would ever prefer "federalism," defined as the constitutional allocation of some measure of meaningful autonomy with regard to something of relative significance...

And what is the basis for this argument? If one's goal (as was the Founders') is to check the concentration of government power, then there are few constitutional mechanisms superior to federalism as you have defined it.

Indeed, the Founders probably did not foresee that a federal system with several states also checks the concentration of government power in the states as folks can simply vote with their feet by leaving states with onerous laws and taxes for freer states. This is what the left likes to call "a rush to the bottom" and in the spirit of what Randians are currently calling "Going Galt."

I think their analysis is clearly correct. One of the things that's so interesting about it is that it forced me to reflect on the extent to which the United States Constitution, usually described as "federal," in fact complies with their essential criterion of textually specific assignment of autonomy rights to sub-national units or, as a complement, designs institutions that can plausibly be described as ways of maintaining the federalism bargain. And the answer is that there are few such rights set out in the Constitution....The 10th Amendment has no meaning that isn't read into it by judges with their own political views about what's best for America.

C'mon Sandy. Article I expressly limits Congress to a handful of enumerated powers, Article II grants the President the broad powers over foreign policy and to execute the laws enacted by Congress, but not much else, and the 10th Amendment makes it clear that all other powers remain with the States.

But even if one stipulates that the "original understanding" was for a more modest national government than the one we now have...

To the extent that the text is somehow unclear on the limits of the federal government, the history of the drafting of the Constitution makes it clear that no one at all intended the federal leviathan of today. No one. The debate was between the Federalist vision of a limited federal government and the Anti-Federalist vision of a completely hamstrung one.

I presume that Mr. D'Anna will admit, however regretfully, that there is no serious political movement in this country that truly wants to return to a pre-1937 understanding of limited powers. Liberals and conservatives today disagree on how they want to use the national government; they don't disagree that the national government indeed has extremely broad powers.

Actually, there has been a legal counter revolution underway in that direction for a generation now. Practically, it may be impossible to reverse the accumulation of federal powers since the judicial evisceration of many of the Constitution's plain limits. However, that does not mean that those limits are not written into the Constitution in the first instance, that federalism is not "truly rational," nor that efforts to partially roll back that accumulation of power or stop further accumulation of power are not serious.

BTW, Mr. Bush was not a conservative in his desire to advance the accumulation of federal power to advance his own goals. Rather, he set back the gains of conservatism over the past generation in his use of the tools of the left.

4) the right, under the Second Amendment, to maintain a militia (which is not at all trivial, at least historically)

The Second Amendment guarantees a preexisting right of the People to keep and bear arms against federal infringement. It grants no power or right to the States. The state powers over their own militias are protected by the 10th Amendment and recognized in the text of the militia clauses in the Constitution.
 

(sorry for this being unrelated to the original post but I thought this is relatively newsworthy)

some first mutterings from Bybee re his role in torture memos can be found in his profile published here.
 

I have to agree with some of the above: I don't see how you can seriously assert this in the face of the enumerated powers of Congress, and the 10th amendment dictate that all unenumerated powers remain with the states. These constitutional features may have been effectively defeated, but they remain in the text, and prescribe exactly what you deny. Violating a provision is not the same as it not existing.
 

Anyone who seriously believes that the powers of the national government need to be diminished and the autonomy of states protected more than is now the case should join me in calling for a new constitutional convention, because it really is beyond serious argument that the TEXT of the Constitution scarcely limits national power (whatever the background assumptions at the time) and offers only relatively few guarantees of state autonomy. No matter how often one cites the 10th Amendment, it still doesn't provide a scintilla of guidance as to what powers are assigned the feds and what "reserved" to the states or the people. Logically, it's enough to say that the only things the feds can't do, as of the 1787 Constitution, are spelled out in Article I, Section 9. This is, after all, why a number of "anti-federalists" opposed the Constitution, because they correctly viewed it as a massive shift of authority and power to the new national government.
 

What is do hard to understand about the states having all powers that are not specifically written for the Federal government? As far as the Federalist and Anti-Federalist comment you made, the fact that the powers of the Federal government were much more severely limited by the Bill of Rights dropped much of the Anti-Federalist opposition and eventually helped ratify the Constitution in all states.

On a side note, a new Convention would open up the same dangers of the first: That it would violate the spirit of the previous document in such a treasonous way that it would cast doubt on the motives of those associated with the convention. This is in reference to the clear process set in the articles for amending the government. They chucked it all out and started over. Effective or not it was the wrong way to go about it and was the reason for much of the opposition that was silenced with the agreement on the Bill of Rights.
 

"Logically, it's enough to say that the only things the feds can't do, as of the 1787 Constitution, are spelled out in Article I, Section 9."

And the only things it CAN do are spelled out in Article I, Section 8. It's a short list, and doesn't include most of what the federal government does today, if it's honestly interpreted. Which it isn't.

TEXT never limits anything, in the face of the people reading it being dishonest. And what would a constitutional convention generate?

Text.

I do agree a constitutional convention is in order. I agree it's in order, because it's a mechanism for altering the federal government's constitution entirely at the state level. It's a bypass mechanism when Congress won't originate needed amendments, and it's not the states that are blocking new amendments today, it's Congress.

It's the last, best hope for the states to reclaim control of this federation of states, because if that's what the convention decides is in order, Congress has no way at all, Constitutionally, to block them.

And I agree it's in order, because there's a bare outside chance that the federal government wouldn't have the guts to openly flout amendments adopted by this means. Though the case of the 27th amendment does not fill me with confidence on this score.
 

I think Professor Levinson's got it all wrong on federalism, and I say this despite probably agreeing with many of his substantive political ends.

Federalism is an acknowledgement of local communities' and groups' right to be different, and is thus an important check against the tyranny of the majority.

For instance, most of my fellow citizens of the Los Angeles metropolitan area would not like to be governed by the preferences of people in rural Alabama. Similarly, I doubt most rural Alabamans would like to be governed by the preferences of people in Los Angeles. In a centralized system, whoever has the most votes (or perhaps whoever is favored by the structure of the electoral system) gets to be the dictator, and local ways of doing things, local preferences, get stomped on in the name of uniformity and efficiency.

Now, this doesn't mean that federalized systems can't screw up, big time. Slavery and the Jim Crow South prove that. But the question is whether we are going to use that to throw out the federalist baby along with the bathwater, or whether we are going to simply remember that there are times, in cases of injustice or intractable problems that cannot be solved locally, when the federal government has to step in, but we remember that those times are the exception and not the rule.

Unfortunately-- and I agree with conservatives on this-- we have gotten far away from the idea that federal intervention is the exception and not the rule. (And this goes far beyond the issue of enumerated powers-- there are plenty of things the federal government does that I am sure even a pretty committed federalist like Brett would concede are WITHIN the federal government's enumerated powers but which nonetheless are ill-advised impingements on traditional and accepted state and local functions.)

Further, it's worth noting that federalism gives room for liberalism to grow as well as conservativism. A healthy respect for federal-state balance, for instance, would allow we Californians to make our own marijuana policy even if it offends moralistic types elsewhere.
 

I think Professor Levinson's got it all wrong on federalism, and I say this despite probably agreeing with many of his substantive political ends.

That reminds me, I should add that I also probably share many of Prof. Levinson's political ends despite my earlier comment that the 10th Amendment means something. I'm in favor of federally enacted universal heath care, for instance. In many areas I'd like to see the federal government do at least as much as it's doing now; I have no desire to see it return to pre-1937 levels.

As Prof. Levinson well knows, the Commerce Clause has been interpreted broadly enough to render the 10th Amendment somewhat academic even if the language has a meaning -- and that's fine with me.

But it did strike me, upon re-reading the first couple paragraphs of this blog post, as curious that people who consider themselves left-leaning would assume that (1) the fact that a certain structure of government may be a good idea as a practical matter is completely separate from (2) how you should interpret constitutional provisions on the structure of government. Is it really so clear that "political sagacity" has nothing to do with legal analysis?
 

Sandy:

[I]t really is beyond serious argument that the TEXT of the Constitution scarcely limits national power (whatever the background assumptions at the time) and offers only relatively few guarantees of state autonomy. No matter how often one cites the 10th Amendment, it still doesn't provide a scintilla of guidance as to what powers are assigned the feds and what "reserved" to the states or the people. Logically, it's enough to say that the only things the feds can't do, as of the 1787 Constitution, are spelled out in Article I, Section 9.

Are you serious?

Article I sets forth all the powers of Congress and expressly limits them to those enumerated in that article:

Section 1. All legislative Powers herein granted shall be vested in a Congress of the United States...

Section 8. The Congress shall have Power To...

The Powers enumerated in Article I, Section 8 is further limited by Section 9.

Article II sets forth all the substantive powers of the President:

Section 1. The executive Power shall be vested in a President of the United States of America...

Section 2. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States...

[H]e shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate...

The Tenth Amendment is a residuary provision:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively...

In short, the States can exercise any power not delegated to the federal government as expressly enumerated in Articles I and II or denied the States by Article I, Section 10 or applicable Amendments.

One applies the Tenth Amendment through a process of elimination, not by guessing which powers the Founders intended to grant the States.

BTW, if I could assure that a majority of the delegates to a constitutional convention sought to restore federalism and the other checks on government power, I would take you up on your invitation. However, I doubt then that you would agree to such a convention.
 

Dilan said...

Further, it's worth noting that federalism gives room for liberalism to grow as well as conservativism. A healthy respect for federal-state balance, for instance, would allow we Californians to make our own marijuana policy even if it offends moralistic types elsewhere.

I would reframe your argument a bit. Federalism tends to encourage freedom from government sanction by allowing folks to vote with their feet and leave to escape that sanction. That freedom includes both conservative desire for freedom from liberal taxes or onerous civil laws and liberal desire for freedom from conservative laws against victimless "crimes." For we libertarians, federalism is a complete win win proposition.
 

Professor Levinson,

Your addition of item (6) above, which asserts that the Electoral College provides firm textual protection of the interests of the states as such, seemingly indicates that you think the National Popular Vote compact is unconstitutional, or at least problematic. I had thought you did not think it unconstitutional. Am I wrong?
 

I hate to reiterate the debate I had with Dilan a few months ago, so I'll try to keep this short.

I think Prof. Levinson's post is unexceptional (or maybe unexceptionable, if that's a word). The principle that the federal government would be responsible for those matters affecting the nation as a whole, or which might disturb the tranquility of the Union, was exactly the principle the Founders tried to enact.

The Virginia Plan, which formed the basis for the resolutions later refined by the Committee of Detail, expressly provided that Congress should have the power “to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual Legislation…”

In the Pennsylvania ratifying convention, James Wilson paraphrased this particular resolution in explaining the basis on which the Convention allocated power between the state and federal governments: “On this point a general principle readily occurred, that whatever object was confined in its nature and operation to a particular State ought to be subject to the separate government of the States; but whatever in its nature and operation extended beyond a particular State, ought to be comprehended within the federal jurisdiction.”

Madison in Federalist 10 characterized the Constitution as granting “the great and aggregate interests … to the national [legislature], the local and particular to the State legislatures.” Similarly, in Federalist 14 he reminded his readers that Federal government's powers were those "which concern all the members of the republic, but which are not to be attained by the separate provisions of any [single State].”

This principle simply was not controversial then and should not be now. No, the controversy is that things which seemed local in 1789 seem national today. The debate is whether the text of the Constitution supports an interpretation which allows for national regulation. It seems to me pretty hard to argue that it does not. After all, we've been doing exactly that for over 70 years now (longer in some cases).

Nor is there any reason to think that the states should have the ability to interfere with Congressional power. Who honestly thinks states ought to be able to interfere with the war power? the power to raise armies? the borrowing power? the counterfeiting power? Etc. Nobody thinks such things. Congressional power in such cases is plenary except as limited in Art. I, Sec. 9 and in the Bill of Rights.

The notion that states might protect "us" (see below) is the exact opposite of the truth. Madison laid it out indisputably in Federalist 10: "[I]t clearly appears that the same advantage which a republic has over a democracy in controlling the effects of faction, is enjoyed by a large over a small republic, is enjoyed by the Union over the States composing it.” The experience of slavery and Jim Crow reinforce Madison's understanding incontrovertibly.

As long as we we maintain the basic principle the Convention tried to follow, I see no hindrance at all in the Constitution absent direct conflict with the text (and no, I don't think current commerce clause doctrine does so). This is a nation -- one nation, indivisible -- not a loose affiliation of states, and we should decide common issues together.
 

Mark:

1. You are wrong on your history. Certainly the purpose of the Constitution was to centralize power AS COMPARED TO THE ARTICLES OF CONFEDERATION, which had failed. And thus, Congress has far more enumerated powers, plus a necessary and proper clause, as compared to the Continental Congress.

But the framers were also concerned about preserving state power. That's obvious in the Tenth Amendment; it is also obvious in the structure of enumerating Congressional powers to begin with-- if Congress has power over everything, why would you bother to enumerate. And it was extremely important to many states which only JOINED the union on condition that their powers be respected. I may not think much of the motives for this (which chiefly involved slavery), but when you make it sound like the framers of the Constitution had no intention or understanding that there would be powers beyond the scope of Congress that would be reserved for the states, you are lying. It's right there in the document and it's the compromise that was necessary to get the thing ratified. I'm sorry if that makes the United States not a "nation" in your view-- you are welcome to live somewhere else if you don't like it.

2. The policy implications of your view are quite horrible. You can talk about things like coining money and going to war all you want (things that are expressly reserved for the federal government under the Constitution), but how about marijuana policy? What business is it of a bunch of parochial, overmoralistic idiots in some other state that Californians might want to allow people to treat their illnesses with marijuana?

Or what about state tort law-- is it really a good thing for the Supreme Court to be declaring that swaths of it were implicitly preempted by ambiguous words passed by Congress without any understanding that they would have this effect? It seems to me that Thomas' recent concurrence in the FDA preemption case is quite persuasive on the matter.

There's a heck of a lot of issues that are NOT expressly granted to Congress in the Constitution where the issue is whether we should preserve local liberties or have a one-size-fits-all solution imposed by the dictatorship that you favor. Yes, in the extreme case, we need federal power. But we need to remember that it is the extreme case, because if we use that as an excuse to strip states of all their authority, liberty will be lost, not gained. A result that, I suspect, you favor. The efficiency of centralized power, after all, is so more important than individual freedom, right?
 

The Federalist Papers are not the Constitution and the original purpose for them to be published was a propaganda attempt for ratification in NY. With that said, many of the concerns of that the Anti-Federalists had at this time have come true. I would say for the worse in my study of History and the one theme that runs through like a tapestry:

The Aristocratic and Elite using government for their own political, social, religious, and economic ends.

This is shown is countless propaganda campaigns to get the common man to fight for the cause of the Kingdom, Empire, Nation, or whatever. This is always done in the guise of the interests of the collective or common good.
 

"But we need to remember that it is the extreme case, because if we use that as an excuse to strip states of all their authority, liberty will be lost, not gained. A result that, I suspect, you favor. The efficiency of centralized power, after all, is so more important than individual freedom, right?"

But I think you would agree that when State power infringes on individual liberty it is the role of the Federal government to enforce the right of life, liberty, and property? But I understand your point and would add that the biggest threat to individual liberty is from a Centralized government. This is proven by volumes of History.

The aim of all government according to Locke is to protect these most fundamental and inalienable rights. We have gotten away from these ideals to are own peril.
 

Mark, the founders didn't write and ratify principles, they wrote and ratified a written constitution. We're all familiar by now with this rhetorical two-step, where you deduce principles from the Constitution, and then apply them to justify violating what the Constitution actually says.

Nobody falls for that, who doesn't WANT to fall for it.
 

"Mark, the founders didn't write and ratify principles, they wrote and ratified a written constitution."

Is this statement accurate? If the founders both wrote AND ratified the Constitution, what were the roles of "We, the People," of the states, of the citizens of some of the states? This of course leads to originalism in its various versions: intent of the founders, public meaning of the founders' words, the understanding of the ratifiers (assuming that the ratifiers were persons other than the founders), the then public understanding of the words, etc. If the quoted statement is accurate, only the founders matter. The problem is we can all read what the founders said but we can't agree on what they intended, what their words meant, how their words were understood, even with the benefit of over two hundred years of history.
 

Yes, that statement is accurate. The text of the Constitution is what got ratified, and what's legally binding. And as ambiguous as somebody might claim that text is, (And it is ambiguous, in places. Just not all the places some people wish it were ambiguous.)
the ambiguity inherent in interpreting that text isn't a fraction of what's available to somebody trying to extract principles from it.

It's a basic rule: It's not the legislator's intent that's the law, it's the words they enacted.
 

"Yes, that statement is accurate. The text of the Constitution is what got ratified, and what's legally binding."

Yes, the text of the Constitution is what got ratified, but by whom? The challenged statement referenced that "they," the founders, "wrote and ratified a written constitution." Yes, they wrote it. But were they the ratifiers? If the ratifiers were different from the founders, what about the understandings of the ratifiers? Do they count for naught? Perhaps you are a textualist/originalist. I have no quarrel with that, although I do have a quarrel with the various versions of originalism as they continue to evolve post-Ed Meese, especially to conveniently suit one's ideology.

But this is not the thread for a discussion of originalism. Rather, I question only your statement or suggestion that the founders ratified the Constitution.
 

MF cites a general principle:

"The principle that the federal government would be responsible for those matters affecting the nation as a whole"

But, the Constitution does not just cite a general principle. It enumerated various powers in particular, and did so for a reason. Madison, for one, wanted the national legislature and courts to have power over more areas, including proposing amendments to that end. He failed.

Also, it is unclear if all the enumerated powers are truly plenary. It is quite possible some of them -- particularly if Congress does not override particular laws -- can be concurrent. For instance, laws against counterfeiting. And, even there, states have discretion -- the rules of bankruptcy can be different state to state.

It should be added though that the necessary and proper clause, other provisions (such as regulation of federal territories) and perhaps other things (e.g., things inherent in sovereignty) than Art. I, sec. 8, 1-17 provide the contours of congressional power.

---

I find the "no truly rational" claim in the first paragraph of SL's remarks confusing. I think I'm with those who disagree with him, but it isn't phrased that clearly on first or second reading.

As to "their essential criterion of textually specific assignment of autonomy rights to sub-national units" ... limited enumerated powers was/is promoted as giving other powers to states and the people. The fact House and Senate delegations are divided by state, btw, promotes this end.

SL thinks the 10A is basically meaningless except to the degree people read into it their political views. I agree with those here who reject this view. As Justice Thurgood Marshall noted in Frye v. U.S.:

"The Amendment expressly declares the constitutional policy that Congress may not exercise power in a fashion that impairs the States' integrity or their ability to function effectively in a federal system."

This might not be the only way to interpret it, but it touches upon a certain flavor of the principle its framers were aiming for and which still is promoted.
 

Ok, let me try to deal with the arguments in some logical way.

First, let's eliminate a red herring. My post did NOT argue that the federal government should control all activity. It argued, consistent with the Framers, that the federal government should control issues which in their effects extend beyond a single state or which might disturb the tranquility of the Union.

Second, let's try to define more carefully what we're discussing. The claim is repeatedly made that the "Framers" or "Founders" wanted to preserve state power. I'll agree that most of them did (not all -- Hamilton, for example), but they did so consistent with the principle I quoted above.

Third, we need to distinguish between policy arguments for state powers and Constitutional ones. There may be good policy arguments for letting states do things different ways. Brandeis's argument that states are laboratories in which we can experiment with policies before adopting them nationwide is a good policy argument, but it's not a Constitutional argument.

Similarly, the claim that states protect liberty is also a policy argument, not a Constitutional one. In contrast to Brandeis's position, the claim that states protect liberty is a bad argument; anyone making it hasn't read or understood Federalist 10:

“The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the [geographical area] within which they are placed, the more easily will they [act in] concert and execute their plans of oppression. Extend the sphere [i.e., make the geographical area larger and include more people] and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength and to act in unison with each other.”

Larger populations have more diverse “interests” or opinions than do smaller ones. This is intuitively obvious – the more people there are, the more variation we find. Madison argued that the more such “interests” there were, the less likely it was that two Representatives would conspire together against the true public interest.

Our history strongly supports Madison. Slavery alone would be enough to make the case in his favor; add to that 100 years of segregation and there can be no possible counter-weight in terms of importance or effects.

Slavery, in fact, provides a good example of the basic point I'm making here. In 1787 it was possible to believe that slavery was a purely local issue with no effects outside of the individual states which maintained it, no ability to disrupt the tranquility of the Union. By 1860 that was no longer the case. Slaveholders had forced the issue onto the national stage: they demanded expansion into the territories; they gagged Congress from considering petitions in violation of the First Amendment; they forced northerners to recapture escaped slaves; etc. When it reached this point, the issue could no longer be left to the states and the national government had to step in.

Third, as I indicated above, I don't see the people of, say, Missiissippi as some sort of aliens. They're people, Americans just like me. They may have different views on marijuana policy than I do, but that's what democracy is for -- to talk out such policy differences and arrive at a generally acceptable solution.*

Third, let's be clear what the Founders did. The process of writing the Constitution came in two stages. They first established a set of principles they wanted to follow (republican government, separation of powers, representation, etc.). On July 27, 1787, the Convention adopted a series of resolutions, including the following:

"That the national legislature ought to ... legislate in all cases for the general interests of the union, and also in those to which the states are separately incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation."

This is precisely the principle for which I am arguing (and which I believe Prof. Levinson argued). The Convention then established a Committee of Detail to implement this and other of the resolutions adopted on July 27. The Committee did their best to implement those principles by the specific language they used in Art. I, Sec. 8. That's the process I described in my first post.

It is no argument to claim that the principles got lost along the way and only the text counts. The reason is simple: the Federalists used the principles to justify the text. In the argument over ratification, the Federalists made arguments which incorporated the general principles, including the one we're debating here, and they used those principles to support the argument for ratification. That's why Wilson referred to the principle in the PA ratifying convention and why Madison brought it up in Federalist 10 (and these are far from the only 2 examples). Ultimately, the people ratified the Constitution because they agreed with the principles it established.

Fourth, I think I must not have made my point clear about the powers granted to Congress. Yes, the Founders wanted to leave some power in the states. That doesn't defeat my point nor that of Prof. Levinson. It would only defeat the point if the Founders left power in the states which they believed would affect other states or which they believed would interfere with the tranquility of the Union.

There's no good evidence that they did so. Certainly nothing in the debates over the Constitution suggests any such thing. To the contrary, the anti-federalists repeatedly argued that the states were better repositories of the powers granted to Congress. They lost.

The argument is wrong anyway. The powers granted to Congress were defined, but they weren't in our sense "limited". By this I mean to agree that they set forth specified powers in general terms. They did NOT, however, allow the states to interfere with the powers they did grant. Thus, as I suggested above, the power to declare war is plenary; states have no power to interfere. The same holds true of every other federal power. That's the whole point of the supremacy clause.

I can't imagine anyone here defending the proposition that states should have the power to disrupt the Union or make decisions which affect other states. Those are indefensible, even logically contradictory (to let one state enact policies which have effects outside it necessarily denies to the other states their own power to act). The argument I'm making, and which I understand Prof. Levinson to have made, does nothing more than allocate power where common sense tells us it should go and where the Founders did tell us it should go.

*As I indicated above, there may be good pragmatic reasons not to decide issues too quickly at the national level. Letting different states experiment with different policies gives us some real world experience from which to make policy.
 

Mark Field provided a long and helpful answer. I would quickly add to it:

"The Congress shall have Power - 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."

in considering the express powers preceding this clause. The wisdom of the founders, perhaps appreciating they could not detail all powers, left the door open somewhat to permit their successors to fill in the gaps as the nation changed, perhaps much more than the founders imagined.
 

It should be added though that the necessary and proper clause, other provisions (such as regulation of federal territories) and perhaps other things (e.g., things inherent in sovereignty) than Art. I, sec. 8, 1-17 provide the contours of congressional power.

It's worth noting that just like Mark's dream of unlimited and uncontrolled federal power is not enacted by the Constitution, this idea of state "sovereignty" isn't in there either. The Supreme Court's Eleventh Amendment jurisprudence contradicts the text of the Constitution and was made up out of whole cloth by conservatives hostile to federal civil rights laws.

The Constitution is a compromise between state and federal interests. It is a compromise that is more weighted to federal interests than the Articles were, but it in no way grants the federal government power over truly local affairs.

And as I said above, even where it grants that power, that doesn't mean the federal government should be exercising it without good reason to.
 

Third, as I indicated above, I don't see the people of, say, Missiissippi as some sort of aliens. They're people, Americans just like me. They may have different views on marijuana policy than I do, but that's what democracy is for -- to talk out such policy differences and arrive at a generally acceptable solution.*

This view is not correct. It is none of a Mississippian's business whether a Californian grows his own marijuana. It isn't a matter of "different views on policy" and democratic deliberation-- that Californian should not be bound to follow the dictates of people from Mississippi or Washington, D.C. as to what to put in his body. It is not their concern, and by moving things up to the federal level, we allow for the tyranny of the majority, which is one of the major concerns of the framers.

More importantly, though, the Constitution that was actually enacted doesn't create the national debating society that Mark wants it to. This is NOT simply a policy argument-- there isn't a single WORD in the Constitution that comes close to giving the federal government the power to tell a resident of rural Humboldt County, California that he cannot grow a bit of marijuana to treat his glaucoma. It just isn't in there, because the framers didn't put it there, because they believed in a balance between federal power and local control.
 

The argument is wrong anyway. The powers granted to Congress were defined, but they weren't in our sense "limited". By this I mean to agree that they set forth specified powers in general terms. They did NOT, however, allow the states to interfere with the powers they did grant. Thus, as I suggested above, the power to declare war is plenary; states have no power to interfere. The same holds true of every other federal power.

This isn't remotely true. The power to declare war is exclusive. The federal government has it, and states do not.

But the commerce power is concurrent. States have plenty of power to regulate interstate commerce (subject only to the somewhat controversial proposition that they cannot do it in a discriminatory fashion). State laws only get struck down when Congress actually acts to preempt state authority.

And, of course, there is no federal power whatsoever over commerce that is NOT interstate. This, of course, is something that Mark Field isn't honest enough to admit, and all of his harrumphing about alleged "principles" behind the document is designed to obscure. But if you actually read the document, the commerce power is limited to commerce among the several states. If it is local, it's reserved to the states.
 

Mark Field stated:

"Larger populations have more diverse “interests” or opinions than do smaller ones. This is intuitively obvious – the more people there are, the more variation we find. Madison argued that the more such “interests” there were, the less likely it was that two Representatives would conspire together against the true public interest. "

So if this is always true and smaller more local representative of the people is not a possible protection of individual rights, then I guess Europe was better off post 1815 than they were post 1789 after the French Revolution. Or that the people of African were better off post Berlin Conference than after independence.

Smaller and more local government can protect local interests and rights. I think that is the key to this discussion. Interests and rights are two different things. Your example of Slavery was a case of local interests violating individual rights. But I would say that History shows that the more decentralized government is the more protection there is for individual rights. That is normally.

It is argued by many that the Constitution is based on protecting individual rights and promoting the common good. Federalist 10 sought to combat the Anti-Federalist argument from history that large republics were not feasible because the larger the government the more the individual and smaller group loses in the social contract. He seems to make the same argument that you are:

Liberties are under more of a threat in smaller more local governments than in larger more national ones.

I do not think what he said held weight. Nor do I think you argument holds weight. Despite some examples of states oppressing individual rights that you well document, the erosion of liberty in this nation continues to come from the National government. Locke thought that the greatest loss of liberty was loss of property and the evil of using government to take from one group and give to another.

Look at Kelo, modern income tax code, and the war on drugs. He are we to fear more the Federal Government or are local governments?

One last point. I think it is Federalist 27 that states that one of the checks on an oppressive National government that had usurped power from the people was the State Militias. It seems that Madison was walking the tightrope that Mr. Levinson wants to ignore:

The balance between protecting individual rights from the tyranny of the majority in local governments that would violate individual rights and the tyranny of the majority in the National government that would violate individual rights. All this was small in my mind compared to making sure the the financial and educated elite not use The National government towards its own ends.

The Mel Gibson character in The Patriot stated basically that he was more scared of the 50 tyrants one mile away than the one 1000 miles away. Who ended up doing more damage in the end?
 

Is the question of law, history, or public policy?

If law, I see no reason to question the analysis of the law in question.

If history, there are accidents of history, and not all of them happy accidents.

If public policy, some pertinent questions not asked here. How for instance is it that almost all progress in the fight against the number one preventable cause of death in this country has occurred at the local level, then sometimes followed at the state level? And that federal and state pre-emption of progress has slowed progress, not helped? What does that tell us?
 

Sorry it was Federalist 28 where he stated that if either the Federal or State government usurped the rights of the People in a tryannical way that the original right of self defense would allow the aggrieved to go one government to attack the other.

It would agree this is still part of his argument for a National government much like 27 and 10. But I think it shows the tension at the time. It is the same tension that brought about the 10th Amendent and the same tension that drives this debate today. The issue is not so much protection of interests as it is protection of fundamental rights.
 

A few more points in response.

The question of individual rights, seems to me separate and distinct from the distribution of powers between the agents of the people acting through the states and the agents of the people acting through the federal government. I entirely agree that individual rights need to be protected. I agree with Madison that they're better protected when more people are involved in making decisions than when fewer people are involved. I also agree that it's important to have the courts as protectors of rights against majority tyranny.

Some of this discussion seems to me to conflate the two arguments. For example, marijuana possession may or may not be a "right" (I'm not taking a position on that for the moment), but assuming it is, then neither state nor federal government should be regulating it. If it's not a "right", then the arguments about regulation tend to involve differing world views about the extent to which growing the crop and consuming it "affect" others. Those who think it doesn't affect others favor local control or even individual discretion; those who think it does affect others favor national control. I'd call this issue a good example of the way the Founders' common sense principle underlies the way we all think about such issues.

The existence of concurrent powers further supports the basic point. Of course states can continue to exercise powers such as taxation, but they can only do so without interfering with federal policy. That's the rule which is inherent in the Supremacy Clause and which is in practice the rule in all cases of conflict between state and federal authority. In fact, the Supremacy Clause itself is inexplicable without recourse to the fundamental principle which the Framers used in drafting Art. I, Sec. 8.

And, of course, there are certain practices forbidden to the states in Art. I, Sec. 10 and "where [the Constitution] granted an authority to the Union, to which a similar authority in the States would be absolutely and totally CONTRADICTORY and REPUGNANT" (Federalist 32). Examples of this would be those I gave above such as the war power. Note, by the way, that this is not textual -- the Constitution itself doesn't make these distinctions. To the contrary, we follow general, common sense principles in order to reach this result.

Lastly, KoI says, referring to Madison, that "He seems to make the same argument that you are". While I'm flattered to have it worded that way, I think it's more accurate to say that I'm making his argument.
 

Some of this discussion seems to me to conflate the two arguments. For example, marijuana possession may or may not be a "right" (I'm not taking a position on that for the moment), but assuming it is, then neither state nor federal government should be regulating it. If it's not a "right", then the arguments about regulation tend to involve differing world views about the extent to which growing the crop and consuming it "affect" others. Those who think it doesn't affect others favor local control or even individual discretion; those who think it does affect others favor national control. I'd call this issue a good example of the way the Founders' common sense principle underlies the way we all think about such issues.

What you are ignoring is that the Constitution prohibits the Congress from regulating local activities that don't affect people in other states. Note the last part-- people in other states. Even if there are negative LOCAL externalities to medical marijuana consumption, the Constitution strictly forbids Congress from getting involved, because local externalities can be dealt with locally to ensure that individual freedom is protected.

In a federalist system, busybodies from other states can't harm you. In the system that Mark Field advocates (but which was available to the framers and explicitly and specifically rejected), they can.

One last point. You can't handle all these individual freedom issues by creating rights. You can't have a constitutional right to do everything.

Most of life's liberties are not going to function as constitutional rights, so the only way they are going to get protection is if Congress stays out of the way. And the Constitution was intended to ensure that it would, while focusing only on truly national problems.
 

In my reading of natural rights philosophy it would seem that the only reason that any government would get involved is if my exercising my free choice to spoke weed is harming someone else's RIGHTS not preferences. What which natural right of life, liberty, and property is violated if I smoke weed?

The whole Federal War on Drugs is proof of Federal Power gone awry and messing things up. A whole generation of inner city kids lost their Dads and 90% were small time drug busts and pleas due to threats of ridiculus sentences. There are local abuses as well for sure. It is not one or the other. It is having both that keeps the preserves freedom. It was Madison's exact argument in Federalist 28.

While I disagree with his position that a stronger National government over a larger number of people is advantageous, I do admire that he understood that having both was preferential. He got a smack down by the Anti-Federalists and the 10 Amendment came about. It is clear as a bell. Mr. Levinson's argument is just wrong.
 

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Dilan quotes part of my post.

Dilan notes: "this idea of state 'sovereignty' isn't in there either."

I didn't say "state sovereignty" [I said "sovereignty"] or mean to imply I agree (I don't) with current 11A jurisprudence or ignore (I don't) that having power doesn't mean it is good policy to use it in various cases.

I said "perhaps" (since it can be disputed) that among those powers of Congress supplied by the Constitution other than those listed in Art. I, sec. 8, cl. 1-17 are those "inherent in sovereignty."

IOW, perhaps, things inherent to sovereignty, like defending borders or whatever are among the powers at issue. As to "state sovereignty" as a whole, I don't know. It is conceivable -- without saying that this results in immunity in federal question matters or when someone sues their own state -- that principle could be deemed to be part of the spirit of the Constitution.

It wasn't what I had in mind though. I will leave this debate to others now!
 

I think we've reached the point of repetition, but I'll give it one more go.

Let's back up for a moment and take the Constitution out of it. Suppose we wanted to decide whether the states or the federal government should decide a certain question of policy.* Which one (or both) should make the decision?

It seems to me a matter of common sense that we'd apply the same principle as the Founders did: "That the national legislature ought to ... legislate in all cases for the general interests of the union, and also in those to which the states are separately incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation."

I take this to be a matter of common sense, and I think it's the basic point Prof. Levinson made in his post. I'm honestly not sure on what basis anyone would disagree.

But, as usual, the principle won't give us the answer in a particular case. Do I have to go with the marijuana example? Well, ok. The answer there will depend on how people evaluate the impact of the cultivation and use of marijuana. Those who think it's purely local in effect will think it should be handled by the states. Those who think its impact goes beyond state lines will favor national regulation.

As a matter of current law, there can't be much doubt that the majority (including a majority on the Court) sees it as a national issue. That doesn't make them right, it just means that reasonable people can disagree on this issue.

This still leaves open the question of what the Constitution actually provides. Here we get into the problem that some people strongly disagree with the way the Constitution has been interpreted over the last 75 years. As a practical matter, as Prof. Levinson noted, there isn't any real doubt here, but some insist on fighting anyway.

As to what the Constitution "really" means, I find it hard to say that the majority has been wrong for 75 years on an issue like this (a majority certainly can be wrong in other cases, e.g., where it benefits from being wrong). What I can say is that the text of the commerce clause seems to me broad enough to encompass federal regulation, and such an interpretation is consistent with the principle which the commerce clause was intended to enact.

*I'm excluding rights from the discussion for the obvious reason that, in general, we want rights protected from both state and federal governments. Bringing up "rights" in this discussion is confusing the issue.
 

"As a practical matter, as Prof. Levinson noted, there isn't any real doubt here, but some insist on fighting anyway."As a practical matter, there's a hell of a lot of "doubt", which is why the controversy refuses to go away. It's NEVER going to go away, so long as the government makes a claim to be authorized by the Constitution, and yet the government's practice doesn't accord with what the text actually says. And anybody who isn't professionally trained to pretend otherwise can read the damned document and know it doesn't.

Every courtier in the land can decide to praise the Emperor's clothing, (Remaining courtiers is dependent on it, after all!) that little boy can even be dragged into an alleyway and beat with rubber hoses, and as long as people have eyes, they're going to know the emperor is naked.

There are only two ways this controversy is ever going away: Either the Constitution ceases to matter, or practice and the Constitution are brought into agreement.

The former is, regrettably, far more likely, it's already mostly accomplished.
 

As a matter of current law, there can't be much doubt that the majority (including a majority on the Court) sees it as a national issue.I very much doubt it, Mark. Indeed, I don't think anyone is asking your state/federal power division question.

In other words, even if I were to assume that the standard that you wish were written into the Constitution (whether a problem is "national") rather than the actual standard written in there (whether a problem is within Congress' enumerated powers) were the standard, I don't think we as a society are even bothering to discuss whether that standard is met.

The federal government prohibits Californians from using medical marijuana because legislators in other parts of the country, representing busybody constituents, don't like California "potheads" and what they represent. It doesn't matter that there is no evidence at all of harm that crosses a state's boundaries. It's enough that they don't like them.

Your comments seem to posit a world where the federal government deliberatively and democratically comes up with national solutions to national problems. Of course, sometimes that happens. But what also happens is that the federal government, undemocratically (because of the warped representation of the Senate and the Electoral College), imposes one region's morality on other regions of the country without any deliberation about whether a problem is "national" at all.

And I would suggest that one reason for this is that we no longer respect the idea of Congress being limited to enumerated power. In other words, the very interpretation of the Constitution that you endorse prevents us from having the discussion that your model assumes that we should have.

As to what the Constitution "really" means, I find it hard to say that the majority has been wrong for 75 years on an issue like this (a majority certainly can be wrong in other cases, e.g., where it benefits from being wrong).While I am not in the same spot as many right-wingers who simply assume that all sorts of longstanding interpretations are obviously dead wrong, it certainly is possible for the Court to get an issue fundamentally wrong for 75 years. Plessy seems like the obvious example; Bradwell v. Illinois is another one; Lochner is a third.

Indeed, for your interpretation to be right, Mark, the Court must have been getting commerce clause cases wrong for several decades BEFORE the New Deal. No matter which side of this debate one takes, some court must have been getting the issue wrong for decades.
 

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Just a quick clarification on a couple of points:

1. I agree that the unrepresentative Senate restricts the proper function of Madison's theory laid out in Federalist 10. While I'm not happy about that (neither was Madison), I'd still say that the greatest injustices since 1789 have been committed by the states.

2. When I referred to the majority support for an expansive interpretation of the commerce clause, I meant the majority in Congress and the Court (and, of course, the Executive has approved also). I doubt there's a national poll on the issue, but it's clear that a majority supports drug laws (much to my personal regret) and other supposed "violations" of the commerce clause. Any claim that a majority of the public fails to support current doctrine seems pretty clearly to run against the problem that both parties and the electorate tend to nationalize issues.
 

Sorry, one more point. I said above that I thought it unlikely that a majority would be wrong for 75 years (at least in circumstances where it's not benefiting itself). I meant a political majority, not a majority on the Court. I doubt a political majority has ever favored the judicial regulation of the economy which would necessarily be the result of a narrower interpretation of the commerce clause. Even in the post Civil War era, Congressional majorities continued to regulate the economy, with the only check being the Court.
 

The problem with your statement isn't where the majority was located, it's with the implication that those in power at the present can't be wrong in interpreting a written text.

We have written text specifically so that we can communicate meanings in a fixed manner. The very purpose of writing things down implies that you can be wrong in interpreting them. And the very purpose of writing down a constitution implies that the people in charge of government can be wrong about what the constitution means.

Even if they've got the army on their side.

This post-modernist approach to the meaning of written language deprives it of the very utility we have it for.
 

This recent comment opens the door of this thread to a discussion on originalism, both textualist and otherwise:

"This post-modernist approach to the meaning of written language deprives it of the very utility we have it for."

As a start, can textualists/originalists provide the meanings of the following as of the times of ratifications of the Constitution/Bill of Rights/other Amendments:

"commerce"

"among the states"

"necessary and proper"

to provide a base for where SCOTUS has drifted from the text. Then we can consider the direction our nation might have taken if SCOTUS has stuck with the text as of those relevant ratification dates rather than veering from the text as claimed by textualist/originalists.

This is just a starting point. The meaning of written language going back to the Old Testament has been interpreted by many and not necessarily consistently. Over time, meanings change, people change, circumstances change. What we need are people with hindsight to go back in time with blinders on regarding subsequent events to tell us what the texts meant back then. Mel Brooks had his 2,000 year old man schtick for parts of the Old Testament. We need constitutional Mel Brookses to go back less than 225 years. This should be good for laughs, including in addressing the original text meanings of "commerce" and "among the states" with the subsequent telegraph, railroad, telepnone, radio, combustible engine, airplanes, television, internet, etc, that were not around back then.
 

Brett, the problem with your argument is that your are, in effect, saying that the majority of people are wrong in their interpretation of words. Now, that could possibly be true, but it's not ordinarily the case. Usually, when we find that the majority of people define words differently than we, as individuals, do, we adopt the majority view. Otherwise we end up with a private language, which isn't very useful for its only purpose, namely communication.
 

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Shag:

As a start, can textualists/originalists provide the meanings of the following as of the times of ratifications of the Constitution/Bill of Rights/other Amendments:
"commerce"
"among the states"
"necessary and proper"
to provide a base for where SCOTUS has drifted from the text.I would recommend Randy Barnett's New Evidence of the Original Meaning of the Commerce Clause, 55 Ark. L. Rev. 847 (2003), and Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101 (2001). Here is a summary of the earlier article:

The U.S. Supreme Court, in recent cases, has attempted to define limits on the Congress's power to regulate commerce among the several states. While Justice Thomas has maintained that the original meaning of "commerce" was limited to the "trade and exchange" of goods and transportation for this purpose, some have argued that he is mistaken and that "commerce" originally included any "gainful activity." Having examined every appearance of the word "commerce" in the records of the Constitutional Convention, the ratification debates, and the Federalist Papers, Professor Barnett finds no surviving example of this term being used in this broader sense. In every appearance where the context suggests a specific usage, the narrow meaning is always employed. Moreover, originalist evidence of the meaning of "among the several States" and "To regulate" also supports a narrow reading of the Commerce Clause. "Among the several States" meant between persons of one state and another; and "To regulate" generally meant "to make regular"-that is, to specify how an activity may be transacted-when applied to domestic commerce, but when applied to foreign trade also included the power to make "prohibitory regulations." In sum, according to the original meaning of the Commerce Clause, Congress has power to specify rules to govern the manner by which people may exchange or trade goods from one state to another, to remove obstructions to domestic trade erected by states, and to both regulate and restrict the flow of goods to and from other nations (and the Indian tribes) for the purpose of promoting the domestic economy and foreign trade.
 

Has Prof. Barnett finally found his "Lost Constitution"? Let's consider this portion of the quote:

"In sum, according to the original meaning of the Commerce Clause, Congress has power to specify rules to govern the manner by which people may exchange or trade goods from one state to another, to remove obstructions to domestic trade erected by states, and to both regulate and restrict the flow of goods to and from other nations (and the Indian tribes) for the purpose of promoting the domestic economy and foreign trade."

Does the good Prof. limit the commerce clause to "goods" as such were defined back at the time of the ratification of the Constitution? If so, then perhaps Congress has improperly regulated non-goods in interstate commerce.
 

This is why comments should be open. Dilan and Mark have an interesting thread going. If I may put in my two cents:

I side mostly with Dilan. It doesn't matter if something is a "national problem." If the decision to end artificial support of human beings in permanent vegetative states was happening all over the country, does the federal government's intrusion into the Terri Shiavo affair become valid? Congress is limited to enumerated powers, and "national concerns" is not one of them. I certainly think Mark's dichotomy of local v. national gives a prudent test of restraint for federal regulation, but the feds have to actually have the power to regulate first.

Second, Dilan has been dancing around the real issue (people in some places regulating the morality of others), but fundamentally what is wrong with federal interference in California's medicinal marijuana use is it is not a regulation of commerce, but a regulation of morality or criminal law. This is why I agree with Lopez and Morrison, which were not regulations of interstate commerce, but regulations of violence against women and guns on school property. The federal government has been able to turn the use of its commerce power from a question of "is this a regulation of interstate commerce" to "can I regulate some other activity by anchoring the regulated activity on something dealing with interstate commerce." This, IMHO, strikes the wrong balance.

On the same token, though, Wickard was clearly correctly decided, because it was a regulation of wheat markets.

The federal interference in CA's drug laws is unconstitutional not on a local/national basis, but because the regulation itself is not directed at regulating commerce between the states. The max of the feds' power should be to make it criminal to transport marijuana across state lines.
 

nerp:

I think you are making the same mistake Mark is making, just in the other direction.

The enumerated power is to regulate commerce among the several states. Thus, it seems to me that plenty of moral regulations are constitutional as long as they are tied to interstate commerce. The Mann Act, for instance, is perfectly constitutional.

Local activity, on the other hand, is completely outside the scope of congressional power even if it happens to be commercial or part of a national market. That's why Wickard was wrong-- Congress could regulate the wheat that was crossing state lines in any way it wished to, but it can't regulate wheat that never makes it across state lines.

Similarly, if California wants to permit people to grow their own medical marijuana, that's outside the commerce power. But it is also outside the commerce power if California wants to permit a person to sell a locally-grown and prepared joint to his neighbor, as long as both people are inside the state. Until something both crosses state lines and is a commercial activity, it cannot be regulated. But once it does, it can be regulation even if the purpose of the regulation is moral.
 

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Sandy:

It appears that the Obama Department of Homeland Security has taken your distaste for Federalism two or three steps beyond the pale.

The conservative blogosphere is on fire discussing a leaked Obama DHS report warning state and local law enforcement about potential terrorism by "rightwing extremists," which Team Obama defines as:

Rightwing extremism in the United States can be broadly divided into those groups, movements, and adherents that are primarily hate-oriented (based on hatred of particular religious, racial or ethnic groups), and those that are mainly antigovernment, rejecting federal authority in favor of state or local authority, or rejecting government authority entirely. It may include groups and individuals that are dedicated to a single issue, such as opposition to abortion or immigration.According to the Obama DHTS, the Founders of our Republic are "rightwing extremist" terrorists and our Constitution a terrorist manifesto for "rejecting federal authority in favor of state or local authority [Article I and Tenth Amendment], or rejecting government authority entirely [Bill of Rights]."

Indeed, as a conservative war veteran and gun owner who is pro-life and believes in enforcing the Constitution's federalism provisions and the immigration laws, I am apparently now an enemy of the state according to the Obama Administration.
 

Mr. DePalma,

Indeed, as a conservative war veteran and gun owner who is pro-life and believes in enforcing the Constitution's federalism provisions and the immigration laws, I am apparently now an enemy of the state according to the Obama Administration.
Luckily, conservatives and liberals alike stood up to executive overreaching in areas like wiretapping, habeas corpus, rule of law, secrecy, unlimited war powers, executive declarations of enemy status, etc., during the Bush administration, and so if the Obama administration begins cracking down on conservatives' liberties, there are laws against it, Congressional oversight, impartial judges to protect us, and a civic understanding of the preciousness of liberty and the rule of law. Phew, we dodged a bullet with that!
 

nerpzillicus:

The Bush Adminstration NEVER targeted left-wing activists like this. But, fine, if you want to equate policy disputes over the definition of "terrorism", wiretapping, habeas corpus, etc., in order to excuse ACTUAL TARGETING of American citizens based on their political views, I guess that's your right. Just know that if a Republican President ever tries doing that to you, I will object.
 

Charles,

http://www.aclunc.org/news/press_releases/aclu_and_fresno_residents_seek_fbi_records_regarding_infiltration_of_local_community_group.shtml

It's been done, and vastly more frequently by right wingers. Without the law, a terrorist is whoever the pres says is a terrorist. That's what most of us here have been saying for years.
 

Nerp:

I repeatedly challenged you and other critics of the Bush Administration to provide a scinitilla of evidence that the disputed intelligence gathering and detention targeted innocent Americans and nothing was ever produced.

In this case, we have the Obama DHS itself calling for domestic spying on innocent Americans, against whom DHS admits it has no evidence of terrorist intent or acts, for the "crime" of being considered by Team Obama to be "rightwing extremists."

I find the distinction easy to make and chilling.

If the Bush DHS had declared organizations such as NARAL, La Raza, the Brady Center to Prevent Gun Violence and folks like Sandy for rejecting state and local authority in favor of federal authority as "leftwing extremists" prone to terrorism and requested state and local police to help spy on them, this blog would be on fire in protest and I would be among those screaming the loudest.

The fact that no one here apart from me appears to be in the least disturbed with this kind of brown shirt behavior by the Obama DHS is even more chilling.
 

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Bart:

I also said ". . . if a Republican President ever tries doing that to them (assuming I haven't already been jailed as a "right-wing extremist"), I would object." Too bad that only some of us have unbending principles regardless of which party is in power.
 

"Brett, the problem with your argument is that your are, in effect, saying that the majority of people are wrong in their interpretation of words."The courts and the elected branches scarcely amount to "the majority of people" in a nation of several hundred million. Even adding the entire population with law degrees, the fraction of the population who, if confronted with the text of the commerce clause would arrive at anything even remotely approaching the 'interpretation' the federal government finds it convenient to use.

The fact that most people don't raise a stink about this doesn't mean that they interpret the clause to mean what the courts do. It means they've never bothered to read it.

Its none the less a problem when any of them who DO bother to read it can see the courts have it wrong.
 

Bart:

Can you point to any support for this statement:

In this case, we have the Obama DHS itself calling for domestic spying on innocent Americans, against whom DHS admits it has no evidence of terrorist intent or acts, for the "crime" of being considered by Team Obama to be "rightwing extremists."

Which is a far cry from your initial posting on this subject...
 

Brett, I don't think it's easy to claim that the people generally disagree with the modern view of the commerce clause. Not only do people acquiesce in laws which you find violative, they actively push for laws which you would find unconstitutional. Do you seriously think that a majority would object to, say, a law banning the cultivation of poppies for conversion to heroin for personal consumption? Best I can tell, they'd actively and even vehemently support such a law.

Switching topics, I agree with Dilan about moral regulation and the nexus with interstate commerce.
 

The fact that most people don't raise a stink about this doesn't mean that they interpret the clause to mean what the courts do. It means they've never bothered to read it.I think there's more to it than this, Brett. I don't expect the public to be legal experts. But precisely because the courts have given up on actually enforcing the limits of the Commerce Clause, the public certainly has assumed that Congress has unlimited powers (or at least unlimited subject to the Bill of Rights) and that if you have a grievance, even a local one, you go to your Congressman.

Whereas if the Courts made an effort to enforce the limitations of the clause on congressional power, and people saw popular laws being struck down occasionally on that ground, they would internalize it and start petitioning local officials with their local disputes.

(Of course, one shouldn't carry this point too far. Moralists, for instance, very much want uniform federal regulation of the things that they believe to immoral, for instance. That isn't going to change very quickly.)
 

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Exactly, Bart.

Re: Peace Fresno, the California Attorney General at the time, REPUBLICAN Bill Lockyer, issued a memo to all California law enforcement that stated in no uncertain terms the collection of intelligence on political groups should only be undertaken where there is evidence of criminal activity. There was, in fact, evidence of such criminal activity / terrorism with Peace Fresno.

And, that is the bright-line test that Napolitano has crossed. As you highlighted, we are now at the point where "right-wing extremists" will be targeted even if there's no evidence of terrorist intent or acts. I fear more unfortunate "accidents" like Samuel and Vicki Weaver now.
 

mclamb6 said...

Bart: Can you point to any support for this statement:

"In this case, we have the Obama DHS itself calling for domestic spying on innocent Americans, against whom DHS admits it has no evidence of terrorist intent or acts, for the "crime" of being considered by Team Obama to be "rightwing extremists."

Sure. Go to page 8 of 9:

"DHS/I&A will be working with its state and local partners over the next several months to ascertain with greater regional specificity the rise in rightwing extremist activity in the United States..."

Law enforcement does this through surveillance.

If this were directed at groups against which there was evidence providing a reasonable suspicion of terrorist activity or support, I would have no problem with law enforcement surveillance meant to gather further intelligence. However, the Obama DHS is targeting innocent Americans with whom they have ideological disagreements.
 

Bart,

That is utterly laughable as evidentiary support for your rather pointed and hyperbolic contention.
 

"Brett, I don't think it's easy to claim that the people generally disagree with the modern view of the commerce clause."That's not my claim. The people generally have no opinion at all concerning the modern view of the commerce clause. My claim is that people, if they read the clause, disagree with the federal government's view of it. Hell, maybe they'd think it would be better if the Constitution DID mean what the courts say it does. But that doesn't imply that they don't understand the English language.

Even in the tale of the Emperor's new clothes, citizens of the kingdom who weren't along the parade route would not have had any opinion on the Emperor's state of dress. But this would not be taken to mean that if they'd seen him, they would have seen clothing.
 

Cognitive dissonance in two easy paragraphs:

I repeatedly challenged you and other critics of the Bush Administration to provide a scinitilla of evidence that the disputed intelligence gathering and detention targeted innocent Americans and nothing was ever produced.

In this case, we have the Obama DHS itself calling for domestic spying on innocent Americans, against whom DHS admits it has no evidence of terrorist intent or acts, for the "crime" of being considered by Team Obama to be "rightwing extremists."Amazing. I just felt a Richter 6.3 from somewhere in the Colorado Rockies...

Cheers,
 

If there's any "cognitive dissonance" it's from your side alleging that the Bush Administration crossed the line (when they didn't) but now utter silence from your side when the Obama Administration actually does.
 

Charles,
There was, in fact, evidence of such criminal activity / terrorism with Peace Fresno.
Please provide a cite to said evidence.

Mr. DePalma,
If this were directed at groups against which there was evidence providing a reasonable suspicion of terrorist activity or support, I would have no problem with law enforcement surveillance meant to gather further intelligence
And how would you suggest we assure ourselves the executive only surveilled those for which there is a reasonable suspicion of terrorist activity? if only there was some kind of impartial third party to review requests from the executive to surveil a specific person? if only there was some kind of standard of evidence the executive had to demonstrate to our hypothetical independent third party before the third party would issue some kind of permission or grant to surveil? Ahhh, such a complicated scheme, who has the time to come up with a method to do this?

Seriously you two - you really don't see the incredible hypocrisy here? really?

And you really don't see how, if your suspicions are true, you enabled this by refusing to acknowledge the Bush administration's black-hole-like aggregation of power in the executive? You all defended it, and the slippery slope allowed this to happen. Remember Pastor Neimoller's words:
In Germany, they came first for the Communists, And I didn’t speak up because I wasn’t a Communist;

And then they came for the trade unionists, And I didn’t speak up because I wasn’t a trade unionist;

And then they came for the Jews, And I didn’t speak up because I wasn’t a Jew;

And then . . . they came for me . . . And by that time there was no one left to speak up.
So, as I posed many times before, y'all should really be thanking Mr. DePalma's "Boumediene Five" right about now, because when Obama comes and seizes you in the dark of night for your fidelity to originalism, and ships you off to Bagram, where you will be gay married by ACORN after the government chooses your doctors for you to care for your torture wounds, you'll be allowed to petition for habeas against Obama's labeling of you as enemy combatants. Damn activist judges!

What Bush did was wrong. We didn't say that because he was a republican, or a conservative, or whatever. It was because it was antithetical to our Constitution. Just like Obama's continued state secrets claims. You still deny Bush did anything wrong. But your blindness to his accumulation of secret powers now permits Obama (if any of this conspiracy crap is true) to do what you are afraid of. You did not stand against unchecked executive power when your man was in charge, and now you complain Obama could be doing naughty things? We could have maintained checks and balances, but you knew the people in Gitmo were guilty. If Obama says you are terrorists, who are we to disagree after the precedent you set under Bush?

Plus, since this is actually just some right wing nutball madness, it is a little early to know whether Obama is actually abusing any power, or simply reinvesting legal investigative resources in dangerous groups that have been ignored for eight years (after all, Tim McVeigh and abortion clinic bombers come from these types), but if the NY times discovers Obama is wiretapping people without warrants, you better believe this blog will be on fire. except this time, we won't have you two as apologist dissenters.
 

Plus, since this is actually just some right wing nutball madnessCharles is an imbecile and Bart is mad as a Hatter. Now can we PLEASE just ban them both and bring back the comments?!
 

Shorter "Da Man" with a variation on John Dean in the good old Nixon days:

"There is a cancer on your Constitution."
 

nerp:

Whether you want to believe it or not, some things exist in the real world absent a hyperlink to it on the Internets (although, if I really tried, the CA AG memo and Fresno sheriff's statement in that regard are probably still on-line). Bart and I have always been consistent. I have never seen Bart call anyone an "imbecile" either. You are the one waiting to see if the NYT ever picks up the story (fat chance) when the leaked DHS Report has already been "linked" for you. Good luck with that.
 

Charles,

I didn't call you an imbecile.

I asked for evidence of the charges you have made against a person. As is often the case, you have failed to do so. No terrorism charges have been filed, and if you are willing to take an AG's or a sheriff's statement as the honest to goodness truth that someone was a terrorist in Peace Fresno, than I assume Napolitano's statement that some right wing group somewhere plans violence should be enough for you to allow infiltration and surveillance of them, right? Or is there a difference standard? Prove your accusation. Otherwise admit the Bush administration did the exact same thing you are accusing the Obama administration of planning to do.

This is not complicated.
 

nerpzillicus said...

BD: If this were directed at groups against which there was evidence providing a reasonable suspicion of terrorist activity or support, I would have no problem with law enforcement surveillance meant to gather further intelligence

And how would you suggest we assure ourselves the executive only surveilled those for which there is a reasonable suspicion of terrorist activity? In the case of the TSP, there are several layers of oversight beginning inside NSA and extending to the congressional intel committees and the FISA Court under the new FISA reform determining whether the surveillance plan violates the 4th Amendment.

And you really don't see how, if your suspicions are true, you enabled this by refusing to acknowledge the Bush administration's black-hole-like aggregation of power in the executive? You all defended it, and the slippery slope allowed this to happen. Remember Pastor Neimoller's words:
In Germany, they came first for the Communists, And I didn’t speak up because I wasn’t a Communist...Nerp, the Bush DHS did not come for any innocent Americans. Unfortunately, by labeling conservative groups as potential terrorists, the Obama DHS suggests that they are coming after innocent Americans. That is the point.

So, as I posed many times before, y'all should really be thanking Mr. DePalma's "Boumediene Five" right about now, because when Obama comes and seizes you in the dark of night for your fidelity to originalism...Once again, the People (citizens and aliens who have settled among the citizenry) enjoy habeas corpus rights, while foreign POWs did not until the Boemediene Five invented them. Thus, your and others' attempts to place me or yourselves into the shoes of foreign POWs has never held water.

Plus, since this is actually just some right wing nutball madness, it is a little early to know whether Obama is actually abusing any power...The Obama DHS report is not evidence that that government has in fact abused any power. Rather, it is a warning that some unknown number of political appointees within the Obama DHS consider innocent American veterans and others who hold contrary views on abortion, the right to keep and bear arms, immigration and the proper role of the federal government to be the equivalent of terrorists and are requesting that state and local police assist then in keeping tabs on these nare do wells.

Many posters here have offered a walk in the other guy's shoes argument that we conservatives would not trust Obama to exercise the Bush powers. I had no problem before and after the transition of power with Obama using the full extent of his powers against foreign enemies.

Turnabout is fair play. If the Bush DHS had issued a report to state and local law enforcement declaring NARAL, La Raza, The Brady Center and anyone who believed that federal power took precedence over state power were "leftwing extremists" and the equivalent of terrorists, would you make excuses for the Bush DHS the way you are currently making excuses for the Obama DHS? I sure as hell would be taking the Bushies to task as I am Team Obama.

This DHS report was plain and simply wrong. If Napolitano knew of the allegations in this report and issued it anyway, Obama should summarily fire her. Instead, the White House is tap dancing and will not even condemn the allegations. That speaks volumes.
 

Charles and Mr. DePalma

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=104x473702

Unfortunately, I cannot confirm the Fresno Bee, because it seems to have expired. However, the Sheriff's statement there seems to rebuff Charles' claim that there was a terrorist, specifically:
Detective Aaron Kilner was a member of the FCSD Anti-Terrorism unit. This unit collects, evaluates, collates, analyzes, and disseminates information on individuals, groups, and organizations suspected of criminal or terrorist activities. This information meets the stringent federal and state guidelines for intelligence gathering and civil rights protections in order to prevent crime and protect the health and safety of residents of Fresno County and the State of California.

For the purpose of detecting or preventing terrorist activities, the Fresno County Sheriff's Department may visit any place and attend any event that is open to the public, on the same terms and conditions as members of the public generally. No information obtained from such visits shall be retained unless it relates to potential criminal or terrorist activities.

Peace Fresno was not and is not the subject of any investigation by the FCSD. The FCSD does not have any reports, files, rosters, or notes on Peace Fresno or it's (sic) meetings.

The FCSD is dedicated to protecting the citizens of Fresno County. The department will continue toutilize legal methods for collecting, evaluating, collating, analyzing, and disseminating criminal intelligence of terrorist and organized crime organizations to accomplish its mission, while respecting the constitutional rights of all persons.
Sincerely,
RP, Sheriff
So. to review:
1) Peace Fresno was what many would call a left wing group
2) Peace Fresno was infiltrated and spied upon
3) there was no evidence that Peace Fresno had any terrorist intentions or members.
4) The NY Times reported the FBI released an internal memo to local authorities regarding reporting protest group activities.

Now, let me make it clear: I do not think peaceful people, who disagree with any administration, should have this kind of surveillance done without a warrant under probable cause. This includes any conservative groups out there under the new administration. But until you two admit what occurred under Bush (and there is so much more we don't know yet), no one is going to take you seriously.
 

Mr. DePalma,

So, as I posed many times before, y'all should really be thanking Mr. DePalma's "Boumediene Five" right about now, because when Obama comes and seizes you in the dark of night for your fidelity to originalism...Once again, the People (citizens and aliens who have settled among the citizenry) enjoy habeas corpus rights, while foreign POWs did not until the Boemediene Five invented them. Thus, your and others' attempts to place me or yourselves into the shoes of foreign POWs has never held water.
We have talked about this a number of times. Under the Bush regime, you did not think the Gitmo prisoners had the right to go before an independent tribunal to challenge their detention. If the President determined, under his seemingly endless war authority, that a person was an enemy combatant, that's it. So, If Obama sweeped you up, and put you in Bagram, and said you were actually a Saudi or something, how would you challenge your detention? Bush did this to Padilla for years till they saw the writing on the wall, and Al-Marri. Stop pretending there is some American citizen clause or something - there's no limitation in the suspension clause. By giving the president plenary authority over captures, his word is the final word. This is how power accumulates, one step at a time.

Please let me know your thoughts on the Peace Fresno situation.
 

Bart,

Not that I really need to know, but why aren't you up in arms about this...

http://www.fas.org/irp/eprint/leftwing.pdf
 

Even if you think habeus only applies to American citizens, if you don't get to go before a court, how do you establish that you're an American citizen???
 

David Kopel over at the Volokh Conspiracy notes that Montana has just enacted the Montana Firearms Freedom Act, which states that any firearm manufactured in Montana and never leaves Montana is not traveling in interstate commerce and is not subject to federal firearms laws.

Tilting at New Deal windmills or another opportunity to put the Commerce Clause genie back in the bottle a little more?
 

Brett:

You do not need to file the petition for habeas corpus with evidence of your citizenship. Family or other interested parties can file it on your behalf.
 

Mike said...

Bart, Not that I really need to know, but why aren't you up in arms about this...

http://www.fas.org/irp/eprint/leftwing.pdfThe report discusses the trends of enviro and animal rights groups executing illegal cyber attacks.

Apart from using the dumb term "leftwing extremists," I am unsure what there is to get upset about in the report.
 

This comment has been removed by the author.
 

Brett:

Even if you think habeus only applies to American citizens, if you don't get to go before a court, how do you establish that you're an American citizen???Just want to say .... Thank you.

Cheers,
 

This comment has been removed by the author.
 

nerp:

I never said that you called me an imbecile. Nothing you posted, however, disproves that there was a known terrorist in Peace Fresno. That's who was being tracked, not the group itself for "being prone to violence" without any specific evidence whatsoever such as this DHS report, which is what Bart and I are complaining about.
 

Bart, if you're not entitled to a hearing, I'm not sure the fact that your friends and relatives aren't behind bars with you will accomplish much. And don't friendless orphans have rights, too?

We don't have procedural protections for the guilty. We have them for the innocent accused of being guilty.

Note that suspension of Habeus isn't automatic in cases of war or insurrection, it's only when the public safety requires it. It's scarcely arguable that in the present circumstances the public safety requires denying access to the courts to a few thousand people. It's not as though we're accumulating POWs by the hundreds of thousands.
 

Arne Langsetmo said...

Bart: This DHS report was plain and simply wrong. If Napolitano knew of the allegations in this report and issued it anyway, Obama should summarily fire her. Instead, the White House is tap dancing and will not even condemn the allegations. That speaks volumes.

The DHS report was initiated by the Dubya maladministration. Does that change your perspective?Not in the least.

Bush era bureaucrats committed all kinds of ideologically based malfeasance, including outright misinformation like this "report" and leaks of top secret programs.

If the Bush era bureaucrat(s) who wrote this garbage are still around, they can leave with Napolitano.

When are you going to learn that, unlike you, my POV is not based upon which President happens to be in the White House?
 

This comment has been removed by the author.
 

Bart:

Arne lives in a fantasy world where the timing of a report intended to supress legal assembly and petitioning of government could never be done on purpose. It was just a coincidence the leak came out the day before Tea Parties.
 

Arne Langsetmo said...

And what do you say to my point that this report ... if actually intended to curb or harrass RW political activity ... is quite ineffective at doing so?This report alone falls under the category of sticks and stones.

The question is whether DHS or any other government agency will act upon the suggestions in this report.

Seriously, arne, doesn't a government report falsely attacking other Americans as terrorists simply because of their politics (even if you personally disagree with their politics) bother you at all?

I have no use at all for folks like NARAL, La Raza and the Brady Center, but I sure as hell do not want my government attacking them as terrorists based on their politics.

This is Nixonian enemies list stuff.
 

You don't see what there is to get upset about? It's ok that Left Wing ideologies are targeted, but not Right Wing? Seriously? Or perhaps you can draw a meaningful, non-partisan distinction between the two...
 

And Charles, how does one "leak" an unclassified report?
 

I have no use at all for folks like NARAL, La Raza and the Brady Center, but I sure as hell do not want my government attacking them as terrorists based on their politics.

This is Nixonian enemies list stuff.

# posted by Bart DePalma : 11:12 AMIt didn't bother you at the time. In fact, as Arne points out, you were in favor of treating them as traitors.
 

This comment has been removed by the author.
 

"And Charles, how does one "leak" an unclassified report?"If you read it, it specifically stated that it was NOT for general distribution, was immune to FOIA requests, and should not be given out to anybody but people with a need to know.

Just because a report isn't "classified" doesn't mean they intended it to get out.
 

During an interview on Fox News Thursday today, Napolitano gave a half hearted apology to veterans, but not to the conservatives she slimed.
 

Gotchya arne. You actually agree with the report. Nice.
 

Bart:

Don't bother with them. They can't (won't?) see any difference between actual foreign terrorists and returning U.S. veterans.
 

Mr. DePalma,
…
http://www.fas.org/irp/eprint/leftwing.pdf

The report discusses the trends of enviro and animal rights groups executing illegal cyber attacks.

Apart from using the dumb term "leftwing extremists," I am unsure what there is to get upset about in the report.
Explain why I can't just say:
The report discusses the trends of right wing militant groups acquiring weapons and committing anti-hispanic crimes.

Apart from using the dumb term "rightwing extremists," I am unsure what there is to get upset about in the report.

about this report.
 

If I ever decide to cut off the opportunity to add one's own opinion, it will be because of the hijacking of almost any and all threads by well-known participants who simply cannot resist throwing abuse at one another about issues altogether tangential to the topic of the main posting. I want to say, "Stop it!!!"
 

This comment has been removed by the author.
 

Sorry, Prof. Levinson. I should understand that certain subjects are conversational "flash points" to some (and not in a constructive way).

Mea culpa.

And I'm outta here.

Cheers,
 

If I ever decide to cut off the opportunity to add one's own opinion, it will be because of the hijacking of almost any and all threads by well-known participants who simply cannot resist throwing abuse at one another about issues altogether tangential to the topic of the main posting. I want to say, "Stop it!!!"

# posted by Sandy Levinson : 2:25 PMIf you're willing to let the likes of Baghdad Bart hijack your blog to spread rightwingnut propaganda, you pretty much get what you deserve.
 

. . . you pretty much get what you deserve.Just like returning Afghanistan and Iraqi war vets. You see, Professor Levinson, it's all YOUR fault.
 

I have saved Arne's comments (which provoked this off-topic discussion) even though he tried to delete them.
 

nerpzillicus said...

BD: The report discusses the trends of enviro and animal rights groups executing illegal cyber attacks. Apart from using the dumb term "leftwing extremists," I am unsure what there is to get upset about in the report.

nerp: Explain why I can't just say:
The report discusses the trends of right wing militant groups acquiring weapons and committing anti-hispanic crimes.

Apart from using the dumb term "rightwing extremists," I am unsure what there is to get upset about in the report.The actual report is discussing real events.
 

The actual report is discussing real events.

# posted by Bart DePalma : 4:07 PM
So you admit that the report is accurate? Nice.
 

Is anyone else reading the "torture" memos?
 

Great historical context on the new thread by Will Levi. Too bad he didn't allow for comments.
 

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