Balkinization  

Saturday, January 09, 2016

Conservative Constitutional Reform: Is Texas Ground Zero?

Stephen Griffin

Has the needle moved on constitutional reform?  Have off the wall ideas suddenly moved a bit closer to being on the wall?  Those are my questions in the wake of Texas Gov. Greg Abbott's release of the Texas Plan, a proposal for constitutional reform.  It features nine proposed constitutional amendments, to be enacted by a constitutional convention called by the states.  The Texas plan is a detailed brief and I think deserves careful attention.  My immediate reactions have mostly to do with constitutional theory, which I will make after the jump.

Part of me is wondering whether this is partly a move to lay down a marker at a time of extraordinary ferment in the country and especially in the Republican Party.  I interpret four of the proposed amendments as coming pretty much solely from the libertarian wing of the party (which has always been strong in Texas).  The other five are better characterized as promoting "states' rights" than libertarianism per se, although I may be off on that score.

But it could be meant as more than a policy marker.  The Texas Plan does not just promote a few ideas for amendment -- it promotes them by advocating a convention called by the states. Republicans currently control 30 of the 34 state legislatures needed to call a convention.  Whatever one thinks of the propriety of this idea, such a convention would be most likely controlled by state legislators -- loyal party members, in other words, but not necessarily supporters of Donald Trump, who looks like the nominee at this point.  In a very real sense, ordinary Americans need not apply to this convention!

The practical political point this also raises is whether the liberal left needs to propose its own platform for such a convention.  I believe it should!  There is no lack of left liberal ideas for constitutional reform. Gov. Abbott's advocacy of the Texas Plan has upped the ante and liberals should not be caught out just saying no.

Now for two scholarly points.


One of the theory arguments I've pushed with respect to constitutional change and reform is called the "reverence feedback effect."  The idea is that over time, the Constitution gets more venerated and revered as Madison predicted in Federalist 49.  As this happens, it becomes more and more difficult to argue for reasonable reforms as times change on the basis that the Constitution is flawed.  This tends to discourage advocacy of significant amendments because they can always be attacked by the opposition as un-American.  So it's interesting how the Texas Plan deals with this issue.  The Plan illustrates the reality of the feedback effect by explicitly reassuring its audience that the Constitution is not to blame!  From my point of view, this forces the argument in a somewhat conspiratorial direction.  The Plan labors to explain how we have gotten so far off track in arguing that all three branches (!) of the national government have deviated from the proper understanding of constitutional meaning.  Given the long period of time involved, it's hard to see how such a deviation could have happened without the support of the American people, their state legislators, and even Texans (like LBJ!).

Another argument I like that is not widely shared is that it made a difference when FDR decided not to validate the New Deal through constitutional amendments.  I don't contend this was the wrong decision, given the politics of the time and other considerations.  I simply don't believe that it's plausible it had zero effects on later politics.  The Texas Plan illustrates my argument in spades by focusing on the New Deal as the point at which the Constitution jumped the tracks.  The Plan can do this because all that validates the New Deal, at least on the books so to speak, is several Supreme Court decisions, not amendments.  And we all know how the Court makes mistakes!  The signal lack of amendments during the New Deal makes it easier today to argue that its constitutional legacy is illegitimate.  That's a nonstarter for many constitutional scholars, which I understand, but I hope they will reconsider the idea that you can do constitutional changes the size of the New Deal solely through "small c" means without paying an eventual political price.  I hope that's not too cryptic.

Comments:

Here's a counter-proposal for Constitutional amendments:

1. Make representation in the Senate proportional. Keep the number of Senators fixed at 100; if a state lacks the population necessary for a Senator, it will be combined with neighboring states. Allocation remains based on total population.

2. Change the allocation for House seats so that it's based on the number of voters at the next to last presidential election. Delegate the power to draw district lines in each state to independent commissions as in CA.

3. Abolish the Electoral College (this follows naturally from #1).

4. Make the right to vote in all state and federal elections an express protection in the Bill of Rights.

5. Grant Congress the express power to regulate all economic activity. This would be a shared power, not one exclusive to Congress, just as it is now under the Commerce Clause.

6. Abolish the Second Amendment and the 11th Amendment.

7. Bar all elections at any level of government, state or federal, except on a date fixed by Congress in even-numbered years.

8. Grant Congress exclusive power to fix the procedures for all elections.

9. Provide that all appointees shall be deemed confirmed by the Senate unless voted down within 90 days.

10. Establish fixed terms for Supreme Court Justices of 18 years, with one Justice replaced every 2 years. Begin immediately with the longest serving Justice.

Now we have 2 plans for debate. We'll call mine the republican plan and Governor Abbott's the states rights plan. I'm sure compromise will be easy.
 

Is Abbott playing "straight-man" for Ted Cruz?
 

Mark Field's ideas are something of a mixed bag though as a whole I like them a lot better than the Texas version.

I'm okay with leaving the two amendments in place, especially if the 11A is actually interpreted merely to mean what it says and federal question jurisdiction is retained. The "all economic" activity is too broad.

The voting right provision should address the rights of D.C. and those who live in territories but might need some further clarity on their rights. They should have some official vote in the House of the Representatives, not just a non-voting delegate. (Should be a way to include them in the Senate count too such as Puerto Rico etc. are part of certain judicial circuits.)

The wording should be "all elections" or such so people in Guam etc. are protected at any rate. Likewise, American citizenship should by constitutional right apply to those born on U.S. soil. Per John Oliver, this includes those poor American Samoans who now are mere "nationals."

The natural born citizenship rule for the President should be removed and a simple residency requirement of some sort should replace it.

I might also write some amendment to clearly address administrative agencies. I didn't think the 16A was necessary myself, but it like other amendments clearly set forth things that were open to some debate or needed reaffirmation. Rules for agencies in the modern world might as well.
 

I have no issue with most of Joe's suggestions, and particularly support the voting rights ones. I limited myself to 10 because Governor Abbott's list had 10. In thinking about it a bit more, I probably should replace my #3, which is redundant in the presence of #1, with the following:

3. No state, nor any municipality or subdivision thereof, shall require more than a majority vote for any purpose whatsoever other than the override of a governor's veto.
 

With all the brouhaha over originalism versus non-originalism, no one seems to address an amendment for interpreting/construing the Constitution. This brouhaha has been brewing since the 1970s without resolution (e.g., only 2 Justices seem to be, at times, originalists). Such an amendment might have to address disparate fixation dates with the originalism approach.
 

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Gov. Abbott's list has nine. Might be a way to include everything in nine especially since I wouldn't use all of Mark Field's list and catchall voting/election amendments are possible.

I believe "someone" that might best not be named does want to address interpreting the Constitution. I'm not since it doesn't seem that useful. Gov. Abbott perhaps thinks it is so obvious as not to warrant inclusion. But, since "10" is a nice round number, perhaps one of his supporters will suggest it.
 

Mark:

1. A rare example of an amendment that's formally unconstitutional.
2. No chance of ratification.
3. Iffy chance of ratification.
4. Great idea, actually.
5-8. Zero chance of ratification.
9. A little one sided; look at the way legislation is handled for a more balanced approach.
10. Not immediately; You need a delay in implementation to put the partisan valance beyond the veil of ignorance, or you'll never get the necessary super majority.

But the big problem is that you're ignoring that 30 out of 34 needed states issue. Do you really think the appropriate response to an almost hopelessly weak position is to double down?

You need Democratic proposals that Republicans wouldn instantly dismiss.
 

My own proposals:

1. Any proposed amendment ratified with the same language by at least 3/4 of the states shall become effective regardless of its origins, without any further action being required. (To prevent the federal government from attempting to block the states from amending the Constitution by refusing to admit a convention has been called, or an amendment ratified.

2-5. Texas proposals 1-4.

6. Establish a Constitutional court with final say on the constitutionality of acts and laws, whose members would be chosen at the state level. Federal officers may be removed from office by that court for violating the law or Constitution.

7. All federal lands not used for the purposes enumerated in Article 1, section 8, paragraph 17 to be turned over to the states.

8. The right to trial by jury is a right to trial by a jury which has been permitted to witness the entire trial,hear any argument or evidence the defense wishes to present, and which has been informed that it is entitled to rule on the justice of the law, not just whether it has been violated, nor shall any penalty be imposed upon conviction which the jury was not informed of prior to deliberation.

9. Any search or prosecution which does not result in a conviction shall require that the acquitted be made whole, and in the event of conviction such costs shall be accounted part of the penalty being imposed.
 

Mark Field's first proposal can be ratified with universal agreement and to me can also be passed via a two-part process: first amend the Constitution to remove the Art. V. barrier, then put in the new rule. This might require two amendments, yes. OTOH, in Federalist 40, Madison noted the "absurd" nature of unanimity to amend the Articles of Confederation as a reason for the new rule set forth in the Constitution. It seems a bit precious that we should now worry about an unanimity rule.

Brett also includes provisions Democrats would probably quickly dismiss. The very first amendment concerns barring federal power over something occurring totally within one state. Thus, e.g., the federal government couldn't ban assassination of the President. Democrats (and many Republicans) would realize federal agencies will preempt federal law. etc. But, put your best case forward, let moderates compromise.

The eighth amendment would be better if it didn't give the defense carte blanche to ignore rules of evidence and submit "any" evidence it wishes. I also don't know what "made whole" means. Does the state have to in criminal cases repay, no matter how rich the person is, all court costs? Seems a way to burden cash poor jurisdictions who will be less inclined to prosecute. That just might be a way to join both sides -- both parties likely to not agree.

Seems like worrying about what actually would be ratified is not quite the main point for Brett either. Which is okay, since this seems more of a thought exercise.





 

ERRATUM: "will preempt federal law" should be "will preempt state law"

The first amendment would probably also join both parties unless "wholly" is interpreted "wholly affecting" on state or some such thing.
 

"Brett also includes provisions Democrats would probably quickly dismiss."

Such is the difference between Republicans needing 4 states controlled in one House by Democrats, and Democrats needing an additional 20-30 states, most controlled in both chambers by Republicans. Democrats need to win over hugely more Republicans, than Republicans do Democrats, in order to amend the Constitution.

Which means this is a lot less of a mere thought exercise for Republicans than for Democrats.
 

Brett seems to be "o're-gone."
 

Right. The subset of proposals [as noted, multiple ones will have opposition on both sides including those that make it harder to prosecute crimes] that won't be opposed by both sides will get closer to the promise land though even there repeatedly those final states have been tricky gets. As seen in two football games this weekend, close often doesn't count, even oh so close.

And, then there is Congress. There is always the state convention approach. But, Brett doesn't think Congress will let that happen anyway. And, if the Democratic states have a bunch of proposals it opposes on board, be even less inclined to go into the unknown there. Heck, one or more of the Republican states might too.

Perhaps, both Brett and Mark will need to compromise.


 

I thought we were, explicitly, discussing the convention approach. Yes, I expect Congress will deliberately obstruct it. That's no reason not to make them go through the motions, and, hey, maybe they'll do the right thing.

And there's no particular reason for Republicans to be afraid to venture into the unknown, because they control enough states that nothing they don't like has the slightest chance of being ratified.

I think the Texas Plan is generally the right approach. I don't have to like everything in it, but it's a well thought out document.

But the big problem with calling a convention nominally limited in scope is not the runway convention. The need for ratification nicely solves that, and we've got a runaway federal government anyway.

The big problem is that, as soon as you start qualifying the call, you give room for the different states to use slightly or largely different language, which gives Congress an excuse not to add the calls together, and you never reach the threshold of having a convention.

The call has to be unqualified for this reason. Pass whatever proposals for an agenda you like, separately, but the call itself should be short, too the point, and with language every state that wants an amendment can agree to.
 

My current book project discusses why the progressive political economy is unsustainable and failing here and around the world. The only viable remedy I can see is a comprehensive reinforcement of the Constitution along the lines of 1787. Here are the draft amendments I am suggesting:

Amendment One – Checks and Balances

Section 1. The Congress, the President and the Courts may only exercise those powers expressly granted to them by this Constitution.

Section 2. The President and the executive departments shall not exercise any legislative or judicial power. All executive regulations not enacted into law by a bill of Congress shall be void five years after ratification of this Amendment.

Section 3. The President shall enforce as written this Constitution and all valid Laws of the United States and Treaties without dispensation, suspension or amendment. The President shall retain discretion to decide whether to prosecute individuals for criminal offenses.

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

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

Section 6. Congress shall have the power to regulate acts between the several States or between the United States and other nations, but not those which take place wholly within a State, except for acts of war or rebellion against the United States.

Section 7. Unless otherwise directed by this Constitution, all votes of Congress shall be decided by a majority of present members.

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

Section 9. All citizens of the United States shall have standing before the Courts to enforce the limits of this Constitution on government power.
 

Amendment Two – Elections

Section 1. To be elected to the House of Representatives or the Senate of the United States, a candidate must receive a majority of the total number of popular votes cast for all the candidates running for that office.

Section 2. To be elected as President of the United States, a candidate must receive a majority of the total number of popular votes and a majority of the votes of Electors cast for all the candidates running for that office.

Section 3. If no candidate receives a majority of the popular votes cast in the election for an office, a runoff election shall be held between the two candidates receiving the most popular votes. If a runoff election is held for President of the United States, Electors shall be appointed based upon the results of the runoff election.

Section 4. In the event that one candidate for President receives a majority of the popular votes and another candidate receives a majority of the votes of the Electors during a runoff election, the House of Representatives shall choose the President immediately by ballot.


 

Amendment Three – Equality Under The Law

Section 1. The laws of Congress, the several States and their subdivisions shall not discriminate against, or grant preferential treatment to, any individual or group based on race, color, ethnicity, gender or national origin, except on the basis of ability to achieve a necessary government purpose.

Section 2. The laws of Congress, the several States and their subdivisions shall treat all similarly situated people and businesses the same, shall not provide benefits to or place burdens on a part of the people or their businesses, and shall not provide exemptions for members of government.

Section 3. The executive shall not arrest a member of Congress for the purpose of preventing the member from voting or otherwise harassing the member during a session of Congress. This section replaces Article I, Section 6, Clause 1 of this Constitution in its entirety.

Section 4. Congress, the several States and their subdivisions shall provide all government goods, services and payments for the general welfare and make them available to all citizens without regard to income, wealth, act or omission of the recipient. The Section shall not apply to compensation for property provided or services rendered to the government.

 

Amendment Four – Money

Section 1. Congress may create a Federal Reserve Bank to manage the money supply of the United States of America, with the sole mandate of preventing inflation and deflation of the currency.

Section 2. The money supply shall be maintained at a constant percentage of the average Gross Domestic Product of the United States of America over the prior five years.

Section 3. The portfolio of the Federal Reserve Bank shall only consist of currency, loans to other banks and debt of the United States government.

Section 4. This amendment shall go into effect two years after ratification.

 

Amendment Five – Revenues

Section 1. Congress may only lay and collect taxes on the individual income and expenditures of the People made within the United States.

Section 2. If it levies a tax on income or expenditures, Congress shall levy the tax on all types of income or expenditures, except that Congress shall not lay and collect taxes on the amount of income or expenditures used for the basic support of a person. The basic support of a person for a fiscal year is equal to fifteen percent of the per capita gross domestic product of the United States for the previous fiscal year.

Section 3. Congress shall levy any tax on income or expenditures at a single uniform rate without credits, deductions, or penalties.

Section 4. Congress shall not raise the rate of taxes on income or expenditures, nor borrow additional money on the credit of the United States, except by a three-fifths vote of both the House of Representatives and the Senate or by a majority vote of the People during an election for Senators and Representatives. This limitation shall not apply to additional taxes and borrowing necessary to raise and support the military during a war declared by Congress against a nation state.

Section 5. Congress may charge a fee for a good or service provided by the government equal to the actual cost of providing the good or service. Congress may not compel a person to purchase such a good or service. Such fees are not taxes subject to the limitations of this Amendment.

Section 6. This amendment shall go into effect two years after ratification.


 

Amendment Six – Expenditures

Section 1. Congress shall not appropriate money to spend during a fiscal year in excess of one-fifth of the gross domestic product of the United States for the previous fiscal year. This limitation shall not apply to appropriations made to raise and support the military during a war declared by Congress against a nation state.

Section 2. Congress shall enact an individual appropriations bill for each department and agency of the government.

Section 3. Congress may establish and deposit money into a budget reserve fund in the treasury to maintain spending in times of economic recession and national emergency. The total money kept in the fund shall not exceed five percent of the gross domestic product of the United States for the previous fiscal year. Congress may withdraw money from the budget reserve fund to spend with a majority vote of both the House of Representatives and the Senate. Money deposited into and withdrawn from the budget reserve fund are not appropriations limited by section one of this Amendment.

Section 4. All tax revenues not appropriated by Congress to spend or deposited into the budget reserve fund during a fiscal year shall be refunded to the taxpayers on a prorated basis during the next fiscal year.

Section 5. This amendment shall go into effect two years after ratification.


 

Amendment Seven – Entitlements

Section 1. Congress may not enact an appropriation which lasts longer than one year. All previously enacted continuing appropriations are void.

Section 2. Government shall not spend money on and no person is entitled to any government good, service or payment promised under law except to the extent funded by an annual appropriation bill of Congress.

Section 3. If Congress appropriates less money than promised under law for a government good, service or payment, the President shall spend the appropriated money on a prorated basis.


 

Amendment Eight – Liberty

Section 1. The People, individually and when associated into businesses or other organizations, possess a fundamental right to liberty from government direction. The laws of Congress, the several States and their subdivisions shall not abridge the right to liberty except:
To regulate the conduct of those convicted of crimes, children and the mentally disabled;
To direct military service under military discipline;
To direct service as a witness or a juror in a court;
To enforce contract rights and duties; and
To prevent a person from threatening to perform or performing an act causing substantial, demonstrable and involuntary harm to the body, liberty or property of another.

Section 2. In every bill, Congress shall state the provision of the Constitution which provides it the power to enact the legislation and the harms which it seeks to remedy.


 

Amendment Nine – Property

Section 1. The People, individually and when associated in businesses or other organizations, possess a fundamental right to own and use property.

Section 2. Congress, the several States and their subdivisions may only take private property that is the proceeds from a crime proven beyond a reasonable doubt or for public use after making just compensation for market value, but may not take private property because it was used in a crime, to transfer to another person or business, or to increase tax revenues.

Section 3. The laws of Congress, the several States and their subdivisions shall not substantially reduce the market value of private property without making just compensation for that lost value, except when the property constitutes a public nuisance causing substantial and demonstrable harm to others.

Section 4. The laws of Congress shall not require the governments of the States and their subdivisions or the People, individually and when associated in businesses or other organizations, to purchase a good or service without just compensation.

Section 5. The laws of the several States and their subdivisions shall not require the People, individually and when associated in businesses or other organizations, to purchase a good or service without just compensation.


 

Amendment Ten – Amending the Constitution

Section 1. Amendments to the Constitution may be proposed by a three-fifths vote of both Houses of Congress or by a majority vote of a Convention called by the legislatures of three-fifths of the several States. Proposed amendments ratified by the legislatures of or conventions called by three-fifths of the several States shall become a valid part of this Constitution. The People of each State shall choose the delegates of their ratifying convention by special election. This section replaces Article V of this Constitution in its entirety.

Section 2. Ratification by the Conventions of thirty States shall be sufficient for the establishment of this Bill of Rights into the Constitution.

 

I would very much appreciate thoughtful and objective comments and criticism of these amendments.

Thanks.
 

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And there's no particular reason for Republicans to be afraid to venture into the unknown, because they control enough states that nothing they don't like has the slightest chance of being ratified.

Well, there's the idea that some of these people might be conservatives who are wary of novelty and won't know what will happen. And, some of the states will be run by establishment types etc. who will worry about what the convention will wrought. The "slightest chance" is a bit presumptuous. One you start something, who knows.

I again don't see your proposals as something every state would agree to. There are multiple amendments that both parties would oppose. The convention approach is likely to be open-ended or be limited to much fewer, if not only one, specific amendments.

Good luck with that BP.
 

Our own MRO (Macro 'Rhoidless One) extensively trolls his upchucking work of friction, seeking:

"I would very much appreciate thoughtful and objective comments and criticism of these amendments."

Alas, our own MRO's history of commenting at this Blog has quite often been unthoughtful and excessively subjective. But there is a matter of precedent. Should commenters at this Blog be permitted to commercially exploit their projects? Isn't this SPAM? Our own MRO has his own blog but apparently it lacks traffic for a 2-car collision.
 

Shag:

You are a progressive and an attorney. I would very much appreciate your attempting to spot gaps in my proposed amendments through which progressives could enact their policies.
 

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"No thanks." is my response to SPAM I AM! (Sometimes known as our own MRO) The obvious gap is from the beginning through the end.

Mark Field started this off with what I thought was tongue in keyboard, not in self promotion. But SPAM I AM! jumps the shark with crapola that he had presented on a much earlier thread as obvious commercial self promotion, sort of in the manner of Donald Trump.
 

Shag:

Commercial self promotion? Really? The readership of this thread is in the single digits.

I am looking for feedback from intelligent progressives, preferably those with legal training, to identify gaps in my proposed amendments.

Apparently, you consider yourself unqualified. Who am I to argue with you?
 

"The President shall retain discretion to decide whether to prosecute individuals for criminal offenses."

What I don't get about this is, if the reasons for not prosecuting this individual are all present for another individual, what's wrong with simply announcing discretion for all those sharing the reasons? Wouldn't that be more transparent and above board than having the executive never announcing such criteria but acting in this way?
 

What happens when, per Sec. 4 Amendment one above, the Court rules an act of Congress or treaty etc., in violation and then Congress uses Sec. 5 to override it?
 

"The laws of Congress, the several States and their subdivisions shall treat all similarly situated people and businesses the same, shall not provide benefits to or place burdens on a part of the people or their businesses"

Taken literally, if the Gov. built a road closer to your business than mine I could sue under this bill.

"Congress, the several States and their subdivisions shall provide all government goods, services and payments for the general welfare and make them available to all citizens without regard to income, wealth, act or omission of the recipient. "

So no means testing? And 'act or omission of the recipient?' Under a literal reading of that government contracts would have to be awarded to contractors who omitted to carry out previous ones, or those convicted of treason would have to be offered defense contracts (after all, can't withhold based on their act of treason).
 

"o prevent a person from threatening to perform or performing an act causing substantial, demonstrable and involuntary harm to the body, liberty or property of another."

So preventing less than 'substantial' yet demonstrable and involuntary harm to the body, liberty or property of another is off the table? Misdemeanors in those areas A-OK?
 

"1. Make representation in the Senate proportional. Keep the number of Senators fixed at 100; if a state lacks the population necessary for a Senator, it will be combined with neighboring states. Allocation remains based on total population.

2. Change the allocation for House seats so that it's based on the number of voters at the next to last presidential election. Delegate the power to draw district lines in each state to independent commissions as in CA.

3. Abolish the Electoral College (this follows naturally from #1)."

Hear, hear to these three! We're currently ruled not by the People of this great country, but by patently undemocratic abstract political subdivisions of the same.
 

Amendment 1, Sec. 3: "The President shall retain discretion to decide whether to prosecute individuals for criminal offenses."

What I don't get about this is, if the reasons for not prosecuting this individual are all present for another individual, what's wrong with simply announcing discretion for all those sharing the reasons? Wouldn't that be more transparent and above board than having the executive never announcing such criteria but acting in this way?


Amendment 1(3) is meant to categorically forbid dictatorial dispensations because the present Take Care Clause is too general for this function. The only exception to this prohibition is criminal prosecutorial discretion. The circumstances of criminal violations are usually unique to the individual defendant.

What happens when, per Sec. 4 Amendment one above, the Court rules an act of Congress or treaty etc., in violation and then Congress uses Sec. 5 to override it?

Congress enacting a Bill of Revision gets the final say on the constitutionality of the provision at issue. The Bill of Revision can only be changed through a constitutional amendment.

If Congress can get a supermajority of both the House and Senate to agree on a constitutional issue, this would represent a supermajority popular consensus similar to that required to amend the Constitution.
 

"The circumstances of criminal violations are usually unique to the individual defendant."

What in the world is meant by this? To take the example I'm sure helped prompt your thinking here, take the enforcement of the laws on illegal immigration. In the past, under the Bush the Elder administration, the Executive decided that the circumstances of every Chinese immigrant who warranted return to their country in the midst of the Tienneman Square unrest constituted a reason for non-enforcement of the particular law.

Likewise, Obama's current deferment took the relevant circumstances warranting deferment of enforcement to be if you were in this nation for years and had children that were legal. That doesn't sound like an unreasonable criteria for any individual fitting it, why not recognize it across the board?
 

Amendment 3, Sec. 2: "The laws of Congress, the several States and their subdivisions shall treat all similarly situated people and businesses the same, shall not provide benefits to or place burdens on a part of the people or their businesses"

Mr. W: Taken literally, if the Gov. built a road closer to your business than mine I could sue under this bill.


The suing business would have to demonstrate that it was similarly situated.

Amendment 3, Sec. 4: "Congress, the several States and their subdivisions shall provide all government goods, services and payments for the general welfare and make them available to all citizens without regard to income, wealth, act or omission of the recipient. The Section shall not apply to compensation for property provided or services rendered to the government. "

Mr. W: So no means testing?


No means testing. This proposed provision is meant to reverse most progressive class legislation, most especially that meant to redistribute wealth and income.

Mr. W: And 'act or omission of the recipient?' Under a literal reading of that government contracts would have to be awarded to contractors who omitted to carry out previous ones, or those convicted of treason would have to be offered defense contracts (after all, can't withhold based on their act of treason).

Progressive government often conditions government benefits on a person performing a preferred activity or ceasing disapproved of actions. This is both tyrannical and corrupt.

Government contracts are expressly excluded from this restriction.

Amendment 8, Sec. 1: "To prevent a person from threatening to perform or performing an act causing substantial, demonstrable and involuntary harm to the body, liberty or property of another."

So preventing less than 'substantial' yet demonstrable and involuntary harm to the body, liberty or property of another is off the table? Misdemeanors in those areas A-OK?


This provision is meant to implement John Stuart Mill's harm principle into practical constitutional enforcement.

"Substantial harm" is similar to the federal standing rule. The government cannot bar you from acts which cause deminimus harm to others.

"Demonstrable harm" means that the burden is on the government to prove the harm. No longer will courts accept unsupported congressional allegations of harm under a rational relationship test. We would all enjoy a fundamental right to general liberty with the exceptions noted in the amendment.

"Involuntary harm" means that the other party can voluntarily assume a harm like a person with bad credit agreeing to pay a high interest rate as a risk premium. The usual rules concerning fraud would apply.

Thanks for the feedback.

 

BD: "The circumstances of criminal violations are usually unique to the individual defendant."

Mr W: What in the world is meant by this?


Every criminal case generally has a unique set of facts.

To take the example I'm sure helped prompt your thinking here, take the enforcement of the laws on illegal immigration.

Immigration laws are generally civil. There is no prosecutorial discretion exception for civil matters in my amendment. All the presidential dispensations of immigration law you noted would be unconstitutional under my proposed amendment.
 

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Mr. W. had so much fun debating BP regarding the language of the actual Constitution, he decides to wade into debating the Sims version.

How does Mr. W. think is the best way to get around the Amendment V rule as to the Senate? Or, are we assuming each state will agree?
 

"Section 3. The executive shall not arrest a member of Congress for the purpose of preventing the member from voting or otherwise harassing the member during a session of Congress. This section replaces Article I, Section 6, Clause 1 of this Constitution in its entirety."

Well, of course an executive who's arresting members of Congress to prevent them from voting, or otherwise harass them, is going to admit to it, instead of inventing a pretextual basis for the arrest. I mean, how could anybody think otherwise?

Pass on that one.
 

Brett:

Article I, Section 6, Clause 1 of the Constitution as it stands is too broad and allows Congress critters to perform acts which would be illegal for the rest of us so long as they traveling to and from or are at work.

My replacement provision would remove that blanket immunity and simply prohibit the President from abusing her criminal arrest powers to harass members of Congress. Congress can enforce this provision (and all others in the Constitution) by impeachment under my proposed Amendment 1, Section 8.
 

How does Mr. W. think is the best way to get around the Amendment V rule as to the Senate?

In my view, it's a two step amendment: Sec. 1 repeals the relevant part of Art. V, Sec. 2 adds the new language.

I didn't list it above, but I would also change the amendment process to rely on people rather than states.
 

"Progressive government often conditions government benefits on a person performing a preferred activity or ceasing disapproved of actions. "

This isn't just 'progressive governments' is it? I can't get the government benefit of a driver's license unless I perform the activity or passing the driving test.

"every criminal case generally has a unique set of facts."

I still don't see that.

Let's say a prosecutor is faced with a drug possession defendant, and the defendant is really ill, and that's the excuse for their possession. The prosecutor is moved to decline prosecution. Why wouldn't you want the prosecutor to have to say 'I won't prosecute any individual who has that same situation?' It seems much more capricious to not do that.

""Substantial harm" is similar to the federal standing rule. The government cannot bar you from acts which cause deminimus harm to others."

You should probably reword that as there's considerable distance between 'substantial' and 'deminimus.' (Also, the federal standing rule is lower than 'substantial').

"The suing business would have to demonstrate that it was similarly situated."

Sure. You and I both operate hot dog stands, both with two employees and about the same amount of sales, you on two lane route 1 and me on two lane route 2. The Government decides to build the next six lane highway, with all the traffic (customers) it would bring, right beside your joint.
 

I like Mark Field's answer Joe.

I also second Brett's concerns about Bart's proposed amendment.
 

Regarding Messrs. F/W: Thanks.

I'm inclined to open it to state option to choose regarding ratification. Not totally sure though; the republican over direct approach does appeal to me. If the application to Congress method is ever used, I would probably be inclined to leave that to legislatures or independent commissions than direct popular vote.

The actual provision:

They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

Note how the original has a limited immunity ... is there a problem with members of Congress blithely committing misdemeanors not involving breach of peace? A prohibition of "harassing" is if anything potentially broader and I agree with Mssrs. W and B regarding the pretext concern. But, really, the main concern is that this is just a picayune thing to worry about.

Finally, Mr. W. and BP seems to be back to debating the meaning of "same" and/or its analogue.
 

BD: "Progressive government often conditions government benefits on a person performing a preferred activity or ceasing disapproved of actions. "

Mr. W: This isn't just 'progressive governments' is it? I can't get the government benefit of a driver's license unless I perform the activity or passing the driving test.


No, but progressive governments have imposed nearly all of the current conditional government benefits including driver's licenses.

BD: "every criminal case generally has a unique set of facts."

Mr W: I still don't see that. Let's say a prosecutor is faced with a drug possession defendant, and the defendant is really ill, and that's the excuse for their possession. The prosecutor is moved to decline prosecution. Why wouldn't you want the prosecutor to have to say 'I won't prosecute any individual who has that same situation?' It seems much more capricious to not do that.


I have spent the past 20 years practicing criminal law and no two cases are the same. What were the circumstances of the violation? Was anyone hurt? How strong is the evidence? What kind of illness is your hypothetical defendant suffering from?

BD: "Substantial harm" is similar to the federal standing rule. The government cannot bar you from acts which cause deminimus harm to others."

Mr. W: You should probably reword that as there's considerable distance between 'substantial' and 'deminimus.' (Also, the federal standing rule is lower than 'substantial').


I have been playing around with the wording of Amendment 8 for months. I settled on "substantial" because I think that the federal standing standard is too low for these purposes.

I am more than willing to consider any alternatives you can suggest.

BD: "The suing business would have to demonstrate that it was similarly situated."

Mr. W: Sure. You and I both operate hot dog stands, both with two employees and about the same amount of sales, you on two lane route 1 and me on two lane route 2. The Government decides to build the next six lane highway, with all the traffic (customers) it would bring, right beside your joint.


The benefit is the road (not the collateral potential business bought by the road) and similarly situated people are those using the road.

A better analogy is the government subsidizing your hotdog stand, but not mine, because you have better political connections. This kind of corruption is that my proposed constitution provision is meant to stop.
 

"In my view, it's a two step amendment: Sec. 1 repeals the relevant part of Art. V, Sec. 2 adds the new language."

In theory, of course, you could do it that way. However, repealing the clause protecting equal representation of states would rather conspicuously be aimed at disadvantaging smaller states, of which there are easily enough to block step one.

I'm not saying it's impossible, the states voluntarily gave up their power to appoint Senators. But it's going to be a rough row to hoe. And you'd need to do step one far enough in advance to begin step two AFTER step one was ratified, or you'd be trying to send to the states an unconstitutional amendment.
 

The current Senate doesn't favor "small states" alone in many cases but instead a conservative policy. So, it is not clear to me that small states will just act like small states here. They very well might split by ideological concerns.

Second, we are looking at a collection of amendments here, which brings to mind the original Constitution -- it was a compromise for which some aspects disadvantaged certain states/groups, but they agreed to it as a whole. Seems quite possible this would be the case here too, including the general voting/election provisions.

Finally, should be a way to handle it. Time the proposal right at the moment the first amendment is ratified and states can quickly ratify. The first amendment can even speed things along, e.g., by setting up a special ongoing convention etc. that would save time usually spent ratifying amendments.
 

"I have spent the past 20 years practicing criminal law and no two cases are the same. "

I guess they don't look the same depending on how much one is willing to squint. I mean, two defendants having the same records, charge, similar socio-economic circumstances, age, and motive don't strike me as unlikely to occur in busy jurisdictions. But perhaps you'd reply, one is named Peter and the other Paul, so they're totally different! I'd bet if I were to give you that information about a hypothetical defendant you could pretty accurately predict what kind of plea a prosecutor and/or judge you work with would be willing to offer...

My point is that if you're worried about capricious officials I'd think one that outlined what they're willing to excuse and what they're not would be much less so than one that secretly uses their internal sense of 'justice' to decide when to and not to press charges.

"I settled on "substantial" because I think that the federal standing standard is too low for these purposes.

I am more than willing to consider any alternatives you can suggest."

I suggest just say what you meant to say: "To prevent a person from threatening to perform or performing an act causing demonstrable, involuntary and greater than de minimus harm to the body, liberty or property of another." There's just far too much room between 'substantial' and 'de minimus' that would mean that government efforts to police actual affronts to one's property, liberty and person could be invalidated.

"The benefit is the road (not the collateral potential business bought by the road) and similarly situated people are those using the road."

Ha ha, if you say so. This reminds me of a classic depiction of corruption from the show Boardwalk Empire. The gangster boss buys up properties along a path and then uses his influence with state and local politicians to get a major road to be routed through that path. He develops the properties or sells the land to developers, now that it's worth exponentially more by the location of the road. Had he been caught, I can just see him using your line: 'no corruption here, the only benefit was the road which we can all equally drive down!' Formalism catches reality like a fishing net catches water.

* Interestingly, the character in Boardwalk Empire was based on real life political boss and rackeeter Enoch Johnson, who was a Republican whose height of ill gotten power was during Bart's exemplary decade of the 1920's. Is there a lesson there?


 

I still think that, to be reasonable, you have to look at the current distribution of partisan control of state legislatures. There's no getting around the fact that Republicans are in a MUCH stronger position to amend the Constitution right now, than are Democrats.

They win a few more seats in this coming election, and they could be in a position to amend the Constitution without any Democratic votes at all.

Democrats would have to make Earth shattering pickups this election to even think about doing that.

Of course, that's rather different from saying that conservatives are in a strong position to amend the Constitution.

My own set of proposals were what I'd like to see, not what I'd expect to see. The Texas proposal is closer to what I'd expect: Excessively tilted in favor of state level government rather than citizens.
 

"Excessively tilted in favor of state level government rather than citizens."

What a bizarre idea, abstract political subdivisions (or worse, the lifetime pols that operate them) over the actual people!
 

This comment has been removed by the author.
 

The last matter I discussed involved the Senate and "small states" were mentioned, not a breakdown by party. Brett is moving back to something else, but again, "small states" (like Vermont) might like changing the nature of the Senate if there is an ideological benefit to them.

"Actual people" break down various ways there and my own preferences is more power to them, so I appreciate Mark Field's proposals. Republicans do control more states but the more likely supermajority necessary here to amend is a certain subset of policy proposals. For instance, there is a reasonable chance -- Orin Hatch, e.g., supported it -- removal of the natural born citizenship rule for President than let's say Brett's make it harder to prosecute crimes proposal etc.

Republicans in various cases will get closer than Democrats, but again, Vikings and Bengals got close. Not close enough.
 

Mr. W: My point is that if you're worried about capricious officials I'd think one that outlined what they're willing to excuse and what they're not would be much less so than one that secretly uses their internal sense of 'justice' to decide when to and not to press charges.

In criminal law, the government is seeking to take your life, liberty, money and/or property. Discretion for lenity is justified here.

There's just far too much room between 'substantial' and 'de minimus' that would mean that government efforts to police actual affronts to one's property, liberty and person could be invalidated.

All the standard common law crimes would easily pass the "substantial" and "demonstrable" standards. Do you have some act in mind which would not meet the "substantial" standard which the government should prohibit?

BD: "The benefit is the road (not the collateral potential business bought by the road) and similarly situated people are those using the road."

Mr. W: Ha ha, if you say so. This reminds me of a classic depiction of corruption from the show Boardwalk Empire. The gangster boss buys up properties along a path and then uses his influence with state and local politicians to get a major road to be routed through that path. He develops the properties or sells the land to developers, now that it's worth exponentially more by the location of the road. Had he been caught, I can just see him using your line: 'no corruption here, the only benefit was the road which we can all equally drive down!' Formalism catches reality like a fishing net catches water."


Selling influence and bribery are crimes which would easily meet the "substantial" standard.

 

SPAM I AM's:

"Selling influence and bribery are crimes which would easily meet the 'substantial' standard."

addresses Citizens United?

Keep in mind there are statutory crimes not based on "standard common law crimes."

 

"For instance, there is a reasonable chance -- Orin Hatch, e.g., supported it -- removal of the natural born citizenship rule for President than let's say Brett's make it harder to prosecute crimes proposal etc."

I didn't suggest making it harder to prosecute crimes. I suggested stripping the legal system of it's power to ruin people it can't convict by making the process the punishment. I suggested restoring the jury system to the kind of jury system the Bill of Rights guaranteed, instead of the proverbial jury of mushrooms people with law degrees have substituted.

But none of this makes it harder to prosecute crimes. Tearing up somebody's house in a 'search' and then not paying contractors to repair it isn't necessary to prosecute crimes. Jurors being kept in the dark about key elements of the case isn't necessary to prosecute crimes. They're necessary for persecuting whom the state chooses to, but that's a different thing.

I do agree that removal of birthright citizenship for those whose parents are here illegally has an excellent chance of being ratified. It addresses a very widely recognized problem, which the federal government is complicit in. Be ratified in a heartbeat.
 

Brett, your proposals will make it harder to prosecute crimes -- e.g., by making cases lost that very might involve guilty defendants but it doesn't meet the high burden of proof more costly, giving defense attorneys specifically more discretion & giving juries the power to upfront decide the law.

You then add commentary how you think this is a good idea to promote justice and that it is not "necessary" to lack such protections. Right. It still makes it harder to prosecute crimes. And, thus, Republicans repeatedly will not find it copacetic.

I also mentioned how there is bipartisan support for allowing let's say Arnold become President but you "agree" with something else. You want innocent children who were born here stripped of their citizenship because their parents are undocumented. This is a "problem" for a limited number of people and the idea a supermajority of the states would in a "heartbeat" deny teenagers born in Texas and here all their life their citizenship is to me doubtful.

 

Shag: "addresses Citizens United?"

Political speech is not bribery, is protected by the First Amendment, and would be further protected by my proposed Amendment 8 as an exercise of liberty by individuals and people associated into businesses.

One of the progressive infringements on liberty which my proposed amendments would expressly reverse is the practice of denying rights to people associated into businesses.

 

Brett's obvious continuing concerns seem to be the changing demographics. How else might Brett and his ilk wish to amend the 14th A (not to mention the 13th and 15th As)?
 

SPAM I AM! wants to give wealthy people at least two bites of the apple, first individually, and second in multiple business association. Alas, the poor wealthy have their liberty infringed by not having a greater voice than those too poor to engage in associations. Money talks. Money is speech. As to SPAM I AM's claim that "political speech is not bribery" look at it from the view of the wealthy speaker and what he/she expects. Political corruption exists but the conservative 5 on the Court are blind to this. Look what came about promptly after Citizens United. Perhaps what SPAM I AM! fears is that Citizens United may be overturned in due course, thuse needing the protection of an amendment to the Constitution. So SPAM I AM! like Brett fears the changing demographics.
 

Shag: Look what came about promptly after Citizens United.

What came afterward?

Show me just one example of an election purchased by a wealthy person exercising her right to speak to fellow voters.

If you can find an example where a wealthy person convinced her fellow voters to vote for the candidate of her choice, tell me again what is wrong with that?

What do you think the words free speech mean?
 

SPAM I AM! thinks money = speech. Why does an Adelson spend so much, or the Koch Bros.? What real speech are they buying with their money? Anything of substance?
 

Shag:

No one seeking to have the government ration the amount of money a business can spend on political speech claims that their objective is not to ration that business's political speech. Their argument is instead that business entitles are not people who enjoy First Amendment rights, which is a ridiculous argument since the people associated into that business are doing the speaking.
 

"In criminal law, the government is seeking to take your life, liberty, money and/or property. Discretion for lenity is justified here."

I'm not being clear or you're not getting what I'm saying.

Say you have a small town sheriff, who happens to be bald. Whenever he comes across a speeding car that he surmises to be transporting a pregnant woman in labor to the hospital he is inclined to not charge for speeding. But every now and then, rarely, but especially and mostly when the speeder has a luxurious head of hair, he goes ahead and charges them. How is that better than a sheriff who writes out a policy that he will not charge people speeding to the hospital with a pregnant woman in labor? In the first situation the discretion is open to be practiced entirely capriciously. In the latter the public statement of how the discretion will be used in a general matter can be invoked against such capricious exercise of power. If you're worried about 'Ceasrism' is strikes me that the much more open and transparent use of discretion is preferable than the secretive and hidden use of it.

"All the standard common law crimes would easily pass the "substantial" and "demonstrable" standards."

In what sense would a mere assault, say a mild shove, be 'substantial?' If that's 'substantial' then what is an aggravated assault, 'super substantial?'

"Selling influence and bribery are crimes which would easily meet the "substantial" standard."

But according to your previous statements on the matter, no benefit has been bestowed! So, no bribery.

 

"which is a ridiculous argument since the people associated into that business are doing the speaking."

No, the business entity is a separate legal entity. If they want to get rid of the benefits of being a separate legal entity, then we can talk.

"Political speech is not bribery"

Seems like it could be. I'm not sure how 'vote for this and I'll give you a million dollars' is different than 'vote for this and I'll spend a million dollars in advertising in support of your campaign' are different.
 

Mr. W: Say you have a small town sheriff, who happens to be bald. Whenever he comes across a speeding car that he surmises to be transporting a pregnant woman in labor to the hospital he is inclined to not charge for speeding. But every now and then, rarely, but especially and mostly when the speeder has a luxurious head of hair, he goes ahead and charges them. How is that better than a sheriff who writes out a policy that he will not charge people speeding to the hospital with a pregnant woman in labor?.

Because speeding statutes do not provide a blanket exception for pregnant women in labor (and the Sheriff has no power to decree one), while necessity is a legal defense to most traffic and criminal laws. An officer on the scene may or may not believe the driver had a necessity defense based upon how advanced the labor was and other factors. Once again, prosecutorial discretion is by necessity fact driven and all cases have different facts.

BD: "All the standard common law crimes would easily pass the "substantial" and "demonstrable" standards."

In what sense would a mere assault, say a mild shove, be 'substantial?'


I have autonomy over my body and a shove is a substantial invasion of that autonomy.

If that's 'substantial' then what is an aggravated assault, 'super substantial?'

If you like. There is only one quality threshold that matters under my proposed Amendment 8 - is the harm to another's body, liberty or property "substantial." If so, it is constitutionally permissible.

BD: "Selling influence and bribery are crimes which would easily meet the "substantial" standard."

Mr. W: But according to your previous statements on the matter, no benefit has been bestowed! So, no bribery.


The harm of selling influence and bribery is to the citizenry at large, who have the right to equal treatment under the law.

I may have to expand my definition of harm to more clearly include harms like this.

Thank you very much for this observation.
 

Mr. W touches on this from SPAM I AM!:

"Their argument is instead that business entitles are not people who enjoy First Amendment rights, which is a ridiculous argument since the people associated into that business are doing the speaking."

Does the business speak for ALL of the people in the business unanimously or by majority or some other vote? Those people whom the business speaks for can alos speak on their own. And the same people can be in multiple businesses, so those people have many bites of the apple, leaving a rotting core.

If money is speech, then its decibels can drown out the speech of others. That's how money talks. That can result in anti-trust related issues in buying/reserving TV time strategically. That's not small d democracy.

As SPAM I AM! knows, a future Court could overturn Citizens United. That's what SPAM I AM! fears with the changing demographics.

With SPAM I AM! busy with his commercial self promotion, he doesn't seem to have time for his troll roll at this Blog for Ted Cruz. [Actually talking points from the Cruz campaign to its minions is not to get embroiled in the "natural born Citizen" trumpeting but the hits keep piling up. The Republicans in the Senate won't help. And David Brooks in the NYTimes with his colum "The Brutalism of Ted Cruz" placed the shiv precisely. No, America is not ready for Canadian Crude, including in the form of Cruz.]
 

BD: "which is a ridiculous argument since the people associated into that business are doing the speaking."

Mr. W: No, the business entity is a separate legal entity. If they want to get rid of the benefits of being a separate legal entity, then we can talk.


That is the progressive argument in favor of stripping liberty from people associated into businesses in a nutshell.

Citizens should not be expected to forego their fundamental rights as the price of doing business.

BD: "Political speech is not bribery"

Mr. W: Seems like it could be. I'm not sure how 'vote for this and I'll give you a million dollars' is different than 'vote for this and I'll spend a million dollars in advertising in support of your campaign' are different.
.

They are no different. Both are criminal bribery.

This analogy has nothing to do with laws seeking to ration the money business spends on political speech.
 

"necessity is a legal defense to most traffic and criminal laws. An officer on the scene may or may not believe the driver had a necessity defense based upon how advanced the labor was and other factors. "

This seems highly confused. It's not better to have the officer on the scene supplant judicial functions (deciding if a necessity defense is warranted) than legislative functions. But that's beside the point: if you are against capricious executive action it would seem much better to have the executive follow published guidelines in enterprising discretion in enforcement than for them to rely on secretive, whim-based actions.

"I have autonomy over my body and a shove is a substantial invasion of that autonomy. "

You're just trying to beg the question by defining everything you think is substantial as so, but you've got an idiosyncratic idea about that. Look, you asked for suggestions. I'm not trying to undermine you in an ideological sense, I understand you're trying to formulate an amendment which would restrict government actions along the harm principle. This is a matter of English. There's a lot of room between 'de minimus' and 'substantial.' The latter means 'considerable.' If I were a progressive justice and wanted to do an end run around your intent with this amendment I'd just point to the dictionary that substantial meant 'considerable' and say that certainly suggests that there are infringements on person's rights of property and person that do not rise to the level of 'considerable' and therefore cannot be addressed. In many states statutes differentiate between a battery and a substantial battery, this shows that a commonly accepted understanding of substantial means something that would leave out the shove.

"The harm of selling influence and bribery is to the citizenry at large, who have the right to equal treatment under the law.

I may have to expand my definition of harm to more clearly include harms like this."

You're misunderstanding my suggestion. I'm not saying you haven't clarified who the harm of bribery is, I'm saying that you've stated here that where a road is located can't be a government benefit to the adjoining businesses, therefore there can't be a bribery. No benefit for the bribe, no bribe.

 

Mr. W:

I tried to design these amendments with the dishonest progressive attorney or jurist in mind.

I used the substantial standard for two reasons:

(1) The concept of substantial evidence is well established in law and harder to rewrite, and

(2) I fully expect a progressive to attempt to stretch the "substantial" standard downward and there is a space between substantial and deminimis to absorb that stretch.
 

SPAM I AM! stated early on that he wanted thoughtful and objective comments on his amendment proposals. But consider this by DPAM I AM! in his most recent comment:

"I tried to design these amendments with the dishonest progressive attorney or jurist in mind."

So with such blatant and previously undisclosed biases of SPAM I AM!, he wants thoughtful and objective comments.

Keep in mind that SPAM I AM! has been a right wing troll at this Blog for years, claiming profound DUI legal skills mostly in local "police" courts.
 

Mr. W:

I thought of you when I read this article about the wealthy reconsidering whether they are wasting money contributing to Super Pacs.

http://thehill.com/homenews/campaign/265647-upset-gop-donors-have-we-wasted-our-money
 

Shag:

Undisclosed biases?

To what do you think I was referring when I noted the myriad of times progressives have rewritten the law by decree in the courts and now the executive?

How do you describe court rulings that "state" means "states and the federal government" or "state legislature" means an unelected commission with any other term but dishonest?
 

Of course those familiar with SPAM I AM! have been well aware of his many biases. But SPAM I AM! went out of his way, in fact pleaded for thoughtful and objective comments on his proposed amendments, an obvious commercial endeavor on his part. But knowing SPAM I AM! I refused to play his game. Some out there not being that familiar with SPAM I AM! may have thought he was sincere with his plea for thoughtful and objective comments whereas SPAM I AM! is unthoughtful and subjective as he trolls his biases. SPAM I AM! may be successful in his local police courts with DUI and other misdemeanor plea deals, but all this is out of his league. Add to this that SPAM I AM! from time to time has suggested armed revolution as an alternative to political dysfunction.
 

http://media.boingboing.net/wp-content/uploads/2016/01/Spam-Can.jpg
 

This comment has been removed by the author.
 

Bart

You concede there is "a space between substantial and deminimis." By definition then (it's not 'empty space!') there would be acts which work "demonstrable and involuntary harm to the body, liberty or property of another" but be greater than de minimis but lower than substantial, and under your Amendment government would be unable to act to prevent these things.

"I thought of you when I read this article about the wealthy reconsidering whether they are wasting money contributing to Super Pacs."

That some donors don't get much for their spending hardly refutes the idea that some will and do. Localities offer tax breaks to woo businesses, they don't always get them, but that doesn't mean that tax breaks aren't in general incentives which influence decisions.
 

"How do you describe court rulings that "state" means "states and the federal government" or "state legislature" means an unelected commission with any other term but dishonest?"

My answer is easy: as eminently reasonable given the rest of the statute in the first example and the function of the initiative in the second. Indeed, more reasonable than, say, conjuring upatextual 'equal dignity of the states' or an 'anti-commandeering principle' to strike down legislation.
 

Mr. W:

Again I ask, what harms do you believe fall between substantial and deminimis that the government should be permitted to prohibit?

Despite all the sophistry offered in the defense of rewriting the law by decree, words have meanings and changing their meaing under the reubrick of "interpretation" is dishonest.

This is why my proposed Amendment 1 details how the courts are permitted to interpret the law and provides Congress with the checks of impeachment and a bill of revision.
 

"Again I ask, what harms do you believe fall between substantial and deminimis that the government should be permitted to prohibit?"

I've answered this in pointing to the difference between battery and substantial batter, and my answer isn't just reflective of some idiosyncratic understanding of 'substantial' but one adopted by many states in their laws. Again, if there is, as you say, 'space' between de minimis and substantial that space isn't empty, it contains acts which would be harms to body, liberty or property which fall in that space.

The term 'substantial' is one use a lot in the law, and there has been considerable disagreement among many learned justices about it. Here's an oldie but goodie case involving the concept of 'substantial impairment' that splits the Michigan Supreme Court.

http://law.justia.com/cases/michigan/supreme-court/1985/70660-4.html

Why would someone who seems so bent on creating an ironclad provision be so wedded to a word which has been open to so much disagreement?

"words have meanings"

Which is in large part derived by the words around them and context, and which their functional equivalents are often reasonably interchangeable.

Not out of context they don', and not foolishly rigid ones.
 

The practical political point this also raises is whether the liberal left needs to propose its own platform for such a convention.

Sandy Levinson can help.
 

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