Tuesday, December 07, 2010

The Real Constitutional Threat

Is the so-called "Repeal Amendment." Sounds like another round of nullification to me. If you like the 1st, 4th, 5th, 14th, amendments; if you like Civil Rights; if you like women's suffrage and a bunch of things like that, the Repeal Amendment isn't for you.

But civil libertarians and the American left will be content to sit around, drinking their high-gravity beer or soy-milk lattes, not talking about this while thinking "oh, the GOTP will never be able to pull that off. Someone is sure to stop them."

First they came for your pragmatic, centrist President's birth certificate...

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27 comments:

Dante said...

Pat, how exactly is an Amendment allowing the state governments to overturn federal law going to lead to nullification of any Constitutional Amendment? From what I can see, it can't but maybe I'm missing something. The only Amendment I see getting knocked down a peg is the 17th Amendment, which is kind of the point. (And a point that Slate completely and totally whiffs on in their semi-coherent rant.)

For most of our nation's history, 50% plus one of the states could block any legislation through via Constitutionally-created legislative representation: the Senate. The reason we amended that process to begin with was that it was a train wreck getting many states just to send a damn representative. I just can't see 2/3 of those states banding together to stop something that really doesn't affect them like funding on Hurricane Katrina cleanup when they can't even get their shit together enough to send a representative to Washington. (Or do you really think that situation would be cleared up by other means today?)

Personally, I like the idea of the states having some sort of legislative check again. Stupid ideas like national speed limits and drinking ages would be dead in the water under a pre-17th-Amendment Congress. I'm not sure this Repeal Amendment is the right way to go about that but instead of flying off the handle in a tizzy and making idiotic examples based on poor reasoning, I'll try to see the real pros and cons.

Dante said...

Uh yeah, replace "through via" with "via their" in my post above.

Cousin Pat from Georgia said...

How exactly is an Amendment allowing the state governments to overturn federal law going to lead to nullification of any Constitutional Amendment?

Because it will be used that way, that's why. Though it is mainly a political marketing device, this stuff gets dangerous and attempts to replay the political battles of the past without the loaded issues of slavery, suffrage, citizenship for African Americans, Civil Rights and Seperate Being Inherently Unequal. While a lot of Americans may exhibit historical amnesia as to where this comes from, I ain't one of 'em.

Historically, the balance of power between the states and the Federal government has moved back and forth. But on many important issues, the Federal government has been forced to bring the states into compliance with both US law and the Constitution of the United States.

And you know what? I don't even think they expected much publicity for this, because they'd have had a better website.

"Today, the Federal government has usurped the power that the Founders originally intended for the states...Restoring our nation's economic liberty"... blah, blah, blah. Or, in today's vernacular, OH NOES THEY BE TAKIN OUR FREEDOMS!

John C. Calhoun was saying the same thing back in the 40's...the 1840's. Which is why I'm calling shenanigans.

Dante said...

"Because it will be used that way, that's why."

Because you said so isn't an answer. This thing can't mend the Constitution. Period. Besides, there's already a mechanism for the states to do that without the federal government's input and it's never been used.

Cousin Pat from Georgia said...

Because you said so isn't an answer.

I don't say so. The history of this nation says so. All I'm doing is reminding people what past trends indicate about this item.

There's already a mechanism for the states to do that without the federal government's input and it's never been used.

Exactly. Which is why I said this is mainly a political marketing ploy with dangerous ramifications. Especially coming from a group of people who continue to maintain that the 14th Amendment, among others, should undergo serious modifications.

Dante said...

"I'm doing is reminding people what past trends indicate about this item."

No, what you're doing is crying racism when someone dare bring up states rights. It's no different than people crying Nazi when we happen to take up issues the Germans took up during Hitler's reign (and no less ridiculous).

Mavric said...

@ paT: This kind of reminds me of highschool debate where all roads led to nuclear war. It seems a bit of a stretch.

@ Dante: the main reason this concept bothers me is because of the idea of unintended consequences. To be honest, I don't have a clue as to how this additional power plays out. If it creates a review board for federal law, what happens when a 2/3 majority strikes down the federal law incorporating the IRS or some other crippling crazyness? There might be upsides too, I'm just initially concerned.

Cousin Pat from Georgia said...

What you're doing is crying racism

The "crying racism" card is only marginally more effective than the "race" card itself.

Our nation has a distinct, specific history where states unhappy with Federal mandates attempt to repeal those mandates under the banner of economic liberty, states' rights and the "Federal government usurping the intentions of the Founders." This stuff reads like a script when viewed historically, regarding a host of issues.

And, yes, often in our nation's history these lines of reasoning have been the exact ones to defend institutionalized racism. Maybe if the states had ever acted as responsible stewards of their rights, instead of choosing to die (literally) on that specific hill, time and time and time and time and time and time again, the debate would be quite different.

Cousin Pat from Georgia said...

@ Mavric.

Kind-of. Except in this case the proverbial roads actually led to the proverbial nuclear war almost every single time they were taken.

The states already have mechanisms for dismantling the IRS. Several of them. The first and foremost being that it is the populations of the several states that elect the individuals who write US laws.

Which brings me to yet another meta-issue - the idea that the government is some giant, power usurping body that can't be controlled by the politicians the people elect to serve in government. We don't need another level of review (especially at the state-legislature level), that's why we elect people in the first damn place.

Dante said...

"The main reason this concept bothers me is because of the idea of unintended consequences."

@Mav, this is something I 100% agree with you on. Seems like if the issue is the 17th Amendment, you repeal that and start from there. I get really leery of fixes intended to fix fixes. Pretty soon you end up with some lumbering behemoth like IRS tax code.

But I like the intention and feel it unnecessary to write off the subject entirely with logic on the level of "OMG, we can't have gun control laws! NAZIS had gun control laws!!!!"

Cousin Pat from Georgia said...

I get really leery of fixes intended to fix fixes. Pretty soon you end up with some lumbering behemoth like IRS tax code.

If this mechanism is redundant (a multiple redundancy, as a matter of fact), what do you think is its purpose? What laws would be applicable to this "Repeal Amendment" other than speed limits and the Civil Rights Act of 1964?

Because that's where my most suspicious motives come in. Items like this are redundant in the first place to mechanisms in our legislative system that already exist. We can already repeal Federal law by electing members of Congress. That's what they do, if need be. We can already repeal and modify the Constitution, if need be, and have done so, successfully, several times.

Proposals of redundant legislation, especially those that excuse states from Federal law on the whims of state legislatures always get my hackles up.

So why this? Why now? Why the relation to Tea Party candidates and their vague affiliation with other Tea Partiers that want to change things like the 14th Amendment?

And what of the surreal wording: "restoring economic liberty" and "usurping state power?" What "liberties" are restricted that aren't directly linked to the interstate commerce clause as enumerated in the Constitution? What state powers have the Feds trampled on that the States were doing a better job with?

patsbrother said...

Pat frequently likes to go on about the law. Normally I ignore those posts.

An amendment which gives the states collectively the right to repeal a federal law does not provide an avenue for negating your constitutional rights, just the laws passed by congress or the regulations established by a federal agency.

Example 1: 2/3 of states vote to repeal agencies's artificial exact-parity application of Title IX as it applies to collegiate sports: THEY SUCCEED.

Example 2: 2/3 of states vote to repeal congress's last hike of their own salaries: THEY SUCCEED.

Example 3: 2/3 of states vote to repeal or abridge your constitutional right to free speech: THEY FAIL.

Example 3 Redux: 2/3 of the states or 2/3 of both houses of congress suggest a repeal or abridgement of your constitution right to free speech, and 3/4 of the states approve: THEY SUCCEED, as they just amended the constitution.

No matter how many times I tell you that no state or federal law gets to negate the provisions of the constitution, you keep on trucking. (See our discussions about Arizona's illegal immigration-related law, where you continuously whined that Arizona was somehow going to get to lower the bar for probable cause below constitutional requirements.)

Conversely, the right to repeal a mere law does not give states the right to alter your constitutional rights. Such changes must still go through the constitutional amendment process.

The only potential problems I see with such an amendment as this does not involve your rights, but the federal government's. Federal preemption can be upsetting, but at least in one area--foreign policy (inclusive of the use of the armed services)--I want to know which one iron should be in the fire at all times, and federal supremacy solves that issue right nicely. Assure me that this amendment won't affect that, and I think I'm cool.

But AGAIN (for the one hundredth time): mere laws are wildly different from constitutional provisions. Stop equating one with the other.

Dante said...

"So why this? Why now?"

Off the top of my head, health care. The bill as it was passed may very well be the most unpopular bill to ever be signed into law. States are challenging the Constitutionality of it. Some Republicans have vowed to repeal it as much as possible. I don't think it's a coincidence that some politicians are looking out for the states on the heels of this federal power grab that those who support this Amendment so vehemently oppose.

Cousin Pat from Georgia said...

Pat frequently likes to go on about the law.

More to the point, I like to go on about how the law is enforced out here in the real world.

The Constitution is a magnificent document, as are the processes by which our nation has amended it over time.

However, the utilitarian fact is that those are still words on sheets of parchment. They must be backed up by enforcement at the hands of the executive, or by individuals filing a greivance in our courts, to have any meaning further than an extensive lesson in calligraphy.

Federal enforcement capability comes from the power of Federal law. For example, without Federal investigations into civil rights violations, both the Danziger and the Glover cases in New Orleans would have been dismissed by the state four years ago.

This "repeal amendment" may not change the actual text of the Constitution, but it can radically alter the enforcement of guarantees and provisions provided therein. Without enforcement capability, even more burden would be placed on the individual to bring redress of greivances to courts in the event of state Constitutional overreach.

As has become the case resultant from Arizona's new law, which allows and encourages law enforcement to search your person for identification and sets the Constitutionally mandated cause even more firmly on the back-end, with only the courts as an arbiter.

Cousin Pat from Georgia said...

Health Care.

Good point, though (as you pointed out) I'm wary of this as a backup backup backup plan due to its unintended consequences.

Even if I accept that the designers of the Repeal Amendment had intentions as pure as the driven snow, I cannot excuse recent Tea Party statements against the enforcement of the CRA1964 and the various Reconstruction Amendments to the US Constitution.

No, I do not trust these politicians in the first place, and even if I disregarded their intentions and motivations and statements of purpose as unrelated to this amendment, I could still fall back on the laws of unintended consequences, as we have discussed.

I have serious reservations about allowing 2/3 of state legislatures negate any Federal law for any reason. I feel it also violates the purpose of a bicameral national legislature (representation from small states as well as large states), as the Repeal Amendment overbalances the creation of Federal laws to the less populous states.

Even if a majority of Americans agreed with a Federal law, a minority of population could effectively negate it simply by controlling 2/3 of state legislatures.

This has nothing to do with the "Federal power grab" of the Health Care bill, and much more to do with GOP control of many new state legislatures. If you want to talk about a power grab, just wait and see what happens if one political party gets to redraw most of the districts in Congress, and then have effective referendum power on Federal law beyond Constitutionally approved methods.

Cousin Pat from Georgia said...

I have serious reservations about allowing 2/3 of state legislatures negate any Federal law for any reason.

Sorry, outside current Constitutionally approved methods.

Mavric said...

@ Dante: hilarious comeback on the IRS example. It was appreciated.

After reading the latest posts and thinking a bit, I've focused in on what makes me uneasy about this new process: It puts the ability to cripple the federal government into states hands by wiping out entire arms of government not specifically names in the Constitution. Don't like federal corruption charges? If there's no FBI I suppose they won't come a' knocking. If we create the power to do so, eventually some idiot out there would use it (most likely Dick Cheney). While there are many who argue that States have lost too much power to the Federal Government, this isn't the way to give that power back.

As a side note, Slate didn't mention the method that states would use to strike down federal laws. Governor conventions? State legislators? Senators? A brand new official called law spanker?

In the end, everybody (but patsbrother, we are safe for the moment) seems to agree that this is a knee jerk reaction and a bad idea. We just keep arguing about it.

It also reminds me of the difference between liberals and conservatives. Conservatives can have diametricly opposite positions, but agree completely with one another. Liberals can argue about sharing the same conviction all day long.

Cousin Pat from Georgia said...

As a side note, Slate didn't mention the method that states would use to strike down federal laws.

That part is so easy, it didn't bear saying.

The states strike down Federal laws the same way they create Federal laws - by electing people to represent them in Senate and the Congress.

Mavric said...

Allow me to clarify, Slate didn't mention how the states would strike down federal laws in proposed constitutional ammendment.

DADvocate said...

First they came for your pragmatic, centrist President's birth certificate...

The most secretive president ever. What's he hiding? How bad were his grades in college and law school? What's on or not on his birth certificate that he's hiding? Why are the lefties so curiously incurious?

Centrist? Bwahahahahahahahahahahaha!!

Dante said...

The more I think about it, the more I keep thinking what it appears Pat and Mav are already thinking, "Repeal anything?" I get the idea this would flip the political advantage rather than just balance things out.

I didn't think of Pat's angle on increased GOP representation in the state legislatures but that makes a lot of sense. That's a dangerous game to play though because historically Democrats have dominated state legislatures.

I guess when it comes down to it, it's only 4 states. Surely if the states want to change something badly enough and can get the 2/3 necessary, they can go to convention and work out some kind of deal to get the other 4 needed for 3/4 on board. Then they can do whatever the hell they want to.

Cousin Pat from Georgia said...

That's a dangerous game to play though because historically Democrats have dominated state legislatures.

Kind of how the TSA, DHS, NSA & CIA security measures are necessary and proper under a GOP administration, but evidence of liberal fascism under a Democratic one? Our national politics have never viewed political advantage far enough ahead to consider the shoe on the other foot.

When it comes down to it, it's only 4 states.

Four votes can be very, very important in a place where the political division continues to hover around 50-50.

Cousin Pat from Georgia said...

Slate didn't mention how the states would strike down federal laws in proposed constitutional ammendment.

You have to click through their links.

Cousin Pat from Georgia said...

The most secretive president ever.

Not even close. Every President has secrets because every human being keeps secrets.

At some point, you have to question what it is you're looking for and why you're looking for it. If the delusional crazies are determined to find a mad scientist creating zombies in Obama's past, of course they're going to get upset that they can't find it, and say he's being too secretive. Their particular delusion keeps them from recognizing it isn't their methods or the President's privacy that is the problem in that scenario.

Centrist? Bwahahahahahahahahahahaha!!

Really? Because I'd sure love to see what leftist position Obama still maintains that he won't negotiate away to the right-wing. If he's got secrets...

DADvocate said...

'd sure love to see what leftist position Obama still maintains that he won't negotiate away to the right-wing.

Heath care.

I give him credit of negotiating. He's smarter than Reid and Pelosi.

Dante said...

To be fair, Obama didn't negotiate health care with Republicans because he already negotiated most of it away to his own Party. Besides, the health care bill is bi-partisan because there are things in there Obama thinks Republicans might like.

Cousin Pat from Georgia said...

I'm not goint to rehash the entire reality-bending health care debate here, but I will say this:

The only reason this Health Care bill can be credibly described as "leftist" is if we're dealing with an incredibly right-wing goal post combined with a rejection of the consensus reality of the entire remainder of the western industrialized world.

The Health Care Bill might be very unpopular, when viewed through the lens of political communication and Nancy Pelosi's involvement, but there is one thing even less popular - the old way of doing things.