Just Say No To A Constitutional Convention

Oklahoma Senator Tom Coburn is the latest conservative to endorse the foolish idea of a Constitutional Convention.

Constitutional Convention

In a speech to constituents the other day, Oklahoma Senator Tom Coburn seemed to endorse the perilously dangerous idea of a Constitutional Convention:

MUSKOGEE — U.S. Sen. Tom Coburn urged Oklahomans on Wednesday to join the movement for a national constitutional convention to cut down an oversized federal government and counter what he repeatedly referred to as a “lawless” Obama administration.

“I used to have a great fear of constitutional conventions,” Coburn told about 300 people at the Muskogee Convention Center. “I have a great fear now of not having one.”

A national convention called by two-thirds of the state legislatures is one of two ways the U.S. Constitution can be amended. Such a convention has never been called, largely because the Constitution itself was the product of a convention authorized only to amend the existing Articles of Confederation, but which replaced it entirely.

Thus, political leaders and scholars have long held that such a convention could be dangerous and even destructive to the nation.

But as conservative frustration with the Obama administration has grown, some factions have begun advocating for such a convention.

Coburn’s announcement that he had read what amounts to the national convention movement manifesto, Mark Levin’s “Liberty Amendments,” drew the loudest applause and reaction of the hour-long town hall meeting.

Coburn isn’t the first person on the right to discuss the idea of a Constitutional Convention.  Three years ago, for example, a Virginia legislator endorsed the same idea, arguing that at the very least it would be a way for states to pressure Congress to pass amendments such as term limits or a Balanced budget Amendment. And, indeed, a state-called convention is one of the two methods for Amendment the Constitution authorized by Article V of the Constitution. At the same time, though, it’s worth noting that this is a method of Amendment that has never been utilized before, and we really have no idea how such a proceeding would unfold, or whether it could be limited to consideration of specific Amendments.

Back in 1983, when conservatives were talking about the idea of a Constitutional Convention for purposes ranging from a Balanced Budget Amendment to an amendment that would overturn Roe v. Wade, Chief Justice Warren Burger addressed the dangers of the approach in a letter to Phyllis Schlafley, then one of the leading conservative opponents  of the idea:

I am glad to respond to your inquiry about a proposed Article V Constitutional Convention. I have been asked questions about this topic many times during my news conferences and at college meetings since I became chairman of the Commission on the Bicentennial of the U.S. Constitution, and I have repeatedly replied that such a convention would be a grand waste of time.

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. I have discouraged the idea of a Constitutional Convention, and I am glad to see states rescinding their previous resolutions requesting a convention. In these bicentennial years, we should be celebrating its long life, not challenging its very existence. Whatever may need repair on our Constitution can be dealt with by specific amendments.

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 AnnapolisMaryland to discuss ways to reduce these interstate conflicts.[1] 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.”[1]

Rather than discussing improvements to the Articles of Confederation, though, the Philadelphia delegates quickly moved to the creation of an entirely new system of government that had no resemblance to the then-current national government. When the task was completed that September, the delegates acted as if the Articles of Confederation did not even exist. Instead of complying with the amendment procedure provided for in the Articles,  required approval by Congress and the unanimous consent of all thirteen state legislatures, they constructed for a ratification process that completely bypassed Congress and the legislatures. And they did that because they knew there was no way the new Constitution would have been approved by all thirteen states. Indeed, the Constitution provided that it would become effective as soon as it had received the approval of just nine of the thirteen states that existed at the time.

It goes without saying, of course, that the Articles of Confederation were a flawed document. It’s doubtful that the “United States” would have survived as a unified nation for much longer had they remained in effect. Over time, sectional loyalties would have caused the nation to drift apart even more than it did in the years leading up to the Civil War, and the new nation would have been ripe pickings for a Great Britain looking to re-establish its control of North America, or for manipulation by any of the other European powers. Under such a scenario, it’s not at all inconceivable that the conflict that gripped the European continent in the decades afterwards would have found its way to the Americas. In some sense then, Madison, Hamilton, and the others at Philadelphia did the right thing in 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 in scrapped a flawed system of government and starting over again. As well as it turned out, though, the experience of 1787 makes it plain that, once called, there is no way to limit the scope of a Constitutional Convention, and no reason to think they what we’d end up with after it’s over would be anything that better than what we have now.

We were also lucky in 1787 because of the men who gathered to write the Constition. The values they shared were values of individual liberty and small government. Does anyone truly believe that we’d be lucky enough to have delegates to a 2013 Convention, say, that were anywhere near the intellectual and moral caliber of Madison, or Mason, or Franklin ? Yea, I didn’t think so.

Finally, Chief Justice Burger’s point about the importance of secrecy in the 1787 proceedings is even more poignant today. In the era of the 365/24/7 news cycle, blogs, Facebook, and Twitter, there wouldn’t be any way to keep these deliberations secret and making them public would just increase the likelihood that the end product would be one big mess.

Flawed as it is, it seems fairly obvious that we’re better off with the Constitution we have today than with risking everything on a Convention and possibly ending up with something much worse.

Update: This post was updated to clarify that Phyllis Schlafley was an opponent of the idea of a Constitutional Convention when she solicited Chief Justice Burger’s opinion on the issue.

FILED UNDER: *FEATURED, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. What do you expect from right-wing reactionaries that thing the United States was in a golden age prior to the ratification of the 13th-15th Amendments, that there was no income tax prior to the 16th Amendment, and that the ratification of the universally supported 17th Amendment doomed the country?




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  2. HarvardLaw92 says:

    IIRC, any amendments proposed by such a convention still have to be subsequently ratified by the legislatures of 38 states to be accepted. Getting 38 state legislatures to agree on anything is a long shot to begin with.




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  3. legion says:

    The problem with conservative zealots today is the same problem we had with them back during the Bush administration – they truly believe in a cult of personality. They want to place a huge amount of power into the hands of some small group they think they can trust, without ever imagining that this power might someday be used in a way they don’t approve of. Look at the NSA and the overreach of the modern police state – we DFHs _told_ you this would happen when you were handing unchecked power to the executive in the form of the Patriot Act, et al, but you didn’t care. Now the Obama administration is doing exactly what we said they (or any administration that came after Bush) would do. A Constitutional Convention would, as Burger points out, have pretty much unchecked power to rewrite the US government. How certain is Coburn (or anyone who’s actually in favor of this insanity) that the results will be _just_ what they want to see and _no more_?




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  4. HarvardLaw92 says:

    @legion:

    I think that on some level, their basic problem is that the echo chamber that they live in leads them to the false certainty that everybody else absolutely believes as they believe. They actually believe that they represent the majority opinion, and a resounding majority at that.

    It’s a vivid display of cognitive dissonance.




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  5. michael reynolds says:

    Not winning the game? Try to make up new rules.

    Death throes are not pretty.




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  6. Andre Kenji says:

    1-) It´s not going to happen.

    2-) It´s true that in many countries Constitutions were written by political and interest groups to protect themselves(The Brazilian Constitution is full of protections for incumbent political parties). On the other hand, updating the US Constitution would be a good idea, specially because as it is today it gives too much power for judges. One could also argue that both the Executive and the Legislative aren´t properly constrained in many areas, basically because the Constitution did not predict things like the development of political parties or a Continental United States.




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  7. gVOR08 says:

    OK, do I have this straight? The only way to check the “lawlessness” of the Obama administration is to have different laws? And the conservative Republicans who constantly talk about their fealty to the sacred Constitution want to change it? WTF?

    Oh wait, I get it. It’s the constitution in their minds that Obama is violating. It’s the constitution in their minds that is sacred. So they need to change the imaginary Constitution, the one at the National Archives, to match the real, perfect, sacred constitution that only exists in their minds.




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  8. @Andre Kenji:

    On the other hand, updating the US Constitution would be a good idea, specially because as it is today it gives too much power for judges.

    How so?




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  9. BTW, I keep hearing about these 11 amendments that are supposed to be so great, but I can’t seem to find an actual list of them anywhere. Since I’m not interested in buying Mark Levin’s book just to engage in a conversation, would anyone mind explain what they are?




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  10. stonetools says:

    The problem here is that as Timothy Watson said, most conservatives believe that there was a so called Golden Age of America that we need to get back to in order to escape the current evil days. (Even Doug himself shows tinges of it, with his talk of how wonderful and enlightened the Founding Fathers were).Conservatives are split on whether we need to roll the clock back to pre-1962 ( before Great Society), pre-1932 ( before the New Deal) or even pre-1912( before the Income Tax Amendment and the creation of the Federal Reserve Bank). But they all agree that we need to revert to the Golden Age arrangements.
    The problem is that most of the public doesn’t buy this, in part because many people actually lived through those times and remember how bad the “Golden Age” was. Since conservatives can’t achieve the return to the Golden Age through Democratic means, their only hope really is to wish for extraordinary measures such as a Constitutional Convention, in which they hope that a small group of “true Americans” can redraw the government to the conservatives’ liking. Oh well, at least they aren’t talking military coup…. yet.




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  11. KM says:

    What an absolutely HORRID idea!

    Are these people crazy? Do they realize that such a Convention could conceivable make SSM and abortion constitutional? Could make it so the government covert spying is 100% legal? Screw the tax payer even more and create so many protections for business that consumers don’t stand a chance? Remove protections for religion and the press (Amendments are part of the Constitution too so #1 could be on the plate)?

    What in the world makes them think people will just sit still and allow their rights to be potentially stolen away by a group of men in secret? Get the “right” people in the room and ANYTHING is fair game!




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  12. Neil Hudelson says:

    We have to kill the constitution to save it?




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  13. Jenos Idanian #13 says:

    You’re right. Why bother with a convention? Obama can just proclaim whatever needs to be done by execcutive order, by his agencies making new regulations, telling the Justice Department not to prosecute certain violations, telling private companies that the government will pick up any fines or penalties for disobeying specific laws, and suing any states that decide that they will pick up the deliberate slack.

    And yes, I have examples of all of those in mind…




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  14. Andre Kenji says:

    @Timothy Watson:

    The current interpretation of the Ten first Amendments was heavily influenced by judges(The First and the Second, for instance); And one can argue that judges are more powerful in the US than in many countries that have Roman Law.




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  15. HarvardLaw92 says:

    @Stormy Dragon:

    1) Term limits for both the House and the Senate to be capped at 12 years of service

    2) Repealing the 17th Amendment and making Senators subject to the appointment of state legislatures.

    3) Limiting SCOTUS justices to one finite term of 12 years, and granting both Congress and/or state legislatures the power to overturn SCOTUS rulings with a 3/5ths vote. (This is essentially 2 amendments rolled into one).

    4) Balanced budget mandated by law, federal spending limited to 17.5% of GDP and requiring a 3/5ths vote of Congress to raise the debt ceiling

    5) All federal regulations and federal departments must be reauthorized every three years, or they cease to exist.

    6) Strips Congress of the power to regulate commerce, and reduces its role in that regard solely to preventing states from impeding the commerce of other states

    7) Severe limitations on the takings clause

    8) States can propose amendments with just a 2/3rds majority, instead of 3/4ths.

    9) States have the power to overturn federal statutes with a 2/3rds majority vote among their legislatures

    10) Photo ID required for all federal elections and early voting essentially eliminated.

    It’s essentially the fantasy of undoing federalism and enabling them to accomplish via fiat what they haven’t been able to accomplish at the ballot box. The states rightsers are convinced that they can undo the Civil War and make it be 1855 again.




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  16. JohnMcC says:

    My first thought was pretty much what Mr Mataconis (corrected) said — that there is no way that a contemporary Constitutional Convention would come anywhere close to the qualities of Madison, Franklin, Hamilton, Robert Morris, William Blount, Gouveneur Morris or Eldredge
    Gerry. There would be a clown show of people the caliber of Mr Levin. God help us!

    The second thought that occurred was that the real problem Mr Levin has is with my personal favorite ‘Founding Father’ — John Marshall. If Mr Levin thinks that the Commerce Clause has been instrumental in destroying liberty, well — guess what — he should take up his problem with Chief Justice Marshall. And good luck to him. One could go on but everything I’d add is frosting, the cake speaks for itself. Compared to the insights of John Marshall there is only a deserted wasteland that passes for ‘conservatism’ in America today.




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  17. steve s says:

    We were also lucky in 1787 because of the men who gathered to write the Constition. The values they shared were values of individual liberty and small government. Does anyone truly believe that we’d be lucky enough to have delegates to a 2013 Convention, say, that were anywhere near the intellectual and moral caliber of Madison, or Mason, or Franklin ? Yea, I didn’t think so.

    To be fair, we’d have significantly fewer slaveholders at the new convention.




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  18. PD Shaw says:

    @Stormy Dragon:

    An Amendment to Establish Term Limits for Members of Congress
    An Amendment to Restore the Senate [repeal 17th Amendment]
    An Amendment to Establish Term Limits for Supreme Court Justices and Super-Majority Legislative Override
    Two Amendments to Limit Federal Spending and Taxing
    An Amendment to Limit the Federal Bureaucracy [limit amount Congress can delegate to agencies]
    An Amendment to Promote Free Enterprise
    An Amendment to Protect Private Property [takings reform]
    An Amendment to Grant the States the Authority to Directly Amend the Constitution
    An Amendment to Grant the States the Authority to Check Congress
    An Amendment to Protect the Vote [from voter fraud]

    [Edit: HarvardLaw beat me to it.]




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  19. Ron Beasley says:

    @KM:

    Are these people crazy?

    Yes




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  20. Jenos Idanian #13 says:

    The real message here? For god’s sake, keep the proles away from exercising any kind of power over the government! Only the elites have the proper vision and intellect to weigh such hefty matters; the Low Information Voters just need to shut up and pay their taxes and obey the rules. They have no business actually acting like they have anything worth listening to. After all, look what happened in California when gay marriage went before the people…

    Personally, I’m opposed to a couple of the amendments, like a couple of others, and need to give them all a lot of thought, but I don’t see anything in them that is so horrific on its face that we should simply dismiss them out of hand — as long as they’re being proposed in the prescribed fashion.




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  21. HarvardLaw92 says:

    @Andre Kenji:

    I am much more comfortable with the concept of constitutional guarantees being arbitrated by a panel of insulated subject matter experts than I am with it being left to the whims of people who have to essentially lie and pander to an unsophisticated electorate every 2 to 4 years in order to retain power.




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  22. anjin-san says:

    @ Jenos Idanian #13

    Are you all whined out yet, or do you still have some gas in the tank?




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  23. wr says:

    @stonetools: The “Golden Age” was a time when those people knew their place and kept to it.Or were kept to it by threat of jail or noose.




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  24. Andre Kenji says:

    Ironically, there is no country in the world with stricter term limits than Mexico.

    http://usatoday30.usatoday.com/news/world/story/2011-11-17/mexico-elections-term-limits/51336674/1




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  25. HarvardLaw92 says:

    @Jenos Idanian #13:

    The real message here? For god’s sake, keep the proles away from exercising any kind of power over the government! Only the elites have the proper vision and intellect to weigh such hefty matters; the Low Information Voters just need to shut up and pay their taxes and obey the rules.

    Funny you should say that, since it pretty much exactly describes the state of affairs that the founders created. People romanticize history to create some group of egalitarians who wanted to empower the common man.

    The reality of the situation is, of course, somewhat different. The founders created what can only be described as a benevolent oligarchy, not a democracy.

    But hey, why let facts ruin a good rant?




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  26. Andre Kenji says:

    @HarvardLaw92: I think that a Constitution should be *clear* and simpler, so, there is less interpretation to be done either by judges or by politicians. But I´m waiting for Steven Taylor´s take on the debate.




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  27. beth says:

    10) Photo ID required for all federal elections and early voting essentially eliminated.

    Does anyone know the reason why early voting must be eliminated if Voter ID is passed? I often see these two proposed together. What reason does the GOP give for wanting to eliminate it?




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  28. KM says:

    @Jenos Idanian #13:

    “The real message here? For god’s sake, keep the proles away from exercising any kind of power over the government! Only the elites have the proper vision and intellect to weigh such hefty matters”

    I tend to view it as we got incredibly lucky the first time around when we did this whole Constitution thing. We’ve been ironing out bugs and injustices in the centuries since but the solid core ideas were strong and we had some good players in the game at the time. I have no assurances that lightening will strike twice. The current crop of losers pretending to give a crap about us (AKA politicians) aren’t fit to be substitute towel boys.

    Bottom line, they are not getting any near my liberties with a blank check the way a Convention would grant them. I, and so many of our fellow Americans, just don’t trust them. If you think they’re screwing you now, why the hell would you let them do it with no limits like that?! My faith in humanity ain’t that strong.




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  29. HarvardLaw92 says:

    @Andre Kenji:

    A constitution that addressed every possible permutation of the possible in clear and simple terms would fill up a library all by itself, and even then, every time another permutation develops, you have to create another amendment. It’s unworkable in the extreme.




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  30. James Pearce says:

    Anyone think the 2nd amendment would survive in a new Constitution? I don’t…..I’m not even sure the 1st would survive.

    Seems to me the common denominator between our political factions is the idea that someone somewhere is enjoying too much freedom. In that dynamic, I think it’s just foolhardy to think a new Constitution is going to fall on the “not enough freedom” side.




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  31. gVOR08 says:

    @michael reynolds:

    Not winning the game? Try to make up new rules.

    They cheat, too.




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  32. HarvardLaw92 says:

    @beth:

    It skews turnout towards the elderly, who have the ample free time required to show up on a weekday to vote. The essential principle for them is that their life would be a lot easier if certain people just didn’t vote, so they come up with all manner of clever impediments to advance that goal.




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  33. @HarvardLaw92:

    3) Limiting SCOTUS justices to one finite term of 12 years, and granting both Congress and/or state legislatures the power to overturn SCOTUS rulings with a 3/5ths vote. (This is essentially 2 amendments rolled into one).

    Isn’t allow congress to simply override SCOTUS by 60% vote pretty much going to render all the other ammendments attempting to rain in congressional power moot?

    “You can’t regulate commerce!” “Well 60% of us say that’s not commerce even though it clearly is.”




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  34. Caj says:

    Republicans need that. They need to learn more about it. Right now they pick and choose what parts of it suits their own agenda.




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  35. beth says:

    @HarvardLaw92: I know why they’re doing it but what reason do they give? They just can’t come right out and say they want to discourage the young and working class and minorities from voting – they’ve got to have some sort of reason that doesn’t sound like voter suppression.




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  36. PJ says:

    @beth:

    Does anyone know the reason why early voting must be eliminated if Voter ID is passed? I often see these two proposed together. What reason does the GOP give for wanting to eliminate it?

    To protect THEIR vote.

    Also, if there’s only one day for voting it will be a lot easier for certain employers to make sure that the employees aren’t able to vote.




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  37. JWH says:

    I sometimes consider a new constitutional convention useful as a thought exercise … but I shudder to think of what an actual convention might produce on freedom of religion, freedom of speech, and the Fourth Amendment.




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  38. Gavrilo says:

    So, your two main objections to a Consitutional Convention are:

    A. There would be no way for the current political elite (Congress, President, SCOTUS) to limit the scope of a C.C. to the issues that they decide are important.

    B. There would be no way to conduct a C.C. in secret.

    The whole point of having C.C. would be to take the current political elite out of the equation.

    That anyone would advocate a secret Constitutional Convention is, quite frankly, insane. My local school board is barred by law from deliberating in secret. And, for good reason. The people have a right to know what their elected representatives are doing.

    Now, I’m not advocating for a Constitutional Convention. I think it would be a tremendous waste of time. As HarvardLaw pointed out, it would be virtually impossible to get a new Constitution ratified. Hell, I doubt we could get our current Constitution ratified today. However, your reasons for opposing a C.C. are troubling, at best.




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  39. Andre Kenji says:

    One the difference between the so called Founding Fathers and the elites from the Spanish and Portuguese colonies is the so called called Founding Fathers were really an intellectual elite. They read and wrote books, they kept universities and they knew the political systems of Europe. Many Spanish and Portuguese colonies did not have universities or large libraries.

    The main difference was the elitism of the Founding Fathers, not the lack of.




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  40. HarvardLaw92 says:

    @Stormy Dragon:

    Exactly. The underlying premise is “since we can’t appoint courts like those in other countries, who will simply do what they are told, we’ll just neuter the courts instead.”

    Floating in the background is the unspoken belief that they are THIS CLOSE to getting 60% of the votes in Congress, so when they do, they can get rid of those pesky justices who have the temerity to disagree with them about the constitution. It’s a coup by another name.




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  41. PJ says:

    @beth:

    I know why they’re doing it but what reason do they give? They just can’t come right out and say they want to discourage the young and working class and minorities from voting – they’ve got to have some sort of reason that doesn’t sound like voter suppression.

    I’m guessing the argument would be “SHUTUP, THAT’S WHY!”

    Some probably b*llsh*t arguments:
    It costs more money to let people vote early!
    Election day is sacred! (But not sacred enough to be a national holiday to ensure that everyone are able to vote.)




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  42. HarvardLaw92 says:

    @beth:

    They give many reasons. It will prevent election fraud! It will make everybody equal in terms of access to voting! Continue invented fantasy justifications ad nauseum.

    The thing that gets me is that they actually think people (or at least people outside of their base anyway) are stupid enough to believe it and not see the man behind the curtain. It’s a decidedly cynical and Machiavellian position.




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  43. Andre Kenji says:

    @HarvardLaw92:

    A constitution that addressed every possible permutation of the possible in clear and simple terms

    I did not say that. Note that I´m relatively Conservative on this issue when compared to Steven Taylor.




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  44. steve s says:

    i think i would favor a CC because i think it would possibly end up with a north/south divide.

    Let the southeast (where i sadly currently am) for dipshiJesustan America USA!USA! America Jesus. and see how that plays out.




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  45. HarvardLaw92 says:

    @Andre Kenji:

    Ok, then clarify for me what a simpler constitution might look like. I’m not getting your point evidently.




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  46. James Pearce says:

    @HarvardLaw92:

    The essential principle for them is that their life would be a lot easier if certain people just didn’t vote, so they come up with all manner of clever impediments to advance that goal.

    Pretty much. It’s as Jenos described:

    For god’s sake, keep the proles away from exercising any kind of power over the government!

    Bottom line is that if voting is made easier, more people will vote. This is not really a problem unless you’re trying to advance unpopular ideas.




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  47. Pinky says:

    My take on this is that it isn’t a Constitutional Convention, but an Amendment Convention. As noted above, the last similar convention got out of hand, but that wouldn’t happen this time. Why? For one reason, as also noted above, they met in secret. That’s not going to happen this time. There are going to be loud debates about all kinds of issues, and no group is going to have the opportunity to go off the Constitutional reservation. Then there’s the approval process. Even if some wackos decide to rebuild government from the ground up, and manage to get their recommendations through the Convention, they’d still need 38 states to agree to it.

    I like some of Levin’s suggestions. Some of the others, not so much. I’m sure a convention would come up with some lousy ideas, too. But this is one of the checks and balances in the system, and there’s no reason to dismiss it out of hand.




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  48. HarvardLaw92 says:

    @Pinky:

    Hence my basic belief that this is intended to actually accomplish two things:

    Fire up the base, and;

    Sell books to the base.

    Levin knows full well that this will never, ever happen, but it makes for good incendiary rhetoric, and it certainly boosts his bottom line.

    The devious fleecing the stupid for their own benefit. Same as it ever was …




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  49. Andre Kenji says:

    @HarvardLaw92:

    “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

    You can´t get more confusing than that.




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  50. legion says:

    @Jenos Idanian #13:

    Why bother with a convention? Obama can just proclaim whatever needs to be done by execcutive order

    And the next President can undo all of that with a stroke of his (or her) own pen. But changes to laws – or the Constitution itself – are a lot harder to undo. Is that not clear? Also,

    The real message here? For god’s sake, keep the proles away from exercising any kind of power over the government! Only the elites have the proper vision and intellect to weigh such hefty matters

    Are you really suggesting that Coburn and the other people suggesting a Constitutional Convention are not themselves the “elites”?




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  51. rudderpedals says:

    @beth:

    they’ve got to have some sort of reason that doesn’t sound like voter suppression.

    Why?




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  52. HarvardLaw92 says:

    @Andre Kenji:

    The last comma shouldn’t be there, but I’m not confused by that statement.

    Because a well regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

    Recall that, at the time, militia service (as well as participation in periodic training exercises) was mandatory, and people were expected to supply their own arms.

    You could reduce it to “because we don’t want to, nor can we afford to, maintain a standing army, we want to make sure that you’ll be able to fight when we call you up.”

    Simplifying it implies that the founders intended for it to convey a simplistic meaning in the first place. Not sure that accomplishes much.




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  53. sherparick says:

    @stonetools: Actually, I think they want to go back to 1859, but with the amendments suggested by John C. Calhoun, the true founder of the American Conservative Movement. http://www.historynet.com/john-c-calhoun-he-started-the-civil-war.htm




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  54. rudderpedals says:

    At least they moved onto the bargaining phase. That’s some progress.

    Calls for a constitutional convention, impeachment, etc are the equivalents of primal scream therapy for politicians.




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  55. David M says:

    I’m pretty sure there isn’t a single thing in that list of amendments that I would support. Number 7 is the most reasonable, but given the amount of crazy in the others I’m not inclined to give it the benefit of the doubt.




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  56. al-Ameda says:

    @Jenos Idanian #13:

    The real message here? For god’s sake, keep the proles away from exercising any kind of power over the government! Only the elites have the proper vision and intellect to weigh such hefty matters

    (1) Ted Cruz and Tom Coburn are not proles.
    (2) Just so you know, guys like Jefferson, Madison, Franklin, Jay and so forth, were among the elite.

    So, do I trust so-called “average” people to amend the Constitution? What is so special about “average” people that I would trust them to amend the Constitution. These days the “average” person is the type of person who seated on the OJ Jury.




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  57. HarvardLaw92 says:

    @al-Ameda:

    LOL, a common joke among lawyers is why in the world we entrust determinations of guilt and innocence with respect to complex matters of law to 12 people who were too stupid to get out of jury duty.

    Cynical, I know, but sadly more accurate than people would want to admit.




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  58. Pinky says:

    @HarvardLaw92: What hence? I didn’t say that a convention would be unworkable or ineffective. I just said that I don’t see it going overboard. And I really like the idea of using it to clarify some passages of the Constitution, and wipe out decades of bad precedent.




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  59. Woody says:

    @HarvardLaw92:

    Spot on. This nonsense allows Republicans to take a “strong, principled stand” that the un-American Democrats will oppose. This opposition will be cast to the Faithful as a betrayal (as their principles are resolutely un-American – or and they lack principles because they’ve no backbone), and Murdoch opinionators from Fox to the WSJ have another resentment to promote. And more importantly, the rest of the media gets to talk to each other about this proposal endlessly as well, as it involves nothing more than sharing their own opinions – their greatest love.

    (Edit: Very well written article, Mr Mataconis)




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  60. KM says:

    @Pinky:

    How do you know there won’t be any secret meetings? You can’t guarantee anything with this – there is no law to make sure it’s public. The way it is defined, there is very little oversight and no real way to reign in the crazy train once it starts.

    And never underestimate the power of weirdos. You can never be sure just how many there are until its too late. We can’t take that kind of chance in the current political climate that a small dedicated group of nutjobs with more money then sense won’t go state-to-state to get their way.

    Money talks louder than ever these days.




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  61. sam says:

    Let’s see:

    50 states

    33 states need to agree on whatever
    36 states need to ratify whatever

    26 states are controlled by Republicans
    24 states are controlled by Democrats

    Odds of right-wing wet dream, zero.




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  62. al-Ameda says:

    @Pinky:

    And I really like the idea of using it to clarify some passages of the Constitution, and wipe out decades of bad precedent.

    Among Tea Party activists, “bad precedent” pertains to: the federal income tax, giving women the right to vote, “anchor” babies, Miranda Rights, the “well-regulated” language in the Second Amendment, the Fifth Amendment, laws restricting prayer in schools, stuff like that.

    A new Constitutional Convention would be like the WWE.




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  63. HarvardLaw92 says:

    @Pinky:

    Sorry, I should have been more concise.

    Levin, and the rest of the bobbleheads, are discussing this as though it even remotely had a chance of happening.

    In reality, it never will. Aside from the fact that we have never (IMO) had such a convention for a reason, even if one were by some miracle to be called, getting the necessary number of delegations to even agree on what proposed amendments should look like is next to impossible. Subsequently getting the necessary number of state legislatures to agree to ratify them actually IS, IMO, impossible.

    He’s grifting the stupid in order to make a few bucks and motivate them to get up from their Barcaloungers and go vote.

    It’d be like me writing a treatise on world peace or ending global warming and selling it to far lefters. **I** know that it’ll never happen, but if they’re stupid enough to believe that it might be possible, why pass up the opportunity to sell a few books and make some dinero?




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  64. grumpy realist says:

    @Andre Kenji: That’s because we’re a Common Law country, not because of the separation of powers in the Constitution.

    Actually, one could argue that the more independent the judges are from the rest of the country, the better it is for the average person. Law is a system where, at least in its Platonic ideal, both poor man and rich man are judged equally for the same crime.

    I can’t think of any other area of interaction in society where a rich man and a poor man will be judged on an equal basis or have equal power. You want judges less independent? Fine. Then you are handing over their power to some other person/organization, which by its very nature will have less equality.

    The more independent the judges, the better. In my experience, 99% of them do a very good and professional job.




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  65. Pinky says:

    @al-Ameda: A good 50% of that comment wasn’t nonsense. (And don’t say that I’m not a generous guy – even a casual read of that comment makes it clear that I’m rounding up.)




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  66. Pharoah Narim says:

    @HarvardLaw92: Ha ha— I have a prayer cloth I’d like to send you brother for a small love donation and a shipping and handling fee……




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  67. michael reynolds says:

    @Pinky:

    I’d bet we can get consensus behind eliminating the 2d Amendment entirely.

    How about the right wing does some polling on that and then consider how much they want a convention.




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  68. Pinky says:

    @HarvardLaw92: As you said, that’s your opinion. My opinion is otherwise. I don’t think it’ll happen in the next 20 years, although a debt crisis could change a lot of people’s minds. I think if it happened, they’d mostly go for low-hanging fruit like term limits, but they might tackle a few more difficult issues. Over the next 20 years, how might public opinion gel on surveillance, war powers, or the anti-grav monopoly?

    I’m not an advocate for secession, but I wouldn’t be shocked if feelings are so raw by the end of the convention that a few states who didn’t get anything they wanted might suggest it, and a bunch of others agree.




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  69. HarvardLaw92 says:

    @Pharoah Narim:

    LOL, exactly. The sad thing is that we’re talking about the same group of morons. They’ll buy anything from someone who is telling them what they want to hear.




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  70. Pinky says:

    @michael reynolds: They may be willing to take you up on it. I’m not looking at this as a right-wing thing, or an any-wing thing. If enough people are convinced that this is the only way to effect change, even if they don’t agree on what the change should be, it could happen.




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  71. C. Clavin says:

    What often goes unmentioned is that the original Constitutional Convention was a collection of elites. Ben Franklin. Thomas Jefferson. George Washington, who made ginormous personal sacrifices in order to nurture the new Republic.
    Let’s see…Ted Cruz, Rand Paul, Sarah Palin…
    Yeah…no thanks.




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  72. HarvardLaw92 says:

    @Pinky:

    I respect the opinion, but I’ll have to respectfully disagree. Selling a doomsday scenario like that actually requires impending doom, and we are nowhere even close enough to that to motivate this sort of anarchy.

    I should probably add that I’ve met Levin before, and the guy REALLY likes to hear himself talk / preach / pontificate. The one sure thing in life is that a megalomaniac will seek out an audience of adorers. Every time …




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  73. C. Clavin says:
  74. HarvardLaw92 says:

    @C. Clavin:

    Haven’t you heard? They are turning on him too …

    The uncomfortable part about demanding ideological purity is that it not only reduces you to inhabiting an ever shrinking island , it also causes you to eat your own young.




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  75. michael reynolds says:

    @Pinky:

    We don’t need to change the Constitution. We need to change a single political party. That’s all this is.

    The GOP is in an intellectual cul-de-sac. The things they believe have been demonstrated to be wrong. Their ideology is now disconnected from reality. It’s really not complicated. We have a party that is deluded and in denial. Their vendettas against women, blacks, Latinos and gays have all sputtered out. Their libertarian economic notions are silly in a world where taxpayers are forced to pay fast food workers (EITC, food stamps, medical) to flip burgers for McDonalds.

    Now it begins to dawn on the GOP that all this is true. They don’t understand it yet, but they sense it. They know in their hearts that their time is done. So faced with a need to adapt, they lash out wildly, desperately. Grabbing at straws. Not quite a dying dinosaur, more like the last of the duckbilled platypussies.




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  76. michael reynolds says:

    @HarvardLaw92:

    The uncomfortable part about demanding ideological purity is that it not only reduces you to inhabiting an ever shrinking island, it also causes you to eat your own young.

    Kinda fun to watch, though, for those of us with a taste for the gruesome.




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  77. grumpy realist says:

    OK, let’s fisk these….

    1) Term limits for both the House and the Senate to be capped at 12 years of service (Hmm. I would think the Congresscritters themselves would move mountains to make certain this one doesn’t pass.)

    2) Repealing the 17th Amendment and making Senators subject to the appointment of state legislatures. (Ummmm…..there’s a reason why we passed the 17th Amendment in the first place, guys. Suggest you read up on your US history and ‘splain to us stupid critters down here why the same situation wouldn’t happen again.)

    3) Limiting SCOTUS justices to one finite term of 12 years, and granting both Congress and/or state legislatures the power to overturn SCOTUS rulings with a 3/5ths vote. (This is essentially 2 amendments rolled into one). (SCOTUS ain’t going to like either of these. Plus, what this means is you have ABSOLUTELY NOTHING to protect a small minority. You are saying there ARE no such things as human rights and it just depends on how large a mob you can get together. )

    4) Balanced budget mandated by law, federal spending limited to 17.5% of GDP and requiring a 3/5ths vote of Congress to raise the debt ceiling (This is so dimwitted I’m not going to even touch it. Guess how much we were spending during WWII? )

    5) All federal regulations and federal departments must be reauthorized every three years, or they cease to exist. (If they could do a blanket general “ok, they’re all authorized” every three years, this would be doable, but silly. Individual reauthorization? You must be joking.)

    6) Strips Congress of the power to regulate commerce, and reduces its role in that regard solely to preventing states from impeding the commerce of other states. (Oh, the Litigation Attorneys’ Permanent Employment Act…also, I guess you don’t mind if Ohio passes a law saying all eggs in cartons must be in 10-egg boxes, not 12-egg boxes, thus giving an advantage to local producers?)

    7) Severe limitations on the takings clause. (…sigh…..Look, if you guys in the state hadn’t been such bad legislators passing silly laws, Kelo would never have occured. It’s your own fault, not SCOTUS.)

    8) States can propose amendments with just a 2/3rds majority, instead of 3/4ths.(Yay! Now we can get the ERA to pass! two thumbs up!)

    9) States have the power to overturn federal statutes with a 2/3rds majority vote among their legislatures (does this mean that if any one state manages to vote 2/3rd against a federal statute, the federal law doesn’t exist for that state? Whee…..just wait until one state decides to vote against all drug laws. Or all pollution regulation. Or regulations forbidding child labor….)

    10) Photo ID required for all federal elections and early voting essentially eliminated (huh?)




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  78. HarvardLaw92 says:

    @michael reynolds: Ayup, that it is indeed.

    Popcorn?




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  79. C. Clavin says:

    “…although a debt crisis could change a lot of people’s minds…”

    Well…yeah…but wouldn’t have to be…you know…a real crisis…and not one of these fake ones the Republicans are so found of manufacturing.




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  80. wr says:

    @michael reynolds: “Not quite a dying dinosaur, more like the last of the duckbilled platypussies. ”

    Except that the world will be poorer without the platypus.




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  81. William Wilgus says:

    @stonetools: Military Coup. That’s what the U.S. Northern Command is for.




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  82. Neil Hudelson says:

    @michael reynolds:

    Ah, but Michael, when they want a constitutional convention without “elites,” what they really mean is “we want our own like minded people to write the constitution.”

    By their definition, anyone who wants to eliminate the 2nd amendment is probably an “elite” so they wouldnt’ be invited.

    It’s a great system.




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  83. William Wilgus says:

    @Andre Kenji A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

    It’s not confusing at all, especially if you remove the two extraneous commas:

    A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”

    It only gets confusing when the NRA tries to make it say something that it does not. But if that’s still confusing to someone, here’s what it means: ‘The People shall have the right to form and train armed militias.’




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  84. gVOR08 says:

    @HarvardLaw92:

    LOL, a common joke among lawyers is why in the world we entrust determinations of guilt and innocence with respect to complex matters of law to 12 people who were too stupid to get out of jury duty.

    Since you asked, to absolve the judges and attorneys from responsibility for outcomes.




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  85. Andre Kenji says:

    @William Wilgus:

    It only gets confusing when the NRA tries to make it say something that it does not. But if that’s still confusing to someone, here’s what it means: ‘The People shall have the right to form and train armed militias.’

    If it were so easy, we wouldn´t have a large number of jurists and historians discussing this issue.




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  86. gVOR08 says:

    @William Wilgus: @Andre Kenji: The militias in question were apparently the southern state slave patrols. Patrick Henry and others were worried the Federal Government would shut them down.




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  87. gVOR08 says:

    @Andre Kenji: We didn’t used too, before the right went off the deep end and the NRA found out there’s a lot of money in this stuff.




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  88. Pinky says:

    @grumpy realist: You said that Congress might not like one amendment and the Supreme Court might not like another. So what?




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  89. Andre Kenji says:

    @grumpy realist:

    3) Limiting SCOTUS justices to one finite term of 12 years, and granting both Congress and/or state legislatures the power to overturn SCOTUS rulings with a 3/5ths vote. (This is essentially 2 amendments rolled into one). (SCOTUS ain’t going to like either of these. Plus, what this means is you have ABSOLUTELY NOTHING to protect a small minority. You are saying there ARE no such things as human rights and it just depends on how large a mob you can get together. )

    The main problem of term limits for the Supreme Court is that there is the risk after some years of the majority of Supreme Court being composed by people nominated by the Incumbent President. In Brazil(Where there is mandatory retirement at 70), Lula and Dilma nominated all but three of the eleven Justices. In Mexico, where there is a term limit of 15 years, Felipe Calderon and his immediate predecessor.

    If there were Term Limits in the US and if Hillary Clinton would be elect to succeed you would have the risk of seeing the whole court composed by people nominated either by Obama or by Hillary in the end of her first term.




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  90. Pinky says:

    @grumpy realist:

    there’s a reason why we passed the 17th Amendment in the first place, guys.

    There was a reason why we passed the 18th Amendment, too. Then we discovered that the unintended consequences were too great, and undid it.




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  91. C. Clavin says:

    Now you fellas are generating some page-views.




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  92. Andre Kenji says:
  93. BenR. says:

    We have a simple, easy to understand constitution, but we have allowed courts and congress to “invent” definitions to suit their needs. The commerce clause states that congress will “regulate commerce among the several states”. They are not given control over any product. service or business, only the power to keep one state from financially harming another.
    The commas in the second amendment are where they should be. The right that is protected is the “Right to keep and bear arms”. And it “Shall not be infringed”. You could lead in with the Magna Carta if you wished and the meaning would be the same…COMMA “The Right to keep and bear arms COMMA Shall not be infringed.”




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  94. mantis says:

    I love when people say there is no room for interpretation in the Constitution and then give their personal interpretation of the Constitution.




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  95. David M says:

    @Pinky:

    Repealing the 17th Amendment is way out in crazy land. Is there any GOP idea you don’t object to?




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  96. Tyrell says:

    They need to have this convention. These people must attend: the president and vice president, Congress, and of course the Supreme Court. Then they will all have to read the Constitution.
    “Gee, Mr. President. I didn’t know the Constitution said that!!”
    “We have to pass the bill so we can find out what is in it” (Pelosi)




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  97. Pharoah Narim says:

    @BenR.: You act as if documents aren’t overcome by the times. There’s a reason why Hammurabi’ s code or even the Mosaic law aren’t the law of the land anywhere in the world anymore.




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  98. ernieyeball says:

    @Tyrell: Then they will all have to read the Constitution.

    Don’t know about the other 49 States.
    Before I could graduate High School in Illinois I had to pass tests on USCon and Illinois Constitution.
    That was 1966. More recently in Illinois I was aquainted with a student going for a GED. He also had to pass those tests.




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  99. wr says:

    @Tyrell: This may be the most tiresome right wing trope of all. These people who have dedicated their lives to working in government have read the constitution many more times than you have. The fact that they don’t agree with some nutjob interpretation of it doesn’t mean they don’t know it.

    If you want to be taken seriously, start making serious arguments.




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  100. Matt says:

    @ernieyeball: Yes you still have to pass those tests in Illinois. Texas seems to do the same thing too.




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  101. jukeboxgrad says:

    HarvardLaw92:

    The essential principle for them is that their life would be a lot easier if certain people just didn’t vote

    It’s a good idea to remember that the GOP hates democracy. They like it better when fewer people vote:

    Many of our Christians have what I call the “goo goo” syndrome. Good Government. They want everybody to vote. I don’t want everybody to vote. Elections are not won by a majority of people. They never have been from the beginning of our country, and they are not now. As a matter of fact, our leverage in the elections quite candidly goes up as the voting populace goes down.

    Paul Weyrich, major conservative thinker, co-founder of the Heritage Foundation. Link, link.

    Apologies to those who have seen this before.




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  102. Tillman says:

    You couldn’t repeal the 17th amendment, but I’m certainly open to reforming it.

    Hey, we live in an age where it’s easier than ever to muster support for recall elections.




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  103. ernieyeball says:

    No mention anywhere about the Electoral College.
    I guess everyone likes it.




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  104. James Wilkerson says:

    @HarvardLaw92: Methinks you need to read the Anti-Federalists and, in particular, George Mason.

    You have zero idea of what you’re describing.




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  105. James Wilkerson says:

    Once again, Mataconis offers opinions based upon a game of telephone.

    It is obvious Mataconis hasn’t read Levin’s book. It would make sense to do so because he looks foolish raising issues Levin addresses.

    First off, nothing authorizes a “Constitutional Convention”. It is a convention for proposing amendments to the Constitution.

    Levin provides copious detail into how the process could work. You should read it before beclowning yourself.




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