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January 13, 2014

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I think this is one of the rare cases where indeed all sides (branches and parties) abuse the vagueness on a regular base for purely partisan purposes and crying foul about it at the same time. But at the same time all also become victims. No clean hands here.
The spirit of the law and its origibnal purpose is clear. Once the senate was regularly out of session for long periods of time and it was not possible to have emergency sessions due to slow travelling speeds. So there had to be a way to fill unexpected serious vacancies. The idea to try to regularly fill posts with persons that could never get confirmed or blocking all candidates by having pseudo sessions and never voting on confirmations would have been abhorrent to the guys who came up with the law. But it has become the norm. In essence it torpedoes the whole idea of nomination-plus-confirmation (in both directions). If we extrapolate, in case of divided government POTUS will (have to) try to fill all posts without regard for the opinion of Congress and Congress will try to leave ALL posts vacant in order to keep the enemy from governing at all. The only (tolerable*) clear-cut solution would be to do away with the presidential system and go parliamentary so divided government would become possible only within Congress.

*I assume a Chinese or Russian model is out of question for obvious reasons (except for those who do not like democracy in the first place).

There's a long standing practice that cars travel 45 mph on the residential street in front of my house. The black letter law says 35 mph.

Does long standing practice make 45 = 35? I think not. In the case of statutes that apply to citizens, we recognize that violations of the statute do not mean that the statute means something else, they merely means that some people are not committed to obeying the law. We should reason the same way about the law that applies to the government, the Constitution: Practice contrary to it doesn't change it, it just confirms the common sense notion that not everybody in government is committed to obeying the Constitution, and the answer is enforcement, not pretending that 45=35.

There never was a good case for allowing "recess" appointments when the Senate is not in recess, and the administration's position, which essentially would have allowed a recess appointment if ever the Senate had a bathroom break after the vacancy occurred, was an absurd over-reach.

The real question for the Court, which they may punt, is whether the President, a vacancy having genuinely occurred during a real recess, may wait until the recess is over, and then make a recess appointment with the Senate in session. It makes no sense from the original justification of the clause to permit this, (In fact, no recess lasts long enough to justify this, today.) but the textual argument for it at least doesn't require violating basic rules of grammar.

This is probably where the Court will decline to go as far as the lower court did, if they don't wholly embrace that very sensible ruling.

"If we extrapolate, in case of divided government POTUS will (have to) try to fill all posts without regard for the opinion of Congress and Congress will try to leave ALL posts vacant in order to keep the enemy from governing at all."

I suppose the difference is that the former is a constitutional violation, and the latter is just bad policy.

There is always the question of how to interprete the 'advise and consent' clause. There is consent that it means that the senate can vote down a nominee (i.e. vote 'no consent'). Where there is no consent is whether the senate can simply not consider a nominee. In short, does the clause bind only the president or the senate too? I assume the authors of the text never got the idea that the senate could simply refuse to vote up or down (or even refuse to vote on whether to start a debate on that), so they did not write something about that. So, the courts will have to decide (but probably wriggle out of it again).
In short: I agree with you of POTUS being in violation but I do not exclude the possibility that the senate may also be (I actually think it is but ianal).

This appears to be a situation in which "Everyone connected with it deserves censure," in the words of a long-ago movie critic panning a piece of Hollywood schlock.

IMO the President gambled on this one, will probably lose, and should probably lose per the letter of the law.

Regarding "overreach", I did listen to one of the Senate "sessions" yesterday, in its entirety, re-broadcast on the radio. It took about a minute, and consisted of:

1. The session opening.
2. A clerk citing chapter and verse about why the person who was chairing the session was entitled to do so.
3. The chair adjourned the session.

So, in a nutshell, utter bullshit. But, utter bullshit with the force of law behind it, so, legally binding utter bullshit. Which in fact is nothing new.

I appreciate the POTUS' effort and interest in calling them on it, but I suspect he is going to lose this one, and IMO a simple and non-tortured reading of the text of the Constitution requires that he lose this one.

Time to dust off Art 2 Section 3:
"[The President] may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper"

So if Bohner and Reid disagree, Obama can tell them "Get the f*ck outta town!" and *presto*, time to make recess appointments.

Don't know how the court will rule, but the law provides rules for statutory interpretation (which could also apply to Constitutional provisions), one of which is that words are given their plain meaning except when the results of such interpretation is absurd or unjust.

It seems that if the Senate is making a mockery of the President's power to appoint executive officers, thereby derailing the possibility of the President exercising his Constitutional powers, that's an absurdity that should be interpreted out of whatever "plain meaning" allows the Senate's action.

So what you guys seem to be saying is that it's more complicated than a speed limit. Who knew?

House and Senate actions during this President's terms are a sham of a mockery of an absurdity of a shamery:

http://www.youtube.com/watch?v=HsGWdGhYKtY

Not safe for work (yet another absurdity)

Next time there is a Republican President, don't expect a quorum in either the House or the Senate for at least four years.

I watched a half-hour of Cspan2 yesterday. Chuck Grassley was speaking. His message was that the Senate is suffering from the abuse of CLOTURE by those dastardly Democrats. He railed against majority rule on the grounds that majorities can change the rules so as to entrench themselves in power. (Voter ID laws are not that, silly.) He trotted out the cooling saucer chestnut.

Naturally, he was speaking to an empty chamber.

On the recess appointment business, I will be fascinated to see how the authoritarian wing of the SCOTUS will manage to rule such that "this President" is wrong, but future Republican presidents can do what they damn well please.

--TP

I will be fascinated to see how the authoritarian wing of the SCOTUS will manage to rule such that "this President" is wrong, but future Republican presidents can do what they damn well please.

they'll simply do it, and then respond to criticism with "well where were you when Obama did it?"

It seems that if the Senate is making a mockery of the President's power to appoint executive officer

I agree with this. I'd say it is self-evidently so. I'd say a one-minute meeting, held solely for the purpose of its own adjournment, perverts the original intent of being "in session".

Perhaps the SCOTUS will see this as a case were the spirit, rather than the strict letter, of the law should win the day.

IMO that would be fabulous.

There never was a good case for allowing "recess" appointments when the Senate is not in recess

Brett, we have a situation where 90% of the Senators are home for a month, but a couple who live close get together every day or two for 30 seconds, just to avoid the Senate being "in recess" and never doing any business. Technically, the Senate has not recessed. But for all practical purposes, they are -- and no appointments are being dealt with the whole time. Which (no Senate available to confirm, or not, an appointment) is exactly what recess appointments were intended to deal with.

I will grant that, since the Senate these days frequently refuses to even allow a vote on nominees, the point may be moot. But the question I would ask is: What was the Original Intent of recess appointments? And why should not that intent govern what is allowed today?

The original intent of recess appointments was to allow vacancies to be filled when the Senate was not available to confirm, for an extended period. Not to allow him to fill vacancies when the Senate refused to agree with who he nominated.

And if we let that intent govern, there will be no recess appointments at all.

so, what did the "originalists" say about Bush's 15 recess appointments ?

nothing?

nothing is something, in a way.

According to Wiki, W. made 171 recess appointments, but none of them came after Reid started holding pro forma sessions of the Senate to prevent any further recess appointments, from which we can infer that he didn't think he had the power to do so. Also per Wiki, Obama had made 32 recess appointments as of January 5, 2012, but it seems the legal challenge didn't come until he made appointments that conflicted with the pro forma sessions.

Note also that the Constitution provides that neither House of Congress can adjourn for more than three days during a session without the consent of the other House. And it seems it is undisputed that the House of Representatives did not consent to the Senate adjourning during the time Obama made the appointments at issue (and is, AFAICT, why we have a Democratic controlled Senate holding pro-forma sessions).

"Not to allow him to fill vacancies when the Senate refused to agree with who he nominated."

"him"?

"he"

Methinks you mean Barack Obama, not the previous 43 Presidents or The President, other than Lincoln, who was dispatched by other means.

"refused to agree"

When did the Constitution guarantee the right to agreement? Lets get rid of elections too.

Refusing to agree is what happens here at OBWI, where no governing happens.

"Refused to confirm and permit the Executive Branch to govern, regardless of agreement" would be more like the current state of things.

Blow it the f*ck up.

I'm curious, can somebody offer support for the concept that the Recess Appt. Clause was intended to combat political intransigence on the part of the Senate?

The General's oral arguments rested heavily on the concept that the clause was intended to give the president power to appoint when the senate was willfully not confirming people.

I didn't think he offered much support for that concept during oral arguments, and I'm not familiar with much (but I'm curious if there is some out there).

As it stands for me, this seems to be a case of executive overreach, even if its driven by senate intransigence. I worry that if the SC rules for the president (which I think is unlikely, given how oral arguments went), it would basically make the senate irrelevant in nominations.

it also says he made 15. Wiki needs to update itself!

but yeah, Obama has explored some new (and very shaky) ground here. alas for him.

still, the originalists had no apparent problem when a Republican was recess-appointing people.

I think Brett is right on substance in his 12:10 PM, the intent was nominations when the senate was unavailable, a condition mostly absent these days. So, many 'recess appointments' (by presidents of both parties) do violate at least the spirit of the law. I think most of us here agree on that. Where we (seem to) disagree is whether the behaviour of the senate (refusing to do its job while pretending to do so based on formalities) does so too or may even be in violation of the letter.
Personally, I expect another pure doubletalk decision by a 5:4 majority on SCOTUS that in essence declares it illegal for Dems and will see it as legitimate for GOPsters.
If it was up to me, there'd be a legal option for POTUS to send the senate an ultimatum: 'Vote up or down until date X or I will do a recess appointment'. One could also give the senate a similar ultimatum power to replace a recess appointee when POTUS does not nominate one the regular way for a vote (the recess appointee would keep his position if the senate failed to either vote or lacked a majority). That would be similar to the 'constructive vote of no confidence' that in the German constitution allows the maneuvre only by voting in a successor but not in the destructive way of voting out and refusing to vote in a successor in order to sabotage government itself.

A reasonable compromise would be to limit the Senate's 'advise and consent' role to cabinet level officers and Supreme Court appointments.**

I mean really....ambassadors? The Senate Dems got too worked up about John Bolton and should have saved their ammo for more important things....like ending the filibuster once and for all. 'Bout time. They had quite a stockpile.

**Of course this would require a Constitutional Amendment....no chance of that.

Huh, different pages on Wiki. This one says 171, citing a CRS report.

The distinction cited here would be that Obama did it between pro forma sessions, and that was "too far" prompting the litigation, and then all arguments were on the table, including ones beyond just the pro forma session issue.

On the recess appointment business, I will be fascinated to see how the authoritarian wing of the SCOTUS will manage to rule such that "this President" is wrong, but future Republican presidents can do what they damn well please.

Make it a "one-off" kind of ruling. I understand there is a relatively recent infamous precedent in this regard.

It seems that the answer to the latter question is that the text is fairly clear, POTUS can fill vacancies that happen "during" the recess of the Senate. If they happen when the Senate is in session, too bad.

A vacancy is an ongoing state, but 'happen' seems to indicate a single point in time (ie the actual time when the office became vacant). So, does 'happen' here mean 'begin', or does it mean 'in that state at this point in time'? I think either makes sense (from a modern perspective on the language).
Given that the intent of the clause was to prevent critical positions from going unfilled during long recesses, I would say that even if the vacancy began before the Senate went into recess, the original intent would have allowed for a recess appointment- bear in mind the long communications delays of the period meant that a vacancy could occur days before the Senate went into recess, but the news could fail to reach Washington until the recess had begun.

The issue then becomes, when is the Senate in recess, other than between the two sessions? Like most things, the Constitution doesn't provide a clear answer. It does state that the Senate "may determine the Rules of its Proceedings." So, perhaps we should ask the Senate whether it was in recess as there is little else to go on in the Constitution and when to start/end sessions seems to fall squarely within the rules of proceedings. The answer from the Senate in this case is that it was not. Case closed...

Just because the Senate makes its own rules doesn't mean that it defines Constitutional language, particularly Constitutional language that controls their relationship with another branch of government.
Let's say that the President vetoes a bill and sends it with her objections back to the Senate. After 10 days, a bare majority of the Senate rule that "he shall return it" means that the President has to hand-deliver the bill *personally* (after all it doesn't say "he shall have it returned" does it?)- and since she didn't do that within 10 days, it's a law. Obvious horseshit, or the Senate setting its own rules?
When the Senate is on recess for every purpose *except* for the purposes of the appointments clause, solely to prevent recess appointments, then I think the Adminstration has a good point: Congress is attempting to deprive the Executive of a power that it has been granted by the Constitution. If the Senate had just conducted real business throughout the calendar it'd be a much harder case to demonstrate.

The biggest obstacle to changing the 'vacancy timing' aspect is that the Court appears to have several unappetizing choices:
1)overturn in retroactively, voiding every action of every recess appointee (at least, all of those whose vacancies didn't start during recesses)
2)overturn it going forward, leaving all existing decisions in place but removing existing appointees from their positions
and, of course, there's the nonsensical one, which I could see getting at least 3 votes:
3)overturn it for all decisions going back to the beginning of the Obama Administration

Ergo, I only see the recess issue getting traction- it limits the collateral damage (which everyone wants) and doesn't look entirely implausible and partisan (which at least Kennedy and Roberts appear to want).

Curious to see how this will affect Congress vis a vis the President going forward; dealing with a hostile Senate could be damn near unworkable if they're going to ask for policy concessions for every single appointment. And since this situation wasn't anticipated in the past, some laws become ineffective when the Senate refuses to confirm any candidate...
(Unsurprisingly, this is a situation that favors those that want government to do less- if you're ok with the NLRB doing *nothing*, then the Senate refusing to appoint your pro-business candidates isn't much of a blow).
Also unsurprisingly, if the President were to appoint (no confirmation) an 'acting such-and-such' to carry out the roles envisoned by those laws, those defending the 'spirit' of the law will suddenly find that the letter has regained its appeal.

We should reason the same way about the law that applies to the government, the Constitution

Except that, this creates the potential for radical disruption of the machinery of government. Thus stare decisis; we don't change the rules around constantly because it's a practically bad thing. All manner of decisions- executive orders, laws, etc are made based on the rules of play today.
Also, there are cases where this sort of thing applies to ordinary citizens- consider adverse possession, which operates on the same principle (ie long enough use by one party without objection leads to the potential to legally recognize ownership of that property by the user). Speed limits are a terrible example, since there isn't usually a heavy cost to individuals who were relying on the older implicit speed limit.

And if we let that intent govern, there will be no recess appointments at all.

So are we supposed to be following the text, or the 17th-century understanding of that text, or the intent behind that text, or stare decisis? Or are you an originalist of the Scalia school of thought (ie it's whichever gives us the desired outcome)?

Carleton: When the Senate is on recess for every purpose *except* for the purposes of the appointments clause, solely to prevent recess appointments, then I think the Adminstration has a good point: Congress is attempting to deprive the Executive of a power that it has been granted by the Constitution.

Except that it is a conditional power, that comes into play only if certain conditions are satisfied. There needs to be a vacancy and it needs to "happen" "during" a recess of a Senate. And we need to determine what a recess means. Congress, it seems to me, is in control of when they are in recess by being able to manage their own proceedings.

dealing with a hostile Senate could be damn near unworkable if they're going to ask for policy concessions for every single appointment. And since this situation wasn't anticipated in the past, some laws become ineffective when the Senate refuses to confirm any candidate...

end the filibuster, everywhere.

that will free up all kinds of things!

"end the filibuster, everywhere."

Not yet.

I want one more shot at upping the ante during a Republican Administration so that the gears of governance completely seize up and we have a crisis with Second Amendment implications for everyone.

We can rethink the mess as everything burns down.

Congress, it seems to me, is in control of when they are in recess by being able to manage their own proceedings.

That is the question- can Congress negate the power via redefinition or parliamentary procedure? As Roberts observed in your link, can the Senate merely pass a resolution that they are never in recess for the purposes of this clause? Could they have done so in 1790?
Can the redefine the veto as above? Can they redefine "Attendance at the Session" to mean "all of the time" and thus immunize themselves against arrest?

Noting that it's a conditional power doesn't necessarily mean that Congress can define one of the conditions out of existence. This is similar to the wordplay that exists around the use of the CIC powers to engage in wars as long as the Executive didn't call them "wars", thus depriving Congress of it's explicit power to declare war.
In both cases, if the intent of the Framers was that the President could only make recess appointments at the whim of the Senate, and that the President could make war without the consent of Congress, then the document would reflect those preferences.
It does not.

Snarki,

I believe that using the right of the president to adjourn both houses until he sees fit would be the surest way to start an armed internal conflict. What would happen if the president adjourned the House and it refused? Would he send the Secret Service, or the FBI, or the Army to enforce his writ? What if the Capitol Police put up a fight?

Considering that this would likely happen on the top of a tense political situation, it might really lead to a situation where any solution would be a coup.

So, I don't want Obama, nor anyone else to try to adjourn a Congress that doesn't do it voluntarily.

As Roberts observed in your link, can the Senate merely pass a resolution that they are never in recess for the purposes of this clause?

Oh probably not. It would likely depend on what other implications being in recess has for other provisions, such that you can be in recess for one purpose but not another. If so, I don't really see a problem with it. Note that the President, it seems, was going maximalist the other way - anytime the Senate is not in session constitutes a recess, and any vacancy, no matter when it arose, can be filled at that time, no matter how brief. Does the senate therefore need to conduct real business 24/7/365 to never be in recess?

end the filibuster, everywhere.

I was thinking of a Senate held by the other party- filibustering is another dimension to the problem, but in general the issue is whether the Senate ought to be able to prevent the Executive from doing Executive-y stuff merely by refusing to confirm anyone to a particular post.
A smart legislature going forward should equip its laws with escape clauses so that the Executive isn't blocked when appointments are blocked- but as I said to Brett, when you change the rules this can handicap previous laws that didn't envision your innovation. Which is either a problem (if you like the rule of law) or a benefit (if you'd like to get a do-over on laws you don't like).

What would happen if the president adjourned the House and it refused?

I would guess (relatively uneducatedly) that any business they attempted to conduct would be ignored as invalid, at which point it would go to the courts.

And doesn't such an interpretation by the President negate the advice and consent power of the Senate?

Note that the President, it seems, was going maximalist the other way - anytime the Senate is not in session constitutes a recess, and any vacancy, no matter when it arose, can be filled at that time, no matter how brief. Does the senate therefore need to conduct real business 24/7/365 to never be in recess?

I think it's reasonable to also say that the President doesn't get to define the term, any more than Congress does. The term is used in this clause to control their relationship, and I think the only way to decide it is to have the court determine the meaning.
Im not saying the Administration is in the right, but Im convinced that the Senate is in the wrong in trying to de facto never recess as a way to block the Executive. The Administration would be in the wrong similarly if they said that every nightly end to business is a 'recess' that allows for appointments.

So if Bohner and Reid disagree, Obama can tell them "Get the f*ck outta town!" and *presto*, time to make recess appointments.

If they disagree *about when to adjourn*, I think (does anyone know if this has ever happened?). Although it does appear to offer a possible window for recess appointments if the House is friendly but the Senate is not.
Of course, the term 'adjournment' is also not defined by the Constitution- perhaps the Senate just needs to pass a resolution that, for this purpose, an adjournment is not a recess. :)

"I believe that using the right of the president to adjourn both houses until he sees fit would be the surest way to start an armed internal conflict."

Why not exercise the opposite power? The President can call either or both chambers into session, even if they don't want to be. That can't force them to vote on a nominee, but it would certainly disrupt vacation schedules, and if you did it when they were off campaigning for reelection, I expect they'd schedule a vote awfully fast.

I agree that we need SOME provision to deal with a Senate which simply refuses to vote on nominees. I simply refuse to interpret such a provision into a Constitution which objectively lacks it. Article V is called for here.

I would suggest an amendment which gives the Senate some fixed period to hold an up/down vote on a nominee, or else they are deemed approved. You could roll this into abolishing recess appointments.

Just ran across this, which argues that "during" modifies when the President can act & has nothing to do with when the vacancies occur. That is
The President shall have Power- during the Recess of the Senate- to fill up all Vacancies that may happen.

He argues that this makes sense in terms of avoiding the weird 'when did the vacancy happen' questions, and in avoiding either having 'during' modify both conditions or giving the President the power to make recess appointments when the Senate is in session (as long as the vacancy occurred during the recess).

Let's suppose that the Court decides that these recess appointments are invalid. Do you suppose it will just invalidate this particular action/decision by those with recess appointments? Or will they in validate all actions in which those with recess appointments were involved? Including, presumably, administrative actions like raises and promotions of people in the executive branch who work for those with recess appointments. And how about actions by judges with recess appointments? Or ambassadors?

The possibilities for chaos, while every decision of lots of different administrative bodies is reviewed and/or contested, are enormous. (But think of the mass of business for the lawyers!) What fun!

Why not exercise the opposite power? The President can call either or both chambers into session, even if they don't want to be.

First problem I see is that you're kicking your own people in the shins just as hard as the other guys. Not to mention the possible public relations issue of jerking Congress around just because you can.

I would suggest an amendment which gives the Senate some fixed period to hold an up/down vote on a nominee, or else they are deemed approved. You could roll this into abolishing recess appointments.

That's an improvement, but better something that also dealt with the Senate refusing to confirm any candidate in order to extract political concessions. They don't need to not vote, they could just vote every candidate down with the same effect.
(Unless you're solving the problem of the filibustered candidate or the one trapped in committee- which afaict has already been solved albeit not by means you like).

Unfortunately, Im not sure there's a solution where the Senate can be forced to give *actual* advice and consent, rather than using it as a political football. Recess appointments are maybe not a bad solution to that. Or maybe just get rid of the process entirely for executive appointments- let the President choose the team he wants, they'll get plenty of scrutiny via the media in the modern era anyway, and Congress can always investigate particular issues as it sees fit without actually holding up appointments.

"That's an improvement, but better something that also dealt with the Senate refusing to confirm any candidate in order to extract political concessions."

How do you, constitutionally, distinguish this from the President stubbornly sending up a series of utterly wretched nominees, people so bad that leaving the position open is preferable? Because that's how the Senators are going to describe what they're doing, and why is the President's version of what's going on privileged over their version?

You can't solve all problems with constitutional design.

How do you, constitutionally, distinguish this from the President stubbornly sending up a series of utterly wretched nominees...

I wouldn't; I think advise and consent is a cure worse than the disease. The President is responsible for the quality and actions of his appointees, I think that's protection enough against bad ones.
Judges is a different case, this is just for executive branch appointees.

"I think advise and consent is a cure worse than the disease."

I wouldn't go that far. I already think the senate, hardly popular in general, has been protected from being politically intransigent on nominations. At some point, the executive will slip past them.

I think once the wheels of government well and truly grind to a halt, and POTUS can just point at the senate as failing, they will learn to be more responsive.

I think removing 'the cure' will lead to more partisan nominations, which will lead to more dramatic swings in executive department behavior.

Just considering the NLRB, its not to out there to assume extremely 'anti-labor' appts followed by extremely 'pro-labor' appts. That kind of regular policy shifting isn't good for anybody.

just do away with appointments (or at least a lot of them).

make them career jobs, with the possibility of impeachment-style removal for truly bad behavior.

or, if Congress has a problem with how an agency is being run, they can write a law changing it. get rid of this patronage-based, rotating leadership nonsense.

My own opinion is that the Constitution was a design for legislative supremacy, and we have drifted too far from that design already. A government ground to a halt would be an improvement over a dictatorship of the executive, which is what we have been drifting towards. Though I'd hardly describe the last few years as "drifting", given the open claim that the President is entitled to enforce policies the legislature has refused to enact, and to ignore ones it has enacted.

There seems to be a little inconsistency here. The essential argument is that the so-called recesses are not recesses at all.

OK, but are the "sessions" really sessions?

Apparently this is binary, either the Senate is in recess or it's in session. No limbo. Then why should "in session" be the default if they are not doing anything?

I personally think the Senate should be required to act, and if they don't within, say ninety days, the nominee is deemed confirmed. You don't like the nominee? Then stand up and vote "No."

The framers of the constitution did not anticipate that there would be such a thing as the filibuster, which came about by accident. Nor did they anticipate political parties, though those quickly came about. Their assumption, in framing the recess exemption, was that congress would vote up or down on appointees.

They also did not anticipate pro-forma sessions. Their assumption was that legislators would take their job seriously, and do the nation's business while in session, and allow the president a few exemptions when they were not in session.

Consider this, quoted from a story in The Hill:

"As of Friday, the GOP had completely blocked any Democrat from speaking on the House floor for the last three weeks, and this should continue for another three weeks before the House returns on Nov. 13."

Read more: http://thehill.com/blogs/floor-action/house/262981-gop-again-shuts-down-dems-attempt-to-speak-at-pro-forma-session#ixzz2qQlW98jZ

In what sense was Congress in session, if no member of one party was being allowed to speak?

I'd say both the president and congress are on shaky ground here, congress for holding what amount to fraudulent sessions and the president for making appointments while congress claimed to be in session. Bad cases make bad law, and that's what I expect from this.

But John, they had Original Intent. That's all that matters. You will know it when you see it.

Again I think Brett is right on substance.

What is needed is a clear distinction between different kinds of nominees. Some should be removed from senate confirmation others definitely not (that includes of course all lifetime appointments at least until they get converted into ones with a mandatory retirement age and/or time limits)

POTUS forcing Congress into session could be quite popular if handled the right way. He just has to make the case that Congress is a bunch of overpaid lazies who are mostly concerned with stuff that has nothing to do with their designated job (part from trying to keep it). Let POTUS play the strict parent that says "You can't go out to play before you have done your homework". How do you think the papal conclave came into being? Lazy cardinals refusing to vote a new pope in.*


*Yes, the villain in that piece was actually the French king but that would totally spoil the punchline.

"Their assumption was that legislators would take their job seriously,"

Well, they also assumed that Presidents would take their job seriously, too. 2 for 2. Lazy, rent seeking legislators are hardly an argument for turning legislative power over to power mad executives.

I think the real problem, frankly, is that representative democracy doesn't scale well beyond a certain point, especially in a heterogeneous nation. And we're way, way past that point.

You can get around this to some extent by respecting the principle of subsidarity, which is what the whole idea of "federalism" is all about. But that only lasts as long as the highest level of government permits it to last, and when do politicians ever admit something is beyond their own competency, or none of their business even if they were competent?

And we have evolved a particularly bad political class. Average citizens get 49% on that test, which is awful. Politicians get 44%.

Maybe we should give election by lot another try, make serving in the legislature more like jury duty than something people could seek out. But we should certainly take seriously the idea of splitting the country up into smaller, more manageable sized countries. This country is just too large and diverse to be run from a central power. Well, to be run well, anyway.

But John, they had Original Intent. That's all that matters. You will know it when you see it.

Intent is important, no matter when a particular constitutional provision was written. If you trash intent, you no longer have a set of guidelines; instead you have a hunk of silly putty that can make cool-looking images of the issue that it's last plastered against.

If you can't divine the original intent, that means the article in question was written in such a way that understanding can't be achieved with any degree of certainty.

Which is not to say that complete certainty is possible. Possibly this goes back to Carleton's comments re: stare decisis. Who better to have the last word on divinination of intent than SCOTUS? And if SCOTUS isn't your one-stop shopping place for divination of intent, what might be a better way to do that?

I don't have any answers. Intent is important, but not sure.

A bit of history of GOP abuse of recess appointments:

(from a Wapo article 12/9/2011)
“At high noon on Dec. 7 1903,” Senate associate historian Betty K. Koed has written, the Senate president pro tem brought down the gavel to end one session of the Senate and then said “the Senate will now come to order.”

“In that moment between sessions,” Koed wrote, “during that split-second of time it took . . . to wield the gavel, President Theodore Roosevelt made 193 recess appointments.”

I think that impeachment proceedings are in order.

If you can't divine the original intent, that means the article in question was written in such a way that understanding can't be achieved with any degree of certainty.

My personal issue with the "original intent" line of argument is that it assumes that there was one, specific original intent. I'm not sure that's always true. Different individuals among the founding generation had different ideas about how things should work.

I think Brett has a point about the limits of representational governance in a country of this size, but I'm not sure that it's relevant to the question at hand.

even in a democracy of three people there will be someone who feels shortchanged, unrepresented, ignored and maligned.

democracy scales just fine.

people just refuse to accept that it means you don't always - in fact almost never - get exactly what you want. it's a system that require compromise. and everybody knows that compromise is the ideologue's mortal enemy.

So who would have a more accurate understanding of "original intent"?

Politicians in 1790? 1820? 1903? or 2014?

Whatever Scalia may think about his own accuracy in "original intent" entrail readings, the issue in TR's recess appointments in 1903 is 111 years closer to the "original" than anyone in 2014.

Overturning centuries(!) of precedent in the name of "original intent" is weird: "oh those old farts didn't know as much about the thoughts of the REALLY old farts as WE do, today". That might make sense if you're talking scientific archeology, but not so much for legal/constitutional theory.

russell: My personal issue with the "original intent" line of argument is that it assumes that there was one, specific original intent. I'm not sure that's always true. Different individuals among the founding generation had different ideas about how things should work.

This is basically Scalia's argument against using legislative history to interpret statutes. Congress is a collection of individuals, the only thing we can be sure of is that it intended to enact the language in the statute.

Of course, in the absence of regulations from the Executive Branch, legislative history as embodied in e.g., committee reports, is often the only thing to go in when looking at what are very often vague statutes that use nebulous words like "substantial" and "significant."

"I think Brett has a point about the limits of representational governance in a country of this size, but I'm not sure that it's relevant to the question at hand."

And limits we have if you look at government spending as a percent of GDP. Total government spending -- Federal, state, and local -- hover around 40% of GDP with Federal -- carried out by the votes of our representatives --- jogging up and down right around 20%, say the mid to high teens on the low end and the low to mid twenties on the high end.

Most of the variation in Federal in that 15 to 25 range occurs because of variations in the private sector economy, tax receipts, etc.

So, yes, we go to war in that circumscribed range.

But, I don't want 100% of GDP going to government, despite accusations of "no limits" to the contrary, and I doubt anyone views zero on the low end as desirable, although in recent years rhetoric for the zero number, utterly insincere (keep the government out of my Medicare!) as it is, seems to have become noisome.

As to its relevance to this discussion about recess appointments -- zip.

This is part of a blood feud and Barack Obama, with all of his faults and despite his history of mutual collegiality while he was in the legislative branch, didn't start it this time around.

If he appointed Mitch McConnell, not a bad idea, to the NLRB, Erick Erickson would rally the know-nothing troops to defeat the "liberal, socialist squish McConnell".

The point of this behavior is not to divine original intent, what a bunch of high-minded bullsh*t, and this Supreme Court case is to halt governance by this hated President, period.

Else, why now, for this case?

Republican Teddy Roosevelt, a human being, or even Republican Dwight Eisenhower, another human being, the kind in short supply these days on one side of the aisle, would kick these "Republican" butts into the reflecting pond.

"divine"....an interesting choice of words.

Here's one from Hilzoy, ca 2011 on LGM:

I don’t know enough about legal philosophy to know whether “original meaning” has some special meaning in that context. But about extension v. intension:

The great virtue of that distinction, I think, is to permanently destroy all arguments of the form: the Framers didn’t think this provision of the Constitution had this result/applied to this group/etc., so if you think it does, you’re changing the Constitution. Because obviously, once you think about it, it is perfectly possible to *just not know* that some word applies to a particular thing.

E.g., if Congress banned toxins of a certain sort, and then someone later discovered that some substance that had been thought to be innocuous was a toxin of that sort, then under the law, that substance is banned, even if Congress had no intention of banning it (back when they thought it was innocuous.) If I say that I will bring whoever committed some heinous crime to justice, not knowing that it was committed by my closest friend, I do not get to say: well, I never thought I’d be bringing *my best friend* to justice. In these cases, no meanings have changed, no original anything has been violated, and yet statements turn out to apply to people/things that they were not originally thought to apply to.

Similarly, “the Framers never intended that creches could not be publicly funded/women would have rights/etc.” What matters are their words, not their understanding of those words’ implications.

Words matter. Food for thought.

Words do matter; I agree. But what those words meant to the people using them to communicate their intent matters, too, I say.

I'm not arguing for rigid adherence to original intent; sometimes it just has overly wide error bars. And sometimes original intent should just be discarded outright. What I am saying is that words do in fact have meaning, and that to the degree possible, the meaning intended by the scribers of those words should be discerned. If it turned out that we as a country no longer agree with those words, or determines that it just cannot understand what those words meant, then the words should be removed and replaced with different ones.

Which has been done before.

I sense that this can blossom into a vigorous 2nd Amendment discussion. Maybe the inevitability of such discussions springing from a conversation about originalism could be expressed as e.g. Slartibartfast's Law.

I'd prefer to not use my real name, there.

Anyway, I'd prefer to actually change the words when we decide we don't agree with them or that they were too vague, rather than changing what we say they mean. When that happens, the Constitution is effectively changed in an end-run around the prescribed change process, which I think is problematic.

"oh those old farts didn't know as much about the thoughts of the REALLY old farts as WE do, today".

There's also the possibility that the old farts didn't care about the thoughts of the really old farts.

Anyway, I'd prefer to actually change the words when we decide we don't agree with them or that they were too vague, rather than changing what we say they mean.

Yep, as in the 3/5th's clause being sub silento displaced by the 13-15th amendments. It needed to happen and it did happen. Took a while, and a war.

It'd be nice to change the Constitution that often, but that's not the country we live in currently. Which makes sense- if I've already got what I want via strained interpretation, am I going to be willing to give up anything significant in order to get a cleaner interpretation?
To fulfill Slarti's prediction (and who doesn't want their predictions fulfilled?), what would gun-rights activists be willing to give up in order to have the first part of the second amendment removed? Id wager nothing.
(Not pointing fingers here: what would I give to actually have the words "right to privacy" or "separation of church and state" inserted into the Constitution? Not much, since I already think that they're effectively in the document. Would I be willing to swap it for something that I actually think is contentious? Unlikely.]

Now, if it comes down to *improving* the document rather than just clarifying it (eg fixed terms for Supreme Court justices), that seems like it could get more traction than trying to resolve actual Constitutional disputes.

if I've already got what I want via strained interpretation, am I going to be willing to give up anything significant in order to get a cleaner interpretation?

Contrariwise, if you've created the possibility of strained interpretations by instantiating one or more of them (by supporting that kind of thing, perhaps), what undesirable changes could arise from subsequent strained interpretations that you disagree with?

Just a question. I don't expect answers.

Not pointing fingers here: what would I give to actually have the words "right to privacy" or "separation of church and state" inserted into the Constitution?

I would tend to want to have some more words explicating what e.g. "separation of church and state" means. I would also submit that at this point, "right to privacy" might need some explicit, detailed words about gathering information on citizens/residents without a warrant.

Anyway, I'd prefer to actually change the words when we decide we don't agree with them or that they were too vague, rather than changing what we say they mean.

I can't say I disagree, but this doesn't seem to be an apt response to bobbyp's Hilzoy quote (if it was even intended to be such).

What Hilzoy seems to be saying is that the words mean what they mean, under certain circumstances, regardless of the intent. There's no need to change what we say they mean. They just mean something other than what was originally intended, sometimes because it wasn't possible for anyone to intend certain things at the time the words were written. The words may come to apply to things that didn't exist when the writer(s) wrote them.

I'd say we can try to discern original intent to the extent that we can AND to the extent that original intent even matters to the actual meaning.

What Hilzoy seems to be saying is that the words mean what they mean, under certain circumstances, regardless of the intent.

Does that help decipher the 2nd Amendment more certainly than attending to intent, I wonder? I would guess not, and that there is in fact intent to be considered. Which might be further muddied by a multiplicity of intent, I admit.

Words do mean what they mean. But sometimes they mean more than one thing, and the exact meaning intended to be conveyed by a sentence can be properly discerned only by paying attention to context and other clues.

People can and do say things that aren't what they meant to say, and although what they said might convey some specific meaning, if it's not the intended communication then one would be incorrect in using the literal meaning, just as one would be if one literally used a typo as the intended text.

None of this is revolutionary. If we have some pre-experience of someone's prior communications, it lets us do a somewhat better (though still imperfect) job of deciding whether what they are saying now contains some kind of error. We normally do that without even thinking about it.

Anyway. These are my thoughts on decoding the communications of others, and if you don't like them, it's almost certain that you aren't correctly assigning meaning to my words. ;p

Contrariwise, if you've created the possibility of strained interpretations by instantiating one or more of them (by supporting that kind of thing, perhaps), what undesirable changes could arise from subsequent strained interpretations that you disagree with?

Let's say instead that I was born into that situation and absolve me of the blame of initiating it :) - if it were 1797 and we were deciding whether to make &$^# up or just amend the Constitution, Id be all for the latter.
Today, Id venture to say the only people for following the letter of the law are the ones willing to convince themselves that all of their strained interpretations are actually 'the letter of the law'. There are too many babies in the bath to feel good about tossing the whole thing out. On the one hand, if we were strict about interpretation then we'd have an incentive to fish the babies out first, but that's a chicken-and-egg problem (we won't get public buy-in to fix the Constitution until we're enforcing it strictly, and then we've tossed out the bathwater and gored the oxen).
So in the abstract, sure it'd be great to actually amend the Constitution. In reality, this isn't going to happen anytime soon, there's way too much stacked against it.

I would tend to want to have some more words explicating what e.g. "separation of church and state" means.

That gets tricky too. You want to avoid painting your Constitution into corners regarding today's technology, social structures, etc. Im much happier with a ban on cruel treatment than a list of specific forbidden techniques.
Plus, often specific prohibitions can be worked around via various methods, where a general statement gives the court more latitude to infer and apply general principles or work around problems or conflicts.
Say that, rather than 'separation of church and state', you want to specify rules eg 'the government won't pay for religious activities'. That immediately suggests to me a dozen more questions (eg is a tax credit or tax break 'paying' for something? Can the government pay for religious activities for eg soldiers or prisoners, even to the extent of providing a venue?) and might even have bad unintended consequences (eg that the government can't spend money to accommodate religious users of government facilities, thus discriminating against them).

I mean, we have to go to some level of specificity, otherwise our Constitution would look more like "Be good" with the specifics left to judicial interpretation. Too much specificity seems like it'd be as bad as too much generality though- I think we want just enough for judges to infer guiding principles that we want to live by, and no more.

I think the constitution was deliberately written to be flexible, so amendments would be a rare thing to do (and I assume it was much easier with 13 than 50 states to do the really necessary changes).
I also think that the constitution is only still around because it was handled in a flexible way in cases of serious crises (to be cynical: it tends to get completely ignored quite often, otherwise it would have broken to pieces at the time of WW1 at the latest).
Plus there is a serious danger in proposing a clarifying amendment and failing with it (or even succeeding). SCOTUS decided that a federal income tax was constitutional, although it is not explicitly stated in the text. Just in order to not have the tax rest just on SCOTUS precedent a claryfying amendment got passed (success!!!). But that gave rise to the movement that claims that the very fact of its passage was proof that the SCOTUS decision was wrong and the income tax unconstitutional in the first place (why else would one pass an amendment?). I could come up with quite a number of desirable (from my POV) amendments that in case of failure would have the exact same effect. Case in point: 'right to privacy'. If this got proposed as an amendment, it would imo fail with near certainty (because these days there is NOTHING that could pass including the wetness of water, the near-spherical shape of the Earth, 1+1=2) and that would also inevitably be used as a lever to abolish any right to privacy (and everything dependent on it*) with the cited reason. That seems a good reason not to take that risk unless there is no other way.

*legal contraception (and abortion of course), illegality of sodomy laws, possibly even legal miscegenation (not sure that privacy was a factor in the decision)

These are my thoughts on decoding the communications of others, and if you don't like them, it's almost certain that you aren't correctly assigning meaning to my words. ;p

No. The only reason you're writing these obviouly horrible and wrongheaded things is that you don't understand me.

More seriously, the point wasn't that intent never matters, rather that sometimes it matter less than at other times, perhaps to the point of occasionally not mattering much at all. And all of that is orthogonal to lack of clarity, ambiguity, self-contradiction, etc. (And all of those things are orthogonal to flexible language that allows for a range of actions or policy.)

"So in the abstract, sure it'd be great to actually amend the Constitution. In reality, this isn't going to happen anytime soon, there's way too much stacked against it."

I think this seems to incorporate an assumption that the non-amendment 'change' process is in some sense neutral, that it isn't playing favorites. But, of course, it isn't neutral. Because the entire non-Article V process occurs among office holders and people they have chosen, it favors government in general over the citizen. Because it occurs entirely at the federal level, it favors the federal government over the states.

But Article V offers multiple ways to amend the Constitution. Amendments can originate with Congress, or they can originate with a convention of the states. They can be ratified by state legislators, or they can be ratified by conventions of the people.

So, the informal process systematically stacks the deck in favor of federal power. It is not neutral in whose oxen get gored.

While an Article V convention originates amendments at the state level, and can be expected to favor state power over federal, and if the convention rather than legislative ratification process is chosen, that would tend to favor citizens over the government.

This stacked nature of the informal process is why it is favored or rejected depending on one's politics. It's a case of process dictating outcome.

I think this seems to incorporate an assumption that the non-amendment 'change' process is in some sense neutral, that it isn't playing favorites.

I don't think so. "Ain't gonna happen soon" neither implies nor requires neutrality. If anything "it'd be great to actually amend the Constitution" implies that there's something (or some things) undesirable about the non-amendment process, which at least allows for a lack of neutrality.

I sometimes wonder at the utility of Constitutions; they only offer as much freedom as those interpreting them choose to allow- constrained by the conscience of the voters.
On a good day, I think a written Constitution should force a certain amount of 'good' behavior. On a bad day (eg when some justice uncovers an "equal majesty of the states" clause on the back on the document in invisible ink) I think we'd be better off explicitly relying on our own public judgment, since that's all we're really relying on anyway.

This stacked nature of the informal process is why it is favored or rejected depending on one's politics. It's a case of process dictating outcome.

I didn't say that I wanted one or didn't want one; I said that it's practically unrealistic today IMO. Insfar as I can imagine contrary-to-fact conditions I think a convention would be great. Insofar as I feel forced to pay heed to the world as it is, I can't imagine a convention producing anything.

I think this seems to incorporate an assumption that the non-amendment 'change' process is in some sense neutral, that it isn't playing favorites.

I don't see that assumption being made.
And the deck that's stacked against it isn't entirely (or IMO even primarily) federal-versus-state. It's as Harmut suggested: interest groups are not currently willing to trade certainty of interpretation for some of their favorite causes for certainty of interpretation *against* others. Everyone is convinced that the most fair or most reasonable interpretation already favors their position, and they've either got a majority now or imagine they can get one in the future. Accepting certain language *against* their preferred positions is a permanent concession I don't see either side willing to make.
Are there any concessions you'd be willing to make? And if there are, can you imagine persuading the people most invested in what you're willing to give away forever that it's worth the cost (eg giving away the pro-life position to get the 2nd amendment you want, or vice-versa)?

Another aspect of the original intent issue is that some of the language refers to stuff that either no longer exists, or is no longer relevant.

So, the third amendment, for example. Quartering soldiers in private homes just doesn't come up much these days.

Not to kick off a GUNS GUNS GUNS threadjack, but IMO part of the reason nobody pays that much attention to the first part of the 2nd is that the thing it refers to - citizen militias, as a significant if not primary defense force, operating under the direction of state or local government - no longer exists in a meaningful way, at least in the form that it did at the time the 2nd was written.

There's the National Guard, but I'm not sure they really have the same role that the militia had in the 18th C.

In some cases I think we look at the language and try to apply it to the nearest analogous thing to what it was originally written about. Whether it still makes sense or not.

So, it's not just original intent that needs to be considered, but original intent in its historical context. Not just intent in terms of what the words were meant to say, but also in terms of what end they were intended to achieve.

So, it's not just original intent that needs to be considered, but original intent in its historical context.

This makes too much sense, so obviously it is not meaningful.

GUNS! GUNS! GUNS!

I daresay, if George Washington was shown the destructive power of a fully automatic rifle back in the day, the thought of a bunch of armed and drunken Pennsylvanian loons trying to avoid liquor taxes carrying these things would have had him spit out his wooden teeth and the 2nd Amendment would have been quietly and quickly consigned to oblivion.

Back in the day, we were a frontier society eagerly fighting the natives, suppressing slave rebellions, and a very weak power in a very warlike world. Having a gun was as common as whippings.

Those who argue that we MUST abide by the "intent" of the WORDS when written over 200 years ago (as determined by shallow partisan driven scholarship -aka- Scaliaism) are making a categorical error. If "originalism" had such sweeping intellectual power, there never would have been a Civil War.

We live today. WE have the right to determine the meaning of the words now and in the present.

FREEDOM.

So, it's not just original intent that needs to be considered, but original intent in its historical context. Not just intent in terms of what the words were meant to say, but also in terms of what end they were intended to achieve.

Weird that the common law works this out quite nicely by applying the law, case by case, and allowing the law to evolve, case by case. The "originalists" ignore the fact that the framers of the Constitution were common law lawyers: they got it that the law evolved with situations brought before courts. And, sure, there are recently passed statutes, which aren't immediately subject to historical interpretation through common law case analysis. These are things that can be amended, fixed, on a whim by the legislature.

As russell and bobbyp said, the Constitution would be a dead letter if it weren't subject to common law interpretation. And that doesn't mean ad hoc, one-off, irresponsible decrees from the bench. It means a considered, gradual, situational approach to accommodating the law to progress through a combination of stare decisis, and considered argument by lawyers seeking to extend the law.

I meant: "As russell and bobbyp sort of said; or rather, as I interpreted...

Sorry, russell and bobbyp ...

Let's say instead that I was born into that situation and absolve me of the blame of initiating it :)

I see now that my devious little plan has failed. But it would've worked if it hadn't been for those damned kids.

If "originalism" had such sweeping intellectual power, there never would have been a Civil War.

Unless I'm TOTALLY misunderstanding you (HAH!), I disagree. The intent of the Framers was pretty clear; it's just that their intention was to make it possible for some people to be worth less, in the eyes of the law, than others.

Which made war pretty inevitable, I think, unless the absurdity of such a proposition would have caused the entire South to manumit their slaves out of embarrassment.

Unlikely, I think. Anyway, to me the original intent of the Framers was to make perpetuation of slavery possible without saying so outright. If they'd said THAT outright, then their intent would have been negated from the get-go.

We should not forget that at least one prominent founder would simply shake his head about our discussion because the idea that this piece of paper would last into the 21st century without a complete revision would have been absurd to him. I think few of the founders would understand our* treatment of their work as sacred and inviolate.

*not specifically aimed at the current postership here.

OTOH, he might have shaken his head at the idea that, instead of writing a new constitution every generation, people would keep the old one around unaltered, and just pretend it had meant something different.

And thereby end up with, in truth, no constitution at all, rather than a new one.

Personally, I'd say the Constitution does need complete revision. But just suborning judges into finding new meanings isn't the same thing as actually revising the thing.

No disagreement there from my side.
But as has been stated, chances of that are zero. And if it would happen, both you and me would very likely hate the result (for different reasons mostly but nonetheless).

So, to close out my position on this: I kind of like the idea of doing due diligence in the direction of a) achieving clarity of what the Framers intended, and b) amending suitably where we no longer agree with their intentions, or where clarity needs to be added. It might be a pipe dream, but it is my own.

All of this goes to explain my intense dislike for wide misuse of the Commerce Clause. Some of these misuses have been For a Good Cause (TM), but they've opened things up for further creative interpretations that might not turn out so well.

Just so my thinking, such as it is, is clear in this matter. I am all about not using screwdrivers as chisels, figuratively speaking.

But Article V offers multiple ways to amend the Constitution. Amendments can originate with Congress, or they can originate with a convention of the states. They can be ratified by state legislators, or they can be ratified by conventions of the people.

Brett, that would be a whole lot more persuasive if there was a single instance of anyone even making a serious attempt to amend the Constitution other than by passing something thru Congress, and then having it approved by the necessary number of state legislatures.

Do you know of that ever happening? Anything close to a "convention of the states"? Any state where a "convention of the people" was even considered in ratifying an amendment? Because I sure don't.

Just thinking that, of course the framers themselves differed on intent (just as we would if we all came together to craft a new constitution- we'd haggle over the language while each maintaining a personal interpretation of it). Ergo, while we'd like to imagine a time when everyone agreed on the interpretation & that we've drifted away from that golden age to where we now no longer agree on what the terms mean... that's probably not an accurate view of the past, and sounds more like a mythical fall from grace than a realistic depiction of human interaction.
If we look at the period immediately after the ratification of the constitution, there is much debate about exactly what's permitted (eg the Alien and Sedition Acts). So we know that this is not a problem that developed over time based on a flawed approach (ie 'reading into' the text what we wanted to be there)- it was there from the beginning.
And, I suspect, this is unavoidable. Not that it can't be made worse by overly-vague text or obvious departures from the text in practice.

[Which gives me an idea- a constitution with a built-in time limit. Good for 100 years, and then you *have* to get together and write a new one from scratch. At least then you get back to a baseline where everyone kinda agrees on things & will necessarily reform the obvious practical issues]

I don't think actually changing the Constitution is as hopeless as you believe, Hartmut. As I said, Article V allows several paths to amendment, and half of them, the convention approaches, are initated on the state level, not the federal level.

We're quite close to having the necessary number of states calling for a convention. In 1983 we were only two states short of the necessary number, at this point not so close, but that could easily change.

The real question, I think, is not whether the states will eventually call a convention, but how Congress will react when they do.

The real question, I think, is not whether the states will eventually call a convention, but how Congress will react when they do.

To me, the real question is what ungodly mess will come out the other end of the whole process.

The devil you know, etc.

oh please. the first noise anyone makes about a "Constitutional Convention" will be immediately seen by the opposite party as a power-grab and the partisans thereof will line-up and shout it down.

the only way there's a new constitution in this part of North America is if the current US government is completely overthrown or destroyed: not just some jackasses with muskets marching around DC, i'm talking a thorough conquering by an outside power than its overthrow: a blank slate start. the status quo has trillions of dollars behind it. nobody's giving that up just because a disgruntled sliver of the population has Freedom™-coated visions of small govt Utopia.

when the GOP eventually pushes this "govt is the problem" thing too far and the rubes get too roused, they'll switch their marketing to something that does a better job of keeping themselves in power.

by an outside power than its overthrow

by an outside power that is then overthrown

editor failure!

wj: Any state where a "convention of the people" was even considered in ratifying an amendment? Because I sure don't.

State conventions were used to ratify the 21st Amendment.

"The devil you know, etc."

But there isn't any "devil I know", that's kind of the point: I can't know what the 'constitution' is, because it's living. It can 'change' without any convention or amendment.

Sure, a convention could produce a product which I like less than the current written constitution that's being ignored. That product might even manage to get ratified. But at least I'd know what it was, until the living constitutionalists had a while to work on it again.

So, you've got it backwards: It's the product of the convention that would be the devil I knew. The living constitution is the devil I don't know, can never know until it bites me.

"oh please. the first noise anyone makes about a "Constitutional Convention" will be immediately seen by the opposite party as a power-grab and the partisans thereof will line-up and shout it down."

Right, as demonstrated by the fact that we came within two states of having a convention back in the 80's, and aren't more than a few states away from the necessary number right now. Because it's unthinkable.

i think we're cross-threaded. i'm not talking about a single amendment. i'm talking about the notion that it should/could be rewritten from scratch.

But at least I'd know what it was, until the living constitutionalists had a while to work on it again.

Which is, as far as I can imagine, immediately (historically, that's what happened the first time). If there was some significant block agitating for a rewrite that also demonstrated fidelity to the text even when inconvenient, Id be more open to persuasion on the point.

Bluntly, I dont see how "people ignore the constitution" is fixed by "let's rewrite the constitution". If I thought it could at least be a forum for hashing out national differences on critical points Id be lukewarm for it, but those sorts of issues are exactly the ones no one is going to want to touch with a ten-foot pole (unless one party can dominate the proceedings, which would be even worse).

All of this goes to explain my intense dislike for wide misuse of the Commerce Clause.

The clause has not be "misused".

Your complaint is that, under currently accepted construct--arrived at by Constitutional Means I might add, there was some kind of "process violation" leading to outcomes you (mostly?) do not like. Let me see here....Congress passes law, SC upholds law, Executive enforces law. Goodness. Where did they go wrong?

This is not a bug. It is a feature. We, as a polity, have been having this argument since John Adams administration (Aliens and Seditions Act). It broke down in 1861. I could point to several examples that equally rub me the wrong way: "Separate but equal"; Lockner era judicial activism; using the Sherman Anti-trust Act to bust unions; "unlawful combines and the labor injunction; just about anything undertaken by George W. Bush....there are more.

Certainly we can discuss and dispute "what the words mean", however as currently practiced, the school of "original intent" is simply a normative based and often incoherent attempt to justify a deeply desired partisan outcome.

Not that I am opposed to partisanship.

As to a Constitutional Convention: It won't happen, but bring it on. You can bet your bottom dollar that one of the first things to go would be the egregious over-representation of rural voters in the Senate.

So who would most likely walk out when that happens?

If you want to overturn the New Deal you're going to have to come up with the votes.

I deeply thank whatever god you may believe in for that.

Bluntly, I dont see how "people ignore the constitution" is fixed by "let's rewrite the constitution".

This is so logical that it's funny. It's like Mr. Spock in the Groucho Marx glasses with the nose and moustache attached.

But at least I'd know what it was, until the living constitutionalists had a while to work on it again.

Which is, as far as I can imagine, immediately (historically, that's what happened the first time).

Historically, it happened *in the process of writing the Constitution in the first place*.

Then it was amended, substantially, through the Bill of Rights, virtually immediately. And, in fact, the promise of almost immediate amendment was the price of ratification of the original text.

Moses did not ascend a mountain and descend with the US Constitution inscribed on tablets. What it says, and what it means, has always been a moving target, from before the ink was dry.

You can bet your bottom dollar that one of the first things to go would be the egregious over-representation of rural voters in the Senate.

Not, for two reasons:
1)the Constitution specifically protects states from having their Senate votes diluted (although I can see the argument that if the Constitution is mutable then it's mutable, they can't reasonably make some rules super-Constitutional for the same reason legislatures can't bind themselves to laws that they can't overturn).
Still, it'd definitely generate some grounds for complaint
2)since it's the states doing it, they're unlikely to have majorities to get this done. The only way the major population states could maybe make this happen would be using their clout at the House and Presidential level (but that's at best a standoff- can't reform the Senate bc the small states own the Senate). I don't see a coalition of big-v-small forming anytime soon, in general both parties are happy to pick up 'cheap' Senators (WY, RI) where they can.

What we really need for that is a constitutional convention from the ground up, circumvent the states and have the people vote via plebiscite. But that will also gore some oxen, don't see it in the cards.
(It'd be totally cool if we could get to this though)

There's the National Guard, but I'm not sure they really have the same role that the militia had in the 18th C.

Tangentially, here's also the state defense forces, which probably could be said to be closer to the old state militias in terms of lineage, but they're even further than the Guard in terms of modern military role.

Not, for two reasons

I was contemplating a wide open "let's start from scratch convention". My error. I do note, having read up on this a bit, that the language in this Article is also fraught with ambiguities.

I should think this would reflect the Founders state of mind at the time....somewhat hazy in some respects.

I have often been bemused (and less often amused) at the parallels between the "originalist" approach to the Constitution and the "literalist" approach to the Bible, both suggesting a populace bewitched by the significance of the written word. My sense is that this is a distinctly American pursuit; Europeans and others seem less obsessed by trying - vainly, of course - to pin down and enforce what a specific set of words written long ago REALLY mean.

YMMV.

(On literalist interpretations of the Bible, I draw both upon my own experience from many years ago and the contemporary fulminations of Slacktivist, who is always worth reading.)

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Whatnot


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