Incoming House Majority Leader Endorses Plan To Destroy Constitution
Incoming House Majority Leader Eric Cantor is speaking positively about an Amendment that would drastically alter the relationship between the Federal Government and the states, and a method of ratifying it that could do serious damage to the Constitution as a whole.
Eric Cantor, who will take office as the House Majority Leader on January 3rd, is voicing support for a proposed Constitutional Amendment that would drastically alter the relationship between the Federal Government and the States:
Incoming House Majority Leader Eric Cantor is part of a class of Republicans who say they want to change the country fundamentally — and to that end, Cantor isn’t dismissing a plan by legislators in his home state of Virgina to blow up the Constitutional system and replace it with one that would give state governments veto power over federal laws.
For several weeks now, conservative legal circles have been buzzing with Virginia House Speaker Bill Howell’s plan to amend the Constitution so that a 2/3 vote of the states could overturn overturn any federal law passed by the Congress and signed by the President. Howell first floated the idea in a September Wall Street Journal op-ed he co-wrote with Georgetown University law professor Randy Barnett.
“At present, the only way for states to contest a federal law or regulation is to bring a constitutional challenge in federal court or seek an amendment to the Constitution,” the pair wrote. “A state repeal power provides a targeted way to reverse particular congressional acts and administrative regulations without relying on federal judges or permanently amending the text of the Constitution to correct a specific abuse.”
Howell plans to kick off the repeal amendment push by bringing a bill calling for a Constitutional Convention to the floor of the Virginia legislature this January. If he can get 2/3 of the states to go along with calling for a Constitutonal Convention, then that would trigger one of the two amendment processes under Article Five of the Constitution.
Libertarian-leaning law Professor Randy Barnett came up with this idea two years ago, and at the time argued that floating the amendment was a way for the states to force the Federal Government to rein itself in:
In response to an unprecedented expansion of federal power, citizens have held hundreds of “tea party” rallies around the country, and various states are considering “sovereignty resolutions” invoking the Constitution’s Ninth and Tenth Amendments. For example, Michigan’s proposal urges “the federal government to halt its practice of imposing mandates upon the states for purposes not enumerated by the Constitution of the United States.”
While well-intentioned, such symbolic resolutions are not likely to have the slightest impact on the federal courts, which long ago adopted a virtually unlimited construction of Congressional power. But state legislatures have a real power under the Constitution by which to resist the growth of federal power: They can petition Congress for a convention to propose amendments to the Constitution.
Article V provides that, “on the application of the legislatures of two thirds of the several states,” Congress “shall call a convention for proposing amendments.” Before becoming law, any amendments produced by such a convention would then need to be ratified by three-quarters of the states.
An amendments convention is feared because its scope cannot be limited in advance. The convention convened by Congress to propose amendments to the Articles of Confederation produced instead the entirely different Constitution under which we now live. Yet it is precisely the fear of a runaway convention that states can exploit to bring Congress to heel.
In essence, Barnett argued that states can use the threat of a Constitutional Convention to force Congress to propose an Amendment to the states for ratification. This method worked to some effect in the early part of the 20th Century when Congress finally acted on what became the 17th Amendment after thirty-one states had passed resolutions calling for a Constitutional Convention to consider such an Amendment. Barnett contends that it could work again.
More recently, though, Barnett seemed to have abandoned the idea of using the amendment as a threat, and now argues that it should actually be adopted:
The Repeal Amendment should not be confused with the power to “nullify” unconstitutional laws possessed by federal courts. Unlike nullification, a repeal power allows two-thirds of the states to reject a federal law for policy reasons that are irrelevant to constitutional concerns. In this sense, a state repeal power is more like the president’s veto power.
This amendment reflects confidence in the collective wisdom of the men and women from diverse backgrounds, and elected by diverse constituencies, who comprise the modern legislatures of two-thirds of the states. Put another way, it allows thousands of democratically elected representatives outside the Beltway to check the will of 535 elected representatives in Washington, D.C.
Congress could re-enact a repealed measure if it really feels that two-thirds of state legislatures are out of touch with popular sentiment. And congressional re-enactment would require merely a simple majority. In effect, with repeal power the states could force Congress to take a second look at a controversial law.
Americans revere their Constitution but have also acted politically to improve it. The 13th and 14th Amendments limited the original power of states to violate the fundamental rights of their own citizens, while the 15th and 19th Amendments extended the right to vote to blacks and women. The 21st Amendment repealed another “progressive” reform: the 18th Amendment that empowered Congress to prohibit alcohol.
The Repeal Amendment alone will not cure all the current problems with federal power. Getting two-thirds of state legislatures to agree on overturning a federal law will not be easy and will only happen if a law is highly unpopular.
There are several objections that could be made to the amendment, including the fact that it would alter the relationship between the states and the Federal Government in a way that even the Founders themselves never contemplated. For example, even though it has long been the rallying cry of the so-called “state’s rights” crowd, there is absolutely no support for the argument that the Constitution contains any power allowing the states to nullify a Federal law they deem to be unconstitutional. In fact, James Madison himself rejected the very idea during the controversy over the Alien and Sedition Acts, which occurred only a few years after he had participated in the drafting of the Constitution. Granting the states the power to overturn a Federal law, whether for policy or Constitutional reasons, would do more to bring down the Federal structure of the American government than even the Civil War tried to do.
The other problem with Barnett’s proposal is pointed out by his Volokh Conspiracy co-blogger Ilya Somin:
I am far less optimistic than he is about the likelihood that state governments will support such a massive reduction in federal power. Randy writes that “States have nothing to lose and everything to gain by making this Federalism Amendment the focus of their resistance to the shrinking of their reserved powers and infringements upon the rights retained by the people.” In reality, however, many state governments have a great deal to lose because they receive massive quantities of federal subsidies (equivalent to some 20-30% of their total budgets; see Table B-86 here) that would mostly be cut off by Section 3 of Randy’s proposed amendment. The states got some $450 billion in federal funding in 2008, and are likely to get even more this year. Right now, most states are very happy to take federal stimulus money, and many would like to get even more. State governments also often support federal regulation of private activity. John McGinnis and I discuss the reasons why state governments often favor broad federal authority in greater detail in this article. If the states really did have “nothing to lose” from imposing tight constraints on federal power, they probably would not have allowed the latter to grow to its current bloated size in the first place.
You need to look no further for evidence in support of Somin’s argument than the news coverage of Governors, Mayors, and other local officials who paraded to Washington in the weeks after Obama’s Inauguration to ensure that they got their piece of the stimulus pie. For the most part, these local and state leaders want federal money because, without it, their citizens would have to bear to full cost of all those state programs they’ve implemented — and that would lead to fiscal, and political, disaster for the powers that be.
There’s a final problem with Barnett’s plan, though, and it involves the method by which would amend the Constitution. Article V does allow for a Convention of the states if Congress refuses to act on a proposed amendment, but it would be a manifestly stupid and dangerous idea . Throughout the years, a Constitutional Convention has been proposed as a means of passing the ERA, a federal budget amendment, a term limits amendment, a line-item veto amendment, and, most recently an amendment to ban flag burning. there is no such thing as a Constitutional Convention that is limited to only one purpose. Once such a convention is called and convenes, everything is on the table. In fact, history will note that the Convention of 1787 which resulted in the U.S. Constitution was, in fact, initiated as a convention to amend the Articles of Confederation. Little to the Continental Congress know that it would be amended out of existence.
Former Chief Justice Warren Burger warned of the dangers of a Constitutional Convention in 1983:
I have also repeatedly given my opinion that there is no effective way to limit or muzzle the actions of a Constitutional Convention. The convention could make its own rules and set its own agenda. Congress might try to limit the convention to one amendment or to one issue, but there is no way to assure that the convention would obey. After a convention is convened, it will be too late to stop the convention if we don’t like its agenda. The meeting in 1787 ignored the limit placed by the confederation Congress “for the sole and express purpose.”
With George Washington as chairman, they were able to deliberate in total secrecy, with no press coverage and no leaks. A constitutional Convention today would be a free-for-all for special interest groups, television coverage, and press speculation.
Our 1787 Constitution was referred to by several of its authors as a “miracle.” Whatever gain might be hoped for from a new Constitutional Convention could not be worth the risks involved. A new convention could plunge our Nation into constitutional confusion and confrontation at every turn, with no assurance that focus would be on the subjects needing attention.
Burger, of course, was exactly right then and he’s exactly right now.
It’s worth noting, as Burger does, the historical context in which the 1787 Convention came to be:
On January 21, 1786, the Virginia Legislature, following James Madison‘s recommendation, invited all the states to send delegates to Annapolis, Maryland to discuss ways to reduce these interstate conflicts. At what came to be known as the Annapolis Convention, the few state delegates in attendance endorsed a motion that called for all states to meet in Philadelphia in May 1787 to discuss ways to improve the Articles of Confederation in a “Grand Convention.”
Instead of discussing improvement to the Articles of Confederation, though, the delegates quickly moved to the creation of an entirely new system of government that had no resemblance to the then-current national government and, when they were done, instead of complying with the amendment procedure provided for in the Articles, which would have required approval by Congress and unanimous consent of all thirteen state legislatures, they provided for a ratification process that completely bypassed Congress and the states. And they did that because they knew there was no way the new Constitution would have been approved by all thirteen states.
The Articles of Confederation, of course, were a flawed document and it’s unlikely that the United States would have survived as a unified nation for very much longer had they remained in place. So, in some sense, Madison and the others at Philadelphia did the right thing.
But, as Burger says, we were lucky and there’s no reason to believe we’d be similarly lucky a second time. No matter how salutory a proposed Amendment might be, a Constitutional Convention is far too dangerous to risk, and Cantor is irresponsible for suggesting that it might be a good idea.
Update: Welcome Instapundit readers. Two thoughts. First, I’ve written a follow-up piece on the Repeal Amendment that you ought to check out. Second, I think there’s some confusion about the “destroy the Constitution” line I used in the title. as I noted above, that refers more to the idea of calling a Constitutional Convention than to the Amendment itself, although I think there are serious problems with the Amendment too.
Considering Virginia is practically a ward of the federal government I can’t imagine these fringe right freaks will actually follow through with their attempted treason.
Your headline is nonsense. You can’t “destroy [the] Constitution” by following its lawful procedures for amendment.
Cantor’s idea might be ill-advised; as a constitutional conservative I am suspicious of ANY attempt to amend the Constitution. It might even be foolish.
But your headline is equally foolish.
Perhaps there’s is some artistic license involved, but considering the fact that the plan involves backing a foolish call for a Constitutional Convention, I don’t think the “destroy the Constitution” idea is really all that far off the mark
While I agree with James Young above that amending the Constitution isn’t destroying it, the proposal is nonetheless quite silly. Most obviously, anything that could spark getting a law passed in 2/3 of the states wouldn’t have been able to get through the Senate, which after all represents said states, to begin with. Or, hell, the House.
Remarkable how quickly GOP pols slip on the knee pads to appease the far right…
Interesting, but fat chance. The country is too partisan to do anything this drastic in the near future.
Can I veto my federal taxes but approve my federal spending? lolz
I tend to agree.
The last time the Constitution was successfully amended was in 1971, almost 40 years ago now. (The 27th Amendment was ratified in 1992, but it was a hold over from the Amendments proposed in 1791 that happened to finally get the requisite number of state ratifications). The ERA died on the vine in the early 80s, and since then there hasn’t been a single Constitutional Amendment voted out of Congress and sent to the states.
Indeed. But the assertion that it’s “treason” to do so is so ludicrous as to render that bit of rhetorical excess mere puffery.
I’m deeply skeptical that a Constitutional Convention would actually improve the document. But one doesn’t “destroy” the Constitution by abiding by it. Nor is it a valid objection to a proposal to amend it by adding things that aren’t supported by its text. More than a few of the amendments that have been passed do just that, after all.
Even better: Madison wanted the federal government to have the power to nullify state laws.
Clearly, this is a plan to allow low-population states — which are overwhelmingly but not exclusively red — to veto anything the people of New York and California would approve of.
Others have mentioned how this is anything but destroying the constitution and of course the Lefties have thrown in their usual insults instead of real thinking.
Sure we haven’t amended the Constitution for long while and sure it’s tough but for gosh sakes we have a government that has lost it’s ability to control spending, control regulations on it’s people, and is now endangering our livelihoods. I think it’s high time for some really big hope and change originating from the people.
As for the changes being proposed something the founders never foresaw I would counter the present system is something the never saw coming either. Change is very necessary at this point in time.
Funny how those who like the idea of a living document somehow are opposed to changing it as it was supposed to be done.
Plunk — Funny how those who hate the idea of a living document somehow are in favor of completely rewriting it. Gee, that was easy.
Some people just don’t seem to get it…of course amending the Constitution isn’t destroying it…but allowing states to reject federal laws certainly is…
Funny how those who like the idea of originalism are opposed to that when it conflicts with their own desired outcome, like Bush v. Gore…
Hmmm. I wonder if the states, under the amendment, would be able to repeal a treaty negotiated by the president and ratified by the Senate? Golly, that would be something to look forward to — state senator Foghorn (D. Bumblefvck) meddling in foreign policy.
Basically, what we’d have is a rewrite of Article VI, Section 1, Clause 2 (The Supremacy Clause) along the lines of:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the Supreme Law of the Land, unless two-thirds of the states repeal such laws and treaties; and the Judges in every State are only provisionally bound thereby if any case or controversy shall come before such Judges, under said laws, during the time when the states are considering such repeal. any Thing in the Constitution or Laws of any State to the Contrary notwithstanding…
BTW, is there some kind of time limit involved? I mean, could the states repeal an act passed in, say, 1945?
strikeout not working
wr, The proper mechanism for change is the amendment process rather than through the interpretation of the judiciary who see it as a living document. An amendment is also not completely rewriting it.
AIP, Originalists believe the Constitution should be followed and that includes the amendment process to update it.
Plunk — So you think that completely rewriting the most basic ways in which this government functions is simply a minor revision? What, then, do you respect about the constitution? The parchment is was written on? The typeface?
In re: re-writing the constitution and original intent.
This amendment (which has no chance passing, btw) if passed would undermine the purpose of the 1789 Constitution which was the subordination of the 13 states to the central government. That is no small thing. As such, it is fair to point out that supporting such a move, even if accomplished via a legitimate amendment process, is not exactly venerating the constitutional order as passed down by the Founders.
Technically we could go the Article V route and establish a monarchy but that would hardly be in keeping with the original intent of the document on any level, but if passed through the appropriate process would be constitutional.
Just when you thought Republicans couldn’t get any dumber.
Isn’t California already rejecting federal law by legalizing Weed?
Not to worry folks the destruction of the Constitution will remain largely the purview of the federal government.
Should the two come into conflict (say in court or if the DoJ wanted to expend the resources to go into CA over the issue), Federal Law (specifically the Controlled Substances Act) would trump CA’s laws on the subject.
I think a Constitutional Convention is long overdue. Take out the abiguity that exists over 200 year old language, update the document, and let the chips fall where they may.
The folks that fear the idea are generally the one’s who benefit the most from the status quo.
Gee, a mechanism to amend the Constitution would destroy the Constitution, despite the fact that it has been used successfully in the past. Who knew Mataconis is prescient.
BTW- Red State blog tore you a new one today, Mataconis.
It will never happen.
> for gosh sakes we have a government that has lost it’s ability to control spending, control regulations on it’s people, and is now endangering our livelihoods. I think it’s high time for some really big hope and change originating from the people.
Except this is not “change originating from the people”. You are simply spouting Fox boilerplate. If you did not get it directly from the source, it is dirivative. The fact you don’t see that leaves me with little confidence in your ability to “improve” the Constitution. Don’t be a tool.
Over half of this comment thread could have been avoided if the title had simply said “ruin” rather than “destroy.”
wr, I respect the whole thing but I also understand the amendment process is part of it. If you reject the ability to amend it haven’t you rejected it also?
anjin, Once again blaming Fox News? I don’t watch it but I can’t help it if they see things similar to how I do. I’ve thought about the Constitution since before Fox News was around and often wondered about the amendment process, judicial updating, and following the rules. This is the proper way to do things. Calling me a tool is a nice touch. It usually means someone is too angry to form respectable thoughts.
Terrye, You’re probably right but it’s fun to talk about it.
Sorry Steve, but the correlation between comments in here on the right side of the fence and Fox editorial and “news” content is a bit too large to ignore. Many of the leading GOP contenders for the White House in 2012 are actually Fox employees. Marketing is a component of how I earn my living & my conclusion is that Fox is one of the most effective message shaper in the history of modern media. Perhaps you are an exception, but what you are saying pretty clearly reflects Fox/Palin talking points and buzzwords.
BTW, I am not angry, but stick with that if it makes you feel better somehow. I am not sure what a “respectable” thought is (pretty sure I was not having one when talking to our receptionist this morning though), but if you can show where my arguments are not at least reasonably lucid, please do so.
Doug is right. The experience in Brazil and Mexico proves that Constitution Conventions are generally a disaster because the people that participates on them uses the occasion to benefit themselves and to create grandiose plans. The Brazilian Constitution of 1988(A commentator at the time said that the document tried to eliminate poverty by law) that gave unlimited power to the Congress and the unelected bosses of the parties is a pretty sad example.
At tis juncture, I would find it impossible to select trustworthy members of a Constitutionl Convention from our polarized citizenry, even if it were indicated to be a good try for a solution. Since it opens the door to any and all changes, I would be doubly concerned by such a process. A majority of ideologues from either side, even a majority of one, could send us into unknown territory. It ain’t gonna happen.
Rather, we are best advised to use the standard amendment process to attempt to rein in the federal juggernaut very carefully, while also codifying the division of federal largess to the states on an impartial basis (yet to be figured out, of course!).
We need a substantial and enlightened Republican majority to effect anything along these lines, and a Republican President as well. It is historically the province of the Democrats to invent reasons to expand government and spending, so they simply won’t do at all. Thus, any thought of amending the Constitution to restrain the federales must await the 2012 elections, or a lot later. A pity, but true.
“while also codifying the division of federal largess to the states on an impartial basis (yet to be figured out, of course!)”
How about this: Every state that has been a net importer of federal dollars in the 10 years preceding the enactment of the bill will have its allotment of federal dollars decreased by 10% in each of the 10 years following enactment of the bill.
I’d go along with that. Those states are, for the most part, Republican. Wouldn’t mind sticking it to them, in the interests of reining in federal spending, of course.
I remember Randy Barnett from his “Federalism Amendment”, which was an incoherent mess. This idea isn’t quite as bad, but it’s still not great.
Exactly. I have zero confidence that a Constitutional Convention will turn out anything positive at this point. More likely, we’ll end up with a ton of crap, like an Amendment requiring organized prayer in public schools, or allowing Congress to censor “un-patriotic speech”, or the like.
“We need a substantial and enlightened Republican majority to effect anything along these lines, and a Republican President as well.”
Not so sure about the “substantial majority” part, but I’ll definitely take “enlightened.” Too bad the voters disagree….I mean, we’re talking about Eric Cantor here, the current whip and future majority leader.
This is the Republican leadership. And these are their ideas…..
Maybe instead of a new Constitution we just need better Republicans?
It was once a radical idea that the Constitution would be amended to allow direct taxation — and was anathema to the Founders. Ditto the direct election of Senators. And we won’t get into the fact that the Civil War Amendments were a radical departure from the original plan of government? Did any of these “blow up the Constitution”? Or did they merely meet the needs of an ever evolving nation by making the document fit the current reality.
Today there is a good argument to be made that the federal government has become too powerful and has eclipsed the states so completely that we are becoming a unitary system of government with the states serving as mere appendages, nearly akin to the human appendix in terms of their functionality. Why not return to the original understanding of the American system, in which states had much more impact and power than they do today? This change — and we can debate the wisdom of it (I’m not sure that I can support it) — would allow the states to undo laws where there is a broad national consensus against them but an unresponsive federal government. The hurdle that such a repeal would be required to jump would be formidable — 34 out of the 50 states would have to agree (and some would argue for the 3/4 — currently 38) to accomplish such a repeal. How often do you believe that this would be accomplished? I’d argue not often — maybe once or twice a decade.
“We need a substantial and enlightened Republican majority to effect anything along these lines, and a Republican President as well. It is historically the province of the Democrats to invent reasons to expand government and spending, so they simply won’t do at all. ”
Stopped being true in 1980.
How faar back does your record go to meet “historically? Over the last century I’d believe it to be true. But it started all over again in 2008 really bigtime! Trillions of bigtime spending in 2 years of Obama. And we haven’t been told the true extent of the bank loans or bailouts yet, which were in the tens of trillions, under this administration.
Actually, I am ashamed of this administration’s record, and it doesn’t seem to improve as it wears us down.
> We need a substantial and enlightened Republican majority
The GOP is largely driven by ideology these days. How exactly do you define “enlightened”
> It is historically the province of the Democrats to invent reasons to expand government and spending,
So during the vast expansion of the power and cost of the federal government under Bush you were what, in suspended animation?
Also worth noting that under Clinton, we had fiscal responsibility and good governance. Manning’s historical read is a bit of a joke. Where are you getting this stuff from… Chairwoman Palin’s Little Red Book?
I credit a innovative, reform minded GOP Congress for this success as well. It was a good thing until Newt went insane and decided to impeach Clinton.
I’m astounded no one has suggested repeal of the 17th Amendment as a simpler means to do just what Barnett and Howell wish – provide a state level veto of federal law. Wasn’t that the original intent to send two representatives of each state to veto crap coming out of the House?
A con-con is a poor idea. The last one DID destroy the document that authorized it – otherwise the tea party would be asking Obama why he was acting unconfederated!
I also think the re-enactment clause is silly. Maybe an override like presidential veto but re-enactment by majority?!
“I’m astounded no one has suggested repeal of the 17th Amendment as a simpler means to do just what Barnett and Howell wish”
Well, Barnett’s argued for that, as I recall. But I’m not sure that would address the problem as they present it. I mean, why would having the legislature appoint senators act as a check on the increase in federal power? Recall that the states, as I think someone pointed out upthread, get a boatload of $$ from Uncle Sugar. Hard to credit that a senator appointed by the state legislature wouldn’t be under a lot of pressure from said legislature to make sure the state got more of that moola (and thus abet the further augmentation of federal power).
As far as I am concerned, virtually all of the expansions over the last ten or so years should be targeted for deep, non-partisan examination with a view towards slashing their budgets and staff, merging them with associated organizations, or eliminating them altogether over time, unless, of course, their existence and budgets can be fully justified to a skeptical BRAC-type of commission. I would go deeper still and over a few years I would subject the longer-existing 1,177 bureaus, commissions, agencies, boards, and whatnot of the government (according to the LSU registry of government organizations) to the same reduction process, especially if they cannot justify their constitutional existence.
The fuller extent of the Obama stimulus and loan situation is just now beginning to emerge, and it most surely isn’t pretty. Go read Drudge today.
I find it rather pitiful when the current administration’s spending record is justified by referring to that of Bush, which was something like one-fifth of Obama’s. In any event, the organizations created under either political party’s watch should be made to justify themselves in an objective manner, or to walk the plank.
“The fuller extent of the Obama stimulus and loan situation is just now beginning to emerge, and it most surely isn’t pretty. Go read Drudge today.”
Uh, much, if not most, of that happened on the watch of the previous administration:
“Go read Drudge today.” Sure, then I’ll listen to Rush. Then I’ll watch Glenn. And then I can spout right-wing drivel, too!
The purpose of the Consititution was to subordinate the states to the federal government? I know you’ve got the professorial beard, Taylor, but you’re spouting nonsense. Get of the computer and read a book.
And, wow, wr, you really told us! Now where’s my grande latte?
Like I said, the full extent of the Obama stimulus package is just now emerging. Obviously, some of it was TARP-related, but the bulk was from Obama’s legions. We just might have to wait longer to get the whole mess out on the table.
Defending an incomplete story is so very difficult, isn ‘t it?
Despite whatever myth you may wish to believe, that is precisely what the goal of the US Constitution was (go read a fellow named “Madison” for more details). Beyond that, if the goal had been to keep the states sovereign then we should have kept the Articles of Confederation, which was the constitution prior that that that went into effect in 1789. It should be noted that the Articles were a complete failure.
Too many “words”, too little common sense, Mr. Mataconis. Our Founding Fathers provided a means of amending the Constitution and it isn’t easy to do.
Unfortunately, for too long we have allowed the Judiciary legislative political powers not granted them by the Constitution because our feckless politicians wouldn’t do their jobs.
Your long, drawn out article is simply way “off base”.
States must be on average, payer of taxes, rather than recievers. That is because some federal money goes other than to the states. Even if new money is ‘created’ by the Federal Reserve, it is created at the expense of exisiting monty, hence is also a tax.
Of course the federal government needs someone else to restrain it. Of course the notion of restraint is unpleasant to those who have their vested interests currently well served by the federal government. Of course Urban statists will be opposed to having their vote fraud schemes rendered moot.
This amendment is just what is needed, and in fact, may not be quite enough of what is needed. It is the corruption of Statists which has pushed the country to the brink of ruin. How unfair that anyone seeks to arrest their progress before they get to that freefall state that they have so long worked towards. The sudden stop at the bottom will be someone else’s problem.
Eh, the Constitution has been mostly destroyed for decades. That’s one reason why we’ve stopped amending it.
Instead of rule of law, we have rule of lawyer — when some political movement really, wants wants something and the Constitution is in the way, they just get the SCOTUS to make a ruling about their “interpretation” and so they emanate an opinion from their penumbra and lo! what’s “constitutional” is changed without any messy voting or ratification process. (You may recognize this “supreme council of wise men interpreting a document” form of government as the form Iran has been practicing in a somewhat less subtle manner since circa 1979.)
In the 1920s, it required a Constitutional amendment to ban alcohol. Since then, the government’s right to punish you for what you choose to ingest has miraculously expanded to include virtually anything they deem bad for you, in gross violation of the 4th Amendment — a proposition supposedly supported by the commerce clause, an argument so obviously asinine only lawyers could insist on its rectitude. The Second Amendment has been in complete abeyance in most urban areas until very recently. The First has held up fairly well, with some exceptions in how your spend your money in politics and punishment for speechcrimes in the commission of actual crimes should they offend a protected group… but there’s mounting international pressure for that to change.
That particular Humpy-Dumpty probably can’t be put back together again, but I would rather see the inverse of what’s been proposed — states must ratify federal laws before they apply. Yes, this will mean people in other states doing things we don’t like (horrible awful things that are nothing like the wonderful things you’re doing that they might hate) but it might staunch the bleeding a bit.
“Of course Urban statists will be opposed to having their vote fraud schemes rendered moot”
Well, there you go. I guess it escapes you that it’s those “Urban statists” that pay the taxes that are then fed to the, I suppose, nonUrban nonstatists, that is, those red state deadbeats who suck more for the federal teat than they pay in.
The idea (either an amendment, or a constitutional convention – two entirely distinct concepts which too many pundits seem to confuse) has some obvious merits.
Maybe it’s time to start drawing up a list of small but important changes which are long overdue. My vote for #1 – the Commerce Clause. That single item is Congress’s major excuse for nearly unlimited expansion of its own power. As the historical record shows, it’s just too easily abused. Perhaps it should go; or its limitations should be strengthened. There are all sorts of possibilities, many of them far superior to the status quo.
Sheesh, the 17th amendment already changed the relationship between the states and the Federal government. Does Mataconis really think the health care bill would have passed if the Senators were appointed by the state legislatures. Of course not. The state would have balked at both the mandate and the new Medicaid spending requirements placed on the,.
It is disingenuous to claim a “repeal it” amendment would be fundamentally different than the 17th amendment. The only person who would even attempt to make such an argument is someone who is in love with a supreme US government.
“Does Mataconis really think the health care bill would have passed if the Senators were appointed by the state legislatures. Of course not. The state would have balked at both the mandate and the new Medicaid spending requirements placed on the [state].”
Maybe, but you’d still be left with the problem I referenced upthread: the desire of state governments to get their hands on federal money. I don’t see how, at all, having senators appointed by state legislatures would do anything for that. As I said, senators would be under a lot of pressure to get more federal funds into their states.
” Most obviously, anything that could spark getting a law passed in 2/3 of the states wouldn’t have been able to get through the Senate, which after all represents said states, to begin with. ”
The Senate represented the State legislatures before a wave of progressive populism gave us the 17th amendment. Now, Senators are basically like Representatives with larger districts (except in the case of those states with only one Representative). They see themselves as “Federal” legislators rather than delegates from state legislatures.
My favorite example of a law that I don’t think could have been passed before the 17th Amendment is the 55 mph national speed limit. Congress recognized that it could not simply pass a law making a national maximum speed limit, so instead it passed a law that said that any state that failed to pass such a law AND enforce that law to Congress’ satisfaction (based on reports from the USDoT) would lose its federal funding for highways. The same thing was done with the uniform 21 age for drinking alcoholic beverages.
Now, imagine yourself a US Senator (or a Representative contemplating a run for the Senate in the future). These bills blackmail the people who you face for (re)election. Next time you go back home to Albany, Sacramento, Austin, Topeka, etc. to ask those legislators for their vote for you for Senate, you’ll have to defend your vote on the bills.
The original design of the Constitution balanced the Supremacy clause against the Senate being delegates from the state legislatures. It was specifically the Senate given the power to ratify treaties and appointments (such as to the Supreme Court). The 17th Amendment broke that balance of power.
Wednesday, December 1, 2010 at 14:42
The founders intended for the constution to be amended when necessary, by democratic means. Distorting its meaning by judicial fiat, by leftie judges, is an entorely different matter. But I would not expect a leftie like you to recognize obvious things like that.
I would turn this argument the other way though. How come lefties like you have no compuction about an unelected judge distorting the constitution so it means the complete opposite of its original intent. But now, when there is a proposal to change the constitutional by completely constitutional and democratic means, you have a sudden concern that it remain inviolate? I always want to follow the constitution, but you lefties have contempt for it unless it suits you.
“These bills blackmail the people who you face for (re)election.”
In other words, the senators would be under immense pressure to make sure their states are able to continue to be on the receiving end of federal dollars, the more the better.
Really, guys, how does the appointment of senators by state legislatures in any way solve the problem that seems to vex you? The problem of federal power? As long a federal dollars flow to the states, the federal government will have the upper hand.
“See here, Senator Foghorn, you’d better vote for that highway bill (farm subsidies, ad infinitum…) or else you senatorial goose is cooked…” “Well, OK, but then I gotta horse-trade with Senator Leghorn over there because he needs funds his legislature is demanding for the construction of the Jubilation T. Cornpone Memorial Cow Palace, and he won’t go along with me if I don’t go along with him. And both of us need the vote of Senator Bullhorn and he’ll only go along if he gets the regulations his state legislature is demanding for the prevention of the spread of shoo-fly disease.”
Yeah, things would really change.
The problem is the organic view of constitutionalism has made the amendment process, superfluous, if a decision like Engel or Roe, can so fundamentally rewrite the law without regard to precedent, what is the point
There seems to be an idea running through many of these comments that treats the federal government as some sort of foreign, alien enemy that is from a totally different universe…as if everyone in the Congress and the president were elected by beings from another galaxy rather than the American people…this same sort of disconnect infects so many politicians who claim to hate the federal government and yet run over and over and over again to be a part of the federal government…before anyone is tempted to cry and moan about those evil people in Washington D.C., he/she should look into a mirror first…
An apt observation. What you describe is a common malady (and a problematic one at that).
I’m getting really tired of this one. The purpose of the Constitution was to make the federal government pre-eminent in those areas where it was important and made sense to have one national policy, i.e., the military, printing money, creating a free-trade zone, dealing with other countries, etc. It was not to utterly subordinate the states to the federal government; with the possible exception of Hamilton, none of the Founding Fathers thought that way, and the Constitution as produced does not support that view; in fact, the 10th Amendment quite explicitly contradicts it. Even the Virginia Plan, which contains the Madison idea of allowing the feds to overrule state laws that you mentioned earlier, gave Congress the power to “Legislate in all cases to which the separate States are incompetent,” which of course implies that there are cases in which the separate States are competent and the feds should butt out.
I have to agree with Sam; I’ve never understood why the state legislatures would be so much better at defending states’ rights than the people are. Frankly, it seems to me that it would be easier to bribe a couple of hundred legislators than millions of people.
While I don’t deny that to a certain extent we deserve the government we get, it’s also true that the nature of the political process tends to remove our representatives from our direct control to a great extent (and that’s the people we do elect–we won’t get into all of the unelected bureaucrats.) This, of course, is another reason for keeping as much of government at the state and local levels as possible–it’s easier to hold those people accountable. The Founding Fathers also knew that it wasn’t as simple as “we get the government we deserve” too; that’s why they created the Constitution in the first place and guaranteed the rights that they did.
Regarding the supposed danger of a Constitutional Convention:
a.) There is an effective way to limit what a Convention can do; it’s called public pressure. If a convention has been called to pass, say, a balanced budget amendment, and some of the attendees start trying to sneak the ERA or something in, they’re going to get called on it big time. In that sense, the media spotlight that Justice Burger complains about is a good thing; it makes it a lot harder to pull shenanigans like that, and the short and sweet nature of most constitutional amendments would make it difficult to hide anything sneaky in the verbiage. Anything controversial is going to get picked apart, believe me.
b.) There is a strong argument that the convention process was put it precisely as a safeguard against the sort of situation we are getting into, where government is becoming removed and unresponsive. It is a weapon for the states to fight back against such things.
c.) And, of course, we have to remember that anything that comes out of a convention will still have to pass 3/4 of the states, one way or another. That’s still a pretty hefty barrier to any bad changes.
Keep in mind too that we have in essence had a slow-motion constitutional convention for years now; it’s called the three branches (particularly the courts) twisting everything to their liking. If we’re going to have people trying to destroy the system, I’d rather have it out in the open, where everyone can see it and know it for what it is, as opposed to them skulking around in the halls of Washington where it’s hard to keep track of them.
Also, the Founding Fathers got away with radically changing the system precisely because there was a widespread feeling that the existing setup was not working. There would be no such popular consensus behind scrapping the Constitution and starting over now.
Given the current condition of those two states, I absolutely think the rest of the country should have a veto over anything their people might approve of. 🙂
Yes, I acknowledge that there is an important division of policy authority between the federal government and the states. That does not mitigate the basic point that the purpose of the 1789 Constitution was to subordinate the states to a central government.
One can debate the way that that division of policy authority functions and has evolved, but that still does not mitigate the basic point.
@Steven Taylor, The Federal Government is only supreme in the areas delegated to it by the states (mostly in Art 1, Sec 8). All other areas fall under the 10th Amendment. In fact, the Federal Government is an agent created by the states and was intended to act on their behalf. How can the instrument created to serve the states have the sole authority to determine limits of its own power?
That is simply incorrect.
Sorry Steven, It is absolutely correct. The States were all considered free and independent at our founding, a condition clearly stated in the Declaration of Independence and the Treaty of Paris (each State was specifically spelled out by King George in the its First Article). Political power in the Union originates (still to this day) from the people of the several States. Both the Article of Confederations and the U.S. Constitution was drafted by agents of the States and ratified by each state individually. Each of the delegates was bound to act only on wishes of the State legislatures. The Constitution, as it is plainly obvious, grants the General Government only certain enumerated authority. The authority that was given was specifically designed to ensure the economic enhancement and secure the defense of each state (and thus the Union). Only in acting in the delegated realm would the General Government be supreme (again clearly stated Art 1, Sec 8 in the U.S. Constitution). All other authority is retained w/in the states and to the people of the states. The States and the people in the States (as we should still be) were very weary of consolidated power w/in the General Government. In fact, as we all know, the General Government was a further representation of the States (representatives elected in State districts, Senators appointed by State Legislatures, Presidential election by the Electoral College). Of course, the popular election of the State Senators w/the 17th Amendment altered the form of government. How can the granters of authority (the States, the principles or superior) become the agents or the minor? The General Government, again, was designed to act on behalf of the several States…a republican form of government. This is the historical truth. Read the Constitutional Debates, The Federalist Papers, The Anti-Federalist Papers, and State Ratification Debates.
You are certainly entitled to your opinion. However, you are missing the fundamental shift in the relationship between the states and the central government between the Articles and the Constitution.
If, for example, you position is correct why are nullification and secession both unconstitutional?
Yes, there is a legitimate debate about specific policies and policy authorities. But the notion that the states are not subordinate to central government or that we have some sort of confederation is simply incorrect.
BTW, the key word in that sentence is “people.”
You seem to infer that I am “making this stuff up.” The fundamental shift from the Articles to the Constitution was designed primarily to eliminate trade wars between the States and raise revenue (due to post-war debt), areas the Congress struggled w/under the Articles. Madison’s Virginia Plan was resoundingly rejected and Hamilton’s “turn the States into England” was also resoundingly rejected. A common sense, republican form government that was more familiar to the States was adopted.
The States are still the creators of the General Government. That is a fact. How can you say, based on historical fact, that the states are fully subordinate to the General Government? That is simply intellectually dishonest. Again, in those areas where authority is granted, the General Government is supreme. Those areas are actually very few.
I won’t disagree that many like you have this view of General Government supremacy in all things. Revisionist history, as often taught in our schools, teaches us what you espouse. Read the history from the original sources.
As for nullification and secession, where in the U.S. Constitution does it say the states cannot take such action? It is not forbidden. Why do you think it is inherent that they can’t? Because the Confederacy lost in the Civil War? Violence settles debates? Even after the Civil War, no amendment was passed forbidding a state from leaving the union. If you read history, you will see several episodes of nullification or threat thereof in the first 80 years of the republic, from both the north and south. If the General Government violates the terms of the U.S. Constitution, why can’t the States intercede? I would say it is the responsibility of the States to intercede. The General Government seems to have no problem interceding when they think the States have violated the terms.
Again, the Constitution enumerates the authority of the General Government, it does not lay out the powers reserved. The Bill of Rights does further define those areas the General Government may not tread (including the reservation of power in the 10th Amendment), not that the courts or Congress read those Amendments anymore than they read the Constitution itself. Does the General Government get to define the limits of its authority? If it does, why did the States enumerate specific authority to it? Why have a Constitution at all? Is it just window dressing? The States have the right, and duty, to intercede on behalf of their citizens when the General Government changes the nature of the federal compact. That is common sense.
Yes, Steven, you area Nationalist. I get it. One size fits all for everything.
The people still reside in States. They still elect officials to represent them in State legislatures. Their General Government legislators are still identified w/their States and districts w/in their States.
No, just that you are making an error.
No, I never made any such claim. Indeed, the only claim I made, and continue to maintain, is that the Constitution of 1789 subordinated the states to the central government of the United States. You are claiming that we still have some form of confederation in which the central government is simply an agent of the state governments, which is patently untrue.
I have further conceded that there are legitimate debates about the functioning of the policy divisions that exist under federalism.
Steven, I have made no error. History is on my side. Modern history, not founding history, supports your claim as it applies to our current State/General Government relationship. Congress, the executive, Supreme Court have routinely overstepped their delegated authority. The General Government uses force, not granted, to legislate its will. The U.S. Constitution was not designed to subordinate the States.
You made more than just the claim on the subordination of the states to the central government. First on that claim, you have failed to provide any sort of historical evidence to support your claim. I provided Article 1, Section 8 and the 10th Amendment of the Constitution. Those two outline the majority of authority delegated of the General Government and the authority retained by the States. I concede that the General Government is supreme in exercising its authority on behalf of the states w/in the U.S. Constitution. When the General Government steps outside its bounds, who provides the check? Are we forced to wait for elections? The federal courts? The federal courts are part of the General Government. Do you really think they are going to limit either their own power or that of the other branches? History proves they choose to consolidate power.
You also asked me about secession and nullification. There were nullification efforts in the 1798 Virginia resolutions (authored by Jefferson and Madison), a follow-up Report of 1800 by Madison, states in the NE who vigorously tried to undermine the War of 1812, South Carolina’s nullification resolution during President Jackson protective tariff regime, and states, specifically Wisconsin, who refused to enforce the Fugitive Slave Laws. Some were successful, some were not. Again, where in the U.S. Constitution is either forbidden? Do the States not have the obligation to intercede their reserved authority is trampled?
You can say I am in error, but you provide no facts to back your position. I have provided facts to support my position.
The problem is that you are arguing from a combination of ideological preferences (especially in re: the exact meaning of the Xth Amendment) and a very specific interpretation of history. As stated: you are entitled to your position.
Indeed, you are arguing as if the convention of 1787 sought to create a confederation of sovereign states, but they did not (indeed, they already had one of those and it failed).
If you want to argue that you think that the federal government has extended beyond its Article I, Section 8 powers, fine. You want to argue that the Xth Amendment has been ignored, fine. But don’t argue that the states are not subordinated to the central government or that that wasn’t the intention from the beginning. Article VI, Section 2 (the Supremacy Clause) makes that pretty clear.
The basic answer to your inquiry above is yes, recourse is primarily to the federal courts. The aforementioned Supremacy Clause of the United States Constitution clearly delineates the US Constitution and federal laws as superior to state laws. As such, in any conflict over the meaning of state power vis-a-vis federal power requires a determination by the federal courts. It has been that way since the beginning. See, for example, McCulloch v. Maryland (1819).
Speaking of Madison, he originally wanted the federal government to have the ability to nullify state laws.
Yes, all those tanks and troops making the states take international highway funds, eduction grants and money to fund Medicare, Medicaid, Food Stamps and the like.
Look, I understand precisely where you are coming from, but you overstate your case rather substantially.
I am not the one overstating the case. You overstate the supremacy clause…the whole of our disagreement.
The actual verbiage from the Constitution: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding…
The key is “made in Pursuance thereof.” Hamilton, ever the Nationalist, makes the case in Federalist No. 78: “No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.” This seems to be exactly my point. Hamilton makes my point! This is historically relevant to the concept of nullification.
“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite,” said James Madison in Federalist No. 45
Hamilton in Federalist No. 78 also stated, “The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.” Bad or unjust court decisions may become precedence, but they are still bad or unjust nevertheless.
There are many more examples that make my case, but there is not enough room to list them all.
I guess we are supposed to abide by the general meaning of the Constitution, not the exact meaning. I guess, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people” really means what it says, unless the General Government (all three branches) decides otherwise. Again, why have a Constitution if its words mean different things on different days?
How is providing historical facts and the words from those that were there overstating the case? I will not change your mind, but I have laid out some historical context to support my argument. Good debate…I enjoyed the exchange.