Balkinization: Greg Abbott and a new constitutional convention

Comments:

"To let 2/3 of the states override federal legislation would, for example, allow states with only around 35% of the population to invalidate legislation desired by a majority."

Amen! Of course that's a feature, not a bug, to a Party that increasingly realizes that the more people involved in the 'consent of the governed' the worse they fare.

# posted by

Mista Whiskas : 7:29 PM

"Did he decide that it was simply too radical to advocate disenfranchising the people and turning selection of senators back to highly partisan state legislators?"

That one always did fit so interestingly with their denunciation of elite rule and 'return this country back to the people' rhetoric.

# posted by

Mista Whiskas : 7:31 PM

"This may testify to a mixture of the opposition to a convention on the part of most "thoughtful people," including those who decide what to write about."

Precisely. Or to put it another way, it got no coverage, because the institutional media are almost all of one party. Which is what is really meant here by "thoughtful", and is a really scary thing to say in a democracy.

Though the party they're of thinks it's no problem.

# posted by

Brett : 8:20 PM

Of course that's a feature, not a bug, to a Party that increasingly realizes that the more people involved in the 'consent of the governed' the worse they fare.

Exactly. That's why suggestions to make the Constitution more republican (see my suggestions in the other thread or Prof. Levinson's advocacy of a Parliamentary system) would be opposed by conservatives. They fear majority rule, and they've never accepted that America is a nation.

# posted by

Mark Field : 8:20 PM

I continue to question the current workability of a constitutional convention but congratulations on your new book -- it's in the bin.

Think to the degree the Texas plan makes us think, including of fundamental aspects of the Constitution that warrant amending, it's a useful enterprise as you say. The particulars are to me overall not good though a few are somewhat reasonable. I also prefer Mark Field's approach if we are going to shift things. Finally, won't repeat myself, but don't think the 17A being repealed really does much to promote constitutional federalism. If that is your concern, I'd look elsewhere.

Finally, the "institutional media" includes FOX, major newspapers with a conservative bent (with significant roles including in the election of 2016), the Wall St. Journal etc. Likewise, I found out about it via a liberal leaning publication and blog. Finally, it was released on a Friday attached to a 90 page document and includes one-sided provisions that even many Republicans would find problems with (e.g., would the assassination of the President now be a state matter?). Oh, Prof. Levinson has denounced how both sides reject the need of structural constitutional change. Where is all the coverage of proposals from the left other than repeal of Citizens United? And, to balance that, proposals from the right on hot button topics like marriage gets coverage.

So, seems things are a tad more complex there.

# posted by

Joe : 8:42 PM

ETA: I did a search. The New Republic, MSNBC, the NYT et. al. reported such things as "Texas Governor Abbott Calls for Amendments to U.S. Constitution."

And, sources like blogs (a major news source these days) liberals read etc. also talked about it. USA Today also had an op-ed from Marc Rubio about the possibility of a constitutional convention of states. What "national press" are we talking about? What sort of "coverage" is this supposed to have? Seems it is getting a decent amount of attention.

# posted by

Joe : 8:53 PM

I seem to recall a media response to Gov. Abbott on the Internet that perhaps it was a prelude to secession. This report (TPM? Huffington?) brought to mind Sandy's lengthy essay delivered at the Ark. Law School on Nullification and Secession just a couple of years ago in which Sandy described a scenario (pre-Abbott) of a TX secession to be worked out by agreement with the central government in which the central government would "recover" nuclear programs located in TX. But as days went on, there seemed to be no follow up on TX secession. In an earlier thread at this Blog commenting on Sandy's essay, I questioned why TX (under Perry) would agree to relinquish such nuclear programs, in not forgetting the Alamo. Now that TX has "open carry," perhaps TX secession is still a possibility (although that might not serve Ted Cruz well even if he were to survive the "natural born Citizen" brouhaha).

# posted by

Shag from Brookline : 8:56 PM

"And will any of them admit that the Constitution is not now and never has been "perfect" according to conservative standards?"

There's an old, old bon mot in conservative circles, which perfectly encapsulates the conservative view of the Constitution: "Sure, the Constitution isn't perfect, but it's better than what we've got now."

No, conservatives don't think the Constitution is perfect. They think it's better than abandoning the rule of law, and just making things up as you go along. Which appears to be the 'liberal' alternative: When you 'interpret' a document to mean whatever you find convenient, the document isn't doing any of the work.

# posted by

Brett : 7:00 AM

Per the update, Sen. Rubio has said he was open to a convention of states to amend the Constitution, if that is any solace to Prof. Levinson.

Conservatives at times remind that the Constitution doesn't result in perfection such as in various criminal justice matters. Other times, they are upset that a reasoned application of the rule of law, not some strawman version of other viewpoints that seemingly apply to Reagan judicial appointments and Bush43 solicitor generals too, results, e.g., in giving too much federal power in their view in certain cases.

Then, the other side talks about the limits of things.

# posted by

Joe : 8:10 AM

Perhaps Brett could provide a cite for his old bon mot:

"Sure, the Constitution isn't perfect, but it's better than what we've got now."

Just how old is this? Does it go back to Antebellum days?

Regarding Sandy's closing (pre-Update) comment on Abbott looking politically to challenging Hillary in 2020 " ... as the worthy successor to discredited and soon-to-be-discredited frothing Texans as former Gov. Rick Perry and Junior Senator Ted Cruz.", perhaps Sandy had an advance copy of David Brooks' NYTimes column "The Brutalism of Ted Cruz."

# posted by

Shag from Brookline : 9:13 AM

So where would we get the Constitution-amending sized majorities to enact these amendments? They are mainly designed to deprive various levels of government of powers to regulate things that the voters, by voting for politicians who run for office advocating regulating these things, seem to want.

# posted by

CJColucci : 11:08 AM

Isn't it time to revisit that plan for the southern states to simply secede? I don't think there would be much argument right now. Let them go. Stop providing more federal dollars than collected to most of these states. Those who value our Constitution will have move to the remaining states. Really, do we get anything of value from these states?

# posted by

Unknown : 1:04 PM

The better approach would be to constitutionally relimit the national government, with some additions to address modern forms of tyranny, rather than rely on the states to provide the check.

# posted by

Bart DePalma : 8:27 AM

CJColucci said...So where would we get the Constitution-amending sized majorities to enact these amendments?

Have the constitutional convention set a lower threshold to ratify its suggested amendments like the 1787 convention did.

# posted by

Bart DePalma : 8:31 AM

Teresa Wyeth said...Isn't it time to revisit that plan for the southern states to simply secede?

I wonder how the seceding states would treat the ongoing flow of refugees from the blue states attempting to cross their borders for a better life?

# posted by

Bart DePalma : 8:33 AM

The difficult part about secession in the modern US, is that the fault line isn't really between states. It's between urban areas and everywhere else, within states. (As a first approximation.)

Cities tend to go Democratic even in Republican states. Rural areas tend to go Republican even in Democratic states.

How does the cement secede from the gravel, in a mass of concrete?

The normal answer to this sort of thing, in a federation, is subsidiarity. You do as much as possible at the lowest level, so the fact that a community of one persuasion is embedded in a larger jurisdiction of a different persuasion causes the least tension.

The basic problem in the US right now is that the Democratic party has utterly rejected subsidiarity, they figure that 50%+1 votes in a jurisdiction entitle them to lord it over everywhere within that jurisdiction, even the parts they lost.

The Republican party is headed the same way, but hasn't gone as far down that road. But they're on it.

We could maybe live together if we'd leave each other alone, but we can't live together if a small majority is taken as entitling you to crush the opposition. But, how do we part?

I think if we free up the states from federal control, (And the fact that the Constitution is ultimately up to the states, not the federal government, permits this.) it will exacerbate the tensions within the states enough to prompt population movement. But I'm not all that sure of it.

There's just something about life in cities that makes people think differently from the way they do at lower population densities. The conflict between urban centers and everywhere else may be eternal.

# posted by

Brett : 10:09 AM

The normal answer to this sort of thing, in a federation, is subsidiarity. You do as much as possible at the lowest level

Unless you're James Madison writing Federalist 10. And unless you actually believe in America as a republican nation.

# posted by

Mark Field : 10:23 AM

I don't. I believe in America as a republican federation.

And, yes, Madison thought larger subdivisions would suppress faction. He was proven wrong almost immediately.

# posted by

Brett : 10:35 AM

Bart DePalma: "CJColucci said...So where would we get the Constitution-amending sized majorities to enact these amendments?

Have the constitutional convention set a lower threshold to ratify its suggested amendments like the 1787 convention did."

Thus illustrating my point, that damn few people actually want this dog's breakfast of amendments.

# posted by

CJColucci : 10:37 AM

The normal answer to this sort of thing, in a federation, is subsidiarity. You do as much as possible at the lowest level, so the fact that a community of one persuasion is embedded in a larger jurisdiction of a different persuasion causes the least tension.

What does "as much as possible" mean? Justice Breyer supports "subsidiarity" approaches too, but gets to a very different place. See, e.g., his dissent in U.S. v. Morrison. The U.S. Constitution sets forth certain things deemed national, what it deems appropriate not for the "lowest level," but the national government.

I think we are a "nation," especially after the Civil War. Brett's opposition to Madison's vision is his viewpoint to have, but it again suggests that he and Sandy Levinson are bedfellows in dissenting from certain constitutional principles. Brett pines for the days of the Articles of Confederation though 1780s Brett probably would find things a bit too centralized event then.

Brett talks about crushing but repeatedly is selective about such a thing. He is a "conservative" though which means he supports (or focuses his passion selectively, getting to the same basic place) the government doing certain things to restrain the population that liberals think wrong.

they figure that 50%+1 votes in a jurisdiction entitle them to lord it over everywhere within that jurisdiction, even the parts they lose

I live in a Democratic state. Localities have various abilities to home rule. "Lord it over" has to be translated using the hyperbole decoder ring.

===

As to CJColucci's point, yes -- darn people don't know what is good for them. See also, their opposition to being stripped of the right to choose U.S. senators.

# posted by

Joe : 10:57 AM

"Brett pines for the days of the Articles of Confederation"

Nah, it's pretty clear that the Articles of Confederation weren't workable. I just think they over-corrected with the Constitution. Somewhere in between there might be a sweet spot. Or maybe not; There's no such thing as perfection, after all.

Mainly, though, I believe that the Constitution is kind of like an old OS whose 'exploits' are already well known. It's been worked around and circumvented to the point where it isn't really in effect anymore. You can't solve a problem like that with mere judicial reform, because how to bring the thing down again is widespread knowledge. Massive revisions will be necessary.

And they'll only solve the problem until new exploits are discovered. No system built by man is immune to being subverted by man.

"I live in a Democratic state. Localities have various abilities to home rule. "Lord it over" has to be translated using the hyperbole decoder ring."

People living in states like Nevada or Oregon, where the federal government owns most of the land, and is a most heavy handed and arbitrary landlord, might disagree with you.

# posted by

Brett : 11:39 AM

I believe in America as a republican federation.

"Republican" and "federation" are contradictory terms. To the extent we are a "federation", we are, by definition, not "republican". Claims of "subsidiarity", for example, deny the principle of majority rule at any level higher than the subsidiary.

# posted by

Mark Field : 11:43 AM

People living in states like Nevada or Oregon, where the federal government owns most of the land, and is a most heavy handed and arbitrary landlord, might disagree with you.

"Poll: Most westerners support federal land policy". http://thehill.com/policy/energy-environment/265429-poll-most-westerners-support-federal-land-policy

# posted by

Mark Field : 11:47 AM

I wonder how the seceding states would treat the ongoing flow of refugees from the blue states attempting to cross their borders for a better life?
# posted by Blogger Bart DePalma : 8:33 AM

I'm sure that all refugees will get their own meth lab.

# posted by

Anonymous : 12:22 PM

"Better Call Saul" coming back in February. Set those DVRs.

Nah, still think Brett sound like you pine for those days. The we aren't a nation part sort of clinches it for me. This isn't a perfect fit, sure, but as things go, he is a lot closer to the Articles than the articles of the Constitution overall.

I don't know what "really is not in effect any more" means. Looks to be in effect, including the House of Representatives, Senate and so forth acting structurally in such and such a way different from a different sort of system. Criminal trials are imperfect, if a lot better in various ways than in the past (e.g., when the right to paid counsel was not present in many cases), but appear to follow the basics. Other countries have a different system. etc.

Putting aside Mark Field's reply, you seem to be talking past me, or using the standard "not enough for me" trope. For instance, there are various ways federal control of interstate commerce or the treaty power is limited, but in two cases in particular some acted like they didn't exist. Why? Not enough restraints for it to matter to them. Not "really" in effect. Very subjective approach.

# posted by

Joe : 12:40 PM

"Claims of "subsidiarity", for example, deny the principle of majority rule at any level higher than the subsidiary."

Nasty echoes there of Webber's (Very much contested) definition of the state. Absolutist declarations of what an institution MUST do or be, to be a "state", that aim to exclude theoretically wide ranges of possible state design.

The idea that one level of government can be sovereign over THIS list of topics, while a higher level of government might be sovereign over THAT list of topics, is perfectly consistent with majority rule, where the relevant demos simply differs from topic to topic.

This was the very idea that the US was designed with in mind, where for some topics, the federal government would be sovereign, for others state or local governments, and for the balance, the individual.

Joe, you speak of criminal trials, but it's pretty clear that the sort of jury trial the 6th amendment provides for, was trial by a jury that wasn't kept from seeing much of the trial, and which was expected to be able to nulify laws it thought unjust. And I don't think a system where hugely over-charging people, and then offering to drop most of the charges if they renounced their right to that jury trial, is really consistent with that guarantee, either.

Or take the interstate commerce clause, which certainly was not supposed to be a grant of general power to regulate all things that might have economic effects.

Or how about the requirement that revenue bills originate in the House? Dead as can be at this point; The Senate 'complies' by assigning the number of a dead House bill to the revenue bills they originate. And I wonder how much longer they'll bother with even that nod to the requirement?

No, the Constitution is still in use as providing a basic structure to the government, but is just sort of 'interpreted' away anywhere it really gets in the way.

# posted by

Brett : 1:40 PM

It's time for a reminder for those reading Brett's comments that he is a self proclaimed anarcho libertarian. He is "anarcho" about whatever he thinks at any given time violates what he perceives as his liberties.

# posted by

Shag from Brookline : 1:54 PM

The idea that one level of government can be sovereign over THIS list of topics, while a higher level of government might be sovereign over THAT list of topics, is perfectly consistent with majority rule, where the relevant demos simply differs from topic to topic.

Speaking of contested terms: "sovereign"; "relevant"; "demos"; "majority".

It's often good, pragmatic administrative practice to let subsidiary municipal corporations handle local issues. What actually violates fundamental principles of republicanism is the insistence that those subsidiaries can control the outcome against the express judgment of all the people around them. In the same nation.

# posted by

Mark Field : 2:12 PM

The essential aspect of "expected to be able to nulify laws it thought unjust" to the right to a jury trial found in the BOR was disputed back to at least the early 19th Century. In fact, it was part of the dispute in the Chase impeachment, and the failure of removal is somewhat telling. It was CLEARLY not deemed a clear compelling part of things by 1868, so at best that applies to federal prosecutions.

Meanwhile, going back to how they tried cases overall back in the day, including often one day trials, with capital defendants quickly disposed of (including those as young as seven) is not imho an ideal way to honor the criminal provisions of the Bill of Rights. Even if that is how it was done in 1790. On the whole, we do a lot more today to protect criminal defendants than even the day Shag was born.

No, "a grant of general power to regulate all things that might have economic effects" is more akin to Mark Field's amendment. That isn't the rule in place now. There are various limits to the Commerce Clause, aside from the political ones (two branches, presidential veto etc.), which was to those who care was seen if anything the most important to many at the time of the Founding.

The origination requirement is not "dead as it can be" -- for instance, the requirement can be explicitly removed -- even if you think there were a few cases where it was violated.

Things "in the way" repeatedly are in place but again every example can be handwaved away with the "really" test. It's a fun subjective catchall.

# posted by

Joe : 3:09 PM

Shag, Brett is starting to use "conservative" more. Truth in advertising.

# posted by

Joe : 3:10 PM

The Origination Clause was recognized in the Convention itself as worthless. Among several others, here's Madison on July 5:

"Mr. Madison. could not regard the exclusive privilege of originating money bills as any concession on the side of the small States. Experience proved that it had no effect. If seven States in the upper branch wished a bill to be originated, they might surely find some member from some of the same States in the lower branch who would originate it. The restriction as to amendments was of as little consequence. Amendments could be handed privately by the Senate to members in the other house. Bills could be negatived that they might be sent up in the desired shape. If the Senate should yield to the obstinacy of the 1st. branch the use of that body as a check would be lost. If the 1st. branch should yield to that of the Senate, the privilege would be nugatory. Experience had also shewn both in G. B. and the States having a similar regulation that it was a source of frequent & obstinate altercations. These considerations had produced a rejection of a like motion on a former occasion when judged by its own merits."

# posted by

Mark Field : 4:46 PM

"The essential aspect of "expected to be able to nulify laws it thought unjust" to the right to a jury trial found in the BOR was disputed back to at least the early 19th Century."

And some of the same people responsible for the 1st amendment were guilty of the Sedition act. So it must not have violated the 1st amendment!

Nobody bothers including a right in a Bill of Rights that they don't anticipate somebody in government will want to violate. Thus the fact that the government moves sometime after the adoption of a Bill of Rights to violate a strict reading of some part of it, does not invalidate the strict reading.

It just demonstrates that particular article really was needed.

"It's time for a reminder for those reading Brett's comments that he is a self proclaimed anarcho libertarian."

One can aspire to climbing mountains without losing sight of the fact one lives in Death Valley.

# posted by

Brett : 8:38 AM

And that's a Death Valley that Brett dug for himself with his quaint and colorful biases. And Brett keeps digging, making it more difficult for him to climb his aspirational mountains. [Through in a Martin Luther King, Jr. take on climbing mountains for African-Americans.]

# posted by

Shag from Brookline : 8:47 AM

And some of the same people responsible for the 1st amendment were guilty of the Sedition act. So it must not have violated the 1st amendment!

Brett, you said something was "pretty clear" and something (full stop) "was expected," but it was not. Neither was this.

The reach of the 1A as a whole split the framers and its meaning ultimately was developed by history. The same thing happened with jury nullification, especially as the nature of the law changed, statutory law becoming more prevalent and law itself more complex, including protections for the accused.

Nobody bothers including a right in a Bill of Rights that they don't anticipate somebody in government will want to violate. Thus the fact that the government moves sometime after the adoption of a Bill of Rights to violate a strict reading of some part of it, does not invalidate the strict reading.

This doesn't tell me the breadth of the provisions, which in part were chosen because there was a general broad agreement of their importance. But, e.g., the specific reach of the 1A was disputed on the merits. Jury nullification was not seen by many as necessary to uphold the right to jury trial and over the next hundred years, especially as the law as a whole changed greatly, it largely died out. The people of the nation still thought they had a right to a jury in civil and criminal cases.

It just demonstrates that particular article really was needed.

What violates it is still the question.

Anyway, whatever his aspirations, Brett repeatedly has expressed himself as being a "conservative," which fits his expressed views more than "libertarian."

# posted by

Joe : 10:32 AM

Federalist 37:

"The experience of ages, with the continued and combined labors of the most enlightened legislatures and jurists, has been equally unsuccessful in delineating the several objects and limits of different codes of laws and different tribunals of justice. The precise extent of the common law, and the statute law, the maritime law, the ecclesiastical law, the law of corporations, and other local laws and customs, remains still to be clearly and finally established in Great Britain, where accuracy in such subjects has been more industriously pursued than in any other part of the world. The jurisdiction of her several courts, general and local, of law, of equity, of admiralty, etc., is not less a source of frequent and intricate discussions, sufficiently denoting the indeterminate limits by which they are respectively circumscribed. All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications."

# posted by

Mark Field : 10:40 AM

ETA: Note that juries can still nullify in criminal cases, they are not required to explain why they found the people are guilty or innocent. The former can result in a conviction to be overturned but the latter cannot be. So, the debate is in fact more nuanced and if a certain set of requirements are deemed required, yes, a special amendment could be a good idea.

# posted by

Joe : 10:44 AM

I think Federalist gets too much attention but that is one of my favorite passages.

# posted by

Joe : 10:47 AM

"The normal answer to this sort of thing, in a federation, is subsidiarity. You do as much as possible at the lowest level, so the fact that a community of one persuasion is embedded in a larger jurisdiction of a different persuasion causes the least tension."

Brett, this makes sense as an abstract theory, but the problem for me is that it has some historical problems in our experience. In US history what happened was some pretty horrendous oppression of local minorities by local majorities, oppression that was largely ended by the intervention of federal forces. The resultant ascendancy of federal government hasn't led to anything close to the kind and amount of oppression that came before it.

# posted by

Mista Whiskas : 1:30 PM

Mark's Federalist 37 comment/quote is indeed most interesting. The closing in particular caught my attention:

" ... until their meaning be liquidated and ascertained by a series of particular discussions and adjudications."

What is the timeframe for this? During the Convention? During ratification? Post-ratification? - and for what time period? Is there a suggestion that this might include historical research preceding the Convention in merry olde England against which the Revolution was fought - even though such history was not discussed/adjudicated at eith the Convention or during ratification?

Consider 37 regarding the presidential qualification of a "natural born Citizen" as well as the foundations for originalism..

I wonder how Sandy addressed 37 in his new book.

# posted by

Shag from Brookline : 1:42 PM

McCulloch v. Maryland noted:

"In the course of the argument, the Federalist has been quoted, and the opinions expressed by the authors of that work have been justly supposed to be entitled to great respect in expounding the Constitution. No tribute can be paid to them which exceeds their merit; but in applying their opinions to the cases which may arise in the progress of our Government, a right to judge of their correctness must be retained; and to understand the argument, we must examine the proposition it maintains and the objections against which it is directed."

This was in 1819, but I think in 2019, we will continue to retain "a right to judge their correctness" and "examine the proposition" using all that developed since then to determine what they now mean as applied to today's world.

Also, the Constitution holds "only its great outlines should be marked, its important objects designated" and "an unwise attempt to provide by immutable rules for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur" and "avail itself of experience, to exercise its reason."

So, the timeframe is ongoing, "We the People" including by the institutions set forth in the Constitution (Congress, President, courts, states, militia, jurors etc.), not tied to what some unclear group "expected" or thought "clear." This promotes republicanism and is a sound approach using modern knowledge and experience. I'm not merely relying on John Marshall, a ratifier of the Constitution here, but he helps my case.

# posted by

Joe : 2:08 PM

this makes sense as an abstract theory

Actually, it's incoherent as a theory, as Lincoln pointed out in his First Inaugural:

"If the minority will not acquiesce, the majority must, or the government must cease. There is no other alternative; for continuing the government, is acquiescence on one side or the other. If a minority, in such case, will secede rather than acquiesce, they make a precedent which, in turn, will divide and ruin them; for a minority of their own will secede from them, whenever a majority refuses to be controlled by such minority. For instance, why may not any portion of a new confederacy, a year or two hence, arbitrarily secede again, precisely as portions of the present Union now claim to secede from it. ....

Plainly, the central idea of secession, is the essence of anarchy. A majority, held in restraint by constitutional checks, and limitations, and always changing easily, with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people. Whoever rejects it, does of necessity, fly to anarchy or to despotism. Unanimity is impossible; the rule of a minority as a permanent arrangement, is wholly inadmissible; so that rejecting the majority principle, anarchy, or despotism in some form, is all that is left."

# posted by

Mark Field : 2:22 PM

I'm not sure how the right to secession fits in here. Brett has opinions there but his approach to the Civil War is not compelled by the principle set forth here.

I also think the argument in theory can accept that some national majority has national sovereignty. But, that the ideal is that "as much as possible" as of right power is delegated by constitutions of nations and states to localities to deal with local affairs. Lincoln thought the national government, e.g., had no general power to interfere with slavery in the states, it was constitutionally a state matter. The war power gave him a special opening there but a limited one.

The debate turns on such things like "as possible" and your goals there. So, e.g., slavery was a basic wrong, so that would be mostly banned. Art. I sets forth certain "national" powers and state constitutions do the same for "state" powers. The same locally. So, e.g., New York City has "city" things while each borough has some local discretion. The devil is in the details there.

And, basically, localism isn't the only good. As Mr. W. suggests. Post-WWII we have seen a big move there as to human rights too, national sovereignty alone seen as not the only good.

# posted by

Joe : 3:02 PM

This comment has been removed by the author.

# posted by

Mark Field : 3:22 PM

The "principle" of subsidiarity works the same way as secession. That is, if we provide that the nation is the proper locus of power to do X, a state will claim that instead that power belongs to it. Within a state, a city makes the claim against the power of the state. Etc. It's turtles all the way down.

# posted by

Mark Field : 3:25 PM

Added for the sake of clarity:

I'm not making any comment about Brett and the Civil War. I'm just pointing out that "subsidiarity" can't be a principle because it lacks a non-arbitrary stopping point (which is what Lincoln pointed out about secession).

It's perfectly ok to apply "subsidiarity" as a matter of pragmatism, but it can't be asserted as a "principle".

# posted by

Mark Field : 3:28 PM

I guess it's a question of how far we take it.

It is my understanding, e.g., the idea was developed in Catholic thought, which would seem to need to work within a hierarchical system with the pope on top. So, here, I gathered that "as possible" retained the possibility, e.g., of a national sovereign people having the power -- using the principle cited -- to break things down. Lower groups (down to the individual) could "claim" against the power of the state, but "as possible" in practice means it was just not possible to rely on mere agreement, a sort of anarchism. SOME sort of upper level power to divide would be present. But, the general principle (sic) of local power as much as possible remained.

Broad arguments tend to have hidden qualifiers.

# posted by

Joe : 4:02 PM

I'd describe that as pragmatism. I read Brett as attempting to make binding rules about levels of authority.

# posted by

Mark Field : 4:25 PM

I read the Constitution as attempting that. As law it is binding rules. It enumerated certain powers the federal government would have, and with the tenth amendment stated that any other powers were reserved for the states or people.

Is this not a binding rule about levels of authority?

# posted by

Brett : 7:21 PM

In a word, no. Putting aside the language of Federalist 37 which I quoted above, all the powers granted to Congress are vague around the borders; sometimes those borders reach a very long way (commerce clause). Then too, the N&P clause allows for that expansion.

The Constitution provides pragmatic guidelines, not specific rules. If you want specific rules, the tax code is a good place to begin. Even then, there are still disputes over meaning and extent (Federalist 37).

And that doesn't even cover the cases omitted from the Constitution: can the President fire one of his appointees? who was to enforce the fugitive slave clause? what does "due process" entail? what punishments are cruel and unusual? what's a "natural born" citizen? And on and on.

But in the end, the discussion here wasn't about the Constitution per se. It was about the theory of republican government. If you were right that the Constitution did give a binding rule about levels of authority, that would just mean that, to that extent, it isn't republican (just as the nature of the Senate makes it unrepublican or the existence of slavery did).

# posted by

Mark Field : 10:28 PM

" all the powers granted to Congress are vague around the borders; sometimes those borders reach a very long way (commerce clause)."

It's not the commerce clause. It's the interstate commerce clause. It explicitly restricts the power to only commerce that crosses particular borders. That the judiciary has agreed to interpret this as extending to anything, (Whether commerce or not, interstate or not.) which could hypothetically effect such commerce, even if only in aggregate, is part of the problem, not part of the original constitutional scheme. It's how the clause was circumvented.

The Constitution's days are numbered, I think. It's going to be replaced or majorly revised sooner or later, and probably sooner. I think it's very important in light of that to understand clearly the ways in which the Constitution failed. All things fail in the end, but if you fail the same way twice, you're not learning, and that's bad. You need to learn from your mistakes, so that you make new mistakes each time, not the same ones, over and over.

One of the major failings of the Constitution, which we have to learn from if it's successor is to actually be in effect for more than a few decades, is this: A level of government entrusted with staffing the judiciary will not, in the long run, be restrained by that judiciary. Sooner or later the judiciary will be deliberately staffed with people who will defer to the government, rather than enforcing the constitution.

The Texas proposal demonstrates a limited understanding of this, and I think that represents it's greatest weakness. Amendments reiterating that the federal government can only regulate interstate commerce, for instance, will not survive exposure to a judiciary selected by the federal government. They'll be rationalized away.

Really, only amendment 9 addresses this issue, and it's not enough. Constitutional review needs to be moved away from federal control, to restrain the federal government. Nothing less will work.

You'd doubtless object to this. But not because it wouldn't work. Because it would.

# posted by

Brett : 6:41 AM

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# posted by

Joe : 9:43 AM

It is not the "interstate commerce" clause. The text: "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” The clause regulates "commerce" with/among three entities. Thus, the common name.

That the judiciary has agreed to interpret this as extending to anything, (Whether commerce or not, interstate or not.) which could hypothetically effect such commerce, even if only in aggregate, is part of the problem, not part of the original constitutional scheme.

If you are concerned about the days of the Constitution being numbered, I suggest you focus on the whole alleged problem. THE PEOPLE THEMSELVES along with the rest "have agreed" over a span of time given their experiences that a lot more things than in 1787 or 1887 was involved when regulating the relevant commercial categories. This includes those "necessary and proper" to carry them out. Not "liberals." Not "the judiciary." All the groups in question. Everything isn't regulated here and states retain broad powers over the economy / cannot be generally forced to carry out federal policies. This makes our system different.

moved away from federal control, to restrain the federal government

so the states will co-opt the judiciary and not be properly restrained, going by your rhetoric? Again, clearly, you reject the Constitution's framework here, especially later amendments that increased the importance of individual rights that are enforced by federal officials since they are national rights of American citizens, and want to apply your principle. I don't find the principle copacetic but let's be honest about what we want to do here. The Constitution did not "fail" -- you already said though you think the Articles didn't work that the Constitution was an overcorrection. You want to correct that.

Finally, yet again, I wonder when your Golden Age (or when things were better) was. Or, did the Constitution never work? You are concerned about criminal justice. The system is imperfect, but there are a lot more protections in place then there was a years ago there in a range of ways down to a basic right of people charged with felonies in states having a lawyer assigned to them if necessary.

You are concerned about freedom of speech. Freedom of speech is protected by the courts (even if not enough for some) now more than in the past in a range of ways. OTOH, if your concern is more state control of the economy, perhaps the Lochner Era where manufacturing wasn't considered interstate commerce (but blacks, women, dissenters etc. received a lot less protection) was better.

# posted by

Joe : 10:01 AM

Apparently there is no balm to cure Brett's chronic case of "Wickburn." Perhaps he takes solace in that he is is lockstep with Justice Thomas.

As to Brett's Golden Age, I seem to recall that in the past he identified the Roaring Twenties when K-K-K-Katy was in full boom. I just missed the Roaring Twenties, being born in 1930. But Brett was not born until several decades later, having to face the impacts of Brown v. Bd. of Educ. (1954), the civil rights movement and the mid 1960s Civil Rights Acts, some aspects of which were based upon - DRUMROLL! - that nasty interstate commerce clause.

# posted by

Shag from Brookline : 10:44 AM

I can see that as a sort of end point with new amendments (I'll put the 19A aside), increasing federal power, Prohibition and so forth.

OTOH, again, priorities. That was also the start point of a growing concern for free speech, workers rights, criminal justice etc. But, the New Deal led to the growth of the federal regulatory state. Guess a conservative might favor the '20s.

# posted by

Joe : 11:55 AM

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# posted by

Bart DePalma : 12:33 PM

Brett:

I do not see a viable alternative to the federal courts for at least initial interpretation of federal law, including the Constitution. Thus, constitutional reform needs to precisely define the parameters of the power of judicial interpretation and grant Congress the power to check the judiciary through bills of revision and impeachment.

Here are the applicable provisions of my proposed checks and balances amendment:

Section 4. The judicial power shall include interpretation of this Constitution, Laws of the United States and Treaties, but such interpretation shall be limited to the original meaning of the language of the law as it was commonly understood at the time of its enactment. To the extent that the original meaning of a provision of this Constitution is uncertain, the Courts shall construe the language against the reviewed government exercise of power. Laws and Treaties which are vague or self-contradictory violate due process and are void. This section shall have retroactive effect and all prior judicial decisions exceeding the foregoing limits have no precedential value.

Section 5. Congress shall have the power to review and revise a judicial interpretation of this Constitution by the Supreme Court within five years after entry of the order of the Court. A bill revising a judicial interpretation shall originate in the House of Representatives and must be approved by a three-fifths vote of the Members present in the House of Representatives and the Senate. A bill of revision is not presented to the President of the United States and the President may not disapprove it. A bill of revision so approved is final and may only be changed by an amendment to this Constitution...

Section 8. The House of Representatives may impeach, and the Senate may try and remove from office, the President, Judges or other Officers of the United States for failing to enforce or abide by this Constitution, the Laws of the United States and Treaties by a five-ninths vote of the Members present.

# posted by

Bart DePalma : 12:33 PM

Joe: If you are concerned about the days of the Constitution being numbered, I suggest you focus on the whole alleged problem. THE PEOPLE THEMSELVES along with the rest "have agreed" over a span of time given their experiences that a lot more things than in 1787 or 1887 was involved when regulating the relevant commercial categories. This includes those "necessary and proper" to carry them out. Not "liberals." Not "the judiciary." All the groups in question. Everything isn't regulated here and states retain broad powers over the economy / cannot be generally forced to carry out federal policies. This makes our system different.

Progressive governments simply ignored the Constitution's express limits on governmental power and then progressive courts rubber stamped Congress's actions. There was no public debate beforehand on overriding these limits. Rather, progressives exploited public ignorance and fear during various economic crises to gut the Constitution's checks and balances.

Only recently has our constitutional system become a popular issue again.

# posted by

Bart DePalma : 12:40 PM

I have looked over Sandy Levinson's new book.

It is an impressive personal, modern day, analysis of each individual Federalist paper, each one covered in four or so pages with SL's by now well recognizable voice. To be honest, with it was a bit much for me to read the whole thing, with other books and probably much too emphasis on online materials. But, just skimming it is rewarding.

# posted by

Joe : 12:59 PM

"There was no public debate beforehand on overriding these limits."

The early Progressives surely took the debate about what the Constitution means to the public, decrying many Court decisions. Eventually they got the 16th, 17th, and 18th Amendments passed. So there was considerable debate there.

And the New Deal made the Court and the Constitution's meaning front and center in a very public, heated debate. The upshot? The public kept electing FDR and his supporters who eventually nominated Justices supporting their view.

There was a very public debate about these matters. People like yourself just lost that debate, spectacularly.

# posted by

Mista Whiskas : 10:59 AM

Group one consulted with the loan officer, and then took out a loan. Group two consulted with the loan officer, and then robbed the bank.

They both consulted with the loan officer before obtaining their funds, why would anybody think there was a significant difference?

That's about the substance of your position, Mista Whiskas.

We have a formal, legal process for determining if somebody has won the debate over whether or not to amend the Constitution: It's detailed in Article V.

If you don't use it, you've robbed the bank, no matter how confident you are you won the debate.

# posted by

Brett : 6:47 AM

Mr. W.'s noted, e.g., "Constitution's meaning front and center in a very public, heated debate." I don't quite understand where he granted the Constitution was "overridden." In response to a quote, he explained how there was a "public debate." This is "the substance of [his] position."

The words "public debate" doesn't mean "the formal public debate required to amend" but you might have been using your special dictionary that has confused me in the past. On the substance if the New Deal actually violated the Constitution, Mr. W. can if desired speak his piece, though imho along with the public at large it as a whole did not.

No bank robbed here.

# posted by

Joe : 12:46 PM

Brett,

The Founders were not naive, they were well aware there was going to be disagreement over constitutional provisions. And they wisely put in provisions to address that. There's an amendment process, but there's also a process whereby the people who will be interpreting the provisions are to be chosen by the political branches, so that disagreements could work themselves out the way they're supposed to in a democracy. As Joe says, no bank robbed here.

# posted by

Mista Whiskas : 6:38 PM

Just like at a bank, there's a process for making withdrawls, and there are tellers who can commit embezzlement. That an abuse is possible to commit doesn't mean it isn't an abuse.

Sorry, if you expect people who dislike your proposed changes to the Constitution to accept that they're legitimate, you must use Article V.

Formal procedure isn't important when dealing with people who agree with you. They'll always agree the outcome was legitimate. It's VERY important when you need people who disagree with you to accept that they lost fair and square.

# posted by

Brett : 9:58 AM

Sorry, but he is not "proposing changes to the Constitution."

Words have meanings. He said "there's also a process whereby the people who will be interpreting the provisions." INTERPRET. You think we are interpreting it wrong, but we don't think we are "changing" it.

For instance, a Republican presidential candidate (Hughes) wrote an opinion that held a minimum wage law was constitutional, joined by a justices nominated by Herbert Hoover and Calvin Coolidge, holding a previous opinion was wrongly decided. This did not imho "amend" the Constitution.

People often don't accept when they lost fair and square. It's hard. So, you know, your position isn't hard to understand.

# posted by

Joe : 8:14 PM

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# posted by

kangcilok : 5:34 AM