The Texas Plan, Part I

Cassandra suggested a series of posts exploring the Constitutional amendments proposed by Greg Abbott. I think her intent is that we should look at them critically, to see if they need refinement.
I. Prohibit Congress from regulating activity that occurs wholly within one State.
My sense is that this is intended as a reinforcement of the limits of the Interstate Commerce Clause against SCOTUS overreach. As you know, a long series of SCOTUS rulings have expanded that power until it is essentially unlimited: it is now a power to regulate any economic activity that has any effect on commerce sufficient to plausibly affect interstate prices, but also power to regulate economic non-activity that might affect prices where the Federal government would like to require some activity (e.g., health insurance purchases you haven't been making).

Since states are forbidden to raise tariffs that would isolate their markets, the law of supply and demand means that any supplier in any state affects the market as a whole. The same is true for people who elect not to become suppliers. It is not clear what aspect of life is thus outside the expanded scope of Federal power under this revised understanding of the Interstate Commerce Clause. Presumably, the state can regulate any sort of economic production or non-production: you can be made to do or not do anything at all, and more than that, you can be told not just that you must do it but how to do it as well.

If this section has a weakness, it lies in the fact that the language does not specify that it is talking about "economic" activity. Presumably as written this would strip the Federal government from any power to regulate any sort of activity that occurs wholly within a state. On the other hand, the limiting force of the word "economic" is not clear to me: the Interstate Commerce Clause, which clearly is limited to economic activity, has somehow expanded to embrace any sort of activity or non-activity. It may be that there are very few human activities that cannot be described as economic.

I am going to propose a general standard for considering these amendments, which is that it is best if they start off stronger to leave room for negotiation in the necessary Constitutional convention. The amendments should be a little stronger than necessary going into the convention, so that what emerges from the convention is more likely to be adequate medicine.

Discuss.

37 comments:

E Hines said...

Abbott's plan has no value for two reasons.

No amendments to the Constitution will have effect until we elect men and women who will respect the Constitution and obey it.

The second reason flows from the first: once we have a government populated in that way, there's very little need for amendments, only legislation to overturn Court errors and impeachments of judges who violate their oaths of office to reach the rulings they reach.

Regarding the specifics of the Commerce Clause, there's this book, A Conservative's Treatise on American Government that talks about that among other things. I'm passing familiar with the author.

Eric Hines

J Melcher said...

Surely there is room for a "zero-th" discussion. One may favor, or oppose, Abbott's notion of calling a constitutional convention for consideration of a slate of amendments (Abbott's or others') while taking a separate view of the individual proposals. That is, for example, favor the convention while opposing the "intra-state economic" restriction amendment. Or vice versa, supporting that amendment while arguing that such an amendment would be better coming out of Congress.

I would also like to discuss the notion that a convention should set out a series of discrete proposals and (I advocate ) NOT an "omnibus" amendment of several ideas -- or even an omnibus timetable.

E Hines said...

I vastly do not want an open-ended convention. We got deucedly lucky those two and a quarter centuries ago. That's a die I'd rather not roll again.

More than just a list of discrete proposals, I'd rather the convention (which I don't want) be limited explicitly to that list, insofar as it's possible to enforce such a limit. That one those years ago, after all, officially was only to tweak the Articles.

Eric Hines

Grim said...

I disagree with your general argument, Mr. Hines, that Abbott's proposal isn't valuable. I think it is the best way to proceed.

Obtaining a Congress that is likely to -- inter alia -- impeach and remove Justice Ginsberg and Chief Justice Roberts strikes me as far less likely to succeed. The reason is the role of self-interest. Congress has no self-interest that its members seem to recognize or respect: they are party creatures, and when they exercise self-interest it is individual self interest, i.e., the interest in getting re-elected.

The states, on the other hand, have interests that are somewhat severed from the national parties. They also have a corporate self interest, understandable to governors and state legislatures, in recovering their freedom of action. Federal mandates to the states (especially unfunded mandates) are at a level far advanced compared to mandates on individuals, and are a major pressure on state budgets and government.

We will probably never see a Congress that does what you want it to do. Abbott's proposal shows that the states have already begun to waken to the need.

Cassandra said...

I agree with Eric here: No amendments to the Constitution will have effect until we elect men and women who will respect the Constitution and obey it.

I would word this differently to say that we already have a perfectly valid Commerce Clause, which gives Congress the power:

"To regulate Commerce with foreign Nations, and among (read: between) the several States, and with the Indian Tribes."

The problem is that the Court has ruled that this clause does not say what it says.

A Constitutional amendment would invalidate those SCOTUS decisions (but not until someone sued to make that happen, which would happen on a case by case basis). It would likely *not* prevent future judicial reach-arounds (absent, as Eric notes, the willingness to fight to uphold the new amendment).

At this point, no doubt someone will say that observing that the world works the way it has worked in the past amounts to saying, "Give up and don't do anything". But that's not what I'm saying at all :p I'm just asking, "If we already had a clause in the C that said what the new one will say (and it was ignored), what prevents the new amendment from being likewise ignored?"

The problem isn't that the C is silent on this issue - it's not. It's that we already have a pretty clear restriction on Congress's power that has been overridden by the Courts. Which reminds me of one of my favorite Justice Thomas dissents on this topic:

Respondent's local cultivation and consumption of marijuana is not "Commerce ... among the several States." Certainly no evidence from the founding suggests that "commerce" included the mere possession of a good or some personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.

...If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress' Article I powers – as expanded by the Necessary and Proper Clause – have no meaningful limits. Whether Congress aims at the possession of drugs, guns, or any number of other items, it may continue to "appropria[te] state police powers under the guise of regulating commerce."

If the majority is to be taken seriously (!), the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison's assurance to the people of New York that the "powers delegated" to the Federal Government are "few and defined", while those of the States are "numerous and indefinite."

Cassandra said...

I suspect that in the Internet age, the actual list of commercial activities that occur wholly within one state is pretty durned short.

This is another reason to question the efficacy of this amendment.

Here are some things that might improve such an amendment:

1. A rigorous definition of "commerce" (this would have been a great help in the SCOTUS case cited above, as clearly the Court was unclear on the concept).

2. A rigorous definition of "interstate" and/or "interstate commerce".

Cassandra said...

Eric's other comment (below) is also worth discussing:

The second reason flows from the first: once we have a government populated in that way, there's very little need for amendments, only legislation to overturn Court errors and impeachments of judges who violate their oaths of office to reach the rulings they reach.

1. I doubt that we will ever elect (as a nation) only public servants who can be relied upon to uphold the Constitution for two reasons:

* human nature
* people don't necessarily agree upon (or even understand) what the Constitution says. It's not a slam dunk. That's why we have SCOTUS, and even *they* don't agree most of the time.

2. Even absent a government composed solely of folks who both understand the C and agree on what it means, Eric's right: Congress can pass laws contrary to SCOTUS decisions. Of course there's a high probability they, too will be stricken (struck??) down on the same grounds as the decisions they aim to overturn.

So why doesn't this happen more often (or at all)? I suspect it's because of item (1) in this comment, which also applies to the American people - they, too, neither understand the C nor agree on what it says.

So it begins to seem that the problem here may be more one of popular consensus, will, and understanding than a lack of Constitutional clauses or Congressional legislation.

Grim said...

The point from my perspective isn't to repeal SCOTUS decisions so much as to restrict its power to make future decisions. The problem is that, while states can decide things 50 different ways, the Federal government always has to impose a single standard on everyone. The country is very big, and increasingly diverse, and putting a single standard on everyone is what gives rise to a lot of these conflicts.

They're avoidable conflicts. We've got enough room here, and the existing infrastructure of state as well as a Federal government, to all live together in peace. Instead, we're pushing ourselves toward a serious conflict by insisting on this mechanism of Federal control. That's what has to go.

Elise said...

I don't think the amendment stated as:

Prohibit Congress from regulating activity that occurs wholly within one State.

is intended as the whole thing. That's a summary that will have to be expanded. As Cassandra points out, a clear definition of "commerce" would help and that seems to be what Abbott intends, given his lengthy discussion of it in his explanation of The Texas Plan.

Cassandra said...

Thanks, Elise! I have now downloaded the document. I had not really done any reading other than the list of proposed amendments Grim provided a while back.

The point from my perspective isn't to repeal SCOTUS decisions so much as to restrict its power to make future decisions. The problem is that, while states can decide things 50 different ways, the Federal government always has to impose a single standard on everyone. The country is very big, and increasingly diverse, and putting a single standard on everyone is what gives rise to a lot of these conflicts.

I'm not sure that's actually the case, though, Grim. I think it works more like this:

State A has its own laws, which conflict with the laws of State B. American citizens who do business in BOTH states sue over a dispute that was never caused by federal law at all (but rather, by the lack of a uniform standard to be used when doing business in multiple states). I think it's dangerously wrong to view federal law as the *source* of these conflicts. Clearly, it is not.

It's probably accurate to say that making new, one-size-fits-all federal laws is not the right answer in every case. But I am not at all convinced it should never be the answer, nor am I convinced that American citizens should have no recourse when dealing with interstate commerce between states whose laws are in conflict with each other. That as clearly at least part of the Founders' intent (at least as I understood it from reading the Federalist papers back when I was still blogging).

It's tempting to think that all problems have a single cause, but it makes very little sense to me to think that federal laws are causing these kinds of conflicts rather than resulting from them.

What mechanism would you propose for settling such conflicts, if we drastically limit the power of the federal courts to hear cases that are clearly consistent with the original jurisdiction granted to them by the Constitution?

Cassandra said...

FWIW, just so's it doesn't sound as though I think federal laws are NEVER problematic, the Thomas opinion I cited above came from Gonzalez v. Raich, a case in which the definition of "commerce" was tortured to death to make it support existing federal drug laws (laws that I generally support, though in this case I think fedgov jumped the proverbial shark on jetskis).

So I do see that problem. I just don't agree that it's the most common case.

E Hines said...

Abbott's proposal shows that the states have already begun to waken to the need.

What's the value of that absent a central government that ignores a constitution?

What's the practical effect of that absent a central government that ignores a constitution?

For a government populated by men and women who do respect a constitution, the 9th and 10th Amendments to our existing Constitution are sufficient.

Eric Hines

Grim said...

What mechanism would you propose for settling such conflicts, if we drastically limit the power of the federal courts to hear cases that are clearly consistent with the original jurisdiction granted to them by the Constitution?

So, if I understand your example, State A has one set of laws about (say) egg production, and State B has another set. This happens a lot, actually: California has a lot of laws that other states don't have regarding food safety.

What happens? Well, if you want to do business in California, you adhere to California's laws. If you're willing to make do without access to their market, the less restrictive laws are cheaper to obey, so you can sell your product for less elsewhere (but have access to relatively fewer possible people).

Of all the solutions I can think of to such a crisis, suing in Federal court is very far from the best one. Nor do I think it's consistent with the original jurisdiction granted by the Constitution for a Federal court to force one or the other state (or both) to give way in this example.

You're free to do business only in one state, to adopt the more restrictive state's practices so you can sell in both, or to lobby in either state for a change to the law. The Federal solution is far from the ideal way to solve these differences.

Grim said...

What's the value of that absent a central government that ignores a constitution?

Um, absent? You mean, 'in the face of a central government that ignores...' or do I not understand where you are going with the question?

E Hines said...

What's the value of that absent a central government that ignores a constitution?

What's the practical effect of that absent a central government that ignores a constitution?


with a government....

Where's that keyboard the types what I mean instead of what I type?

Jeez

Eric Hines

Cassandra said...

You're free to do business only in one state, to adopt the more restrictive state's practices so you can sell in both, or to lobby in either state for a change to the law. The Federal solution is far from the ideal way to solve these differences.

I think you've vastly oversimplifying the issue, Grim. I provided just one very simple example, but there are plenty of others. Under your scheme, doing business in all 50 states would be utterly impractical. It gets even more complicated when you start to factor in getting production materials from > 1 state, hiring people in > 1 state, legal disputes between people in different states, etc.

These things have become more commonplace, not less, over time.

Nor do I think it's consistent with the original jurisdiction granted by the Constitution for a Federal court to force one or the other state (or both) to give way in this example.

I'd have to disagree on that one. The Constitution specifically grants federal courts jurisdiction over cases that involve:

...;--...controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

Now you may wish to change the Constitution, but this is what it clearly says now.

Federal courts were granted diversity jurisdiction for precisely this reason: to settle disputes between states or between citizens of different states, where it would clearly be unfair for the case to be heard in one or the other state. It's not a simple matter, as you can see from this short description:

http://www.west.net/~smith/smjuris.htm

Not sure why you think it would be inconsistent for the federal courts to exercise the jurisdiction plainly granted to them by the Constitution. Can you explain where the inconsistency lies?

Grim said...

I think the inconsistency lies in your reading of two states having different food safety standards as a "controversy between two or more states." It's not a controversy at all. California has one standard. Nevada has its own. They're each sovereign states with the legitimate power to adopt a standard preferred by their government.

That may create difficulties, but this is why there are industry lobbies. You can go lobby the states and convince them that it would be helpful if they all adopted a standard. But you don't get to tell California that it simply may not adopt laws that are inconsistent with other states' on the question of egg production. I grabbed that example at random, but only because I'd been reading about it as an actual case not long ago.

What we're seeing in interstate commerce cases is more likely to be the pursuit of Federal preferences over against all the states involved, rather than the harmonizing of state rules and regulations. Interstate commerce as a power was meant to prevent, say, setting up tariffs on the Alabama border.

It might be appropriate to sue over a neighboring state having food safety standards different from your state's if those standards were a backdoor attempt at protectionism (e.g., an egg safety standard that said, 'Only eggs grown in luscious and wholesome California sunshine are good enough for consumers in San Francisco...'). It might be appropriate if a state's laws somehow imposed burdens on economic activity between two other states who had to ship products through that third state. That's interstate commerce as I understand it. Normally, it's perfectly valid for states to have different laws even if it imposes a difficulty for those who might want to do business in different states.

E Hines said...

You're free to do business only in one state, to adopt the more restrictive state's practices so you can sell in both, or to lobby in either state for a change to the law. The Federal solution is far from the ideal way to solve these differences.

That was the solution for 13 wholly sovereign States under the Articles of Confederation. It was a disaster then, and it'd be an even bigger disaster today with 50 States. That was one of the failures that the Commerce Clause corrected: it was the Federal government's role to regularize commerce among the States,l not reach inside any State to regulate commerce from there. The answer here is to correct the Court's drift (and its inconsistency/hypocrisy: how many union strikes or management lockouts are found violations of the "modern" Commerce Clause? Yet it's illegal for a farmer to grow crops solely for personal consumption), not make an Amendment also to be ignored.

To beat my horse: that's on We the People, and no one else.

Eric Hines

E Hines said...

That may create difficulties, but this is why there are industry lobbies. You can go lobby the states and convince them that it would be helpful if they all adopted a standard.

What do you think would happen if energy companies decided California's energy-related standards were not worth the cost and decided to stop selling energy into the state? What do you think would happen if car companies decided California's fuel standards and carbon footprint regulations were not worth the cost and decided to stop selling cars in California?

Eric Hines

Grim said...

Something delightful?

But only absent an overweening Federal government forcing compliance from property owners actually located in other states, I suppose.

Cassandra said...

The inability of Congress to regulate (as in, "make regular", protect the free flow of) interstate commerce was among the chief flaws that led us to abandon the Articles of Confederation as too weak an instrument to support a nation.

Under the Articles, trade suffered greatly: the States feuded constantly and there was no vehicle for resolving these disputes. Other nations didn't want to trade with America because they would have to reach separate agreements with each state (and they did not want to do this - it made the cost of trade too high). Richer and more powerful states were able to prey on poorer/less powerful ones.

What I'm saying is that the Commerce Clause isn't limited to commerce 'as you understand it', but rather to the many and diverse conflicts that have arisen for over 200 years between states, between citizens of different states, and between foreign nations and states. Abolishing the Constitutionally-prescribed means for resolving such conflicts without first understanding their breadth or providing an alternative means doesn't strike me as a practical or helpful solution.

The economy became unstable due to a variety of problems caused by the lack of a central authority with enforcement powers. This led the people themselves to create an instrument (the Constitution, and the Commerce clause) that provided what they needed.

The Commerce clause does NOT say that states can't have different laws - only that if those laws unduly burden interstate commerce, Congress may choose to (and then, generally only after they have been asked to by some critical mass of their constituents from a variety of different states!) pass laws that supercede state laws.

You seem sometimes to forget that federal laws passed by Congress can also reflect the popular will (and that even within a state, opinion is rarely uniform on such matters). Where is it easier for rich and corrupt institutions to prevail? At the federal level, where they must lobby multiple states? Or at the state level, where what influence they have goes MUCH farther?

I just don't see any of this as being so black and white as you seem to.

Tom said...

No amendments to the Constitution will have effect until we elect men and women who will respect the Constitution and obey it.

If the men and women we have already elected do not respect and obey the Constitution, including its amendments, why would they respect elections?

If that is the case, if those men and women do not respect and obey the Constitution now, then we are living under a despotism, under the rule of men and not of law, and no election or series of elections will save us. If that truly is our current situation, then we are finished here. Time to decide whether you are going to be a slave or a revolutionary.

However, I don't believe it is the case. I believe that the larger part of the Constitution is being followed, but that there are points, like the commerce clause, where the Constitution has been broken and is in need of repair. These amendments do that.

E Hines said...

If the men and women we have already elected do not respect and obey the Constitution, including its amendments, why would they respect elections?

They haven't proceeded to that point yet.

However, they have proceeded beyond just a few items of abuse of the Constitution. We have a Supreme Court that abuses its authority, as Grim has noted, and we haven't yet elected a Congress willing to impeach those Justices who have violated their oaths of office in the course of that abuse. We have a President who routinely legislates from the White House, and we haven't yet elected a Congress willing to overrule his abuses, nor have we yet elected a President willing to roll back those abuses.

Elections do, indeed, matter. Still.

Eric Hines

Tom said...

Elections matter only because our current elected officials respect and obey most of the Constitution, which is where elections are enshrined.

If, as you contended, they completely disregarded the Constitution, then they would disregard elections as well, which are established by the Constitution. But we all know that isn't the case.

Consequently, these amendments could very well work with the people in office right now, who clearly do obey most of the Constitution.

That said, it would be a huge mistake to think these amendments are all that we need. I think they are one part of a multi-stage process.

In the short term, we need to elect the best people we can find, but until we repair the Constitution, that is just bailing water to keep us afloat.

These amendments repair the structure, and they are a medium-term goal. It will take time to get 3/4s of the states to agree. If you look at it that way, then, it is also highly likely that the process of convincing these states will result in more good people, people who will maintain these amendments, being elected to office. However, that's not the end of it.

The long term goal is really winning the vast majority of the American people back to our side of things, and that will require retaking significant portions of academia, the education establishment, publishing, the mainstream media and Hollywood, the arts, all of the major segments of culture. If we don't do that, then nothing we do will matter all that much in the long run.

Cassandra said...

If the men and women we have already elected do not respect and obey the Constitution, including its amendments, why would they respect elections?

Because the Constitution can't vote them out of office in the next election.

If that is the case, if those men and women do not respect and obey the Constitution now, then we are living under a despotism, under the rule of men and not of law, and no election or series of elections will save us.

We do not live under despotism. There are plenty of examples of despotism in the world, and the US is nothing like them. It doesn't even fit the definition (there is no single person with absolute power). Nor is power being used in a particularly cruel or tyrannical way. We don't have a supreme leader who has been in power for decades because he can't be turned out. Our laws force Presidents out of office after 2 terms.

I don't think it helps to define terms like despotism down until they have no power to describe meaningful differences. We can agree that, in the sense of a pendulum swinging too far, federal power has grown rapidly to the point where it is unacceptably infringing upon state power.

I would hope we could agree (history certainly supports this view) that both federal and state power can be - and have been - abused. And in fact, when the States had more power than fedgov, state power was routinely abused with some rather horrific consequences, and in ways that absolutely violated the Constitutional rights of state citizens. In fact, pretty much every abuse of police power Grim writes about involves not federal, but state or local police. State laws, by their very nature, tend to be far more intrusive into our personal lives (read Griswold v CT, which criminalized the use of contraceptives, even by married couples!).

I can't help but think it a very grave mistake to craft laws designed more to remedy present ills than to craft them with a broader perspective - that of history - in mind. I also think it a grave mistake to equate federal power with Evil and state power with Sweetness and Light and Good. The problem we're trying to solve is to find the right balance between state and federal power: both of which are dangerous to our liberty and both of which have been repeatedly abused because... bad people suck. Whether they exercise their suckitude at the federal or state level rarely matters to their victims.

I'm not convinced it was a good thing that States had the absolute power to buy, sell, and even rape and murder other human beings (so long as they were slaves). There are certain human rights so basic that a just nation should not allow them to be violated, even at the cost of what we view as a possible savior of the Republic (state sovereignty).

I agree with most of you that the federal/state balance of power is out of whack. I think it would likewise be dangerous for fedgov to be too weak and the states too strong. This isn't an epic battle between Good (the States) and Evil (fedgov). It's a struggle to find the correct balance of power between two competing arms of government, both of which benefit us every day and both of which also harm us (and indeed, have the power to kill us).

Sorry, guys, but I'm not feeling the Manichean world view here. The pendulum is where it is now. It has occupied many other positions throughout our history. It seems myopic to me to focus too much on the "now" and not enough on the totality of our history.


Grim said...

I'm not convinced it was a good thing that States had the absolute power to buy, sell, and even rape and murder other human beings... Sorry, guys, but I'm not feeling the Manichean world view here.

I think your counterarguments are a little Manichean, actually. The Abbott proposal to constrain the Federal use of the interstate commerce clause is unlikely to restore slavery, or anything remotely akin to slavery. What it's likely to do is to allow people to sell fresh milk and eggs, or on the outside, marijuana.

It's possible to restrain the Federal government on commerce without repealing the 13th Amendment, after all. Strictly limiting Federal courts on these questions doesn't mean eliminating their power to enforce the ban on the ownership of other human beings (although that may fall within the need, identified in the original post, to specify that the limit is on commercial or economic activity and not 'any' activity).

Still, in terms of a black and white view, the alternatives you're presenting are quite stark.

ColoComment said...

I am coming late to this party, but just to give a couple of "real life" examples to the "doing business in all 50 states" discussion above.
First:
I work for a national wholesale distributor of animal health nutrients and pharmaceuticals, primarily to the production animal business (think: feed lots, swine farms, dairy farms.) We have ~80 outlets in the 50 states, both small retail outlets in a place like Dalhart, Texas, and larger regional warehouses in, say, Liberty, Missouri.
Every one of those outlets must comply with the employment, veterinary and pharmacy and restricted/controlled drug licensing, and myriad other laws in its state of residence. In addition, the larger warehouses must apply for and obtain licenses for shipping restricted and/or controlled drugs into each NON-resident state into which they ship to customers.
WE DO THIS.
It is a huge burden on business, both in money and resources, but it is what it is. If an employment law in California dictates that warehouse hourly workers may not [even voluntarily] work through lunch, then that's what we abide by. We don't say, "Well Missouri lets them do that, so..." Trust me, it wouldn't help our cause in CA.
Second:
For a counter example, in 1996, all of the state securities commissioners got together and agreed to support a federal pre-emption law (National Securities Markets Improvement Act, NSMIA, for short) that provided, among other things, that:
1) if a security offering was approved by the S.E.C., or exempt by federal law, then that would suffice for registration in each state for an inter-state offering (a filing still had to be made and a fee paid, but there was not "merit review" of the offering);
2) for a wholly intra-state securities offering, the individual state's law governed;
3) the states would retain enforcement powers over alleged fraud, etc., committed in their state.

NSMIA is a great example of a resource-efficient, mutually-agreed compromise on regulation "of commerce among the several States," while leaving each State to regulate within its borders. It greatly simplified mutual fund offerings for example (I worked for a mutual fund company at the time), and reduced the cost of bringing such opportunities for investment to the public.

That's probably 'way more info than anyone needs, but maybe it clarifies the opposing situations a bit?

Tom said...

Cass, you ignored my third paragraph: However, I don't believe it is the case. I believe that the larger part of the Constitution is being followed, but that there are points, like the commerce clause, where the Constitution has been broken and is in need of repair. These amendments do that.

My point was, you cannot on one hand claim that the government is utterly ignoring the Constitution, and on the other claim that Constitutionally mandated elections are the answer. Elections depend on the government respecting and obeying the Constitution.

I went into more detail on this in my comment right before yours, at 8:28.

MikeD said...

I am of the opinion that if you truly believe an Amendment is insufficient to rein in the excesses of the Federal government, then I would say it's time to start an armed Revolution. Because the Constitution (and the adherence to it) is literally the only thing that gives the government legitimacy. If an Amendment says explicitly "the government may not do X" and then the members of Congress do exactly X and the SCOTUS lets them, then you are living under a government that has no rules.

I do not believe for an instant that we are at that point. Good honest people can have honest disagreements about the plain meaning of the language of the Constitution. And I think the example of the Gonzalez v. Raich case is an apt one. Clearly, we here mostly agree with Justice Thomas' opinion that this is a clear overreach. But some may take Cass' position that while she approves of the outcome, the means used to get there were undesirable. I for one think the majority opinion can go hang and that intra-state commerce is literally none of the FedGov's business (see Amendment X). But for the vast and overwhelming majority of the country, the Raich ruling changed pretty much nothing. Colorado, you'll note, still sells recreational marijuana and yet the world keeps turning and the Feds do nothing.

But what I would hasten to say is that "do not let perfect become the enemy of the good". No, a new set of Amendments will not stop the creep towards government overreach. But it would put some breaks on it. And isn't that better than throwing up your hands and exclaiming "there's nothing to be done"? And no, expecting the US populace to wake up tomorrow with a severe case of the literalist reading of the Constitutions does not count as "doing something". Yes, it'd be nice. While you're at it, wish for an outbreak of personal responsibility and faith in the goodness of man (leavened with a healthy dose of acceptance of his fallen state). But I don't expect any of that wishcasting will do anything at all. Far better to do something than whinge about our inability to do anything.

Cassandra said...

No, a new set of Amendments will not stop the creep towards government overreach. But it would put some breaks on it. And isn't that better than throwing up your hands and exclaiming "there's nothing to be done"?

Well, FWIW (I'm not sure who Mike's addressing, so this may be off track) this happens to be my take: it's not anything near a final solution, any more than the original C was a final solution. It would slow things down, it would involve the people in their own government once more, and help to inform them.

I suspect many other things would happen too, because we are a deeply unserious people. Issues would be demagogued to death, many - maybe even most - people would come away with distorted views of the issues being discussed, etc. IOW, what happens every day now with the press would continue to occur. But *some* people would learn a lot, and if we could keep the demagoguery and pandering in check, we might come away with the better product.

We might, OTOH, come away with a far worse one. That scares me - a LOT. I'm not sure that's an argument for doing nothing, however.

FWIW, on Gonzalez, I think the Court should have found a way to reconcile the federal interest in controlling drug trafficking with Ms. Raich's interest in staying alive/quality of life. Being a bit of a cynic in these matters, I think that sometimes you need to let the old pendulum swing too far in a certain direction so that people remember why they passed drug laws in the first place.

It amuseth me no end to hear black activists whining about crack cocaine sentencing when they were the ones haranguing the govt. to DO SOMETHING!!!! about the crime wave in black neighborhood that followed the influx of crack. Now that the government has DONE SOMETHING@!!!!!11!, they're not happy about all the racism.

Inexplicably, it was also racist and wrong/bad for govt. not to take drug related violent crime in black neighborhoods seriously *enough* in the 80s :

Jeez, we really never do learn. But a 2x4 upside the head every now and then tends to be instructive :p

Cassandra said...

Tom, if I ignored part of your comment, I didn't mean to.

Unfortunately, I don't have much time for reading or commenting during the work week. I often miss things (and have typos in my comments, because I'm rushed). That's one reason I don't comment much anymore.

As to this:

My point was, you cannot on one hand claim that the government is utterly ignoring the Constitution, and on the other claim that Constitutionally mandated elections are the answer. Elections depend on the government respecting and obeying the Constitution.

Well, yes and no. I don't believe the government is "utterly ignoring" the Constitution at all, but I know that some of you do believe this. The government sometimes selectively ignores the Constitution, mostly in matters where public sentiment isn't that strong. But government has done this throughout our history - that's nothing new.

If elections depended on perfect adherence to the constitution, we wouldn't have a government because people will never, ever be perfect (or perfectly committed). Police can't prevent crime either. They can only clean up afterwards. What our system needs to be able to do is "clean up afterwards" a little better.

It's never going to prevent abuses of power - at best, it will do a better job of correcting them after the fact. And often, only after the consequences become so severe that ordinary folks demand that they do so.

Cassandra said...

Case in point (politicians ignoring the Constitution).

Ymar Sakar said...

Elections matter in the US about as well as they matter in Venezuela and Iraq.

The problem with Cassandra's view of despotism and tyranny is that it is obsolete. Humans are ingenious, even the evil ones. They improve their bag of tricks and skills. The rest of the world is still running on Slavery 2.0 or Slavery 1.0, with the exception of Islam. The world's slaves know that they are slaves, so they attempt to escape at times, to greener pastures.

The issue in America is that the slaves think they are free. Is it really better for a software CEO or political philosopher in an Ivy League college to be intimidated and fired by one despot, one bureacrat, or a million of them? It doesn't matter, if the end result is the same.

Does it matter in a Stasi police state whether their police do the intimidation directly or whether they get the child to report on the mother and the mother to report on her husband? It doesn't matter in the least. One dictator is easily solved with one sword or axe struck across the upper vertebrae. What are you going to do when the millions and billions of evil humans are right next to you? That's a tyranny of a whole different layer cake factor.

Cassandra said...

Ymar:

Government has limited ability to prevent normal aggression between humans or groups of humans (unless, of course, you want them in your belly button 24/7, in which case you have merely substituted the risk of government aggression for the risk of aggression from your fellow citizens).

Likening ordinary human conflict to the kind of thing that happens in totalitarian regimes and police states is just plain silly. You seem to think AmeriKKKa is already just as bad as nations that are - by every standard - objectively worse than we are.

I disagree, and am going to continue to point out that on the spectrum of government oppression, we're still on one end, and they are all the way over on the opposite end. That doesn't mean we have nothing to be concerned about here, but I'm never going to agree with you on this. The fact of the matter is that in those countries, the government monitors what people say on social media and arrests dissenters.

The very fact that thousands and thousands of Americans complain vociferously about their government online every single day with impunity pretty much makes my point for me. It's like that moron Keith Olbermann talking about living in a police state when the Chill Winds of Bush-inspired political oppression make it impossible for brave men like him to speak truth to power (while he gets paid over a million bucks a year to do what he claims the government won't let anyone do) - kind of self-refuting.

Grim said...

Lady's got a point.

Ymar Sakar said...

Likening ordinary human conflict to the kind of thing that happens in totalitarian regimes and police states is just plain silly. You seem to think AmeriKKKa is already just as bad as nations that are - by every standard - objectively worse than we are.

When the US uses its power to put someone like Chavez into power, do we blame the Chavez hand that is bad or do we blame the nation of power that allows Chavez, Venezuela, Honduras to fall to evil?

It's a matter of hierarchy, because it's a matter of world power and balance. The weak suffer what they must, the strong do what they will. And the US cannot be considered weak, even by their enemies.

The very fact that thousands and thousands of Americans complain vociferously about their government online every single day with impunity pretty much makes my point for me.

Just because the internet gives you freedom, does not mean it came from America. If that was true, Iraq would have already killed AQ by now, almost for good.

kind of thing that happens in totalitarian regimes and police states is just plain silly.

That is perhaps because your understanding of what happens in totalitarian regimes and police states is insufficient. That you believe this is about being silly, demonstrates just how much you know of the situation and its antecedents. You do not study the methods, Cassandra. You speak of them in ignorance, because you have never done them, you have never become capable of doing so. You speak from the all encompassing arrogant ignorance of American prestige, not because you earned it, but because you inherited it from your ancestors.

That inheritance is not sufficient enough to transfer liberty through the blood, however.


That doesn't mean we have nothing to be concerned about here

No, it means you get to decide what is silly or not, because the only thing you're concerned about is what you want to be true.

What an outstanding amount of ignorance, to think that Keith Olbermann is a point compared to the number of people the Leftist alliance has destroyed in your own country. You don't even know they exist, do you.


Grim said...

More and more I suspect you have been sent here as a penance for my many evil deeds, Ymar. You may yourself keep me out of Purgatory.

Still, your contempt for other minds is a serious flaw. It makes you vastly overconfident. Just the other day you were lecturing me in a similar tone about your study of psychological warfare. Well, one of us has written orders for PSYOP units deployed at war. Was it you?

Cassandra has a good mind you should heed, though of course you can disagree -- no one disagrees more frequently than she and I. Still, disagree though we do, I have learned to respect her mind. Contempt for her only makes you look foolish.