Balkinization: Further reflections on Super

Comments:

An extended quote from the post:

Article V enthusiasts assume that the ordinary rules of politics will somehow be suspended for a constitutional convention, yet they never even begin to explain how that would occur. Without a compelling reason to believe that a convention will rise above politics, we have a clear moral obligation to analyze the likely political consequences of what we advocate.

And for progressives, the answers about an Article V convention are not pretty. Currently, thirty state legislatures are controlled entirely by Republicans. Surely they will appoint solidly Republican delegations to any Article V convention, likely composed of their own most ambitious members. Even if those delegates somehow are not ideologues, they will be beholden to moneyed interests whom they hope will bankroll their future campaigns. With more than two-thirds of the states gaining more power under a one-state-one-vote system, it is difficult to believe that the convention will agree to award states votes based on population. Even if it did, however, unified Republican legislatures represent 59% of the states’ population. Moreover, many of the modest laws we do have restricting the role of money in politics might not apply in the unfamiliar setting of an Article V convention.

I don't think this can be adequately answered and the concern about current state control (which will use the current structure that horrifies to select delegates which will then influence the results) is only part of the problem.

I was open -- when it was on the ballot last year -- for my own state to have a constitutional convention. I think we are asked to vote on having one every twenty years or whatever. The people strongly rejected one, in part probably from fear of change. But, a federal convention, especially in these times? No thanks.

We do need to change public sentiment including acceptance of horrible public servants. In the first Constitutional Convention, leadership was key, from George Washington on down.

# posted by

Joe : 12:32 AM

(the proposition in New York was in 2017 ... it lost 83-17)

# posted by

Joe : 12:35 AM

"David's basic point that even the fairest election process would produce a number of victors most of us should be appalled by."

Yeah, I don't think you quite grasped his point, unless all you meant by that "most of us should be appalled by" is that everybody should share your opinions.

The point is that everybody doesn't. That we're a divided nation, and a really large fraction of the population would be appalled by YOUR positions.

That a properly functioning democracy, stripped of those supermajority requirements and veto points that so frustrate you, would routinely be doing things that would horrify you, because a lot of people genuinely disagree with you. They're entitled to disagree with you. In a democracy, if there are enough of them, they're entitled to put that disagreement into effect, too.

Our federal government is designed to default to inaction in the absence of consensus. That's a feature, not a bug. Maybe if you better grasped how often your opinions aren't shared, or are affirmatively rejected, you'd appreciate that more.

# posted by

Brett : 5:56 AM

"What would it take to lead more sober and thoughtful people than I, like David, to declare that Congress as an institution had in fact become "illegitimate"?"

Something other than a failure to do what David wants done, I assume.

Let's flip the question: What would it take you to declare that Congress, as an institution, WAS legitimate?

Let's say that, next year, Trump wins both the electoral college AND the popular vote. Republicans hold onto the Senate, and retake the House, in both cases with aggregate popular vote majorities. And then they start enacting Trump's agenda. The wall starts getting built, mass deportations of illegal aliens, the government officially aims at self-sufficiency in all resources and critical industries, Obama era regulations start falling like tenpins. The Antifa are prosecuted under the anti-Klan acts. Federal lawsuits force states to respect a maximalist interpretation of the 2nd amendment, and state gun control laws get quashed just like Jim Crow.

All as a result of the democratic process.

Legitimate?

# posted by

Brett : 8:07 AM

My basic concern with the idea of a Convention is how it gets formed and operated. As Joe suggests, there's a real risk that the undemocratic process prevalent in so many states would infect the Convention. Guarantee a truly democratic selection process for and voting process in the Convention, coupled with a truly democratic process for ratification, and I'd be much more amenable. I see it as a chicken/egg problem that you haven't adequately resolved the mechanics of.

Since you mentioned them in passing, I'll add that I'm also not a particular fan of initiative and referendum. I've seen the abuses because I live in CA. Direct democracy should be very rare, representation the rule.

"Let's say that, next year, Trump wins both the electoral college AND the popular vote. Republicans hold onto the Senate, and retake the House, in both cases with aggregate popular vote majorities. And then they start enacting Trump's agenda. The wall starts getting built, mass deportations of illegal aliens, the government officially aims at self-sufficiency in all resources and critical industries, Obama era regulations start falling like tenpins. The Antifa are prosecuted under the anti-Klan acts. Federal lawsuits force states to respect a maximalist interpretation of the 2nd amendment, and state gun control laws get quashed just like Jim Crow.

All as a result of the democratic process."

Not all of these involve the democratic process -- some would require Court rulings. But putting that aside, you've previously made your contempt for democracy pretty well known here. I don't see a good reason for any of us to respond to your hypothetical absent your own willingness to (a) democratize the system; and (b) abide by the results.

# posted by

Mark Field : 8:40 AM

Once again Brett confirms that for most of his life he was "lost" until "found" by the amoral Trump. Again, Brett, how do you address the racism of Trump and the Republican Party he leads to your mixed race son (Asian American)? Do you assume the Bull Connor White Supremacy stance depicted byf your comment photo? Or is that photo emblematic of Elmer Fudd?

# posted by

Shag from Brookline : 9:55 AM

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# posted by

Bart DePalma : 9:59 AM

Sandy:

Let's get specific.

What "certain kinds of "ordinary" constitutional reform" desired by the left do you believe an Article V convention will propose and 3/4 of the state legislatures or conventions will ratify?

What if the second convention lowered the ratification threshold from 3/4 to say 2/3, the way the first convention lowered it from a unanimous consent to 3/4?

Now, how much more likely is it for the Article V convention to propose conservative alternatives like caps on federal taxing, borrowing and spending which can only be overridden by a supermajority of Congress or a vote of the people?

This state math is why progressives are rightly terrified of the prospect of an Article V convention and I am certain will do everything in its power to sabotage one.

So long as progressives (socialists) remain an electoral minority concentrated in a handful of megalopolises and states, you need to stick with your very successful SOP of the past century: (1) Exploit crises to get elected, then create additional "mandatory spending" and transfer more power to the absolute bureaucracy; (2) Have progressive courts rewrite or erase the Constitution to rubber stamp these policies; (3) Then ignore the elected branches while the absolute bureaucracy decrees the vast majority of our law and the treasury automatically spends money permanently appropriated for various entitlements.

# posted by

Bart DePalma : 10:00 AM

"But putting that aside, you've previously made your contempt for democracy pretty well known here. I don't see a good reason for any of us to respond to your hypothetical absent your own willingness to (a) democratize the system; and (b) abide by the results."

I do abide by the results, if only for prudential reasons. As the Declaration states, "Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed."

Wise words.

Yes, I do have contempt for democracy, on a moral basis. It's a "least worst" system of making decisions where everyone needs to go the same way, but not even that where freedom is an option. And yet some people actually think it has something more than instrumental value, that it's a positive good to have people voting on matters that could be individual choices.

But the "legitimacy" of an outcome in a democratic system, unless you've decided to ditch democracy, is not measured by whether or not you like the outcome, it's a procedural question.

Sandy doesn't regard our current government as legitimate. I'd like to know what it would take for him to accept it as legitimate, and whether his criteria materially differ from "He gets his way on things that are important to him."

Personally, I've been out on the political fringe most of my life, and not living in any bubble chamber either, so I've never been under the illusion that my views were popular. I think the same maybe can't be said of Sandy.

# posted by

Brett : 11:44 AM

You didn't answer my questions.

# posted by

Mark Field : 11:47 AM

You didn't ask any.

# posted by

Brett : 11:54 AM

I want to reaffirm that it seems problematic to me for Prof. Levinson to be so appalled at the current structure of our government as well as the partisan control (both matter here) and trust some sort of constitutional convention. As I recall, SL was supportive of some lottery system to pick delegates to such a convention.

But, we don't live in a role playing game. The actual convention is going to arise from the existing system. I think this should be noted when critiquing (including in strong terms about how horrible it was) the result of the Convention of 1787.

The imperfect structure of the federal government arose from what was then present. For instance, the old rule was each state voted as a group. "In determining questions in the united states, in Congress assembled, each state shall have one vote." The fact that we didn't jump to a "one person, one vote" system is duly noted but you know yeah it wasn't going to happen. Ditto things like slavery. Given its place in the country at the time, the fact later governments were given wide discretion to deal with it is pretty notable.

The Articles of Confederation were crafted during the American Revolution. It barely was in practice. I have yet to find a full volume discussing how it was applied in the less than decade of its existence (one historian last year told me she was working on such a volume). And, its replacement was a result of a range of problems, including violent incidents such as Native American threats, the Shay's Rebellion and so on. Plus, it amounted to a continuance of the American Revolution itself in a fashion with George Washington presiding over the whole thing and others who were involved in the war there too.

A constitutional convention now would be quite different. Note we didn't even have one to replace the whole deal in the 1860s. As to public referendum, Mark has some reason to be concerned given he is from California. New York has a more indirect mechanism though even here I don't know how much the general public is aware of the measures on the ballot, at times relatively obscure things like use of some national park land or such.

# posted by

Joe : 12:45 PM

The obvious solution is to designate me as the modern Solon to write the new Constitution. :)

# posted by

Mark Field : 1:02 PM

Joe:

Less than a decade after winning their independence, the US confederacy was on the verge of becoming a failed state. State trade wars, fiat money and refusal to pay their debts created a raging stagflation, which reduced the GDP by an estimated fifth or more. The States looked into the abyss and called a convention to remake their political economy into a limited federal government.

Despite its imperfections, the worst of which being the original sin of slavery, this new political economy was the most successful in human history, transforming a bankrupt colonial backwater into the largest, most productive and wealthiest economy in the world in only a century.

While supporters of releashing the government, primarily the Convention of States movement, are working diligently under the radar to gain enough state applications to force an Article V convention, I have my doubts they will gain the necessary number of states unless we face similarly dire circumstances as those in 1787. That might take another couple decades when we face sovereign insolvency.

Of course, calling an Article V convention would be far easier if the blue states took Sandy's advice. For the reasons I noted above, I doubt any will.

# posted by

Bart DePalma : 1:18 PM

Joe and I could probably do it as a joint project too. Just in case somebody was seriously considering the idea.

# posted by

Mark Field : 1:21 PM

"I have my doubts they will gain the necessary number of states unless we face similarly dire circumstances as those in 1787."

And I doubt that, should the necessary number of states call for a Convention, Congress will admit that it has happened. It was somewhat of a mistake routing the process for holding a convention through Congress, given that the very purpose of holding it is to circumvent Congress.

To be clear, I seriously doubt a Convention will result in a better Constitution than we have now. I don't see a lot of evidence of a large enough fraction of the population clearly understanding what went wrong, and the entrenched elites have every incentive and ample opportunities to capture such a convention.

But what good is an excellent constitution that's not being followed? And lightning could always strike.

# posted by

Brett : 1:27 PM

I figure various people here can play a role with Shag type-cast as Ben Franklin.

My concern with putting things into perspective regarding 1787 is again not some sort of apologist effort to justify slavery or something. But, some understanding of the times might be warranted as should be the case when someone looks back in 2269.

# posted by

Joe : 1:39 PM

The founding fathers knew slavery was an abomination. Jefferson: "Indeed I tremble for my country when reflect that God is just: that his justice cannot sleep for ever:"

They just thought that slavery as an institution was declining, and that they could kick the can down the road to when it would be easier to abolish. Might even have been right about that, if not for the cotton gin making slavery so profitable.

The problem today isn't worrying that people 250 years from now will look at us and think us monsters. That's probable, and will probably relate to something that's though unremarkable now, like cremating our dead instead of freezing them so that they can be revived some day.

The problem today is that people are being evaluated on standards that change on an ever shorter time frame. They're being damned as monsters for stances that were uncontroversial even a few years ago. It's a moral virtue arms race, and accelerating all the time.

# posted by

Brett : 1:57 PM

Brett: And I doubt that, should the necessary number of states call for a Convention, Congress will admit that it has happened. It was somewhat of a mistake routing the process for holding a convention through Congress, given that the very purpose of holding it is to circumvent Congress. To be clear, I seriously doubt a Convention will result in a better Constitution than we have now. I don't see a lot of evidence of a large enough fraction of the population clearly understanding what went wrong, and the entrenched elites have every incentive and ample opportunities to capture such a convention.

The Constitution as written is not what we have now. Progressive courts have erased or rewritten much of it and conservative courts appear largely unwilling to reverse this mischief.

The only two means to restore and reinforce the Constitution are an Article V convention or an armed revolution.

I prefer the former, but am resigned to the reality things will have to get far worse before the states will apply for and Congress will be compelled to call an Article V convention.

# posted by

Bart DePalma : 2:02 PM

The fact that Jefferson could write about how horrible slavery was while doubling down on his own personal engagement in the matter speaks worse of him, not better.

# posted by

Mista Whiskas : 2:35 PM

"They're being damned as monsters for stances that were uncontroversial even a few years ago."

Like for using a personal email server?

Again, we won't hear about undue demonization of political opponents from the people who screamed that the Clinton's mustered Foster, Obama was a secret non-citizen Muslim, 'lock her up,' etc.

# posted by

Mista Whiskas : 2:39 PM

"The Constitution as written" is something we've shown here Bart doesn't know or care about. Like the caricature of the 'progressive mandarin' he spins he dumps the 'law as written' for his personal political philosophizing once it doesn't get the result he wants.

# posted by

Mista Whiskas : 2:40 PM

Meet the new Constitution. Same as the old Constitution

# posted by

Dilan : 3:03 PM

Dilan said...Meet the new Constitution. Same as the old Constitution

This is why any successful restoration and reinforcement of the Constitution will require an amendment restricting the scope of judicial review and granting Congress the checks of judicial impeachment for and a bill of revision changing unlawful exercises of judicial review.

# posted by

Bart DePalma : 3:06 PM

"The fact that Jefferson could write about how horrible slavery was while doubling down on his own personal engagement in the matter speaks worse of him, not better."

See, that's judging people then by, not just today's standards, but today's conditions. Could Jefferson have freed all his slaves, as a practical matter? He freed a few of them, but expressed the opinion that most of them were not by education or training capable of successfully living as free men and women.

Could he have done more to supply them with that education? Sure. But, by the standards of the day, he was on his way to being an abolitionist.

"Like for using a personal email server?"

Like being opposed to busing.

# posted by

Brett : 3:08 PM

"This is why any successful restoration and reinforcement of the Constitution will require an amendment restricting the scope of judicial review and granting Congress the checks of judicial impeachment for and a bill of revision changing unlawful exercises of judicial review."

You're blaming the tool, and not the people who wield it. The courts don't pervert the Constitution to expand the power of the federal government because that's what judges want. Judges want that because that's the sort of judges the people picking them are looking for. The judges are the tools, the President and Senate are the craftsmen of the judiciary.

You can't fix the problem while leaving the selection of the judiciary in the same hands, the problem is exactly that the judiciary are selected by the people the Constitution they're interpreting is supposed to restrain. That inherent conflict of interest is the exact source of the problem.

# posted by

Brett : 3:16 PM

"You're blaming the tool, and not the people who wield it. The courts don't pervert the Constitution to expand the power of the federal government because that's what judges want. Judges want that because that's the sort of judges the people picking them are looking for."

Brett's absolutely right about this, but draws the wrong conclusion.

There's no way to completely isolate the independence of anyone. We certainly try to reduce the effect of outside politics and public opinion on judges, but you can't eliminate it. Judges are human beings who belong to political parties, and they are nominated by politicians who are members of those parties and who want them to be loyal to them. Plus, it's not fun to be unpopular. And finally, there is a notion of popular legitimacy which is extremely important. I dislike Andrew Jackson's "Mr. Chief Justice Marshall has issued his opinion, now let him enforce it" as much as anyone, but there was a sense in which Jackson was actually right. The courts don't have unlimited power to override public opinion. If the vast majority of Americans were pro-life, Roe v. Wade wouldn't work-- people would just massively resist it. The South massively resisted school integration. Had a court declared the Iraq War unconstitutional, the political system would have simply ignored the ruling and kept at it.

The courts maintain the authority they do to be occasionally countermajoritarian by, say, protecting the free speech rights of flag burners, because they stay within the basic confines of public opinion most of the time. This is unavoidable and will be unavoidable under any constitutional system.

# posted by

Dilan : 3:31 PM

Brett just doesn't trust judges, courts and lawyers. Brett got his "start" as an Internet troll based on this when he was not pleased with the divorce proceedings he was involved in, including being critical of his own lawyer. Brett does not seem to be of the view that Trump as president is engaged in a conflict of interest in taking care of his personal business interests rather than taking care of America's business. Trump is corrupt and once again that old Greek saying "The fish rots from the head down."

Brett does have a problem with the president's role in nominating judges/justices as well was with the Senate's role in the confirmation process, describing both the president and the Senate as the "craftsmen of the judiciary." Perhaps Brett would prefer anarchy.

# posted by

Shag from Brookline : 3:41 PM

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# posted by

Bart DePalma : 3:49 PM

Brett: The judges are the tools, the President and Senate are the craftsmen of the judiciary. You can't fix the problem while leaving the selection of the judiciary in the same hands, the problem is exactly that the judiciary are selected by the people the Constitution they're interpreting is supposed to restrain. That inherent conflict of interest is the exact source of the problem.

The problem of abusing judicial review to erase or rewrite the Constitution's limits on government precedes the selection process and begins with personnel pool. The legal profession is part of a mandarin caste with a totalitarian world view, which is reinforced by required law schools teaching erasure and rewriting the law in pursuit of progressive policy is not only permissible, but desirable.

After judges are chosen from this pool, they are under heavy institutional pressure to conform to this standard of judicial review. This is why "conservative" justices like Kennedy and Roberts "evolve" into progressives, but progressives never evolve into conservatives.

Even those judges who stay the course often defer to plainly lawless precedent in the name of stare decisis.

Thus, when the people elect a POTUS and Senate which appoints lawyers they believe to be original meaning jurists, many will still evolve into progressives and even more will decline to reverse progressive precedent.

The best constitutional remedies I have developed are:

(1) Amend the Constitution with specific, categorical provisions limiting government power which cannot be easily rewritten or avoided.

(2) Prohibit the government from licensing the practice of employment like law to break up the professional guilds like our current legal profession, taking away the mandarin caste's primary means of power and rent seeking.

(3) Expressly limit judicial review to the original meaning of the law as written and mandate courts interpret any vague law with a presumption against the exercise of government power and the preservation of individual liberty. No more presumption of constitutionality rubber stamping unconstitutional laws.

(4) Grant Congress the checks of impeachment of judges who violate (3) and the ability to reverse and replace the unlawful exercise of judicial review with a bill of revision with an alternate opinion, which future courts may not rescind.

# posted by

Bart DePalma : 3:51 PM

Well, there's two questions with respect to constitutional government and judges.

1. How independent do you want judges to be?

2. How much power do you want them to have.

1, I think the answer is obvious-- as independent as you can get while still having some accountability for misbehavior. And I think the Constitution gets that issue pretty much right.

But 2, you can definitely argue either way. Plenty of countries we consider free, like the United Kingdom, have less judicial review than we do. And there's a cost to judicial review-- if you have robust judicial review, it can produce things like the Lochner era, and even short of that, it definitely takes questions out of the political system and democratic give-and-take. I don't have a lot of sympathy for the right on questions like abortion and gay marriage, but they aren't wrong that the product of judicial review is that even polities with majorities or supermajorities that have strong feelings about these issues cannot act on them. The same with the left on things like affirmative action or suits against state governments.

So I don't think anyone is a horrible person for having a different position on 2 than I do. There are definitely problems with aggressive judicial review and also problems with insufficient judicial review. I do think, however, that everyone needs to be realistic about 1-- you aren't going to ever have neutral Platonic guardians.

# posted by

Dilan : 3:51 PM

As for Bart's comment, the problem with super-specific constitutional limits is that society changes and you can end up with rules that don't fit the new society.

You don't have to be a fan of the maximal interpretation of the Commerce Clause (Wickard/Raich), for instance, to understand that we have trillions of dollars of actual bona fide interstate commerce now whereas we didn't in 1787. Having a Constitution with a Commerce Clause, which allows Congress to exercise more power now that interstate commerce is so much larger a component of our society, is therefore much better than having a Constitution with strict limitations. Indeed, what would have ended up happening is that it would have been amended during the Great Depression anyway. So your limits would have gone away. Or judges would have interpreted them out of existence.

Scalia used to praise an article by Henry Monaghan called "Our Perfect Constitution". The point was there's no such thing as one. You can't expect one document to solve all the complicated problems of governance. In the end whether you are on the right or the left, you have to persuade your fellow citizens with respect to arguments about the size and scope of government.

# posted by

Dilan : 3:56 PM

Jefferson mixed with many others of the Founding generation who never owned a slave and did quite well for themselves. Jefferson had a friend/neighbor that manumitted his slaves and urged him to. But Jefferson was a bit profligate and a lot of a hypocrite and doubled down on his engagement with enslaving others.
https://www.smithsonianmag.com/history/the-dark-side-of-thomas-jefferson-35976004/

# posted by

Mista Whiskas : 4:17 PM

# posted by

Brett : 4:23 PM

Dilan: As for Bart's comment, the problem with super-specific constitutional limits is that society changes and you can end up with rules that don't fit the new society.

Agreed. We also need to lower the threshold for amending the constitution to 3/5 of the states.

You don't have to be a fan of the maximal interpretation of the Commerce Clause (Wickard/Raich), for instance, to understand that we have trillions of dollars of actual bona fide interstate commerce now whereas we didn't in 1787.

The Commerce Clause would need to be replaced with a more specific provision limiting Congress's power to regulating interstate trade.

That being said, the national government should enjoy a general police power to prevent interstate (but not intrastate) harms missing from the original Constitution. This would be limited primarily by a liberty amendment guaranteeing a fundamental right from government direction, which government may only abridge to prevent people from harming others by denying them life, liberty or property.

# posted by

Bart DePalma : 4:23 PM

Also:
https://www.nytimes.com/2012/12/01/opinion/the-real-thomas-jefferson.html

# posted by

Mista Whiskas : 4:23 PM

"leaving the selection of the judiciary in the same hands, the problem is exactly that the judiciary are selected by the people the Constitution they're interpreting is supposed to restrain."

1. The Constitution is meant to restrain the state's as well.

2. This reasoning assumes that a federal senator or representative is somehow divorced from the people of their state or district and instead lies with the federal government in the abstract. That's silly even if we assume self interested actors-a senator or rep who sides with 'the federal government' (over which they have at best a small fraction of control) in ways unpopular with their constituents is not acting like a self interested rational actor

# posted by

Mista Whiskas : 4:30 PM

May I have your attention, please?
May I have your attention, please?
Will the real Tom Jefferson please stand up?
I repeat, will the real Tom Jefferson please stand up?

We're gonna have a problem here
Y'all act like you never seen a slave owner before ...

# posted by

Joe : 4:32 PM

"The Constitution is meant to restrain the state's as well."

Not even "as well". It's principal purpose was to restrain the states.

# posted by

Mark Field : 4:37 PM

"As for Bart's comment, the problem with super-specific constitutional limits is that society changes and you can end up with rules that don't fit the new society."

So what? That's the point of having an amendment process. If society changes, and finds the Constitution a poor fit, they can change it to be a better fit.

Allowing constitutional "change" outside the amendment process has multiple problems.

1. Well positioned players can use the pretext of societal change to impose unwanted constitutional change on a society that hasn't really changed in the relevant manner.

2. "Interpreting" constitutional language to "mean" things the words don't naturally mean can cause an ever widening gulf between the Constitution in practice, and the Constitution on paper. Think people don't notice that? Don't care?

3. People can easily pick up a copy of the Constitution and read it, and understand it. Discovering the Constitution in practice is far, far more difficult, and subject to you making choices based on it, only to find it has 'changed' yet again even if you'd happened to be right at the time you assessed it.

4. Staffing problems. A legal system that 'interprets' fundamental law as 'meaning' something different from what it says is a legal system that has to be staffed with people who are comfortable reading one thing, and saying it means another thing. Think they'll only deploy that skill on command?

No, I think the advantages of a written constitution which only changes when amended are both numerous and profound. We shouldn't sacrifice them just because some people want amendments that the public would never agree to ratify... which is, let's fact it, the real reason the practice was adopted.

Brett, the problem with saying "we can amend the Constitution" is that it's like the debt ceiling fight. You give trolls maximum leverage.

What do I mean by trolls? Well, in the debt ceiling fight, it is absolutely clear that the US must pay its debts. We know this. None of us, liberals or conservatives, want the US government to default.

But someone can decide to use the debt ceiling as a hostage taking maneuver, threatening to ruin everything to attain some political goal. We have seen both parties try this.

Well, that's what happens if you rely on the amendment process to handle societal change rather than having a flexible constitution. A minority can hold up even a change that everyone knows is needed, to try to attain policy goals. It can hold the government hostage.

And what will eventually happen is that if you don't amend the Constitution, and the change is truly needed, the courts will find a way to allow it. And then guys like you will complain they aren't following the Constitution as written.

So you don't get a better process with a more specific and limited Constitution.

I should add that this is a big part of why the Articles of Confederation were scrapped. They actually tried having a Constitution closer to your ideal. It didn't work.

# posted by

Dilan : 4:40 PM

Not even "as well". It's principal purpose was to restrain the states.

It's principal purpose was to ensure the continuation of slavery. It's secondary purpose was to replace a failed charter of the government with one that gave more power to the federal government.

Restraining states was, at best, a tertiary purpose.

# posted by

Dilan : 4:42 PM

Dilan: A minority can hold up even a change that everyone knows is needed, to try to attain policy goals. It can hold the government hostage.

This is the only way to prevent tyranny of the majority and is a primary guarantor of our individual liberty.

Once again, the purpose of our government is to protect our rights to life, liberty and property, not to efficiently "get things done." Indeed, the latter power is a clear and present danger to the former purpose.

# posted by

Bart DePalma : 4:46 PM

Bart:

There's nothing inherent in holding the government hostage that ensures it will be used in the service of individual liberty. It's a tactic that is as often used to thwart liberty.

I mean, to choose the obvious example, the various filibusters of Southern Senators in favor of Jim Crow laws and against civil rights bills were not in the service of individual liberty.

# posted by

Dilan : 4:49 PM

Dilan: There's nothing inherent in holding the government hostage that ensures it will be used in the service of individual liberty. It's a tactic that is as often used to thwart liberty. mean, to choose the obvious example, the various filibusters of Southern Senators in favor of Jim Crow laws and against civil rights bills were not in the service of individual liberty.

Rarely.

I can call your CRA and VRA and raise you literally hundreds of times our checks and balances requiring supermajority rule have stopped or at least limited elected government abridgments of our liberty and takings of our wealth. Peruse all the bills which were offered, but never enacted.

BTW, we need an amendment to eliminate the filibuster. The Seante adequately protects geographic interests with a simple majority vote.

# posted by

Bart DePalma : 5:09 PM

I am SHOCKED to see Blankshot defend screwing over minorities so that wealthy white people can pay lower taxes. SHOCKED!

# posted by

Bartbuster : 5:17 PM

On the previous thread I expressed skepticism about holding a president in contempt. I still am dubious about that. But I do think it might be appropriate to hold in contempt anyone who appears with Trump at tonight's rally. He's deliberately trying to get Ilhan Omar killed.

# posted by

Mark Field : 9:04 PM

Mark:

Omar has quite the record blaming the US for terrorism, delivering nearly every antisemitic trope in the book and is very possibly a felon defrauding the United States if the stories are true about her marrying her brother make possible his immigration.

No worries, though. The Democrats are not about to call to account a "woman of color." That would be racism.

Trump has no such identity politics compunctions. If the Democrats will not hold them to account, Trump will make Omar and the rest of the Squad the face of the party.

# posted by

Bart DePalma : 11:11 PM

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# posted by

Joe : 11:13 PM

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# posted by

Joe : 11:17 PM

I am inclined to think that punishing a politician for attending a lawful political rally is a clear First AmeAmendment violation, and that the contrary position is unlikely to persuade a single federal judge.

# posted by

Dilan : 1:44 AM

To Sandy's main point, the problem is not that the People cannot be trusted with a Constitutional Convention or Constitutional reform, the problem is that it is not the People who would do either but the States, and they are not the same as the People. The justly democratic way to Constitutional reform would be via national plebiscite, but our governmental structure doesn't allow for that and, of course, any such change would have to go through that current structure, so it's a real Catch-22.

# posted by

Mista Whiskas : 5:52 AM

"This would be limited primarily by a liberty amendment guaranteeing a fundamental right from government direction, which government may only abridge to prevent people from harming others by denying them life, liberty or property."

I'm going to comment on this because I think it's emblematic of the dangerous pipe dream that people like Bart and Brett have, this pipe dream that we can there are really simple answers to complex realities and that if we just change enough about our political system we can get that in it.

Let's note first that Bart and Brett seem at times to frame this discussion as one of having to 'restrain' federal judicial power and practice to clearly written provisions of the Constitution. But upon closer inspection it seems what they really want is a much more active federal judiciary, one that would strike down the numerous laws that make the federal government more active. So from the beginning what they want is a way to neuter federal judges yet empower them. They'll of course answer this with a tired 'no, what we want is for the judges to be more active in the 'correct' ways and more restrained in the 'correct' ways,' which, of course, is just another way of saying 'judges who would produce outcomes we like.'

Secondly, it's worth noting that Bart has in the past been on record that he thinks federal judges should *already* read this a-textual 'liberty presumption' or restriction into the Constitution's provisions. As well as reminding us of his ongoing un-seriousness re propagandist employ of slogans such as 'Constitution/law-as-written' this points to something important: everyone, everyone, self-proclaimed 'textualist' or not, in *practice* wants to read a-textual preferences into the text of the Constitution. This suggests to me that the kind of textualism that is often offered up provides no real restraint at all and/or is an impossible project that no one *really* believes can or should be followed.

Thirdly, let's take Bart's proposed amendment itself. I'm not sure it solves many of the problems even in terms of his (sometimes!) stated preferred outcomes. Examples come easily to mind. Person A in state B engages in a living trapping a certain animal that migrates into state C at times, person D in state C engages in a living guiding tours to see the certain animal in the wild. Person D is worried that person A is overhunting the animal in question and petitions the federal government to regulate its trapping/hunting. If the government does not act, person D's livelihood is impacted (their 'liberty' right to follow their trade or their 'property' right in same), if they do then person A's livelihood is. A judge is still going to be called on to decide whether this matter violates Bart's proposed 'restriction,' yet a reasonable judge could make a case either way here.

# posted by

Mista Whiskas : 6:13 AM

The reason it's hard to create a Constitution that will always and forever yield outcomes Bart and Brett prefer is that any Constitution is going to have to use broad and vague terms about which people disagree because different people have different ideas about concepts such as 'liberty,' 'cruel,' 'property,' etc. The only way to make these concepts not have broad meaning is if you import the entire tenants of Bart or Brett's personal political philosophy into the text, in other words, simply instituting their preferred outcomes into the law and not allowing the People to come to any other conclusion in their own polity. As should be obvious, this kind of thinking which here masks itself in talk of freedom and liberty is, of course, simply authoritarianism.

That is what you tend to get though when you hold democracy and democratic values in high regard. Authoritarianism. Because you don't value the idea that other people might come to a conclusion that you're wrong about what rights are fundamental, what constitutes a right, etc., you think you've got the answer and everyone should *have* to follow yours. Ironically you label any decision by the People to do otherwise as 'tyranny' (of the majority!). But what they really want is to impose their tyranny of the minority.

# posted by

Mista Whiskas : 6:14 AM

"Well, that's what happens if you rely on the amendment process to handle societal change rather than having a flexible constitution. A minority can hold up even a change that everyone knows is needed, to try to attain policy goals. It can hold the government hostage."

And, if you rely on the judiciary to 'amend' the Constitution, what you get is unpopular changes being pushed through, and then you need a super majority to overturn them and restore the status quo ante. Instead of stasis being the default, change becomes the default, and instead of being the least dangerous branch, the judiciary becomes the most dangerous branch.

But, my point here in #4 is that we don't have a "flexible" constitution!

We have a 'rigid' constitution which we pay judges to lie about being 'flexible', and that's not the same thing, not remotely, and that was my point.

We could discuss the merits of having a second knee between your normal knee and your ankle. Maybe it would enable a particularly efficient gait, or something. But if you forced somebody's legs to bend there, they wouldn't have a second set of knees, they'd have broken legs.

We don't have a flexible constitution. We have a broken constitution. Adding that "flexibility" without changing one word of the text came at a horrific price, one we'll never stop paying until we either splint the breaks and let them heal, or graft in a pair of "knees".

I know which I'd prefer, but either would be an improvement over what we have now.

# posted by

Brett : 6:15 AM

"I am inclined to think that punishing a politician for attending a lawful political rally is a clear First AmeAmendment violation, and that the contrary position is unlikely to persuade a single federal judge."

I could be wrong, but I'm pretty sure he's talking about Congress holding him in contempt.

# posted by

Mista Whiskas : 6:16 AM

Surely Brett's crocodile tears about demonization of political opponents will be on full display considering a crowd chanting that we should 'send back' to another country a citizen and political opponent who has said things they disagree with...

# posted by

Mista Whiskas : 6:21 AM

"The reason it's hard to create a Constitution that will always and forever yield outcomes Bart and Brett prefer"

See, you've just demonstrated you don't understand our complaints.

Yeah, I have outcomes I'd prefer, but my complaints have been about procedure. I'm not a "The end justifies the means." sort of guy. If the designated procedure is followed, I'll accept the outcome as "legitimate", and if I can't, I'll flee the country or something.

If Sandy and I got our constitutional convention, and one of the things it came up with was a repeal of the 2nd amendment, and the states ratified it, that would be it: No more RKBA in the US. I'd be very unhappy about that, sure, but I wouldn't whine about it being unconstitutional to take my guns away. "Bad policy" and "Unconstitutional" are orthogonal, a hard concept for living constitutionalists to comprehend.

OTOH, if the Democrats just pack the Court, and get a ruling that the 2nd amendment 'means' something absurd, (Like the late Stevens wanted.) no, I'm not going to accept that as legitimate, because the 2nd amendment would still be there in the Constitution. And a lie doesn't become the truth just because five guys in black robes tell it.

You keep wanting this to be about who should have the money, when we're complaining about the bank robbery.

# posted by

Brett : 6:31 AM

A Constitution that is littered with broad terms ('reasonable,' 'due,' 'regulate,' 'cruel,' etc.,) susceptible to many understandings (especially in their application!) is by definition going to be 'flexible.'

What's cruel to you might not be to me.
What process is 'due' to someone in any given situation (and there are a myriad of possible different relevant situations) might differ between us.
What the power to regulate entails is something reasonable people can disagree on (you might think it can only restrict extant activity, I might think if can proscribe and prescribe, etc.,).

There's no way out other than to have your preferred outcomes spelled out in the text. You want to Constitutionalize your preferences as outside of the democratic process. You mask this by saying 'well I just want to do this when government acts, not when it doesn't, so no one is harmed' but that too is a contestable axiom of your particular philosophy. To many other reasonable people, and in a tradition going back to the DOI, *prevention* of the government, the tool of the polity, from acting is just as bad a grievance as when it acts grievously.

# posted by

Mista Whiskas : 6:33 AM

"'means' something absurd"

But the process you describe is totally within 'procedure.' The Constitution prescribes a way to decide cases and controversies about what it means. It prescribes how the Court can be shaped. If a Congress expands the Court and the Court says the 2nd Amendment doesn't include an individual right the exact procedure for deciding that would have been followed. You're just insisting that your interpretation is the only 'non absurd' one and if the People, via the already laid out process, come to another idea, then it's not legitimate. As I said, you want Brett's rule.

# posted by

Mista Whiskas : 6:37 AM

It's "within procedure" in the same way embezzlement is within accounting. Judges are entitled to rule the Constitution means anything they like in the same way accountants are entitled to just hand the money they handle to anyone they want.

# posted by

Brett : 7:13 AM

That's actually a good analogy. It's like your complaining about a perfectly legal accounting practice that you just don't like or don't like the outcome of. When you say 'judges are[n't] entitle to rule the constitution means anything they like' you mean 'they aren't entitled to rule the constitution means anything I don't think it does.'

Now given you have no legal training or experience that's a pretty wild stance to take.

# posted by

Mista Whiskas : 7:20 AM

I would disfute Mr. W's:

"Now given you have no legal training or experience that's a pretty wild stance to take."

a bit to point out Brett's legal experiences with his divorce proceedings that led him to troll the Internet to express his problems with the legal system, judges, lawyers, even his own lawyer. There's sort of a parallel with Trump and his messy first divorce played out in the media by Trump, but resulting in upsetting Trump's pre-nup, as Ivana fought back with the help of lawyers working through the legal system. Brett's personal experience has been extended by him into how a nation of 330 million should be governed by a legal system.

Brett subsequently went "international" perhaps in the sense of Trump with his third marriage, siring a mixed race son (Asian American). Brett continues to duck how he addresses the racism of Trump, the leader of the current political party, with his son. Brett has swallowed Trump's long history of amorality and racism, along with the Revengelicals. Brett's screed on the legal system is personal. Brettt is the tail of Trump the dog wagging about complex issues, well beyond the dispute in his divorce proceedings. Maybe Brett is that stupid.

# posted by

Shag from Brookline : 8:01 AM

Yes, do I realize you're not going to admit that the words of the Constitution actually have meaning independent of what a judge rules, such that they can rule wrong. You're a formalist so long as you like the ruling.

That's one of the things I was getting at with that list above. If the Constitution were some secret document only the high priesthood of judges were allowed to read, or it was written in ancient Sanskrit, judges could pretty much get away with making it up as they go along. But it isn't, it's written in English, and publicly disseminated.

So, when judges pull some 'interpretation' out of their nether regions, people notice. This has real world consequences.

If there had been a "right to abort" amendment, Roe v Wade wouldn't have been so controversial, we wouldn't still be fighting over it decades later. But there wasn't, they DID pull that ruling out of their nether regions, it is ungrounded in the publicly available text, so it gets no respect from anybody who doesn't like it as a policy choice. The decision to impose it by judicial fiat rather than attempt to put that 'right' formally into the Constitution has had its effects.

Similarly, the 2nd amendment IS in the Constitution, until repealed through Article V. That will, equally, have consequences, even if a future Court decides to hand wave it away the way Stevens wanted to. Nobody who didn't already like gun control is going to accept that ruling as legitimate, the way they'd have to accept an actual amendment, because it will be a judicial lie, and everybody will know it.

That's one of the prices you pay when you treat a written constitution like this.

# posted by

Brett : 8:22 AM

"to hold in contempt anyone who appears with Trump at tonight's rally"

If something is protected by the First Amendment, holding the person in contempt would be wrong too. But, anyway, that is a rather open-ended argument.

My immediate reaction, I'll say it in this form now, is that what Trump was doing is a form of incitement. But, it's very tricky even for the average person to make that actionable. See, e.g., Terminello v. Chicago and Feiner v. N.Y.

Part of the impeachment counts of Andrew Johnson was for intemperate speech but free speech law is stricter today. Plus, realistically, there are not going to be impeachments on this ground or even contempt motions. Of course, if a party wants to decide this sort of thing is not appropriate, they need not support such people.

But, this doesn't mean we should not be aware of what is going on. The blind won't see, but others will realize it is dangerous. Both to our basic republican values & at some point the personality safety of individuals. Members of the government have already been attacked and their offices targeted.

# posted by

Joe : 8:30 AM

Virtually all contempt citations involve speech. The 1A doesn't immunize that.

And I agree with Joe that Trump (and others) are inciting violence against Omar. He's probably also right that as a practical matter nothing will be done. After all, nothing was done when an MP was murdered during the Brexit campaign. But that's not a slope we should be sliding down.

# posted by

Mark Field : 8:55 AM

I've got no particular problem with Democrats holding Republicans in contempt, the feeling is certainly mutual.

I do have problems with assassination attempts, like the attempt to gun down the Republican House caucus.

Let's be clear about which party has organized bully squads attacking anybody they disagree with, while local police watch passively. It isn't the Republican party. And the Antifa are starting to get tired of concrete filled soda cans and toxic "milkshakes", pretty soon they're going to be packing heat and using it.

That's when we move into civil war territory. But the left hasn't gotten to the point where they're ready to repudiate their goon squads yet. So we may end up there. But it won't be Trump supporters starting it, and all this projection on the left about how violent the right is gets tiresome after a while.

# posted by

Brett : 8:57 AM

This comment has been removed by the author.

# posted by

Bart DePalma : 9:00 AM

BD: "This would be limited primarily by a liberty amendment guaranteeing a fundamental right from government direction, which government may only abridge to prevent people from harming others by denying them life, liberty or property."

Mr. W: what they really want is a much more active federal judiciary, one that would strike down the numerous laws that make the federal government more active. So from the beginning what they want is a way to neuter federal judges yet empower them.

Given the purpose of government is to protect our rights to life, liberty and property, enforcing the constitution's protections of those rights is arguably the judiciary's primary duty.

That being said, a liberty amendment is actually focused on Congress. (Another separation of powers amendment would strip the bureaucracy of legislative and judicial power) The last provision of my draft amendment compels Congress to declare the harms being addressed by legislation in the hopes it would focus Congress on the limits of its power and give a reviewing court the basis for congressional action as opposed to engaging in post facto justification for some plainly unconstitutional act.

Mr. W: Secondly, it's worth noting that Bart has in the past been on record that he thinks federal judges should *already* read this a-textual 'liberty presumption' or restriction into the Constitution's provisions.

Randy Barnett proposed judges apply a presumption of liberty, but the Constitution neither defines liberty or requires such a presumption and judges are not taking on this task themselves. Thus, the proposed amendment.

Mr. W: Thirdly, let's take Bart's proposed amendment itself. I'm not sure it solves many of the problems even in terms of his (sometimes!) stated preferred outcomes. Examples come easily to mind. Person A in state B engages in a living trapping a certain animal that migrates into state C at times, person D in state C engages in a living guiding tours to see the certain animal in the wild. Person D is worried that person A is overhunting the animal in question and petitions the federal government to regulate its trapping/hunting. If the government does not act, person D's livelihood is impacted (their 'liberty' right to follow their trade or their 'property' right in same), if they do then person A's livelihood is. A judge is still going to be called on to decide whether this matter violates Bart's proposed 'restriction,' yet a reasonable judge could make a case either way here.

You hypo needs a law of Congress against which to apply the proposed liberty amendment.

# posted by

Bart DePalma : 9:01 AM

Was the chant at Trump's NC rally "Send her back!" spontaneous or orchestrated by Trump? Presumably Trump's lemmings needed to be instructed. Was the intent incitement? Or just a cheap shot by Trump with his tie pointing to his brains? Of course Trump is aware that the "her" in the chant of Trump's lemmings doesn't have any where near the same federal protection provided Trump.

I don't know SPAM or Brett's reaction to the chant. But I would not want to send either of them back in the sense of Trump's racist tweets that inspired the chant. No, I want SPAM and Brett to be around to demonstrate that America has long survived efforts at White Supremacy If Trump's go-back efforts succeeded, America's economy would fail, as well as it leadership in the world, resulting in national security threats. Trump is trolling his lemmings. At some point Trump's lemmings may realized that they have been duped. Trump's weakness is from within, as Trump as "Music Man" is tone deaf.

By the Bybee [expletives deleted], might Trump at some point look for sanctuary via Putin or MBS?

# posted by

Shag from Brookline : 9:02 AM

"But it isn't, it's written in English, and publicly disseminated."

Sure, but the meaning is often 1. not obvious and 2. the text itself plainly states that there is a process for deciding what the meaning recognized at law will be.

It's no more obvious that Roe is wrong than that Alden v. Maine, New York v. US, Shelby Country, and many other cases that conservatives are fine with but involve a-textual doctrines.

It's also not obvious that the language of the 2nd Amendment means an individual RKBA. There's no mention of an individual right at all. There's the language about the importance of militias. And more importantly, *nobody* thinks it should be taken entirely literally (no one would say it bars, say, preventing dangerous felons from having machine guns even though this exception is not mentioned).

No, what we're at here is this: for Brett, anyone who doesn't read the Constitution the he thinks is obvious has an illegitimate reading, and even if that reading becomes law *via the process laid out for deciding the proper reading* it is still illegitimate in Brett's eyes. He's *exactly* at the same place he accuses Sandy of being, every accusation is, for many conservatives, after all a confession.

# posted by

Mista Whiskas : 9:03 AM

Contempt can be speech related.

Dilan cited free speech concerns. You said the issue at hand was contempt. So, we have to determine if the contempt citation is legitimate. I flagged an old case in a past thread where strong remarks against a court by a newspaper was deemed protected speech; it was a split court from the 1940s. The dissent thought, in part citing the case GM referenced in his post, that contempt was appropriate. The rules are stricter now.

Using contempt power to hold some Republican member who stood next to Trump or was at the rally is a dubious exercise in practical and probably legal terms. Something should be done. But, it need not be that. There are other things we can do.

(For instance, a member of Congress who made similar remarks, repeatedly and after being warned about it, can be stripped of their position on a committee. The caucus has the power to do that. At some point, remarks can lead a person to be censured there as well. But, mere presence at the rally might be debatable even there.)

# posted by

Joe : 9:07 AM

"Person D is worried that person A is overhunting the animal in question and petitions the federal government to regulate its trapping/hunting"

That's the proposed law, a law to prohibit interstate commerce in trapping/hunting of the animal in question.

Now, what does the proposed amendment say about it? A reasonable judge could say that the law should be upheld as protecting liberty or property rights of the guide while an equally reasonable judge could say the law should be barred because it infringes on liberty or property rights of the trapper/hunter.

In other words, it doesn't get you out of the problem at all, because the problem is inherent in the fact that Constitutions invoke broad principles and concepts about which reasonable people can disagree (and even more so when it comes to specific applications of the principle). The search for bright line, 'easy' rules is chasing a soap bubble.

# posted by

Mista Whiskas : 9:08 AM

Is SPAM aware that Randy Barnett (with a co-author) suggested as part of the New Originalism to consider the "spirit" of the Constitution to interpret/construe portions of the Constitution whose original meanings are not clear. Both textualism and originalism continue to evolve. Randy is dandy with the Ouija Board of constitutionality. Now if only Randy can get over Raich - and Scalia.

# posted by

Shag from Brookline : 9:08 AM

Mark & Joe,

Are you talking about contempt (like the power used for people who obstruct congressional investigations) or condemnation (such as the recent house vote)?

# posted by

Mista Whiskas : 9:15 AM

Mr. W: "Person D is worried that person A is overhunting the animal in question and petitions the federal government to regulate its trapping/hunting" That's the proposed law, a law to prohibit interstate commerce in trapping/hunting of the animal in question.

This is actually a simple hypo.

Wild animals are public property.

Hunting is a person taking that property.

Thus, the proposed liberty amendment would permit government regulation of hunting.

# posted by

Bart DePalma : 9:23 AM

It occurs to me that since I stipulated that the animal in question in my hypo is a migratory one that in the course of nature travels between states that I don't even have to include the term 'interstate commerce' in my hypo, even trapping/hunting entirely in-state with intended in-state purposes would certainly impact any interstate commerce involving the species.

# posted by

Mista Whiskas : 9:24 AM

But a reasonable judge couldn't hold that a trapper/hunter has a liberty interest in following their occupation? Or that the person is more 'using' public property than 'taking' it?

See, I don't see the provision as clearing up much at all.

# posted by

Mista Whiskas : 9:27 AM

I'm talking about contempt. Joe is too, though he's suggesting other remedies (which I would also a support).

As for Brett's claim that the Constitution is "fixed", that's absurd. Jonathan Gienapp's book, discussed here not so long ago, is one of many works demonstrating the opposite.

# posted by

Mark Field : 9:29 AM

Are you talking about contempt (like the power used for people who obstruct congressional investigations) or condemnation (such as the recent house vote)?

My remarks after the Mr. W./Dilan back and forth took for granted the issue was a contempt vote. I take contempt to be a more specific concrete penalty against a person while the resolution is more a form of government speech expressing an opinion on the matter. I personally don't think such a resolution would always be proper especially if it is basically a bill of attainder in all but name.

But, yes, contempt power and a resolution would be separate things.

# posted by

Joe : 9:32 AM

I don't know much about the contempt power, only familiar with its use with witnesses and officials that are allegedly obstructing congressional investigations or legal demands...

As to the other point, not only does Brett have to claim the meaning is fixed but that it's obvious such that those disagreeing with his ascertation of the 'obvious' meaning means bad faith (talk about demonizing those you disagree with!) and illegitimate even when the process prescribed by the same text for determining meaning has been followed. He's in the same boat he casts Sandy as being in-thinking a branch illegitimate because it doesn't agree with him or do what he'd like it to.

# posted by

Mista Whiskas : 9:37 AM

The Committee of Detail, charged with writing a rough draft of the Constitution from the various proposals, submitted a report to the convention. The preamble provided basic principles that guided them. I am not aware that those who voted for the Constitution did not agree.

1. To insert essential principles only; lest the operations of government should be clogged by rendering those provisions permanent and unalterable, which ought to be accommodated to times and events: and

2. To use simple and precise language, and general propositions, according to the example of the constitutions of the several states.

The text could have been less flexible. The 7A is an example -- there is that $20 floor. It doesn't say only "except for de minimis damages."

Flexibility is in reality a necessity for actual governance. This doesn't mean, and no one is really saying this any more they are saying judges cannot be wrong, anything goes. There is some general understanding of certain basics. OTOH, times show that what should be basic accepted norms and practices are not seen as such by some.

===

The opposition to violence is on some level an easy call to make. After all, who wants their own side hurt? The rhetoric of "2A remedies" suggests some acceptance of violence. Since it is obligatory, this is not only found on one side. Violence was used over our history by various movements, not surprising from a country arising from war. I generally oppose it including literally punching Nazis or throwing eggs etc. at people. I say "generally" to put aside deep philosophical just war type arguments.

So, when the person in charge of one branch of government riles up the troops with violent rhetoric, I'm concerned.

# posted by

Joe : 9:44 AM

On the contempt issue, my argument would be that Congress has greater power over its own Members than a court might over someone not before it. I don't know if the courts would agree with me.

I'm not going to have time today to pull up citations on the flexibility of the Constitution before this thread times out, so thanks to Joe for quoting an obvious one.

# posted by

Mark Field : 9:51 AM

Mr. W: But a reasonable judge couldn't hold that a trapper/hunter has a liberty interest in following their occupation? Or that the person is more 'using' public property than 'taking' it?

No. Killing an animal is arguably the most absolute and irreversible form of taking.

# posted by

Bart DePalma : 9:59 AM

In a sense of common decency, might some of us agree that Trump is beneath contempt? I'm quite sure I'm not the only one who believes that under the Constitution Trump is not above the law.

# posted by

Shag from Brookline : 10:38 AM

The New Originalism's Construction Zone requires evolving infrastructure to avoid constitutional sinkholes.

# posted by

Shag from Brookline : 10:43 AM

"In a sense of common decency, might some of us agree that Trump is beneath contempt?"

I've occasionally noted that the politician you'd trust to babysit your kids is pretty rare. So I have no problem with saying that Trump is, in some respects, contemptible. He's certainly boorish, of that there's no doubt.

So long as we acknowledge that he's got an embarrassing surplus of company in that regard, and Democrats mostly hate him for having the bad taste to beat their candidate.

# posted by

Brett : 11:04 AM

Brett's attempt at trying to be "honest" relies on false equivalency. Historian Jon Meacham recently said that Trump was tied himself with Andrew Jackson as the most racist president. Perhaps Brett has swallowed his leader's 2020 campaign of "Keep America Great."

# posted by

Shag from Brookline : 11:17 AM

" Historian Jon Meacham recently said that Trump was tied himself with Andrew Jackson as the most racist president."

POLITICAL PARTY AFFILIATION AMONG ACADEMIC FACULTY

33.5 Registered Democrats per registered Republican, among History faculty. When you say "Historians rate Trump as tied with Andrew Jackson as the most racist President." you're just saying that Democrats think he's a racist. Nothing more.

# posted by

Brett : 11:31 AM

Citizen Brett, you're mentally still pulling those red radishes. You have swallowed your leader of the current Republican Party. Trump's amorality with Jeffrey Epstein is more than conspiracy theory, and not just the recent videos that have surfaced. Consider what Trump suggested about Ivanka is she were not his daughter. There's so much out there. While your Senator Lindsey Graham (Cracker, sCar), Trump's caddy, doesn't believe Trump is a racist, that he's just a narcissist, is not really flattering for Trump. Of course, Lindsey suffers from the vapors, as well as his own short term memory of Trump from the campaign.

# posted by

Shag from Brookline : 11:50 AM

This seems timely.

# posted by

Brett : 12:03 PM

This comment has been removed by the author.

# posted by

Bart DePalma : 12:13 PM

"Identity politics" is a euphemism for mobs (both physical and virtual on the internet) of progressive Democrats slandering their political opponents as any manner of bigots to discredit and silence them. Practitioners used to limit this mob "social justice" to Republicans, but are increasingly turning on one another.

The closest historical analog I can think of is the Chinese Cultural Revolution. The only distinction is progressive Democrat have not progressed to murdering their political opponents...yet.

# posted by

Bart DePalma : 12:14 PM

Twaddle. Identity politics is just the idea that people belong to and identify with groups as part of their identity, that those groups have different general cultures and situations, and politicians 'play' to those facts. It's as old as the nation (and older) and exists everytime a politician enjoys a photo-op with a pierogis at a Polish-American festival, marches in the St. Patrick's Day parade, etc. It's only a source of panic for some when 'those people' start to be involved.

# posted by

Mista Whiskas : 12:30 PM

Mr. W:

What you describe is called pandering.

What the Democrats call "identity politics" is a weapon.

# posted by

Bart DePalma : 12:33 PM

A tale of 'identity politics': "n the final week of the campaign, the Blaine campaign suffered a catastrophe. At a Republican meeting attended by Blaine, a group of New York preachers castigated the Mugwumps. Their spokesman, Reverend Dr. Samuel Burchard, made this fatal statement: "We are Republicans, and don't propose to leave our party and identify ourselves with the party whose antecedents have been rum, Romanism, and rebellion." Blaine did not notice Burchard's anti-Catholic slur, nor did the assembled newspaper reporters, but a Democratic operative did, and Cleveland's campaign managers made sure that it was widely publicized. The statement energized the Irish and Catholic vote in New York City heavily against Blaine, costing him New York state and the election by the narrowest of margins."

# posted by

Mista Whiskas : 12:34 PM

"What you describe is called pandering.

What the Democrats call "identity politics" is a weapon."

You must think the front and back of a nickel are two different coins.
You can play to groups by pandering to the groups *or* by attacking the group's perceived enemies.

# posted by

Mista Whiskas : 12:36 PM

# posted by

Bart DePalma : 12:48 PM

Ha ha, just like usual, where Bart thinks judicial activism is when judges 'wrongly' strike down a law but not when they 'rightly' do it he thinks 'identity politics' is when people 'wrongly' appeal to group identity (or attack it).

The Blaine supporter's comment was an attack on at least two identities people found important: Catholics and Southerners, Cleveland's supporters knew those who identified with those groups would take this slur as an offense and so they made sure everyone heard about it. Classic identity politics.

# posted by

Mista Whiskas : 12:58 PM

"The Blaine supporter's comment was an attack on at least two identities people found important: Catholics and Southerners" and I should add, of course these attacks were also at the same time panders to Protestants and Northerners who disliked Catholics and Southerners.

The parallel to Trump maligning, say, Mexicans, Muslims or second generation/first generation immigrant citizens and then people publicizing these attacks as outrageous is spot on.

# posted by

Mista Whiskas : 1:01 PM

Mr. W:

Do you understand the difference between (1) someone expressing bigotry and (2) falsely accusing someone of being a bigot?

Blaine's supporter is an example of (1).

Your last post is an example of (2)

# posted by

Bart DePalma : 1:11 PM

My last comment was correctly identifying several of Trump's attacks on identities just as Cleveland's supporters did of Blaine's campaigner.

But the larger point is that 'identity politics' are appeals or attacks based on identities, whether they are 'correct' or not makes them no less so (just as any sensible definition of 'judicial activism' can not be 'when judges are 'incorrectly' active').

# posted by

Mista Whiskas : 1:21 PM

First sentence of a new bit of reading material from Brett:

"There exists in this country a cultivated mindset that conservatives are all things evil."

A person with a "cultivated mindset" that "the left" is the problem pointing this article is duly noted.

Anyway, the lead comment is exaggerated. There always was some mindset that the other side was dead wrong. Jefferson/Hamilton etc. Upon closer scrutiny, even the average partisan tends not to be kneejerk types. So, e.g., Hamilton was able to admit Jefferson was better than Burr.

And, strong feelings on each side doesn't mean the merits of each side have nothing to them. This is what the article concludes at some point:

Read almost any headline and you’ll see the methodology. For instance, Trump’s comments “drip with racism,” or are xenophobic, or misogynistic, or offensive in millions of other imagined ways. It isn’t what Trump actually says or does that matters, it is what he “means.”

First, again, the person pointing this out has been called on this from the other side of the spectrum. So he's not really a good prophet for nuance as compared to you know someone who once voted for Pat Buchanan. But, anyways, over and over again, what he actually says is discussed.

For instance, it was flagged by many people the whole "go back to where you came from" was for some time deemed as a prime example of invidious discrimination by national origin. There is a reporter who spends his time daily on Twitter basically pointing out lies Trump said. Not what he "means" -- what he actually said.

Of course, dog whistles are a thing, and you will at times have to use evidence of bad faith. The killer Bs all do that here (I toss in Bartbuster, a sort of "killer" given his tone). I can go further, the article is interesting, if not quite in the way perhaps intended, but this is one way to end:

We could be accused of doing the same, except that we don’t have to. The progressive loons that have risen to prominence in the Democrat party tell us clearly what they intend, and who they mean to attack if and when they are calamitously returned to positions of power. They are expressly, gleefully coming for us, because of the hate that we don’t have, but which they say we do.

Conservatives, as traditional Americans, are not prone to irrational, emotional tirades.

You might not "have to" but oh you do. The reference to "loons" does lead be to be wary of the nuance of a writer, but I'll let that go. Note too the reference to (thanks; very informative) to the "Democrat" party.

Finally, yes, "conservatives" have shown some tendencies to be irrational and emotional. The word "tirade" is negative, but why not be emotional? For instance, emotional patriotic tirades (a standard of attacks) are seen as just American as apple pie and hating Yankee (or Red Sox) baseball.

# posted by

Joe : 1:29 PM

""There exists in this country a cultivated mindset that conservatives are all things evil."

Which group chanted 'lock her up' about their most recent political opponent? Which group insisted that the previous political opponent was a secret Muslim and not a citizen? Which group insisted that Bill Clinton had a staffer murdered? Which group is currently chanting 'send her back' about a naturalized citizen political opponent?

Somebody's demonizing beyond mere disagreement with their political opponents. That's for sure.

# posted by

Mista Whiskas : 1:35 PM

There's a difference between the Right thinking, with some cause in the case of Hillary, that a few specific Democrats are criminals, and the left labeling half the political spectrum "Nazis" and "White Supremacists".

"You know, to just be grossly generalistic, you could put half of Trump's supporters into what I call the basket of deplorables. Right? They're racist, sexist, homophobic, xenophobic – Islamophobic – you name it."

The difference is that today, many on the left don't think it's half of Trump's supporters, they think it's all of them.

# posted by

Brett : 1:56 PM

And what is the Right thinking when they cheer such demonizations as Trump has used re: Muslims, Mexicans, second generation citizens, immigrant citizens? Or when Palin talked about 'real America?' Or when they casually label everyone on the left as 'socialists,' 'communists' etc?

# posted by

Mista Whiskas : 2:07 PM

Mr. W: And what is the Right thinking when they cheer such demonizations as Trump has used re: Muslims, Mexicans, second generation citizens, immigrant citizens? Or when Palin talked about 'real America?' Or when they casually label everyone on the left as 'socialists,' 'communists' etc?

This is a great example of the combination of (1) Identity politics and (2) Saul Alinsky's Power Principle 13 which progressive Democrats like to employ.

Again, identity politics is slandering a political opponent as a bigot to discredit and silence them.

Saul Alinsky's Power Principle 13 is making a reprehensible person (in this case the slandered person) the face of an organization to discredit the entire organization.

# posted by

Bart DePalma : 2:19 PM

"Again, identity politics is slandering a political opponent as a bigot to discredit and silence them."

This is a ridiculous definition, just like I said akin to 'judicial activism is when judges are wrongly active.'

"Saul Alinsky's Power Principle 13 is making a reprehensible person (in this case the slandered person) the face of an organization to discredit the entire organization."

So, like what Trump and conservatives are trying to do right now with 'the squad?' Or what he and they have done with entire groups like Mexicans, Muslims, second generation immigrant citizens?

# posted by

Mista Whiskas : 2:27 PM

It is literally impossible for vague legal text to have a fixed meaning in a constitutional system.

The only reason so many people on the right don't get this is because their public intellectuals, including Scalia on down, lied to them for decades about this.

# posted by

Dilan : 2:41 PM

Oops, I meant in a commob law system.

# posted by

Dilan : 2:42 PM

This comment has been removed by the author.

# posted by

Bart DePalma : 2:45 PM

This comment has been removed by the author.

# posted by

Bart DePalma : 2:46 PM

Mr. W: So, like what Trump and conservatives are trying to do right now with 'the squad?'

Good observation.

Trump's politics is primarily based on relentlessly employing Saul Alinsky's Power Principle 13, making reprehensible Democrats the face(s) of the party. The Democrats insist on providing the Donald with a target rich environment in this regard.

I thought the Donkeys were plumbing the depths in 2016 when they nominated the felon and influence peddler, but at least Hillary! knew to shut up about her socialism and identity politics in public.

Now, nearly every Dem POTUS candidate is campaigning on unabashed socialism (Medicare for All, Green New Deal, etc), open borders, reparations and even free healthcare for illegal aliens. The Squad piles anti-American and anti-semitic tropes on top of the crap the POTTUS candidates are shoveling.

Trump is amazingly fortunate in his opponents.

# posted by

Bart DePalma : 2:48 PM

Now, let me attempt to explain what I mean by no common law system can possibly assigned fixed meanings to vague legal language.

Let's take the First Amendment. The earliest cases, like Schenck, involved claims of incitement. How do you apply the principles of free speech to a situation where a person is charged with inciting other people to break the law, by, for instance, resisting the war effort in a properly declared armed conflict?

So it comes up to the Supreme Court. And here's the key. The Supreme Court can't simply say "these facts are or are not consistent with the original understanding of the First Amendment", which is how originalists claim to think every case should be decided. You know why not? Because the Supreme Court can't hear every case. Instead, the Supreme Court has to give guidance to lower courts. I'd argue this is right in the text of Article III-- "judicial power" means common law judging, and "one Supreme Court" and "such inferior courts" refers to a hierarchical system where the Supreme Court gives guidance to the courts below it. But even if you don't think that's what the text means, that's basically how the railroad has to be run, because the Supreme Court can't hear every case.

So the Court now has to come up with a legal rule to explain its decision, which the lower courts can then use. It comes up with "clear and present danger". Speech that poses a clear and present danger can be prohibited by the government.

Now the lower courts are filled with cases where various litigants argue that X or Y did or did not pose a clear and present danger. And the lower courts adjudicate those cases one by one, with some speech ruled protected and other speech not ruled protected.

And at some point, conflicts develop. Some courts think that giving a speech opposing the draft is a clear and present danger, other courts don't. And someone petitions the Supreme Court to resolve the conflict. And the Supreme Court comes in and says it will.

Well, once you get to that point, what is the Supreme Court answering? They are answering not the question posed by the First Amendment and its original meaning, but the meaning of its own test. "Clear and present danger" isn't in the Constitution; it comes from a Supreme Court opinion. But because we need the Supreme Court to announce legal rules, it then has to interpret them and announce subsidiary rules and announce what falls within the rules and what does not. And then this iterative process repeats and repeats.

And as it repeats, we get farther and farther away from any notion of original meaning. We are interpreting the legal rules the Court announced. And over time, based on experience (and, also, more cynically, based on changes in court personnel), the test will evolve and change. Or new technology will come along and the Court will need to decide how the tests apply to the movies, radio, television, and the Internet, which original understanding doesn't answer.

And at the end of the day, the meaning of the First Amendment shifts over time.

Again, NONE of this would be controversial if we didn't have a basically poorly educated segment of the right wing base and a group of right wing public intellectuals, including judges and law professors, who were willing to lie to them and pretend the debate was between one group that wanted to follow the law and keep it fixed and another group that felt text didn't matter if it conflicted with their policy goals.

# posted by

Dilan : 3:02 PM

"Trump's politics is primarily based on relentlessly employing Saul Alinsky's Power Principle 13"

That sounds right, he's an Agitator in Chief.

"when they nominated the felon"
"Now, nearly every Dem POTUS candidate is campaigning on unabashed socialism..."

Looks like we have another Alinsky fan.

# posted by

Mista Whiskas : 3:49 PM

"It is literally impossible for vague legal text to have a fixed meaning in a constitutional system.

The only reason so many people on the right don't get this is because their public intellectuals, including Scalia on down, lied to them for decades about this."

We reject this, because the Constitution doesn't consist entirely of vague legal text.

When you're arguing about whether ordering somebody to purchase a product within a market legally mandated to be within a state can be regulated as interstate commerce, you've left the vague stuff way behind, and are well into the black and white.

The only reason so many people on the left don't get this, is because they've been habituated to treating any part of the Constitution that gets in their way as impossibly vague. "Vagueness" isn't a function of text, it's a function of whether they like what the text would mean if they accepted that it was clear.

# posted by

Brett : 3:50 PM

Excellent point Dilan.

Of course I think conservatives that think the meaning is fixed don't need to even realize the more complex truth you describe (though I think it's deadly to their delusion). Rather all one need is the very common sense observation that words and concepts like 'cruel,' 'reasonable,' 'due' etc., are words with different senses and dimensions. When you then try to apply them to a multitude of different situations you're going to get many reasonable people with differing interpretations. It's the nature of language and concepts.

# posted by

Mista Whiskas : 3:52 PM

"When you're arguing about whether ordering somebody to purchase a product within a market legally mandated to be within a state can be regulated as interstate commerce, you've left the vague stuff way behind, and are well into the black and white."

This is a great example because it's supposedly one of the most egregious rulings contrary to the text. But as noted, the interstate commerce clause is an *express grant* of power in an area. The idea of a prohibition on federal power to regulate intra-state activity is an a-textual one that is *implied* from the 'nature' of the Constitution. Now, the Court ran into a problem where experts (heck you don't have to be an expert to realize this basic economic truth) were telling the federal government and them that the effective regulation of inter-state commerce (the explicit grant) was going to be compromised unless it could also reach some inter-state commerce. It's just not egregiously unreasonable that they made a decision to 'save' the explicit grant at the expense of the implied prohibition.

# posted by

Mista Whiskas : 3:58 PM

When you're arguing about whether ordering somebody to purchase a product within a market legally mandated to be within a state can be regulated as interstate commerce, you've left the vague stuff way behind, and are well into the black and white.

Come on.

There's two provisions, not one. There's the power to regulate "commerce among the several states", and then there's the "necessary and proper" clause.

What's commerce? What's a regulation of commerce? What's "among the several states"? And what if the health insurance regulations are a valid regulation of commerce, and the mandate is necessary to carry them out?

I mean, you can ARGUE that Sibelius' commerce clause holding was correct, but this idea that the text of the Constitution provides the answer to what is a really complex question of health regulation put up against very broad constitutional language is exactly why liberals call conservatives anti-intellectual. This would be like if a Christian wrote an intensive just war doctrine justification for a military conflict and I, a non-believer, came in and said "duh, it says here 'thou salt not kill', what part of that do you not understand?".

This is literally the problem here. You guys either aren't very smart, or act like you aren't very smart. It doesn't take the world's greatest intellect to see that these problems are quite hard and constitutional text only gets you so far. So when you guys go out and say "it's all quite easy, liberals just refuse to follow the text", that's either a position of complete ignorance or manifest dishonesty.

# posted by

Dilan : 4:10 PM

The idea of a prohibition on federal power to regulate intra-state activity is an a-textual one that is *implied* from the 'nature' of the Constitution.

And this is where I get off the bus.

Congress isn't granted total legislative power. It could have been. The Constitution could have said "the Congress shall have the power to pass any law reasonably necessary to the operations of a the government". It didn't. It lists a bunch of powers. And it has a Tenth Amendment, which does say that anything not listed gets reserved to the states.

And that CLEARLY means (and here I am with the conservatives) that if it isn't in Article I, Congress doesn't get to do it. That's unambiguous, and I think that liberals who pretend this isn't so aren't doing my side any credit in constitutional debates. Congress was intended to have very broad, but not unlimited, powers.

And in the case of commerce, yes, I think the obvious reading of the commerce power is it does not extend to activities that do not constitute "commerce among the several states".

Now, the Supreme Court doctrine in this area is rather inconsistent. On the one hand, growing a plant on your windowsill or feeding your own grain to your own hogs falls within the definition. On the other hand, beating your wife does not.

And maybe, as a pragmatic matter, the way to go is to just follow Wickard and Raich and Katzenbach v. McClung to their logical conclusion, because the cat is so far out of the bag. But in terms of what the constitutional text means, no, Congress isn't supposed to have any power to regulate my purchase of lemonade from the stand operated by the 8 year old girl down the block, absent some real, not contrived nexus with interstate commerce. We got away from it because the Supreme Court was afraid to hold the Agricultural Adjustment Act, a really stupid piece of legislation that was nonetheless popular, unconstitutional. These things happen.

# posted by

Dilan : 4:19 PM

# posted by

Mista Whiskas : 4:25 PM

"When you're arguing about whether ordering somebody to purchase a product within a market legally mandated to be within a state can be regulated as interstate commerce"

Your choice of this example is particularly ironic: insurance was "legally mandated to be within a state" *because Congress, exercising its commerce power, passed a statute to that effect". You're arguing that one exercise of the commerce power somehow precludes another exercise of the commerce power *on the same subject*.

# posted by

Mark Field : 4:28 PM

And to be clear, if you want to hear a liberal sound like Bart about limited government and liberty, Raich is the case to do it.

The notion that the federal government had any business preventing an ordinary citizen from growing a plant for her medicinal needs is an infringement on all sorts of liberty. It interfered with her basic right to put whatever she wanted to in her body, her right to grow whatever she wanted in her own house, and her right to believe whatever she wanted to about what was good for her and what was not good for her.

The federal government got into this area precisely because as part of the New Deal, even the legitimate kernel of truth of Bart's arguments-- that an overbearing overregulatory federal government can end up threatening all sorts of individual liberties-- was thrown out with the bathwater.

Someone, somewhere along the way, should have stopped and said "we're the federal government. This isn't interstate commerce. It's one thing to stop drugs from coming into the country or crossing state lines, or to prosecute big interstate drug kingpins, but when we are saying that someone isn't allowed to grow their own pot for personal consumption, no, that really is none of our business". That didn't happen because the government doesn't ever consider such things after being granted so much power.

There are a lot of stupid overly narrow right wing interpretations of the commerce clause. But because liberals were so gung ho to expand the reach of the federal government to deal with legitimate problems in the New Deal and Civil Rights era, a lot of us forgot that giving absolute power to the Congress isn't a good idea either. And Angel Raich and other harmless marijuana users paid the price.

# posted by

Dilan : 4:29 PM

I don't mean to say that an implied provision is not correct just that it is implied, and that if a court faces a conflict between giving effect to an express provision and an implied one its not unreasonable to make the latter take a hit.

When the implication is obvious, I don't see why this follows as a matter of interpretation.

Let's say that a contract never says "payment due within 30 days", but has all sorts of remedies that kick in on the 31st day. I don't see why the notion that such a contract requires payment within 30 days would be of any less strength than a contract that just said it expressly.

As I said, at this point, I am not sure limits on the commerce power are really salvageable anyway. But if we were interpreting the thing correctly, there's no reason we wouldn't enforce the limitation on congressional power extended to purely local commerce with no nexus to interstate activity.

# posted by

Dilan : 4:32 PM

"Your choice of this example is particularly ironic: insurance was "legally mandated to be within a state" *because Congress, exercising its commerce power, passed a statute to that effect"."

That's right: They, stupidly in my opinion, chose to exercise their actually granted power to regulate interstate commerce, by banning interstate commerce in health insurance.

A stupid regulation of interstate commerce, but still, actually regulation of genuine interstate commerce. And banning all the commerce in health insurance they're actually entitled to regulate does not transform the remaining intrastate commerce into interstate commerce.

# posted by

Brett : 6:27 PM

" But if we were interpreting the thing correctly, there's no reason we wouldn't enforce the limitation on congressional power extended to purely local commerce with no nexus to interstate activity."

I read that, and I see backsliding already. The commerce clause doesn't give Congress authority to regulate commerce with "a nexus to" interstate commerce. It gives Congress authority to regulate the interstate commerce itself.

You've just stepped back out on the very slippery slope that got us here in the first place: Asserting that the power to regulate interstate commerce entails the power to regulate commerce that ISN'T interstate!

# posted by

Brett : 6:31 PM

A nexus means a connection. For instance, a product safety regulation might include a prohibition on the sale of unsafe products that have traveled in interstate commerce. That's a nexus, and that's constitutional.

# posted by

Dilan : 6:33 PM

I should add, Brett, the necessary and proper clause exists too. The whole point of the N&P clause is to grant some residual power for Congress to do something that needs to be done to assist in the exercise of some express power.

And in the commerce clause situation, that implies some sort of a nexus test. Congress can prohibit or regulate some form of interstate commerce, and to make that stick, they may need to regulate some activity connected to it, such as the intrastate sale of the illegal goods that traveled in interstate commerce. One is connected to the other.

Now, that isn't open season. If you have some discrete local act having nothing to do with interstate commerce, that shouldn't have been subject to the commerce clause. That's why Wickard and Raich were wrongly decided. But conservative attempts to, for instance, draw distinctions between manufacturing and commerce or commerce and ultimate sales fail because the necessary and proper clause ties them together.

# posted by

Dilan : 7:00 PM

"And banning all the commerce in health insurance they're actually entitled to regulate does not transform the remaining intrastate commerce into interstate commerce."

Do you think Aetna is 51 discrete companies or one that does commerce over 51 states but different legal conditions? As a shareholder, I know what they think...

# posted by

Mista Whiskas : 7:10 PM

Not just a connection, according to Merriam a *causal* one.

So, let's say a separation agreement gives the mother authority, in a Constitution-like enumeration (where what is not listed is implied to be fair game for the father) over 'the educational reading of the child.' It says nothing about the child's recreational reading, so the implication is the mother has no control over that at dad's. But the child's reading teacher says 'if the child reads comic books it will be to the detriment of our educational reading efforts here.' A court that ruled that the agreement allowed for the mother to regulate comic book reading at the father's house is certainly not unreasonable and necessarily in bad faith.

# posted by

Mista Whiskas : 7:18 PM

I'm really not sure there's any wholly intrastate commerce whatsoever in the health insurance market. It's academic given Wickard and Raich, but seriously, these are all massive companies.

There may well be some wholly intrastate health CARE (such as a first aid station at the local swimming pool), but these insurance companies all extensively participate in interstate commerce.

# posted by

Dilan : 7:20 PM

This might be a very illustrative example.

One of the purposes of the ACA as I understand was to make sure there was a uniform 'floor' of health insurance nationally, to prevent a 'race to the bottom' where companies offered cheaper insurance which would still lead to the collective problems the regulation was meant to solve. If a company, say Brett's Sham Carolina Insurance, could offer a below standard alternative totally within the state of SC, it would undermine the national scheme significantly. The whole idea is that the regulatory scheme is meant to be 'comprehensive' at a national market level.

Note, as I've said before here many times, I detest the ACA. If anyone here has reason to oppose it *as policy* it's me (I had cheap and great insurance under my spouse until kicked off under the 'Cadillac' provision). Yet I don't see the constitutional problem.

# posted by

Mista Whiskas : 7:29 PM

"A nexus means a connection."

Yes, I know what it means, and X having a connection to Y doesn't make X into Y.

But you do have a bit of a point there, and I don't mind conceding it. If Congress bans interstate commerce in an item, (Which it can, with some exceptions.) then that item, having been sold across the relevant boundary, becomes contraband, and banning its possession or sale can be a reasonable means to effectuating the ban.

But this doesn't get you very far into the territory we now inhabit, where "a nexus to interstate commerce" is understood to put something under Congress' authority to regulate to ANY end, not merely the end of effectuating its regulation of interstate commerce.

This wouldn't legitimately get you to banning the same item that hadn't been traded across state lines, or regulating its use after it had been legally traded across state lines. It's the actual interstate commerce you have to be trying to regulate, or the regulation is hardly necessary or proper to the power of regulating interstate commerce.

It's the "necessary and proper" clause, not the "convenient and eh, whatever" clause. If a law isn't both necessary and proper to carry into effect a delegated power,, the N&P clause can't honestly be said to authorize it.

For instance, the gun free school zone act, purports to make it illegal to possess a gun within a thousand feet of a school, if it has ever traveled in interstate commerce. That's not a legitimate exercise of the power to regulate the commerce, it's just using commerce as an excuse to render something perpetually a federal matter.

# posted by

Brett : 7:36 PM

For instance, the gun free school zone act, purports to make it illegal to possess a gun within a thousand feet of a school, if it has ever traveled in interstate commerce. That's not a legitimate exercise of the power to regulate the commerce, it's just using commerce as an excuse to render something perpetually a federal matter.

Lopez invalidated the GFSZA, and correctly so. I don't consider it to be a "nexus" that something once upon a time traveled in interstate commerce.

What I do consider to be a nexus is where you have some commercial activity that is closely related with interstate commerce. For instance, I think Hammer v. Dagenhart was wrongly decided, because Congress clearly has the power to ban interstate commerce in goods made with child labor, and the manufacture of such goods and the hiring of the child labor to work the factories, even if it occurs all in one state, is entirely intertwined with those interstate shipments and sales. That's a nexus. A proximate relationship with interstate commerce, not a distant relationship with it.

# posted by

Dilan : 7:53 PM

"One of the purposes of the ACA as I understand was to make sure there was a uniform 'floor' of health insurance"

The constitutional problem is that the N&P clause doesn't let you regulate something under the interstate commerce clause, if your purpose isn't regulating interstate commerce.

What you describe there IS a purpose, but that purpose isn't the regulation of interstate commerce, it's the regulation of health insurance, and regardless of whether it was being sold interstate.

The total legitimate purposed of the ACA could have been effectuated by regulating just health insurance sold across state lines. That this would be inadequate to accomplish Congress' actual goal is irrelevant, in as much as Congresses actual goal had to do with something it wasn't delegated authority over.

# posted by

Brett : 7:54 PM

"Lopez invalidated the GFSZA"

Lopez invalidated the GFSZA because Congress forgot to put in the magic words about interstate commerce. It was then reenacted with the magic words, and has not since been invalidated.

"and the manufacture of such goods and the hiring of the child labor to work the factories, even if it occurs all in one state, is entirely intertwined with those interstate shipments and sales."

Hammer v. Dagenhart was properly decided. The child was laboring within a single state, his labor wasn't interstate commerce.

# posted by

Brett : 8:00 PM

"Hammer v. Dagenhart was properly decided. The child was laboring within a single state, his labor wasn't interstate commerce"

No way.

The child's labor was employed as part of a business that was very much a part of interstate commerce, in the same way that the American firms that employ cheap foreign labor are engaged in international commerce.

And even if it wasn't, the necessary and proper clause gets you there anyway. Congress can, as you put it, declare as contraband any product made with child labor. A ban on the hiring of the labor itself is reasonably necessary to make that stick.

And I might add one other thing. The originalism you claim is so important confirms this. The commerce clause was drafted by the Committee of Detail to effectuate a directive to ensure that the Congress had the power to solve problems of national scope. So if you had a national problem of child labor, the framers felt Congress should be able to have the power to solve it. Without that power, you would have a race to the bottom, just like we have now with terrible labor conditions internationally, where every business would just go to whatever state allows them the most freedom to exploit workers.

# posted by

Dilan : 8:14 PM

Lopez invalidated the GFSZA because Congress forgot to put in the magic words about interstate commerce. It was then reenacted with the magic words, and has not since been invalidated.

Abracadabra? Nah. U.S. v. Danks informs:

"It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone."

The clause: "To regulate commerce with foreign nations, and among the several states, and with the Indian tribes"

The "moved in" part clearly regulates commerce in the relevant sense. The "affects" language does as well though analysis would probably show it needs to have some sort of minimal connection.

A common rejoinder is that "anything" might be said to affect interstate commerce. But, power over commerce as stated is given and the "nexus" rule cited is covered there especially with the necessary and proper provision. Debate over policy is just that. Ditto generally as to taxation, decisions who to declare war, what legitimate governments to recognize and any number of things.

There is a a whole structure in place, with people chosen to delegations split by states, with the president able to veto, to determine the details here. I'm open to that argument U.S. v. Lopez was rightly decided though the dissent made a good case too. Congress did not "forget" there. It advisedly decided that education is an aspect of interstate commerce and protecting safety there protected it.

In the modern world, schools generally are in the stream of commerce so I don't really know how much difference it makes. I think there was enough rational basis to let the political branches decide such basic matters of legislative policy. I even think it would have been better to make a Second Amendment argument, though in the 1990s, that would be a bit premature.

Hammer v. Dagenhart was properly decided. The child was laboring within a single state, his labor wasn't interstate commerce.

The Keating-Owen Act of 1916 prohibited interstate commerce of any merchandise that had been made by children under the age of fourteen, or merchandise that had been made in factories where children between the ages of 14 and 16 worked for more than eight hours a day, worked overnight, or worked more than sixty hours a week.

The act did not merely cover laboring of minors within a single state. It dealt with goods made by said children that were put into interstate commerce. The text of the clause covers this as noted by Holmes' dissent.

# posted by

Joe : 8:34 PM

"And banning all the commerce in health insurance they're actually entitled to regulate does not transform the remaining intrastate commerce into interstate commerce."

This is absurd. What Congress regulated on day 1, it can regulate a different way on day 2. Once it had jurisdiction to pass the first regulation -- because it's interstate commerce -- it retained that jurisdiction to pass the second regulation. You're confusing a statutory power with the Constitutional test.

# posted by

Mark Field : 8:42 PM

Here's the problem with the GFSZA amendment. Let's say you have a gun that has been in your possession for decades. It was manufactured somewhere else, but it hasn't crossed a state line since 1970 or something. And you put it in your car and drive down to your friend's house, parking your car in front of the elementary school. You know you have the gun, you know you are next to the elementary school, and you know that decades ago, the gun crossed a state line to be sold to you.

Can Congress really be said to be regulating interstate commerce there? Is it necessary and proper to prosecute people in your position in order to effectuate some sort of lawful scheme of regulating commerce?

We of course can't go there because of Wickard. Wickard held that it didn't matter that the individual activity was completely local and had no real connection to interstate commerce at all. If that holding is right, then yeah, Congress has the power to authorizing prosecution of that guy for having his gun in his car.

But that's not a regulation of interstate commerce, and I don't see it as necessary to one either. That's a public morals offense, which would be fine if it nonetheless had a connection to interstate commerce as child labor or health care do. But it doesn't.

So no, under what I think is the proper interpretation of the commerce clause, the GFSZA is questionable, at least as applied to weapons that weren't either brought across a state line for the purpose of possession in a school zone or purchased out of the stream of interstate commerce for that purpose.

But that ship sailed with Wickard. Under current caselaw, all you need is a rote recitation that the gun traveled in interstate commerce.

# posted by

Dilan : 8:53 PM

I think U.S. v. Lopez is a borderline case to some degree so the result didn't upset me much but the reasoning as applied was definitely taken too far.

And, as a matter of constitutional practice, it to me is debatable the dissent was wrong really at the end of the day. We have some scenario:

Here's the problem with the GFSZA amendment. Let's say you have a gun that has been in your possession for decades. It was manufactured somewhere else, but it hasn't crossed a state line since 1970 or something. And you put it in your car and drive down to your friend's house, parking your car in front of the elementary school. You know you have the gun, you know you are next to the elementary school, and you know that decades ago, the gun crossed a state line to be sold to you.

This sounds like at best the value of an as applied challenge. It is probably possible to think up of some extreme hypo for any number of commercial regulations.

How long is too long before something sold in interstate commerce cannot be regulated? How many cases would actually be like this? When will it prosecuted when there isn't a reasonable "affect" on interstate commerce? Is the house near a school? Again, that sort of seems like maybe it's a Second Amendment argument. No matter when the gun was purchased, it it threatens the channels of commerce, it can still clearly (not just under Wickard) be regulated. A typical school, e.g., has children from various places, traveling in, and has various connections with interstate commerce. A gun very well can threaten it as much as a gun in a department store might.

These questions seem like something Congress should generally determine as a matter of legislative policy.

# posted by

Joe : 10:01 PM