Balkinization  

Tuesday, February 02, 2016

The Limits of Bernie Sanders' Imagination

Sandy Levinson

Sen. Sanders, whom I admire a great deal though I in fact support Hillary Clinton, has in recent speeches, including that last night in Iowa, of calling for a political "revolution." Moreover, he repeatedly emphasizes, altogether accurately, that "the game is rigged" in favor of the well off and that something has to be done about that.  He also proudly proclaims his identity as a democratic socialist and his esteem for Eugene V. Debs, who ran a serious campaign for the presidency in 1912 in which he received just short of 6:% of the popular vote.

 I love the 1912 election, not least because both Wilson and Roosevelt explicitly attacked aspects of the 1787 Constitution and suggested constitutional reform, while Debs was arguing in behalf of serious, but non-revolutionary, socialism.  The incumbent, William Howard Taft, was an able defender of a traditional view of the Constitution.  There was a truly serious public debate about the future of the country and the necessity of significant reform, including constitutional change.  Taft, of course, was swamped, and the teens were notable as a period of constitutional change, with the proposal and ratification of the 16th, 17th, 18th, and 19th Amendments. 

Now, however, even former presidents of the Harvard Law Review seem unable to render a single interesting observation about the Constitution.  It's so much easier to condemn the Republican Party (however deserved) than a constitutional system that gives the Republicans an inordinate degree of power.  Sanders, a non-lawyer, seems equally unable (or unwilling) to connect the dots and to teach his audience that the rigging began, and is fundamentally enabled by, the Constitution of 1787, which has been insufficiently amended to make it more truly democratic and open to the genuine possibility of radical change (such as adopting the kind of medical care systems found in many, many countries across the world).  It is not only that we are increasingly governed, at the national level, by an oligarchy or politicians funded by oligarchs.  It is that even if one of the branches (i.e., House, Senate, or presidency) really were put in the hands of "the people," it wouldn't matter, because the system requires that an insurgent movement of the kind Sanders purports to be leading must capture control of all of these branches plus, of course, a majority of the Supreme Court lest it invalidate changes passed by Congress and signed by the President (see what almost happened to Obamacare).  Jack Balkin refers to the "constitutional trifecta," though maybe it should really be the "quadrifecta."  As in horse racing, it's really hard to pick four winners.  Similarly, the Constitution was designed to make it extremely difficult for insurgent movements actually to prevail,  given the institutional hurdles they must surmount. The sheer number of veto points give a huge advantage to denizens of the status quo, even if, on rare occasions, the stars have aligned to allow some fundamental change.

If one purpose of Sanders' campaign is to educate especially his young admirers about the realities of life in these United States, he might actually discuss our defective Constitution.  He might even commend Texas Governor Greg Abbott for suggesting that it is time for a new constitutional convention to create a constitution adequate to the new realities of the 21st century., even if, of course, he would go on to indicate his vehement disagreement with Abbott's specific proposals.  But that would serve to further the long-overdue national debate of the kind the country was capable of having in, say, 1912 and seems wholly unable to have today. 

Even if he were to be elected, by some miracle, or if Clinton is elected, as I expect will be the case, neither will be able to achieve anything at all that requires legislation unless, by an equal miracle, both the Senate and the House are Democratic (and the new Democratic majority in the Senate has the backbone to eliminate the filibuster entirely).  Otherwise, Republicans will continue to say no to everything, as the Constitution empowers them to do even if, for example, they control only the House (not least because of ruthless gerrymanders and voter suppression) and the Senate has reverted to Democratic control.  The aftermath of a Sanders election, following the elation of his supporters, would be identical to the aftermath of the Tea Party win of 2014:  Both sides would realize that the system is rigged to make elections near meaningless because of the veto gates that make campaign promises, even if sincere, near irrelevant.  The youngsters who "feel the Bern" are being set up for a monumental disillusionment, especially if their candidate stumbles into the presidency because Clinton falters and the Republican Party fully implodes (perhaps helped along by a quixotic campaign by yet another billionaire, Michael Bloomberg).

Surely Sanders realizes all of this.  And surely he realizes that he is extremely unlikely to become President.  But he has nobly seized the opportunity to say things that have long needed saying, and he has pulled the Democratic Party and its likely candidate to the left.  So why doesn't he take the opportunity truly to electrify the country by supporting a new constitutional convention?  Can he really be admirer of the Constitution that structures our current polity?  He now enjoys a unique platform, with the liberty that comes from being 73-years-old, secure in the knowledge that he's not really going to be the next President, and being able to say whatever he wants to audiences that are really listening to his message. I've always admired the adage that if one is going to hang for stealing a lamb, why not steal a sheep and, indeed, the whole damned flock.

For the Republicans in the audience, I'm interested in what they think that their favorite candidates should say about Abbott and his proposal.  Ted Cruz, after all, is going to spend quite a bit of time in Texas prior to the March 1 primary.  Surely someone will ask him about the Abbott proposal.  What do they want him to say?  Will young Marco really embrace the call for a new constitutional convention and make that a major aspect of his campaign?  He's flirted with the idea, but, then, he's flirted with so many different ideas before dropping them when they're politically inconvenient. 

 

Comments:

C.J. Edward D. White, elevated to Chief Justice by President Taft, wrote this in 1918:
1918 Selective Draft Cases:
under the Constitution as originally framed, state citizenship was primary, and United States citizenship but derivative and dependent thereon, therefore the power conferred upon Congress to raise armies was only coterminous with United States citizenship, and could not be exerted so as to cause that citizenship to lose its dependent character and dominate state citizenship In reviewing the subject, we have hitherto considered it, as it has been argued, from the point of view of the Constitution as it stood prior to the adoption of the Fourteenth Amendment. But to avoid all misapprehension, we briefly direct attention to that Amendment for the purpose of pointing out, as has been frequently done in the past, how completely it broadened the national scope of the Government under the Constitution by causing citizenship of the United States to be paramount and dominant, instead of being subordinate and derivative, and therefore, operating as it does upon all the powers conferred by the Constitution, leaves no possible support for the contentions made, if their want of merit was otherwise not so clearly made manifest.
 

Sanders supports an amendment dealing with buckley v. valeo/citizens (https://berniesanders.com/issues/money-in-politics/), which is a broad nonpartisan issue for voters. I don't understand how you can imagine that a constitutional convention would result in anything less reactionary than the state houses that call it.

 

Sanders isn't calling for a constitutional convention, for several reasons.

1. Given the current dominance of Republicans in the state legislatures, there's no way that a constitutional convention is going to produce amendments even the average Democrat, let alone Sanders, would like.

2. Democrats have put long, hard work into rendering the actual text of the Constitution irrelevant. A convention puts that work at risk.

3. Sanders is an aging red diaper baby. Smart enough to know he doesn't dare admit to being a communist, but that doesn't mean he isn't one. I really doubt his post election plans, assuming he got elected, involve the Constitution much.
 

As for what the Republicans should say about it, Presidents don't play any role in the constitutional amendment process. Presidential candidates should mostly talk about things that are relevant to the job they're applying for.

If they were going to address the topic, I'd recommend doing it in general terms, and acknowledging that drafting the amendments is the job of the Convention, not the states. And that if the states really want a convention, they should just call for one, and let it do it's job.
 

thanks for post and content
 

Query: Does the quote George Cook provides suggest that the first sentence of Section 1 of the 14th A amended, in some fashion, Article II's "natural born Citizen" presidential qualification, currently of concern due to the Cruz Canadacy?
 

Let's not ignore the role of Congress in the Article V process:

"The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."

While a President is not directly involved in the process, he/she is involved indirectly, politically, particularly regarding the impact on Article II.

By the Bybee [expletives deleted], note that the proviso protected slavery, as well being anti-democratic.

 

Note that one option Democrats do have, in the event of a convention, is to demand in Congress that the amendments have to be ratified by convention rather than legislature. That's explicitly up to Congress, even in the case of Convention initiated amendments, and would probably be more favorable to Democratic party interests.
 

And such state conventions could be more democratic than state legislatures. But would a Republican controlled Congress want the more democratic state conventions?

Query: Is a supermajority of Congress required in proposing ratification via state conventions?
 

It doesn't say so, and supermajority requirements generally have to be explicit. So I would assume a normal majority vote would suffice.

You might, casually, assume that a Republican controlled Congress wouldn't want to bias the amendment process in favor of Democratic interests. But I don't think that's correct.

The real conflict in this case is not between the interests of the parties at the federal level, but between the interests of both parties at the federal level, and both parties, (But primarily the Republican) at the state level. In that fight, Republican members of Congress actually have more reason to align with their Democratic colleages, than they do with state level officials. They'll both want to preserve the power of the federal governmen against state challenge.

So, I think in this case a deal wouldn't be too hard to strike.
 

The interesting constitutional question, of course, is what happens if the two houses of Congress can't agree. The Constitution is silent on the matter, but as a Convention is pretty explicitly a way to circumvent Congress, it wouldn't make sense to let Congress' inaction terminate the process.
 

Brett seems to be alluding to a new constitutional canon: The Constitution abhors a vacuum."
 

I believe that a constitutional convention is overdue; and that one of the first items on the agenda should be a positive right to vote.

As to the problem of regressive state houses: Congress should mandate that the ratifying conventions in each state are elected by sortition, like juries (or "deliberative polling", google it).

But I don't think that Sanders making this a plank would make much of a difference right now. Let him focus on the executive position he's aiming for for now.
 

Sandy:

We agree on the need for a second constitutional convention, but I am unsure why.

This is not the 1910s.

The changes you and Mr. Sanders would seek to further clear the way for the progressive political economy have next to no chance being ratified by state legislatures which are dominated by conservatives. Even if the second convention lowered the threshold for ratification as did the first (something I support), even a bare majority of legislatures would not ratify progressive proposals.

Instead, the super majority of conservative legislatures are calling for a constitutional convention to re-leash government and reverse progressive abuses of power, and will be sending delegates of like purpose. See, e.g.,...

http://www.knoxnews.com/news/politics/tenn-house-panel-clears-way-for-state-to-call-for-constitutional-convention-2aa726d5-dd4d-0ceb-e053--367149331.html?d=mobile

Furthermore, a second convention (like the first) could use its Article V power to offer amendments to shrug off any limitations imposed by the state legislature and instead offer a comprehensive set of constitutional reforms to reestablish and reinforce constitutional checks and balances under which little of the progressive political economy could survive.

Thus, a constitutional convention may be the last best hope for limiting rather than further unleashing our progressive government.

I this really what you are campaigning for?

 

Brett said..."Note that one option Democrats do have, in the event of a convention, is to demand in Congress that the amendments have to be ratified by convention rather than legislature. That's explicitly up to Congress, even in the case of Convention initiated amendments, and would probably be more favorable to Democratic party interests."

I doubt the party establishments will want to lose even more control over the ratification process by giving it to conventions.

What would be interesting is if the second convention followed the precedent of the first in Article VIII and set its own terms for ratification.
 

Bart, I think in this case the conflict of interest between state level and federal level office holders dominates. Ratification by convention might give the federal level politicians a better shot at killing some of the amendments that favor the states. But I don't have a strong opinion on the matter.

I'm more interested in that question of what happens if Congress can't decide which way to go, since the two houses might deadlock, and there's no default provided for in that case.
 

This comment has been removed by the author.
 

Brett:

During the first convention, the delegates were in constant contact with state legislatures to determine what proposals would be acceptable to them and one of the agreed upon proposals was Article VII revising the ratification process to nine state conventions. I suspect the delegates to a second convention will be discussing the mode of ratification with Congress to come up with an agreement before offering amendments.

If no agreement is entered with both the House and Senate, the second convention will likely issue its own ratification rules like the first did in Article VII. Absent action by Congress, the state legislatures and courts are likely to follow the decision of the convention delegates, especially if that decision is put in the form of an amendment.

By using the term "may," Article V suggests that Congress's decision to choose a mode of ratification is optional.

Article V grants the convention the power to offer amendments for consideration by the states. If the second convention offers a ratification amendment drafted along the lines of Article VII, the first convention established the precedent that the states may follow the proposed ratification standard even when it changes and lowers the current constitutional standard.
 

But that's only to say that, if you're playing baseball, everybody may by mutual agreement switch to touch football, and the complaints that violates the rules of baseball won't matter to football players. The states could, by mutual agreement, just toss the Articles on the junkheap of history, and the Articles government and remaining states that didn't agree lacked the clout to effectively object.

The situation is rather different at this point, because the existing federal government is now the 800 pound gorilla in the room, with enormous independent power to object if it doesn't like the states tossing it aside. Under the circumstances, it will, I think, prove necessary to cross every T and dot every i, to avoid giving that gorilla an excuse to pitch a fit.

The powerful federal government has to be approached by the states like a ticking time bomb, to be defused with utter delicacy lest it blow up in their faces.
 

Brett:

I would expect our corrupt and increasingly unconstitutional federal government to fight back.

The question is how?

The President and the bureaucracy have no power or standing in this fight.

If Congress does not perform its ministerial duty to call the convention or or exercise it's optional power to choose a mode of ratification, they will not be in a position to complain to the courts that the convention and the states are not following Article V by bypassing them.

Indeed, who would represent Congress in Court if the House and Senate or the parties cannot agree on a response. This would be a classic political issue on which the courts would likely take a pass.

If the states ratify the offered amendments and the federal government refuses to comply, we have a constitutional crisis of the first order and it will be time to hold another Tea Party in DC.
 

How? It occurs to me that the federal government has a rather significant military. Further, large parts of state budgets are routed through the federal government. So, they're not lacking for ways to fight. Heck, they could just arrest the members of the convention for seditious conspiracy, and ask the Supreme court how many divisions it had, when it ordered them released.

That's why I proposed that the first step is an amendment which doesn't bring the fight to an immediate head, but instead sets the stage, by transfering to the states the power to select the federal judiciary. That would, in due time, put the courts on the states' side.

It would be rather exciting to live through, (Or into...) such a fight between the states and the federal government. But I'd rather skip it, and do this thing by increments.
 

Brett and SPAM I AM!, despite their many words, are creating a pre-emptive vacuum to a possible second constitutional convention.

And SPAM I AM! informs us:

"During the first convention, the delegates were in constant contact with state legislatures to determine what proposals would be acceptable to them and one of the agreed upon proposals was Article VII revising the ratification process to nine state conventions."

A few cites to back this up would be appreciated, as I do not recall such when I was there. The convention was private, closed, no cell phones allowed. RI did not even attend. Alexander Hamilton from NY did not attend that much of the convention as he was putting a musical together. Security was so tight that hot Summer in Philly that we could not send out for Philly steak and cheese subs. And the Old Original Bookbinder's would not cater the convention.
 

It would be rather exciting to live through, (Or into...) such a fight between the states and the federal government. But I'd rather skip it, and do this thing by increments.
# posted by Blogger Brett : 2:08 PM


We already had that fight. The states lost.
 

"Blogger Brett said... How? It occurs to me that the federal government has a rather significant military. Further, large parts of state budgets are routed through the federal government. So, they're not lacking for ways to fight. Heck, they could just arrest the members of the convention for seditious conspiracy, and ask the Supreme court how many divisions it had, when it ordered them released."

I was keeping the government within the law. However, let's explore your nightmare scenario.

Many of them may be corrupt, but Congress critters are very unlikely to cut off federal funds to their constituents.

As for the government going to war against the people and their state governments...

I come from a military family. Military members swear an oath to defend the Constitution. If a president ordered them to war against fellow Americans, the military members of my family and nearly every fellow soldier I have ever known would tell their CiC to f-ck himself.

Any military members who would actually fight for a dictator against a constitutional convention and were not stopped by their comrades would face state and local police and a massive and pissed off armed citizenry. If such a rogue military thought Afghanistan was tough to hold, try a continent-size nation with over 100 million armed citizens. If only one percent of those armed citizens were combat effective (willing and able to fight), you have 1 million partisans. I would be one of them.

This is why there is a Second Amendment.

 

Blankshot, we already had an armed rebellion against the federal government. It was crushed.
 

Trivia fact: Hawaii eats more spam than any other state.

In reference to Brett's reasons three:

1. Yes -- Sen. Sanders is trying to bring forth change of the system and this would include those in control now of Congress and state legislatures. Given the current status, with respect Prof. Levinson, why in the hell would he want to call a constitutional convention? This isn't a Sims game. It isn't a discussion society.

2. No. The text is not "irrevelent" as shown by Vermont having two senators etc.

3. Uh ... his post-election plans would be to use his administration to advance the policies he is promoting, which he thinks the Constitution supports more than current policies do in certain respects.

=====

There is a reasonable chance that the Democrats will re-take the Senate. This would means confirmations and treaties would further go the Democrats' way. If the Democrats don't re-take the Senate, the President still will have major discretion stocking the executive and judicial departments with the Senate only realistically likely to slow things down to some degree.

Presidents (as noted by Prof. Elena Kagan in a long article) has a lot of power over agencies -- Obama, even with Republican control has done many things there positive. They have power of prosecutions (and pardons -- something that Obama has not done enough about) as well of course a major role in foreign affairs.

Anyway, sorry, there simply is not the desire for a constitutional convention & even finding something Republicans are passionate enough (and get them united and practical enough to follow thru on) to get a supermajority about will be hard.
 

BD: "During the first convention, the delegates were in constant contact with state legislatures to determine what proposals would be acceptable to them and one of the agreed upon proposals was Article VII revising the ratification process to nine state conventions."

Shag: A few cites to back this up would be appreciated, as I do not recall such when I was there.


The memory is always the first thing to go when you hit the age of 200...

Start with John Fiske, The Critical Period of American History 1783-1789 and Gordon Wood, The Creation of the American Republic 1776-1787.

Remember that the states called the first convention, sent delegates to represent their interests and were the entities which would ratify the product of the convention. There were constant negotiations between the states through the convention.
 

ETA: Anyway, he is about your age, but Sanders on some level is probably more conservative about institutional restraints especially as a long term public official. Plus, Sanders pushed reform for decades without trying to amend the Constitution. Perhaps, this is partially a matter of him realizing it isn't just the institutions in place but the people's will to change and do things.

The first set of amendments happened at the start, the second major trio after the Civil War & others over a span of time and often in response to events. On some level, we are a conservative nation & some open-ended convention is not something there is a big demand for though there are a few changes (like various fixes involving elections, including the Cruz Amendment) perhaps one day bipartisan support will bring forth. We are due on that front besides the 27A joker.
 

BB: we already had an armed rebellion against the federal government. It was crushed.

The Civil War was between two parts of the nation and was not a citizen rebellion against the national government.

During the economic depression under the Articles of Confederation, armed citizens rebellions did start breaking out and fear of further uprisings was a major reason the states agreed to call the first constitutional convention.
 

The Civil War was between two parts of the nation...

# posted by Blogger Bart DePalma : 4:05 PM


Which is exactly what you are threatening. Your war would be the ignorant clowns against loyal Americans. It won't end well for the ignorant clowns.
 

BB:

The citizenry defining itself against the army of a dictator trying to crush a constitutional convention is not a civil war.
 

The citizenry defining itself against the army of a dictator trying to crush a constitutional convention is not a civil war.
# posted by Blogger Bart DePalma : 4:17 PM


It's definitely a bunch of ignorant clowns if they think the US ruled by a dictator. It remains to be seen if they're willing to get killed in a war. I suspect not.
 

BB:

???

You apparently missed the entire conversation between Brett and I. Brett posed a HYPOTHETICAL about the federal government using military force against the people and their state governments to stop them from amending the Constitution. I noted that most of the military, the people and their state governments would stop any such attack.

Relax. No one is currently mustering for an armed revolution.
 

SPAM I AM! cites two (2) books but doesn't note pages/chapters that support his statement. He then goes on to state:

"There were constant negotiations between the states through the convention."

What pages, what chapters? I tried a Google search without success. I assume you have these books available to you and checked them, not merely relying on your memory, which judging from your history is more than fallible.

Actually, memory is the second thing to go.

In an earlier separate comment describing his military family roots and views on obligations of those in the military, SPAM I AM! makes this assertion:

"This is why there is a Second Amendment."

which perhaps supports, in his mind, his suggested alternative of armed revolution to address political dysfunction. Heller (5-4) doesn't support this.

And I remind SPAM I AM! of Shay's [not Shag's] Rebellion addressed at the convention with certain provisions in the 1787 Constitution.
 

You apparently missed the entire conversation between Brett and I.
# posted by Blogger Bart DePalma : 4:38 PM


No, I read the entire silly mess. That is why I'm making fun of you.
 

And NSA may have read it all as well. HYPOTHETICAL?
 

I'm not so sure the NSA have "read" it, in the sense of some human laying eyes to the page, but I'd bet good money they've at least filed it away.
 

Shag:

Apparently, they did not teach folks how to use Google when you were born back in the 18th century...

Critical Period was written over a century ago, is now public domain and can be obtained in .pdf form online:

https://archive.org/details/criticalperio00fisk

Creation is available from Amazon:

http://www.amazon.com/The-Creation-American-Republic-1776-1787/dp/0807847232

The prologue of my book project covers how the US was unsustainable as a confederation after the Revolution, necessitating a constitutional convention to recover.

I read Critical Period and Creation a couple months back as research on that period. Sorry, I do not have the time or the inclination to reread them and give you page cites for the fact that state delegates communicated with their state legislatures concerning the acceptability of the provisions of the new Constitution. It was not the focus of my research.

BD: "This is why there is a Second Amendment."

Shag: which perhaps supports, in his mind, his suggested alternative of armed revolution to address political dysfunction. Heller (5-4) doesn't support this.


:::chuckle:::

Polite modern legal society, regardless of ideology, does its best to ignore the fact that a band of successful armed revolutionaries drafted the Second Amendment to guarantee the citizenry's ability to prosecute a future revolution against a tyrannical American government, an eventuality they considered likely. The putative father of the Democratic Party, Tom Jefferson, wrote delegates to the constitutional convention:

"We have had 13. states independant 11. years. There has been one rebellion. That comes to one rebellion in a century and a half for each state. What country ever existed a century and a half without a rebellion? And what country can preserve it's liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to facts, pardon and pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is it's natural manure.

http://wiki.monticello.org/mediawiki/index.php/The_tree_of_liberty...(Quotation)
 

"the delegates were in constant contact with state legislatures"

is not quite the same as

"constant negotiations between the states"
 

"The putative father of the Democratic Party, Tom Jefferson, wrote delegates to the constitutional convention"

He wrote this months after the convention didn't he? And to William Smith. Was he a delegate to the Constitutional convention?
 

Mr. W:

Do you really contending that convention delegates did not negotiate the provisions of the Constitution on behalf of their states after consulting the state legislatures that sent them?
 

SPAM I AM! should take note of "Teaching With Documents: The Ratification of the Constitution" at:

http://www.archives.gov/education/lessons/constitution-day/ratification.html

to learn the role of state conventions as distinguished from state legislatures in the ratification process. During the Convention, the delegates could of course not negotiate with the yet to exist state conventions let alone engage in constant contact with them. OOPS! It's time to give a listen to Sam Cooke to understand SPAM I AM!'s "Don't Know Much About history ...."

And once again SPAM I AM! makes an attempt at crass commercialization of his upchucking work of friction. Must be his libertarian genes seeking to make a buck or two.

As to the Jefferson quote, that's been making the rounds for some time. Jefferson was of course not a delegate to the Convention but did keep in touch, but not via cell phone or the trans Atlantic cable, while enjoying fine French cuisine on his frolic and banter. Let's see, how constant was transAtlantic mail contact in my salad days? Also, keep in mind that Massa Tom during his 1801-1809 presidency did not have issues of the sort described in his quote.
 

thanks for good content approved :D Pulau Seribu Island
 

thanks for good content approved :D Pulau Seribu Island
 

"after consulting the state legislatures that sent them? "

is not the same as

"constant contact with state legislatures"

As a simple matter of logistics I don't see how, say, in 1787 the Georgia delegates in Philadelphia were in 'constant contact' with their state legislature.
 

The Convention voted (May 29) to bar delegates from communicating the proceedings to anyone: "That nothing spoken in the House be printed, or otherwise published or communicated without leave." Most delegates seem to have abided by this, though some clues did leak out in private correspondence. For most representatives, as you note, regular communication with the state legislatures would have been physically impossible.
 

Sandy- I do not believe that any political figure has advocated a "constitutional convention," i.e., a convention with an unlimited mandate to propose constitutional changes or to draft an entirely new constitution. What has been sought by state legislatures and supported by Abbott, Rubio and others is an Article V convention with the authority to propose amendments solely on specific subjects (e.g., a balanced budget amendment) defined by the state applications. Whether or not such applications are valid is, as you know, a matter of dispute, but this is what supporters are advocating.

Cruz has avoided taking a public stance on an Article V convention (I believe he privately supports it) because it is a divisive issue on the right. I agree it would be interesting to see what he would say if asked.

Also referring to Rubio as "young Marco" (I believe he is a year older than Cruz) may cause people to suspect that your knowledge of the 1912 election is first-hand. :)
 

mls is certainly correct that Abbott and other conservative devotees of a new convention believe that it can be tightly controlled by the states whose petitions would presumably force Congress to call it. I'm of the school that believes that any "Article V convention" has plenary authority to propose whatever amendments it wishes to, with the check being the high bar to ratification. (This is, incidentally, one of the reasons why I simply don't fear the fabled "runaway convention,' because the convention simply could never claim the authority to impose a new constitution on its own. Even the Philadelphians made no such effort, even if they ignored the Article XIII requirement of unanimous ratification by state legislatures. But they could get away with it because, of course, they had George Washington to vouch for what they were doing. For better and worse, there are no analogues in contemporary American politics.

My reference to "young Marco" is indeed a bit snarky. Our junior senator comes across as a would-be elder; one cannot imagine Ted Cruz as a playful child. Rubio, alas, looks like a twelve-year old, and it is simply impossible for me to take him seriously when he robotically intones his position of the day on hot-button issues. I will freely admit that given a forced choice, I would prefer Donald Trump to Marco Rubio as president, but that is because I think that young Marco is far more conservative than the lamestream media suggests, so eager are they to anoint him as the "establishment" alternative. From my perspective, it is as if the vast right-wing conspiracy has placed Cruz and Trump as obviously terrible choices in the hope that we would all be relieved to accept Rubio. But, of course, this is a digression from the issue that really interests me, which is whether Bernie, for all of his talk of "revolutionary change" (by which he clearly does not mean armed overthrow0 will recognize that such change requires confronting our sclerotic constitution. Abbott, who wants "reactionary change," realizes that such a confrontation is necessary. He can actually connect dots.
 

"but that is because I think that young Marco is far more conservative than the lamestream media suggests, so eager are they to anoint him as the "establishment" alternative."

But, Sandy, this involves a fundamental mistake.

At this point, Rubio is competing in the Republican primaries. It doesn't improve your prospects of getting the Republican nomination to have the media downplaying how conservative you are. None of these guys are actually as conservative as the median Republican primary voter!

Sure, downplaying how conservative he is would make him more appealing to you. But he doesn't need the votes of people like you to get the NOMINATION. He needs the votes of people like me and Bart.

Once he got the nomination, of course, there's an argument that having the media portray him as less conservative would help him. I'm not persuaded by it, but it's not a totally irrational argument.

But this runs into a fundamental problem: Once he has the nomination, there's no prospect at all that the MSM will be trying to help him get elected. They may dabble in influencing the Republican primaries, they love them a "heads I win, tails you lose" election. But their allegiance in the general election is unquestioned.

I happen to think it likely the GOP establishment are going to anoint him their favorite. But they won't do this because he's more conservative than he appears, quite the opposite: The GOP establishment is far to the left of the Republican base. They always try to anoint the most liberal alternative they think has some chance of getting the nomination.

As for Bernie, I've already explained why he won't support a constitutional convention. You? You've come to hate the Constitution so much you'd love to see it replaced, even if you weren't likely to enjoy the new one either. But Bernie is a red diaper baby, a commie who knows better than to admit it. He doesn't want a better constitution, he wants NO constitution.

As for armed overthrow of the Constitution, he's not going to advocate that when he doesn't have the arms on his side, and when he thinks he can take power without a revolution. Always better to stage a revolution from the top, you know, and once you're President, you overthrow the Constitution by nominating compliant judges and Justices, not by shooting people.
 

Brett in his latest comment repeats a defamation against Sanders, which I modify to reflect Brett:

"But Brett is a redneck diaper baby, a racist who knows better than to admit it. He doesn't want a better constitution, as a self proclaimed anarcho libertarian he wants NO constitution."

And Bernie talks of a "political revolution," not an armed revolution. As Norman Thomas demonstrated over many decades, socialism in America is distinct rom communism. Query: Is the VA system socialized medicine?
 

Shag, people like you have stripped the word "racist" of all meaning. Yes, I'm an extremist, and I don't pretend otherwise. As an anarchist ideally I'd like no government, so there's be no constitution needed. But that's a LONG way off, if it ever would be feasible. And having a constitution that's actually in force would be a step in the direction of anarchy, from our current state of arbitrary state power.

Yes, I don't think Bernie intends and armed revolution, and said as much above.

Is the VA system socialized medicine? Sure is, and that explains why it works so badly.
 

There are now various things once strong opposed, if now with wide support, that is "socialist" -- Social Security, Medicaid, Medicare, public utilities, federal reserve and probably etc. etc.

Merriam Webster defines the term as "a way of organizing a society in which major industries are owned and controlled by the government rather than by individual people and companies."

There are degrees there and we are "socialist" in various ways. Sanders wants to move the needle some, but having single player and more regulations of banks won't be pure socialism either. Obama is now labeled a "socialist" by some though economically at least he is if anything a bit more conservative than the median Democrat. But then when Mitt Romney, who ran as the conservative alternative in '08 is deemed the "most liberal" candidate in '12, you know, perhaps the Cruz-like "commie" label is not surprising.

BTW, the VA has been shown repeatedly to work better, including financially, than private medicine. If it "works so badly," imagine the alternative. Brett repeatedly voices conservative beliefs as shown by the things he most cares about in his comments. "Libertarian" might work, since the term is quite often akin to a cafeteria Catholic.
 

"single player" is one of my more fun typos
 

Consider Sections 1 and 2 of Article III of the 1787 Constitution as an experiment. How has it worked out in the past 2= centuries? Has the political dysfunction presently for the elective branches spread to the judicial branch? The esteem of the Court does not poll too well. While the Constitution does not specifically provide for horizontal judicial supremacy over the executive and legislative branches, both political parties complain about the non-elective Court. If there were to be a second constitutional convention, surely there would be extensive discussions of Article III's history over its long years. Has Article III been a disaster? What if there had been no Article III? How would issues be resolved between the elective branches?

I do fear an open second constitutional convention, although I share many, perhaps most, of Sandy's concerns. As far as I am aware, Sandy is not promoting what he thinks a second constitutional convention should end up with, other than it being more democratic. In this day and age with its political dysfunction this could be a constitution crap shoot. There are so many diverse views on constitutional issues currently that it is difficult locating consensus. Maybe we should await the conclusion of the 2016 campaigns to determine which way the constitutional winds are blowing. An open convention would not be held in secret. It could become a constitutional reality show, dwarfing the spectacles of the 2016 presidential campaigns to date. The 1787 convention was unique. Only a few elites were involved. It started as a means to amend the Articles of Confederation but quickly changed directions. Sone here have suggested a second convention might similarly change direction. But would that be possible in this age of communications? Keep in mind that the whole world would be watching the "government housekeeping" of the world's No. 1economic, military and political power. How might lesser powers react?
 

"BTW, the VA has been shown repeatedly to work better, including financially, than private medicine."

The VA has been shown repeatedly to be engaging in fraud when it reports it's statistics. See, for instance. That does tend to make you look better.
 

It's a sad, nostalgic day here in the Boston area with the demise of Bob Elliot of Bob and Ray fame. They started their radio careers here on a local station in the mid 1940s, sometimes around broadcasts of Red Sox games. They were our "home boys" before going national on radio and then TV. They developed so many characters, many of which were weird. One character was a sportscaster (I forget the character's name) who would close his loopy sports segment with: "This is _____, rounding third and heading home." Those interested should check out the obit and a reminiscence in today's NYTimes.
 

And, even factoring in problems, it has been shown to be better than private sources.
 

Mr. W: As a simple matter of logistics I don't see how, say, in 1787 the Georgia delegates in Philadelphia were in 'constant contact' with their state legislature.

By the technology of the day, of course.
 

Smoke signals? Pony express?
 

"And, even factoring in problems, it has been shown to be better than private sources."

I'm not at all sure how you factor in the problems, when one of the problems is that the statistics you're starting with are the result of rampant fraud on the part of the people compiling them.
 

Joe:

Socialism is the government directing the economy to redistribute wealth. Contrary to many dictionary definitions, the government does not need to own the means of production, but always directs them. See Zwangswirtschaft and economic democracy with worker ownership.

Progressivism was a primarily German invention which was meant to be a third way between free markets and socialism and features a regulatory bureaucracy, a redistributionary tax code, minimum compensation mandates and a welfare state.

Contrary to the classical liberal concepts of natural rights and a limited government, socialism and progressivism are totalitarian ideologies in that they do not recognize any natural limits on government power. Almost without exception, socialists and progressives believe that they can solve anything they see as an economic or social problem with more government direction, even if government misdirection caused the problem in the first instance. Socialists and progressives will almost never say something is outside the competence of government or government should not act to protect liberty.

Because it is a totalitarian ideology, progressive government did not stay within its bounds as a third way and every progressive government adopted some measure of socialism and fascist corporatism into its policy tool box over the past century.

So, when Bernie Sanders calls himself a democratic socialist, he is really talking about this hybrid progressivism.
 

Shag, at the time of the Convention, the fastest means of communication between the state capitols would have been by ship. This would allow a letter to arrive at Philidephia from any of the other state capitols in under two weeks. The constitutional convention lasted 4 months. So, yes, there was plently of time for several cycles of back and forth communications.

However, history recounts that the delegates had agreed to keep the proceedings secret, so I doubt there was a lot of that taking place.
 

Brett:

The colonial and later early U.S. horse or carriage carried mail system was very efficient for the day and a prime means the revolutionaries in different colonies used to communicate.
 

Yes, but the state capitols were all port cities, and mail between them would have been by ship.

In any event, while the speed of communications of the time was sufficient for several rounds of consultation, the convention delegates DID agree to secrecy, and while there might have been a few letters going back and forth anyway, large scale consultations would have been hard to conceal from one's fellow delegates. So I'm reasonably confident, until evidence to the contrary surfaces, that the deliberations were not done with continual feedback from the states.

A convention today would be a rather different affair, and not just for the lack of a modern George Washington.
 

Brett:

"that the deliberations were not done with continual feedback from the states."

We are arguing semantics.

What I mean by "constant" is that the lines of communication were always open between the states and the convention.

Different states participated with different frequency, but they were always in contact.

The convention did not follow the Obamacare model of writing the document in secret and then dropping the product onto the desks of the state legislatures for rubber stamping.

The states completed nearly all negotiations concerning the structure of the government created by the Constitution through their delegates at the convention. The only major addition was the later Bill of Rights.
 

The convention did not follow the Obamacare model of writing the document in secret and then dropping the product onto the desks of the state legislatures for rubber stamping.
# posted by Blogger Bart DePalma : 9:54 AM


It actually looks like that is exactly what they did...

Resolution of Secrecy Adopted by the Continental Congress, November 9, 1775

Resolved, That every member of this Congress considers himself under the ties of virtue, honour, and love of his country, not to divulge, directly or indirectly, any matter or thing agitated or debated in Congress, before the same shall have been determined, without leave of the Congress; nor any matter or thing determined in Congress, which a majority of the Congress shall order to be kept secret. And that if any member shall violate this agreement, he shall be expelled this Congress, and deemed an enemy to the liberties of America, and liable to be treated as such; and that every member signify his consent to this agreement by signing the same. (1)

(1) Quoted frown Secret Journals of the Acts and Proceedings of U. S. Congress, Vol. I, p. 34. Back

 

BB:

You are quoting from an resolution of a rebel congress seeking to keep its deliberations secret from the Crown.
 

SPAM I AM! is going full "POSTAL" in his efforts to defend his constant communications claim between delegates and state legislatures. At the time of the convention, Ben Franklin was was the Postmaster General appointed as such under the Articles of Confederation. Postal rates were not cheap back then. It has been rumored that Ben made sure the mails were not being used in violation of the secrecy order.

But beyond this full "POSTAL", it should be kept in mind that ratification took place via state conventions rather than state legislatures. Was this designation for ratification the revenge of a "rebel congress"?

And SPAM I AM! with this:

"What I mean by 'constant' is that the lines of communication were always open between the states and the convention."

is revert to his HUMPTY-DUMPTY mode once again.
 

Sorry, wrong convention. In any case, the 1787 convention was also done in secret.

The secrecy provision mandated "That no copy be taken of any entry on the journal during the sitting of the House, without leave of the House. That nothing spoken in the House be printed, or otherwise published or communicated without leave."
 

This is a rare occasion when I actually have to agree with Bartbuster and Shag. The delegates were sent with instructions, but I'm unaware of any evidence there were back and forth consultations between the delegates and their home states during the convention.

That it was physically possible for them to have engaged in such consultation doesn't mean it happened. "Delegates" were actually delegated authority to make decisions in those days.

Bart, you have any actual evidence such consultations took place? Because I was taught in history class they didn't.
 

To compare government and private services would entail a range of things over a span of time, including factoring in the "rampant fraud" in private medical care in various respects. So, citing some report isn't the end of the line there. Also, things like the fact one provides care of right is of some importance too.
 

Here's the thing, Joe: In the private sector when you find that a doctor's office or hospital has been doing fraudulent billing, charges are brought, and people do time.

In the VA, when you find somebody's been doing that, this happens.

The government isn't big on holding the government accountable, and that's a good reason very little should be directly done by the government.
 

In the real world, the private sector gets away with loads of things. You can read lots of things about that in a range of places, including prosecutions/fines overturned by judges. Actual "time" is rarely done and you can find singular cases of people in government service getting penalized too.

Public services is continually subject to oversight, especially when one branch of government is held by another party. The people doing this is elected by we.the.people, not a few people controlling private companies. The federal government also repeatedly holds state governments accountable. Their funding isn't set by soulless corporations only concerned with profit margins. Private companies don't take oaths/affirmations to follow the public interest. etc. In respect to health care, economies of scale etc. also has shown it to be fiscally cheaper. Finally, health care for various reasons is not something we should lead to the vagaries of the market like tooth paste or televisions.

The government is still run by people so is going to be flawed, so you can find things wrong with it, but it's better than the alternative.
 

Ihave been a big fan of the US Postal Service iver tge tears, When I started practicing law in the mid 1950s, in downtown Boston we would get 3 mail deliveries a day and at home two deliveries a day. Much changed over the years especailly with the Internet and Email, not to mention UPs and FedEx. In basic retirement, I still rely upon snail mail, although I do Email. A couple of weeks ago, I purchased a roll of 100 forever stamps. I wisecracked to the clerk that at my age (85) this roll should last me forever. There is something about the basic reliability of the postal service that warrants the extra costs I incur.. i wish the art of letter writing could survive the current technology. Consider the influence of the post office clause of the 1787 Constitution that resulted in "post roads." I recall long before going to law school learning of "post roads" in MA where I reside. People were united by "post roads." Times change and we have to adapt to change.

I did a Google search earlier today in an effort to determine the extent of postal activity in 1789 without much success. I don't know where SPAM I AM! gets his information but his concept of technology in 1797 esapes me.
 

That's 1787.
 

Folks:

I finally had some time to research the issue and my memory concerning communication between the convention and the states was mostly wrong.

Here is a good essay on the subject: http://csac.history.wisc.edu/secrecy_essay.pdf

The communications were few and irregular. The convention did indeed do most of its work in secret.

I stand corrected.
 

I am more than a little amused that the Constitution was negotiated in exactly the manner that Bart believes Obamacare was negotiated.
 

But not, let it be noted, ratified on a party line vote without having been read.
 

Took "Boston Post Road" today on a government funded roadway on a public bus.

http://www.history.com/this-day-in-history/george-washington-signs-the-postal-service-act
 

My first trip to New York City was via the winding Boston Post Road back in the early 1940s. It was a long drive in a crowded LaSalle. Over the years since in my travels in MA I have noted monuments/markers on the Road. Ike gave us the interstate highway system based on national security, apparently not the postal clause. So did Ike pump up the military industrial complex only to warn of the complex in his farewell speech?

That NYC trip exposed me to Times Square and the several Nedicks providing pleasing refreshments. But my favorite indulgence was the freshly made hot waffles sandwiching a thick brick vanilla ice cream. I haven't had one since.
 

Hmm, we seem to have wandered far from the original subject, but if anyone is interested, Cruz has endorsed the balanced budget amendment convention.

https://www.prlog.org/12530853-republican-presidential-candidate-ted-cruz-is-first-to-sign-us-balanced-budget-amendment-pledge.html
 

But not, let it be noted, ratified on a party line vote without having been read.
# posted by Blogger Brett : 8:46 PM


Ask me if I care what the lunatic fringe talking points are.
 

Heck, you ARE the lunatic fringe here, BB. Like most genuine lunatics, you're inalterably convinced anybody who disagrees with you is a nut.

A sane person would be discussing matters in a normal way, instead of just appointing themselves somebody's nemisis.

Glad to hear the news about Cruz. Looks like I might just have to give him my vote in the upcoming S.C. primary.
 

you're inalterably convinced anybody who disagrees with you is a nut.

# posted by Blogger Brett : 9:51 AM


Well, that's not actually what is going on here. You have admitted that your ideas are on the lunatic fringe. I'm just agreeing with you.

 

A sane person would be discussing matters in a normal way
# posted by Blogger Brett : 9:51 AM


We do agree on this. Unfortunately, there is no one on the GOP side capable of doing this. Look at Obamacare. It was a Republican idea. It was Romneycare before it was Obamacare. That is indisputable. And yet now the GOP is behaving as if it was created by Hitler and Stalin's love child. There is no reasoning with that sort of unhinged lunacy. So I just mock you morons.
 

Brett's response to a comment of BB:

"But not, let it be noted, ratified on a party line vote without having been read."

might suggest that the Republican party line voters against Obamacare did not read the bill, in line with the declared GOP policy following Obama's inauguration to say no to everything Obama.

Assuming that a self proclaimed anarcho libertarian is a lunatic, I question the genuineness of such lunacy, except that fortified by the 1st A speech clause he builds up a personal arsenal under his absolutist 2nd A views. When does shooting one's mouth off shift to ...."
 

By the way, I appreciate that at least one post has followed the Fishkin et al symposium on inequality. I look forward to more posts from participants.

Query: Would a balanced budget amendment to the Constitution resolve problems of inequality? I wonder what is mls' Point of View. Can we hear from libertarians who claim to have pulled themselves up by Ayn Rand's bra-straps - or their own bootstraps?
 

As to Cruz supporting the idea, SL is cynical about how trustworthy Rubio's support really is. Politicians supporting ideas during a campaign is a rough judge of what they will do though over time of some use. But, Cruz has shown to support things when it is politically convenient. Who is to know what he will do push comes to shove? That is when it will matter.

I'll just respond in a "normal way." Things were split on "party" votes in a range of cases over the years and party politics lead to group actions, not votes by conscience. But, the lockstep nature of the Republican Party against PPACA reflects the circling of wagons of recent years.

It really wasn't merely a "Republican idea" -- the mandate portion worked off one, but we also have the Medicaid expansion (though the SCOTUS ruling in effect provides a compromise that some Republicans w/o party lockstep probably would have accepted -- that is voluntary Medicaid expansion that has large support in even some red states) and various other odds and ends. The idea no single Republican could vote for this even to not use the filibuster to block edits is a tad ridiculous. But, they DID vote for many amendments, so DID in contribute to the final law.

Legislators in 1787 and now did not read and surely didn't understand (did the average non-lawyer understand the nuances of the Judiciary Act of 1789?) every tit and tittle of legislation. That is why there were committees etc. to work on things. There were no formal parties as currently understood in 1787, though there were party-like coalitions, some voted for, some against the Constitution. The Constitution not being simple legislation, especially not large complex legislation, most could much more easily read the whole thing. It also was the only thing on the table, not a range of things.

Though even there, doubt each person who ratified read closely the rules on tonnage or something. Or, the text of every proposal, especially if allies noted it was a bad thing. I would not be surprised that every person who voted to ratified didn't read the whole thing or read it with that much understanding on what each term meant. This underlines the silliness of certain originalists.
 

Due to a late start, I just got to Eric Posner's Blog and on the Cruz Canadacy he has posted:

"MORE THOUGHTS ON CRUZ’S ELIGIBILITY FOR THE PRESIDENCY: THE HISTORY OF FOREIGN-BORN MONARCHS"
FEBRUARY 3, 2016

with some interesting observations on English history.

And thanks to Joe for putting some meat on the bones of certain discussion issues. I need the protein.
 

This comment has been removed by the author.
 

ETA: ACS Blog also has this discussion: http://lawprofessors.typepad.com/racelawprof/2016/02/social-rights-and-the-us-constitution-professor-craig-l-jackson-contributes-to-the-alternative-const.html

Shades of FDR's "Second Bill of Rights" that was the subject of at least one book that I know of (Cass Sunstein). Our Constitution assumes some positive rights and opens the way to more. But, it is often phrased in negative terms as compared to various state constitutions and those of other nations.
 

mls said...Hmm, we seem to have wandered far from the original subject, but if anyone is interested, Cruz has endorsed the balanced budget amendment convention.

I believe that makes two GOP candidates now who have voiced support for a convention. They won't be in a position to do much about it, but it is nice seeing the idea entering the national political debate.
 

Query: Would a balanced budget amendment to the Constitution resolve problems of inequality?

Inequality per se is not a problem and government cannot and has never resolved it.

A balanced budget amendment would resolve the problem of sovereign insolvency and replace it with the progressive welfare state crowding out necessary functions of government and raids on government funds. See state governments.

A constitutional convention needs to address comprehensive reform.

The progressive political economy is like an unsound dam. Plugging a single hole like borrowing to fund ongoing expenditures will not keep the dam from collapsing. You have to replace and reinforce the entire dam.
 

While on the subject of our failing progressive political economy...

I am currently researching US economic productivity over time and the findings are appalling. Real per capita GDP growth has been hitting repeated pot holes since the Great Depression and, if you take finance out of the equation, there has been no per capita GDP growth in the rest of the economy since the new millennium began.

We need a reform convention now.

 

It seems clear that, consistent with his past practices at this Blog, SPAM I AM! has not done any realistic research in his attempts to answer the Query i posed. First of all, what would be the form of a balanced budget amendment? [I'm not interested in SPAM I AM!'s crass commercial efforts at self promotion.] Then it can be debated , including by people with expertise in various fields, including finance, economics, international law, and yes, politics. SPAM I AM!"s second sentence is incoherent. And his cryptic "See state governments." seems to suggest that states with balanced budget requirements work we. In cryptic respons see Flint, MI.

According to mls, Cruz proposes "the balanced budget amendment convention." That's not the same as a second constitutional convention. Which of the current presidential candidates, both parties, propose the latter?

SPAM I AM! following his mea culpa for shooting from the hip and then doing his research, in his usual back asswards manner, continues his screed on progressives, now in the role of the Little Dutch Boy Hans Brinker. So I guess we can expect SPAM I AM! to continue his screed for a while. Yes, SPAM I AM! has "High Hopes":

Once there was a silly old ram
Thought he'd punch a hole in a dam
No one could make that ram, scram
He kept buttin' that dam

'Cause he had high hopes
He had high hopes
He had high apple pie
In the sky hopes

So any time you're feelin' bad
'Stead of feelin' sad, just remember that ram
Oops, there goes a billion kilowatt dam
(Oops, there goes a billion kilowatt dam)
Oops, there goes a billion kilowatt dam

[With apologies to Old Blue eyes]



 

Meantime, thanks to Jack for his post with video on the Cruz Canadacy. Larry, Larry, Larry ....!
 

"Which of the current presidential candidates, both parties, propose the latter?"

http://www.theblaze.com/stories/2015/12/30/mark-levin-will-gop-contenders-follow-rubios-lead-and-endorse-a-convention-of-states-to-amend-constitution/

Cruz? Might be convention curious: http://queenofliberty.com/2015/12/23/sen-ted-cruz-supports-an-article-v-convention-of-the-states/


 

According to mls, Cruz proposes "the balanced budget amendment convention." That's not the same as a second constitutional convention. Which of the current presidential candidates, both parties, propose the latter?

None, unfortunately. Discussions of the need for an unfettered constitutional convention are currently limited to various books, essays and blogs like this.

However, once the convention is convened, they can submit any amendments they please to the states. The important thing is to get the convention convened.
 

Some observations this Sunday morning:

Marco Rubio's Groundhog Day NH debate performance.

SNL looks at the Cruz Canadacy, depicting him in the manner of Snidely Whiplash, but without a Dudley DoRight.

SNL's Larry David/Bernie Sanders mirror images. Also, "Bern Your Enthusiasm."

Fox News uses Governors to put the brakes on the Cuban CTR sandwich.

A mellow Trump on This Week and Meet the Press. He's just an ordinary guy with small hands.
 

"youngsters who "feel the Bern" are being set up for a monumental disillusionment"

It's a maturation process. Some are disillusioned with Obama, meanwhile his nominees helped bring same sex marriage, trans rights are not being protected, DADT is gone, the Ledbetter law was passed, major environmental regulations offered, some key moments in foreign policy accomplished, lots more people have health care, etc. etc.

Who knows what will happen if Sanders is President and he is putting forth a higher bar than Obama's centrist credentials, but there is a reasonable chance he too could accomplish things. Problem is that Obama had a Democratic Congress for a few years. Still, Sanders supporters see this as a long term revolution, though that also has more of a chance for purity/unrealistic hopes. Kinda figure many don't really expect him to win -- sort of a martyr doomed to fail.

Reference is made that he, like James Madison, is a "non-lawyer." SL is a "non-politician." Who is not "connecting the dots" might be open to debate.


 

"not" should be "now" ... go Broncos
 

"youngsters who "feel the Bern" are being set up for a monumental disillusionment"

Joe said...It's a maturation process. Some are disillusioned with Obama, meanwhile his nominees helped bring same sex marriage, trans rights are not being protected, DADT is gone, the Ledbetter law was passed, major environmental regulations offered, some key moments in foreign policy accomplished, lots more people have health care, etc. etc.


The Millennials will mature when the connect the progressive policies many of them support with their mass under and unemployment and poverty.

https://youtu.be/Kb3ohx6yKzs

There is no free stuff, kiddies. You are paying for it.
 

Didn't Madison have training in the law? I recall an article that suggested his legal training might have lacked depth and that he did not engage in the practice.
 

http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1366&context=lsfp

"He was, as Jack Rakove states, not a lawyer."

The article does note he had "training" in law, but I was using SL's label of "lawyer," and it is my understanding he never practiced as one.

 

Joe, thanks, that was the article I had read. Author Mary Bilder does demonstrate that perhaps Madison was well versed in the law even though he did not practice.

Both Larry Tribe and Jack Balkin in the Cruz Canadacy videos referenced a Madison quote that indicated place of birth was the key or significant factor in the Article II "natural born Citizen" clause. Jack took the position in rebuttal to Larry that this phrase was a "term of art" to well trained lawyers in 1787. Now not all Convention delegates were lawyers and it could be difficult identifying which of them were well trained in the law. There were no law schools in the colonies back in that timeframe. While some trained in Inn of Court in the Motherland, most studied in apprenticeships. There was not uniformity in the colonies/states on such apprenticeships. Often there was a 3 year training period. But there was no uniformity of training required. John Adams, who by all accounts was a good lawyer, complained of how little guidance he received from the attorney under whom he trained here in MA.

I, as have others, have questioned the treatment of the phrase as a term of art in the manner of a Bill of Attainder. Larry Solum, who was mentioned by both Lary and Jack, as well as a questioner, who like Jack is a New Originalist believing in the semantics method or originalism, in an earlier article regard John McCain, provided his view that it was not clear from the text what this phrase meant. Jack gave a brief tutorial on originalism in the course of the debate, focusing on thin and thick forms, with many gradations in between. Based upon the many articles I have read on originalism, if the abc's method were employed for the different gradations, a list would go through the alphabet more than once. And there have been disagreements between a number of originalists on the meaning of the phrase.

But I would like to go back to Jack's claim regarding well trained lawyers in 1787. One could list the lawyers in the Convention and check out there legal practices to identify the types of cases they handled. Surely there were cases involving real estate, probaate, perhaps other bread and butter areas of the common law. Maybe too much reverance is given by successful lawyers today to lawyers back then, including someone like Madison.

I notice that at the Originalism Blog, there have been few if any references to commentary on the Cruz Canadacy. As of earlier this morning, there was no post on Jack's post with videos. It seems as if a decision has been made to "cool it," as many questions were being raised about the reliability of originalism. (Yes, I've snarked on this at several threads at this Blog.) But it seems to me that "LARRY, LARRY, LARRY!" had the correct take early on: that originalism did not provide an answer, although living constitutionalism might give a leg up to the Cruz Canadacy. Jack straddles with his "Living Originalism," steadfastly insisting he is indeed an originalist despite questions many originalists have. So Jack can speak with forked originalist tongue and bless the Cruz Canadacy on originalism terms as well as on living constitutionalism terms, or as I have referred to it at times as "cross-dressing originalism."

It seems that it takes a theory to beat a theory. Well, there are many theories on differing versions of originalism, and they beat on each other at times. Now if we had a Second Constitutional Convention, perhaps the matter of interpretation/construction might be addressed and spelled out. Also "natural born Citizen" could be clarified.

By the Bybee [expletives deleted], if the Super Bowl turns out to be less than super, can we talk about mooting the Cruz Canadacy?
 

Prof. GM is working on a Bill of Rights project. One early usage I saw as applied to the the first ten amendments was Joseph Story's Commentaries as to the 2A:

"There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights."

http://press-pubs.uchicago.edu/founders/documents/amendIIs10.html
 

Joe, good link, and quote. But keep in mind this, two sentences earlier:

"And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations."

The section is fairly short and perhaps pulling out a sentence or two may lose some context. I wonder if in Heller Justice Scalia considered Story's views on the 2nd A.
 

The usage of "bill of rights" was interesting to me ... there the usage of "regulations" does too. Anyway, the full context can be found for those interested since the full commentaries are online for perusal.
 

This comment has been removed by the author.
 

Shag:

Scalia was correct that the prefatory clause of the 2A in no way limits the people's right to keep and bear arms.

The "militia" is the armed citizenry. Federalized militias like the National Guard were known as "select militias" at the time and were disfavored.

"Well regulated" means disciplined and able to shoot accurately (combat effectiveness). This term was probably included at Washington's insistence based on his less than happy experience commanding various militias during the revolution.

The Militia Clause of the Constitution grants Congress the power to call up, train, equip and discipline the militia so it can become "well regulated." Pursuant to this power, Congress has statutorily recognized that that militia is composed of unorganized armed citizenry and the organized National Guard.

The provisions all work very well together.
 

The Millennials will mature when the connect the progressive policies many of them support with their mass under and unemployment and poverty.

# posted by Blogger Bart DePalma : 12:17 PM


Blankshot, Dumbya and Cheney were not progressives.
 

BB:

Apart from the 2003 tax rate reductions (and maybe the partial brith abortion ban if you consider partial birth abortion a progressive policy), Bush's domestic policies were all progressive.

Dubya governed to the left of Clinton.
 

SPAM I AM!'s:

"Pursuant to this power, Congress has statutorily recognized that that militia is composed of unorganized armed citizenry and the organized National Guard."

is straight out of Rocky & Bullwinkle's Fractured Fairly Tales featuring "Peabody's Improbable History" with SPAM I AM! so Shermanesque. Rocky & Bullwinkle also introduced us to Snidely Whiplish now reincarnated in the 2016 GOP presidential campaign with the Cruz Canadacy. Add to this Donald DoWrong and Groundhog Day Rubio with a pressing Canadian/Cuban sandwich.
 

Shag:

See 10 U.S. Code § 311 - Militia: composition and classes.

Congress employed this definition since the Militia Act of 1792.
 

Dubya governed to the left of Clinton.
# posted by Blogger Bart DePalma : 10:44 AM


LOL

These poll numbers are GREAT news for John McCain!!!
 

10 U.S. Code § 311 - Militia: composition and classes

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are—

(1) the organized militia, which consists of the National Guard and the Naval Militia; and

(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

=====

Few thoughts here. First, "who have made a declaration of intention to become" suggests "the people" in the 2A need not just be "citizens." See also, traditional practice of allowing those on the path of citizen but still aliens to vote.

Second, "the militia" here involves a subset of the general population though the inclusion of women as a matter of "the people" in this context is a major advancement. Children, e.g., have a right to free speech. Their right to wear armbands, e.g., was protected. But, can be barred in some extent from "arms." Also, even there, "females" are only given limited coverage -- "female citizens of the United States who are members of the National Guard." As compared to "all able-bodied" of a certain age. That's probably unconstitutional.

Third, the separate age reference covers those "under 64 years of age and a former member of the Regular Army, Regular Navy, Regular Air Force, or Regular Marine Corps. To be eligible for reenlistment, a person must be under 64 years of age."

Finally, "unorganized" pursuant to the provision is not "any adult [not a felon etc.] with a gun" but those w/i the category set forth in "a" (generally 17-45 and former members of the groups cited). The organized would be "National Guard and the Naval Militia" and the "unorganized" would be the rest.
 

At to the reach of "the people," see, e.g., the various opinions in United States v. Verdugo-Urquidez, particularly Justice Kennedy
 

Joe:

The unorganized militia which Congress decided to tee up for mobilization by statute is a subset of the armed citizenry. They are limiting their militia pool to fighting age men. If the US ever faced invasion, I guarantee that militia pool would expand significantly.

Excluding women from a military draft/militia mobilization is not a violation of equal protection because fighting age men are much better qualified for combat and defense of the nation is about the most compelling purpose of government.
 

A statute was referenced to answer Shag.

The statute defines the "militia" as a subject of the adult population. A subset of that subset is the "unorganized" militia. Females a smaller subset than males. Cf. this to the people protected under Heller. Or, the "armed citizenry" as a whole.

Congress has power over the militia "to execute the Laws of the Union, suppress Insurrections and repel Invasions." Women "execute the Laws of the Union" in a range of ways, e.g., as police. Limiting female membership of the "militia" merely to "members of the National Guard," even as a matter of an unorganized resource, is rather underinclusive. Probably unconstitutional.

What this tells us about the right to own a handgun is unclear but it is interesting to me personally.
 

Congress, other than its role under Article V, does not have the power to amend the Constitution. SPAM I AM! seems to be taking the position that Congress' reference in the statute to "unorganized militia" pulls that group within the ambit of the 2nd A as "a subset of the armed citizenry." This is a leap even from Heller (5-4) currently limited to the home for self-defense and subject to certain regulatory limitations. Perhaps SPAM I AM! has in mind the Bundy-type unorganized militia groups. The Court has rejected efforts to expand Heller/McDonald to date.
 

Mike (I'm not Rappaport) Ramsey over at the Originalism Blog has finally gotten back to the Cruz Canadacy with Randy Barnett's take on the video debate between Larry Tribe and Jack Balkin. Mike also references a NO vote by another commentator with a self serving editorial comment. Many originalists supporting Cruz as a "natural born Citizen" under Article II rely upon Congress' powers under the Article I naturalization clause, which can provide a floating definition of "natural born Citizen" changeable from time to time by Congress. Can we refer to this as "Bubbles Originalism"? (To be fair, both Mike and Jack suggest there would be limits on Congress' naturalization power in this regard, with Jack providing the example of a Congress wishing to make Vladimir Putin eligible for the presidency. But would that be the outer limit with a President Donald Trump in his second term imploring Congress for a worthy successor if ineligle for a third term?)
 

Shag: The Court has rejected efforts to expand Heller/McDonald to date.

Generally, Roberts likes to wait until issues percolate through the circuits and a conflict arises before granting cert.

The next big 2A case will likely concern the issues of the level of scrutiny and what weapons are protected arms. The 4 Cir. just handed down a decision applying strict scrutiny to strike down Maryland's broad prohibition on semi-automatic rifles that it deems to be "assault weapons." 4 Cir. properly applied the 1A standards of review to the 2A and noted that millions of Americans own the weapons MD is banning. The Supremes need to go further and apply a functionality test. If a weapon is commonly owned or is not functionally different than similar commonly owned firearms, they are protected arms.
 

Let's note that Robert as CJ does not grant Cert. He can be one of four required. While SPAM I AM! might have a take on Roberts on Cert, the other 4 of the conservative 5 can grant Cert. Also, the liberals on the Court could do so. Or there could be a mix of conservatives and liberals to make the 4. I recall SPAM I AM! when McDonald (or was it Heller earlier?) was about to be decided, informing us he had a case ready to go. I don't recall any further comments on what was ready to go. But a significant number of cases on the 2nd A were filed, decided, appealed, but no Cert since 2010. Maybe the conservative 5 are, deep down, Dudley DoRights (DoLefts?) regarding the 2nd A absolutist fringe, like the Bundy unregulated militia. [Note: SPAM I AM! didn't take the Bundy-bait earlier.]

This leads me to self-defense at common law. Self defense could be employed by means of human arms or feet or other body parts (such as head butting). There could be involved objects that might be at hand, like a rock, a 2'x4", a bucket, etc. There were also various forms of military weaponry, such as a bow and arrow. At some point the weaponry could consist of predecessors to handguns. The common law of self dense over time addressed what would be use, and how, and where, and under what circumstances, in considering whether the sel defense claim was valid. Some means of self defense could result in death, but not all. With advances in technology over time, arms, i.e., weapons, could become more killing, with a person engaged in self defense not only killing someone trying to do him harm, but also third parties as collateral damage.

At common law, there was no uniformity on what constituted self defense. Now by statute there are different approaches to the law of self defense. Yet Justice Scalia in Heller referred to self defense in the home as part of the 2nd A even though there was no uniform common law or statutory law definition of self defense.

As a kid, I got into few fist fights. [I couldn't stand the sight of my own blood.] Many of these type fist fights could at some point involved self defense on the part of one of the participants - or both. There might be a bloody lip, a tooth chip, but usually peace prevailed. We all watched cowboy movies and then war movies with advancing technologies in weaponry. (Who can forget Dr. Strangelove?)

How far can the states take self defense definition by statutory means to fit within Heller in the home - or beyond? It should be kept in mind that availing oneself of self defense (however defined) is not limited to the home and can include public places, including courtrooms. But how far might Heller be expanded? Perhaps the conservative 5 fear expansion, especially with so many "good guys" with guns ready to defend themselves and others against "bad guys" with guns. (The "good guys" wear white hats and the "bad guys" wear black hats.)

This brings us back to perhaps why no Cert since Heller on 2nd A cases.
 

At his Blog Eric Posner provides a link to his Slate essay that the Cruz Canadacy does not qualify as a "natural Born Citizen." There are 1.5K comments reported. I did not check any of the comments. That's enough comments for a new roof.
 

"Maybe the conservative 5 are, deep down, Dudley DoRights (DoLefts?) regarding the 2nd A absolutist fringe, like the Bundy unregulated militia."

I think it's clear that the Heller/McDonald minority aren't going to vote for certiori on these cases as long as they ARE the minority. So that makes the question, why aren't at least 4 of the majority doing so?

It's quite possible some in the majority aren't certain that somebody in the majority is still on board. Roberts has made some really bizarre gymnastics to uphold unconstitutional laws lately, some think he's being blackmailed. Perhaps the rest of the Heller majority don't trust him anymore.

But I think it might be just that it's clear the next President is going to be nominating replacements for as many as four of the Justices, if he gets two terms. Democrats have already made it clear that reversing Heller is an absolute litmus test for nominees.

Perhaps the majority just don't see any point in continuing this line of cases until it's clear they'll last. Why get exiled from all the good cocktail parties for no good reason?
 

"Democrats have already made it clear that reversing Heller is an absolute litmus test for nominees."

An "absolute" litmus test? Strange, since multiple Democratic senators support the ruling. Some probably more than Brett himself, who has called it weak willed. Fact is, especially as the lower courts are now applying it, only a minority actually cannot live with the opinion. It isn't akin to abortion, gay rights, PPACA, campaign finance, or various other issues.

It seems that Justice Kennedy, at least, supports the various regulations being upheld now, and Roberts/Alito know this. The conservatives (though in the country at large, quite a few liberals support the ruling, especially since it allows a breadth of regulations aka "controls" of "guns") wanted a basic constitutional principle to be upheld -- a right to own guns. They got that.

Anyway, it is not the only controversial matter the justices avoided. Took them years to deal with abortion again except in limited matters. Other than statutory issues involving RFRA, religious matters are largely being avoided, even though there seems to be five votes to move the doctrine in a more conservative direction. Other examples can be cited.

Finally, I really don't know how Kagan would vote if a case comes up. You know the woman who hunts with Scalia. She very well might accept Heller/McDonald as precedent.
 

"Finally, I really don't know how Kagan would vote if a case comes up."

Sotomayor lied her head off during her confirmation hearings, as we learned in the McDonald case. I doubt Kagan is any better.

But you might be right about Kennedy being the member of the majority that isn't trusted.

I'll say this: If either Bernie or Hillary gets elected, and the Supreme court subsequently reverses Heller, it's going to get ugly. Probably would guarantee a constitutional convention.
 

Yes, 2nd A absolutists can get ugly, and some are currently. Be that as it may, let's push for Bernie or hillary to get that coveted Second Constitutional Convention. Good suggestion.Brett/ Sandy might second it.
 

This comment has been removed by the author.
 

This comment has been removed by the author.
 

Sotomayor told the Senate how she would vote in a future case? Nominees these days go out of their way not to do that. She said something about Heller being precedent. A new issue came in front of the Court and she voted with the dissent. She did not "lie her head off."

Kagan is not Sotomayor. Kagan goes hunting with Scalia. She is more strategic about her voting and on certain issues less strongly liberal as seen in the PPACA (on Medicaid expansion) and certain other cases. So, especially years after both issues (2A/14A) have been decided, it is far from clear what Kagan will do. In fact, at this point, as was the case in other cases, more than one might simply accept precedent especially in a case that upholds regulations.

I don't know how "ugly" it will be given Heller only came less than a decade ago, most states already strongly protect the right, there is little chance the feds will pass some strong limit (Sanders in fact supported it for years as did his fellow senator, who would be President Pro Tempore if Dems regain control of the Senate) etc. And, it is not really about Kennedy not being "trusted." He supports the regulations at issue plus there hasn't been a major split to decide.
 

"Congress has statutorily recognized that that militia is composed of unorganized armed citizenry and the organized National Guard."

Where is the term 'armed' in the cited statute?

0 U.S. Code § 311 - Militia: composition and classes

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are—

(1) the organized militia, which consists of the National Guard and the Naval Militia; and

(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.


 

"the Supreme court subsequently reverses Heller, it's going to get ugly. Probably would guarantee a constitutional convention."

Why would that be? If Heller, or more importantly MacDonald, were reversed then what would happen is that it would be up each state to determine it's level of gun control. I thought that's the kind of thing you wanted Brett.
 

Now, why would I want each state and local government free to infringe a basic civil liberty? And not one of those "was a crime until the judiciary decided to make it into a right" 'civil rights', like abortion, but the real deal, explicitly guaranteed.

You don't have revolutions when things are getting better. You have revolutions when people have developed an expectation of things getting better, and then it is suddenly violated. The pro-gun movement easily has enough political clout to get a Convention if we want it. Reversing Heller would make us want it.
 

"Now, why would I want each state and local government free to infringe a basic civil liberty?"

Oh, I see, so you're for states rights, but not when it's *really* important! Then the feds should jump right on in and, in your words, 'lord it over everyone.'
 

I'm for the rule of law, and the 2nd amendment is the highest law of the land.

So's the 10th amendment. Which means the federal government being limited to enumerated powers, and everything else that's not prohibited to the states, being reserved for the states, or the people, is a rule of law question.

It's not arbitrary, pick and chose. This stuff is actually written down in the Constitution, with some things being state matters, and some things being federal.

Like it or not, constitutionally, the right to keep and bear arms isn't local option.
 

"This stuff is actually written down in the Constitution, with some things being state matters, and some things being federal."

And the 2nd, Brett, is written in the part restricting *Congress.*

Incorporation is not an obvious textual mandate, and it used to be quite frowned upon by those who said they were for 'state's rights' (for obvious reasons).
 

And not one of those "was a crime until the judiciary decided to make it into a right" 'civil rights', like abortion, but the real deal, explicitly guaranteed.

Yes, unlike the right to deny service to black people or gays at stores, women having control of their bodies (a basic evil of slavery being denied that) is not the "real deal" since eventually -- in large part for outdated health reasons and/or for reasons that turn out to be sectarian religiously and sexist in motivation or effect -- abortion (like seditious libel) was made (selectively and arbitrarily) a crime.

This sort of selective concern for government power might be why Mr. W. is confused. Also, "the judiciary" alone didn't make control of a woman's body, particularly involving choices over motherhood, a right. It was well recognized by society and government entities already. Roe v. Wade was a specific application of it.

Finally, just what the 2A means, what it 'explicitly guarantees,' is the very question at issue. If control of your body to avoid forced motherhood is not basic to avoid slavery, it seems to me somewhat debatable what the 2A means. Plus, until Heller and McDonald it was "a crime" to do have a handgun etc. in violation of local laws. It is a tad circular to point to what is alleged to be wrongful criminal law as proof that the right doesn't exist. Slavery existed by positive law. Many still thought it in violation of rights.

To circle back to Sandy Levinson's original comments, perhaps Sanders realizes again that change will in large part not come from constitutional text, but from certain societal actions that largely can be done within the current document's terms. The same text obviously open to very different reactions.
 

" It was well recognized by society and government entities already. Roe v. Wade was a specific application of it."

Abortion was a crime under at least some circumstances in every state, and under most circumstances in most states. That's about as far from "well recognized by society and government" as it gets.
 

Various things involving guns "under at least some circumstances" were a crime in every state too from what I can figure too. Back in the day, lots of speech now clearly protected were banned too "under at least some circumstances."

The "it" was control of one's body and a broad right over what was seen as private matters of family life, including involving choosing when to have a child. Courts, including those below the USSC, applied that general principle to abortion. As with interracial marriage bans, many laws were deemed, applying the principles consistently and not violating various constitutional principles, to be invalid.

Abortion itself was not generally invalid, no more than marriage was.
 

In citizenship litigation news:

http://www.bna.com/supreme-court-american-b57982067167/
 

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