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February 17, 2012

Comments

What do you say then? Seriously?

"Screw it, I got better things to do" usually works for me.

I will try again, more civily.
pomowanker

Excellent baby steps toward a more civil avedis!

"The first 16 responsibilities are not at all ambiguous."

If they are not in some important respects quite ambiguous, then I take it you find Marbury v. Madison to be a travesty since the unconstitutionality of the Judiciary Act of 1798 should have been apparent to all and.....never passed in the first place?

Ha! "If people won't agree to stipulate that my interpretation of everything is the only correct one, what choice do I have but to call them stupid?!"

What do "cruel and unusual punishment," "probable cause" and "unreasonable searches and seizures" mean, Brett? Remember, stick only to the words on the page -- no interpretation or adjustment for time period allowed!

BTW Andrew Breitbart just died.

Remember, stick only to the words on the page -- no interpretation or adjustment for time period allowed!

I think it's perfectly fair to look to other writings of the framers for relevant clues to intended meaning. Not that I have any in mind.

If they're going to do that, they need to specifically cite them, then. No "everybody knew" nonsense.

Wow, there seems to be some serious missing of the point going on here. What I was trying to get across was that challenges to an amendment that contradicts what is explicitly in the constitution are more likely than challenges to an amendment that adds something that simply isn't there.

Flag burning is an example. It was at odds with the 1st amendment.

What I wrote supports points Seb (and maybe Brett) were making and undercuts points russell was making.

What I'm suggesting is an explanation for the lack of constitutional challenges to the 18th amendment establishing prohibition, which russell suggests as evidence, at least potentially, that people generally thought the federal government already had the power to institute bans - a point in opposition to Seb's point that it was understood that the federal government lacked that power, thus necessitating an amendment.

Is that still PoMo?

I mean, does it really require tortured logic to recognize the difference between a carve-out and an add-on? Prohibition (add-on) was a fncking disaster, and how long did it take to reverse it (carve out the add-on)?

BTW Andrew Breitbart just died.

I hear he was a big Monkees fan.

If they're going to do that, they need to specifically cite them, then.

Agreed.

"Can Congress institute a tax to subsidize health insurance for the population of the United States?"

IMO, yes - and I hope it does.

This is one area where the founders realized that over time new serious challenges would face the nation that they had not foreseen and they wanted to provide some leeway for the federal govt to intervene, for the general welfare, where the benefits outweighed the costs and where the free market failed to provide a viable solution.

Of course, the fed does already tax for Medicare and, to some extent, for Medicaid; not to mention the VA.

In a system where healthcare insurance is primarily provided via employment, there is isn't going to be a viable means for the lederly - who are not employed - to obtain affordable insurance.

If the elderly sought to purchase insurance privately it would be difficult, if not impossible, to find at a price they could afford. Their actuarial risk is simply too high.

That would leave us with an elderly population that either a) dies in the street or b) ends up with hospital bills it cannot pay - which would, in turn, force hospitals to close their doors or stay open and pass the uncompensated costs onto the employers of the younger healthier population, who would, in turn, then be challenged to afford insurance or pass the cost onto consumers of the goods and services the employers produce.

The issue of healtcare for the elderly impacts the entire population of the country. Hence a need to address HCI for the elderly under general welfare.

As more employment goes overseas and domestic employement that remains offers fewer insurance benefits, if any, a similar problem as that involving the elderly begins to appear concerning the younger population.

Thus a federal single payer insurance plan for all citizens makes sense and does, indeed, provide for the general welfare as the founders intended.

Agreed. really simple.

Thanks for this thoughtful reply, avedis.

Just to push back on this, I'd point out that lots of folks have construed the "general welfare" clause to only extend to things specifically allowed by the other enumerated powers.

So, frex, Associate SCOTUS justice Joseph Story, and founder James Madison, adhered to that narrower reading.

In their view (and that of many others) a federal tax to fund health insurance would have been illegitimate, because providing health insurance is not one of the specifically enumerated powers in Article I Section 8.

For reference, a cite, please see the section under "United States". You can follow links from there for more detail if desired.

So - why is your reading correct, and theirs not?

I'm not making any statement about the substance of what you're saying here, I'm just asking you why your understanding of the text is correct, and theirs not.

That's my reading. The reason being, that it's pointless to list powers, and then add to them a power that makes listing powers redundant. If the general welfare clause is interpreted as granting a power, then all the other clauses are pointless, everything done under them could be done under the general welfare clause.

Rather, what I understand it to be is a restriction on the exercise of the enumerated powers, that they can only be used for the general welfare, and not to benefit narrow constituencies. The federal government is supposed to be taxing the entirel federation, to do things to benefit the entire federation. If the benefit from a particular exercise is limited to a particular region, that region should be doing it, not the central government.

I'd really like to hear from my PoMo-accusers, if it's not too much trouble.

*tapping foot*

That's my reading.

Understood.

And, conversely, the broader reading of the general welfare clause was held (unsurprisingly) by Hamilton, as well as early SCOTUS Justice Joseph Story. As a practical matter, it was the basis of much of the actual law and policy of the Federalist administrations, in the earliest years of the nation.

Why is your reading correct, and theirs not?

"Just to push back on this, I'd point out that lots of folks have construed the "general welfare" clause to only extend to things specifically allowed by the other enumerated powers."

Yeah, I know. The pendulum swings both ways. Some want to read things in that just are there and some want to read things out, that are there.

I agree with Brett's interpretation of general welfare and, again, I think that under that interpretation healthcare insurance would qualify for the reasons I stated (and a few others I didn't go into).

BTW, You know I am kidding (mostly) about Po Mo. It just strikes me as humerous. I really had no idea that there was such a word and so many ways to use it as a prefix.

To clarify how I can agree with Brett and still HCI tax as be ok; I don't think you have a defense, or commerce or much anything else enumerated when you have a sickly population, high mortality, etc. So a healthy population is a pillar strategy; integral to fulfilling the duties enumerated.

ughhhhh, important omission: but only because of market failure in the private sector - markets failing to form.

Some want to read things in that just are there and some want to read things out, that are there.

I think it's fair to say that anybody approaching the issue in good faith wants to read what's there. Full stop.

I also think it's fair to say that includes everybody here.

The question is: what is, and is not there.

And contrary to assertions of yours and Brett's, that is not always obvious.

It wasn't obvious in 1798. Hamilton and Madison had dramatically different understandings of what "general welfare" encompassed, and between them they wrote nearly all of the Federalist Papers.

Which are, if not the primary, at the very top of the list of the primary documents in understanding what the founders had in mind when they wrote the Constitution.

It wasn't obvious then, and it ain't obvious now.

And with that, I gotta go, I got, not necessarily better, but other things to do.

BTW, You know I am kidding (mostly) about Po Mo.

What about impenetrably obtuse? (I think Brett was pretty serious about PoMo.)

"What about impenetrably obtuse?"

Mostly kidding. I seriously have to go as well.

Russell, I'd rather err on the side of caution.

Until the next thread

Some want to read things in that just are there and some want to read things out, that are there.

Which no doubt explains the tempestuous to almost the point of violence (Burr v. Hamilton aside) political combat that arose the minute Washington took his first oath of office. I mean, crikey, those guy WROTE THE DAMNNED THING.

Wittgenstein would be amused.

I was serious about the po mo.

It's a matter of intellectual integrity, of the approach Carol was skewering with Humpty Dumpty's statement about words that, “The question is,” said Humpty Dumpty, “which is to be master that’s all.”

The inescapable core of living constitutionalism is a determination to not let words lead you someplace you don't want to go. In other words, to not let language function. Faced with a Constitution which genuinely means things they don't like, (Because it was written by people who didn't share their values!) living constitutionalists reject the capacity of language to convey meaning, and find 'ambiguity' in everything they disagree with.

And in so doing fatally compromise the capacity of language to enable communication. Because we have to accept that sometimes language is communicating things we don't like, in order for language to function.

You can engage in something which kind of looks like an argument with somebody who's gone down this road. But in the end, there's no real argument, because argument means coming to grips with what the other guy is saying, and the living constitutionalist always reserves the right to simply refuse to comprehend any utterance that would lose them the argument. Just like they refuse to comprehend any clause of the Constitution they find disagreeable.

That's why living constitutionalists don't see the need for amendments. Words don't dicatate meanings for them, so there's no need to change the words.

Now, nobody who we'd acknowledge as sane goes full po mo all the time, because they'd get locked up in a padded cell. Even the worst living constitutionalist gets pissed if they order a Ruben at the deli, and get a tuna sandwich. Not comprehending language isn't a genuine incapacity. It's just a tool they pull out when confronted with language expressing meanings they don't like, where the meaning is important to them.

But I will say, and this is why the world "lie" might genuinely be inappropriate here, that use of this tool can become automatic after a while. People are tricky that way, and understanding something you disagree with really is more difficult than understanding something you find congenial. It requires a certain degree of discipline to accept that somebody has scored a point against your position.

But it's a discipline that's as necessary to civil discourse as not throwing the f bomb, and it's a disciple living constitutionalists reject.

I was serious about the po mo.

Here is what I'm serious about.

If you think that your understanding of what the text means is unaffected by your own personal history and prejudices, acknowledged or unacknowledged, you are a blind man.

Your assumption, and repeated assertion, that anyone whose understanding of *what the text actually says* is different than yours must be either deluded or lying is freaking rude and offensive.

A word about this:

The inescapable core of living constitutionalism is a determination to not let words lead you someplace you don't want to go.

Not that I consider myself a "living constitutionalist", but it strikes me that the inescapable core of living constitutionalism is the desire to understand how the principles that motivated the original text are best expressed in the context we currently live in.

Some distance upthread we discussed the issue of constitutional challenges to proposed amendments. In other words, whether anyone had ever argued against a proposed amendment on the basis of it conflicting in some substantive way with the then-existing text.

You found this idea nonsensical. Inherently illogical. The point of the amendment was to change the text, so how could a conflict with the existing text be relevant.

That is not a constitutional question, you claimed, but a policy one.

As if the text contains or implies no guidance or bias in the area of policy. Which is to say, in the area of meaning, or value.

From my point of view, you are arguing for the constitution as, basically, a procedural manual. As long as the proper form is followed, there is no conflict.

Between that understanding of the purpose of the constitution, and that of folks who seek to understand and apply the values it espouses in a modern context, I assure you I find the latter more attractive.

Just my opinion.

It requires a certain degree of discipline to accept that somebody has scored a point against your position.

I agree with this, and I can think of no occasion, in a couple of years of discussing stuff with you here on ObWi, when you have acknowledged any such thing.

Well said, Brett.

And in the spirit of that statement, I am going to say that as much as I do think the feds could tax for healthcare given the general welfare clause, doing so is a bit weasely.

The right way to tax for, or otherwise provide for, healthcare at a national level would be to wtite an ammendment declaring that health and healthcare, being fundemental to a secure and prosperous nation, shall be a right of all citizens and shall be provided by the federal governemnt and taxes shall be raised to pay for the system.

After all, why not?

Brett, I missed your first invocation of 'po-mo' because you screwed up your tags. (which is a lesson in itself, in that it is not just the words that solely convey and carry meaning, it is additionally the context, the format, and a whole host of other things.)

And looking back at it, I really have no idea what you mean by 'po-mo'. I'm assuming that it means 'post-modernist', but since that covers philosophy, literature, art, and a whole lot of other stuff, the only thing I can tell is that you think you have scored some telling point with the label 'po-mo' and it somehow means not using words they way they are supposed to be used. Which really seems more like Humpty-Dumpty antics in Alice than anything else written on this thread, cause I think it is only you who has that definition of po-mo.

Now, perhaps you were thinking that I was warning you about using po-mo. Actually, here is what I had (and will continue to have) a problem with:

Department of manipulative statistics, sapient, that one is a doozy.link

Exactly. There is more than a hint of disingenuous argument when someone as intelligent and adept as sapient misuses statistics in this manner. link

Basically, if you want to tell someone they don't understand something, I have no problem with that. However, if you want to accuse them of actually knowing because you 'know' they understand, (or, to put it in your words, claim they are using incomprehension as a 'tool' to 'reject' an idea that they disagree with), we are definitely going to have some problems.

But that's what Brett does, lj. I'd wager he's spent in excess of 5,000 words on this thread telling other people what they think and attempting to divine their inner motivations, and about 200 words telling us what he thinks. I don't know why you'd expect anything different.

And, yes, he clearly has absolutely no understanding of what "postmodernism" means.

By the way, what does "cruel and unusual punishment" mean, Brett?

ah yes, people hurling stones from the backyards of their glass houses.

One of my favorite internet experiences is to come here and be called a misogynist by mind reading pomosexuals.

It's a matter of intellectual integrity...

This. Coming from a person who waffled, snuffled, and gave Alice lessons in really bad rhetoric to find ANY, verily, ANY way to backhandedly justify birtherism without getting contaminated by the political stench of it all is really quite laughable.

But he does know what I think. Next time I have a question about that, I'll know where to get an answer.....

Do you really want to start with me, avedis? Because I'm perfectly willing to go, if you want. There's nothing I like more than watching your rage-o-holic meltdowns. I actually show them to other people who don't post here, so they can laugh at you.

Anyway, here's a thought experiment:

Let's stipulate that the federal laws against marijuana and other drugs, and in fact the whole drug-scheduling and controlled substance regime, is unconstitutional.

Now what?

This is clearly a battle that the states aren't going to win in court, at least not with the current makeup. It's not exactly the matchstick to light off a citizen revolution. (I know a lot of guys who still smoke pot. They aren't what one would call the revolutionary type.) There's no clamor among states for a Constitutional Convention, and the few who have suggested it have done so on very different grounds (e.g., the PPACA).

So . . . what, exactly?

I couldn't divine the meaning of pomo either.

I thought it was some kind of modified Creole/Cajun sandwich dipped in self-pity.

By the way, henceforth, "cruel and unusual punishment" will be referred to as "cru-u-pu".

I admit to being steeped in Lewis Carroll's "Alice in Wonderland", and it's fun to think of OBWI as Wonderland with this host of characters scurrying about between tea breaks when a newbie tumbles into our midst and gets a load of the repartee, but never in a million years would I have cast Brett as Alice.

Off with our heads and your little dog Toto, too!

That's ok phil. I'm glad that you can hold pomo pot parties and get your jollies of my comments.

A bunch o us rage -o-holic misogynists sit around on the front porch with our hounds and wives at our feet, in our wife beater Ts, drink jack, and laugh at what you pomos have to say.

That's Amerika. Ain't it great?


Go ask Brett ... when he's ten feet taauullllllllll....


That's why living constitutionalists don't see the need for amendments. Words don't dicatate meanings for them, so there's no need to change the words.

I suppose that's true, by definition, once you've defined them that way. (Could question-begging be considered PoMo, I wonder?)

Dude, half of my family comes from the hills of West Virginia. I'm related to more rednecks than you've ever met. I drank Jack straight out of the bottle the other night.

Troll harder or don't troll at all.

Too bad some of http://www.dumblittleman.com/2011/02/little-words-with-absolutely-huge.html> these words were not in the Sacred Text. But I'm sure we'd still find a way to fall on each other arguing about their meaning.

This has been an Emanation from the Penumbra.

"There's nothing I like more than watching your rage-o-holic meltdowns."

I can't wait to lmao when he goes full Breitbart. God must have the same tolerance for anti-American goons that I do.

I guess I'll just ask why we're supposed to assume that the pre-New Deal commerce clause SCOTUS jurisprudence is supposed to be infallible (or nearly so), and the post-New Deal jurisprudence bupkis? As if "commerce" and "necessary and proper" are easily understood always and everywhere and in all possible states of the world.

As if "commerce" and "necessary and proper" are easily understood always and everywhere and in all possible states of the world.

Hmmm. Maybe the Constitution doesn't allow the world to change. Maybe change itself is unconstitutional since it doesn't necessarily correspond with the Framers' intent. We should forever be locked into 1787.

Hmmmm....maybe it does allow for change with a little something called an amendment. Maybe the framers intended major change to be handled that way? Maybe they even wrote something about in the document itself? Where have I heard that term - amnedment - used recently?

Though I can see where amendments are far less pomolicious than just weaseling around with the interpretation du jour and a finger in the political wind and pretending the Constitution is meaningless and irrelevant.

Though I can see where amendments are far less pomolicious than just weaseling around with the interpretation du jour

Well, since the framers were quite familiar with how the "common law" works (or as you would have it "the interpretation du jour"), I'm pretty sure they were fully comfortable with the concept of judges applying broad, general principles to changing facts, to create a body of jurisprudence.

Let me just say again, "pretending that the Constitution is meaningless and irrelevant" isn't something that anyone is doing, certainly not I. You're entitled to your opinion about it, but you don't own it, and your interpretation of it, is no more sacrosanct than anyone else's. The people who decide are called "judges." I think there's even something about courts in the Constitution. Se Article III.

"So . . . what, exactly?"

That is, in fact, an excellent question. This is not really a problem about the war on drugs. It's a problem of lawless government. And it doesn't just open the way to popular policies that happen to be unconstitutional; Look at the 27th amendment: Rendered a dead letter by judicial sophistry right out of the starting gate, and it was quite popular.

It's a problem of lawless government, and it tells us that any solution to the problems of the war on drugs can't be predicated on our political class being honest. Any solution to just about any problem facing us can't be predicated on our political class being honest.

I don't think we can fix much of anything in this country with a corrupt political class. This is why, much as I think the Constitution is a pretty nifty document, advocate a constitutional convention. Even though I'm fairly confident I won't like much of what would come out of one.

We need a reset of our constitution, to bring practice and text into agreement. This won't magically give us an honest political class, but it would at least make one possible. We'll never have a honest political class so long as the highest law of the land and what's politically feasible do not intersect.

so then anything goes? If the right judge(s) is willing to interpret it from what is written, then it's law and it's right?


I was raised in the church. I was all into it until about age 12 +/-. Then some well meaning person gave me a bible for a birthday present or something. Any how, this particualr bible was interesting because it had a bold red font for the words actually alleged to have been spoken by jesus. Everything else was in regular black font.

I suddenly realized that Jesus didn't really say all that much. He only expressed a few basic principles. What the church had been teaching me - all the dogma - had little to do with what jesus actually said. In fact, some of what the church taught - and some of it on important points - was in contrast to jesus teachings.

I was dumbfounded at the time. How the church have come up with such a complicated mess? How could they still call themselves christians, when they didn't even adhere to what christ said?

But that's what happens.

I say tear the Consitution to pieces and scatter the pieces. We are done with it. Because its words never meant anything due to vagueness, it was only a source of argument and confusion from day one.

Anything you can read in, I can read out and vice versa. What's the point?


We will just have judges, politicians and lawyers make the laws and run the show as it suits their whim. it will be a better country. The Constitution is a vague outdated meaningless bunch of words with too many weird commas.


If you can't beat'em, join'em.

Let's talk about something important now, like is it rape if a hermaphrodite takes a roofie and screws itself, but forgets and how the herm is a conflicted victim of patriarchal society.

Happy now?

BTW, that last was not directed at you brett, rather to the words mean anything we want them to crowd.

Yes, we should probably have a convention. No we won't. It probably would result in revolution.

Better to just look the other way while we mangle the thing and pretend we're not.

revolutions are where huge numbers of people die to soothe the feefees of a few idealists.

no thanks.

All of this reminds me of Jefferson ranting about the Federalists.

Until he was elected President. At which point he bought about 1/3 of the continental US from the French, in spite of objections to his doing so, on constitutional grounds.

It was such a deal, how could he say no?

I'm fine with a constitutional reset. Bring it. Just leave your freaking guns at home.

"I guess I'll just ask why we're supposed to assume that the pre-New Deal commerce clause SCOTUS jurisprudence is supposed to be infallible (or nearly so), and the post-New Deal jurisprudence bupkis?"

I think there are actually a huge number of reasons to assume that.

First, people closer in time are less likely to miss out on the nuances of their time.

Second, it is going to be more difficult to argue against the generally understood meaning of the words while the generally understanding public is still alive from the first round.

Third, the pre-New Deal reading is the more natural one (note you ask about 'commerce' but it is actually INTERSTATE commerce, you've so bought into the unnatural reading that you edit out [i suspect subconsciously] the offending word).

Fourth, the modern reading of "interstate commerce" is quite literally "anything". Now the living constitutionalists will agree that this "anything" can be limited elsewhere by the bill of rights, but it is accurate to suggest that they don't believe the clause "interstate commerce" itself is any limit at all. I have a problem with that.

"Let me just say again, "pretending that the Constitution is meaningless and irrelevant" isn't something that anyone is doing, certainly not I. You're entitled to your opinion about it, but you don't own it, and your interpretation of it, is no more sacrosanct than anyone else's."

Ok, here is my challenge to living constitutionalists. Name 2 non-procedural [so not changing the day of presidential elections or the age of potential presidents] policies that you think are both GOOD and non-Constitutional to the extent that implementing them would require an amendment.

"I'm fine with a constitutional reset. Bring it. Just leave your freaking guns at home."

Oh no. We are most definitely bringing our guns.

You don't get to make the rules to this. Don't even start trying.

There are no rules. Remember?

Name 2 non-procedural [so not changing the day of presidential elections or the age of potential presidents] policies that you think are both GOOD and non-Constitutional to the extent that implementing them would require an amendment.

1. Repeal the 2nd Amendment, so that gun ownership can be closely regulated. (Although I don't agree with the most recent Supreme Court interpretation, I accept that it is the definitive interpretation, so I would urge repeal.)

2. Add an amendment designed to protect the welfare of animals.

Any other exam questions?

Oh no. We are most definitely bringing our guns.

Then what we will have is not a "conversation". What we will have is a war.

To be honest, it's not worth it to me to go to war to maintain a union with folks that I have damned little common ground with in the first place.

Seriously, where's my upside?

This is why the "federalism" concept is attractive to me. It offers the possibility that I can end conversations like this with the simple suggestion that whoever I'm talking with go back to whatever corner of the world they come from, do whatever the hell they like, and leave me the hell alone.

Instead, we have to have endless, pointless national arguments about stuff we are *never, ever, ever going to agree about*.

What a waste of time and breath.

But long story short, if you come shooting at me, I will damned sure shoot back. That is my promise. I recommend that it not come to that.

Here's a news flash: many liberals, lefties, and penumbra emanators of all types have guns, too. Many of them are pretty good shooters. They just don't wave their guns around like big metallic d*cks every time they disagree with somebody else.

Either way, I'm sure you can appreciate that it's an absolute non-starter to even pretend to engage in "conversation" with folks whose go-to rhetorical device is "then I'm bringing the guns".

Why should I bother talking with people whose concept of "conversation" is "I will threaten you with death"?

Seriously, f**k that noise.

You want a constitutional reset, I'm fine with that. You want federalism, I'm fine with that.

You want a war, I'm not fine with it, but I'll give you one if you insist.

If you don't actually want a war, please STFU about the guns.

People actually have been killed, recently, by [email protected] cowboying idiots waving their guns around and claiming they were watering the tree of liberty.

Do you think that's a good thing?

WTF did it accomplish?

You want to talk, talk.
You want to shoot, shoot.

But you have to pick. You can't have both.

This isn't a f**king game.

and leave me the hell alone.

Exactly.

Man, talk about partisans of a losing cause having unrealistic aspirations! You do realize that only six states lack state level versions of the 2nd amendment, some recently added, none repealed in living memory? Soon to be five, once Iowa finishes the amendment they're working on.

And yet you think repealing the 2nd amendment would be feasible? You'd have an easier time repealing the 1st, there's a big push on the left to do that right now.

But I do have to give you credit for proposing an amendment, rather than just suggesting reversing Heller once Obama replaces one of the Heller majority, which seems to be the preferred route among gun controllers.

This is why, much as I think the Constitution is a pretty nifty document, advocate a constitutional convention

Again, the states are not exactly clamoring for one, and the ones that are are doing so because of the PPACA and other such silliness. How do you propose to get 2/3 of the states to call for a convention?

Name 2 non-procedural [so not changing the day of presidential elections or the age of potential presidents] policies that you think are both GOOD and non-Constitutional to the extent that implementing them would require an amendment.

I will name one.

We need to make a distinction, at the constitutional level, between natural human persons, and 'persons' as a legal construction. Whether corporate or otherwise.

You don't like the language I normally recommend when I suggest this, and I'm fine with that. I don't really care how it's worded, as long as we end up with a way to distinguish between the two that has the weight of the constitution behind it.

My personal opinion is that, without that, we have about another 50 years as a republic in any meaningful sense. At the outside.

Call me Cassandra.

None of that should require a constitutional change, but given the state of the law it does.

But I do have to give you credit for proposing an amendment

Yep, he's putting his money where his mouth is. Well done sapient.

and leave me the hell alone.

Exactly.

Yeah, this is where I'm at, more and more.

My only concern is that the USA, as a nation, wouldn't really survive a significant exercise in federalism. We'd end up with about 6 or 8 de-facto regional entities, and over some relative small amount of time de-facto would become de jure.

Which might also be OK. Hard to say in the abstract.

Who said that my amendments would pass, Brett? It seems to be true, as you said, that guns are more and more prevalent.

russell suggests that lots of people on the left have guns. I've never wanted one - I have no desire to live in a society that settles matters with guns. I hope it doesn't become inevitable that having one is necessary. If it does, I don't believe that "federalism" is going to protect anyone who wants to opt out.

Which might also be OK.

Probably not ok in the sense of stability, both domestically and internationally. There are only five 100,000,000 plus countries in the world: PRC, India, USA, Brazil and Russia. Russia has shrunk and will continue to shrink. India, historically, has experienced shrinkage. One can debate the extent to which India is governed or even governable. The PRC is simply to unwieldy to last and too dependent on food imports. Finally, there is the USA. Our population has more than doubled since WWII. The trend post WWII has been more and more toward centralized gov't. That trend may be reversing. How a long term reversal coupled with a growing and increasingly heterogeneous population will play out is hard to say. Devolution may be the best of the likely outcomes.

"Again, the states are not exactly clamoring for one,"

We're currently five states from reaching the number needed to mandate a convention. So I'm not quite sure what you mean by "clamoring"; They have to be noisy about it, besides putting in the request?

I propose an amendment mandating that all righteous rants that I agree with be delivered with an Irish brogue.

The amendment would enshrine the Fairness Doctrine in the Constitution and forever after replace "go f*ck yerself" and "shaddup" in the national discourse.

It's a little long, but here is the full text of my proposed Amendment. It would be played as an interruption, like the national anthem, precisely two words into any utterance by right-wing jagoffs now befouling the airwaves:

http://www.dailykos.com/story/2012/03/01/1069909/-President-of-Ireland-Must-See-Believe-Me-Please-?via=siderec

I'm consulting with Constitutional scholars on a proposal for an additional Amendment which would replace the aspirin now held between the knees of every conservative wanker in America with a live hand grenade in such a way that if they opened their winsome knees for any reason, the pin would be pulled.

My consultants caution me that mandating such a thing could endanger innocent bystanders, but I'm thinking that risk would pass soon enough as we experienced, say, 20 million explosions around the country immediately after the Amendment was ratified and the grenades strapped in place, but few thereafter.

Then, the rest of us would just have to stay clear of Tim Tebow, who is at low risk of parting his knees, and maybe Ann Coulter, whose two bony knee joints haven't been seen together in the same county since Eden.

There's also the risk of chain reactions wherein, say, Rush Limbaugh's grenade goes kablooey in a motel room, which sets off Irksome Mouthofficson's wife's grenade, and then we'd have to deal with cleaning the fine aerosol spray of vaporized conservatives off the slipcovers .... but such are the daily struggles of a Republic, if you can keep it.

"I have no desire to live in a society that settles matters with guns. I hope it doesn't become inevitable that having one is necessary."

"Why should I bother talking with people whose concept of "conversation" is "I will threaten you with death"?"


"This isn't a f**king game."


For three or four pages worth of comments I have been reasonably talking to people whose ultimate view of the law of the land is a) it's irrelevant b) it's language doesn't mean anything or means whatever we want it to at the time c) it should be torn up and, maybe, re-written.

You don't like the violence approach? Take a look around the globe and the pages of history. That's what you get when a country's system of government is tossed aside and all of the factions come out of the woodwork and start vying to impose their vision on the new order.

BTW, there are a whole bunch of folks with lots of big guns and who know how to use them who took an oath to defend the Constitution and, I can assure you, would be really unhappy with your ideas concerning it. And they would not think it was a game either.

Seriously, you don't get to call for radical action and then make rules about what radical responses and results are acceptable to you. That seems extremely childish to me; not to mention highly unrealistic.

" ..... people whose ultimate view of the law of the land is a) it's irrelevant b) it's language doesn't mean anything or means whatever we want it to at the time c) it should be torn up and, maybe, re-written."

With the exception of "maybe, rewritten", I ask you, who those people?

As far as "means whatever we want it to at the time" let it be known that no one on this thread has written that the Second Amendment, for example, refers to artichokes, Zenith TV sets, or centipedes.

I think the conversation here has been pretty much within the range of Sebastian's search for balance.

From where I stand, just to the left of Whoopie!, it seems there are many more proposals from the Constitutional purists on the national scene calling for excising several entire amendments from the Constitution, leaving only a Cheshire comma or two, than there are purveyors of a living document requesting excisions.

In fact, some wags on the Right, trying to keep the aspirin firmly gripped between their knees, have proposed getting rid of the words "pursuit of happiness'.

And, avedis, the invoking of various ex-military oath-keepers and their gun-slinging skills against whomever you're invoking such an image might not transpire quite as you think, considering that you may have a bothersome red laser dot flickering on your forehead your own self aimed by a few of the same oath-keepers when they find out about your Constitutional interpretation regarding the need for universal healthcare administered in some way by the Federal Government, if I'd heard the threatening trash talk from the usual suspects correctly.

In such a case, you can hide with me in McKinneyTexas' spare bedroom until the coast is clear.

We might be under house arrest, but you takes sanctuary where you can find it.

By the way, I hope your oathkeepers (I'm pretty sure that oath precludes them from taking domestic actions outside the purview of, say, the National Guard, but wet dreams plague all of us) have the cheap guts to at least wave Erick Erickson's wife's large-clip combination dildo/AK-47 directly in my face rather than, I don't know, parking a truck full of fertilizer attached to a remote-controlled fuse outside of my office building and then high-tailing it away like some f*ckwad, disgraces-to-their-uniform oathkeeping cowards gave us a preview of some time back.

Yes, yes, Waco.

Spare us.

For three or four pages worth of comments I have been reasonably talking to people whose ultimate view of the law of the land is a) it's irrelevant b) it's language doesn't mean anything or means whatever we want it to at the time c) it should be torn up and, maybe, re-written.

Well, I guess you haven't been talking to me then, because I don't believe any of those things. But if that's the conversation you're interested in having with whatever phantom you're talking to, fine.

a whole bunch of folks with lots of big guns and who know how to use them who took an oath to defend the Constitution and, I can assure you, would be really unhappy with your ideas concerning it.

I'm assuming you're talking about the military, headed by the civilian President whom I support. I'm not particularly worried about them using their guns against me.

"From where I stand, just to the left of Whoopie!, it seems there are many more proposals from the Constitutional purists on the national scene calling for excising several entire amendments from the Constitution, leaving only a Cheshire comma or two, than there are purveyors of a living document requesting excisions.

Well, duh: Living constitutionalists don't excise passages they don't like. They get appoint judges to say they suddenly all along never meant what the living constitutionalists don't like. That's the whole point!

"They get (to) appoint judges ...."

Yeah, they do, but which part of constitutional boilerplate do you plan to interpret in such a way that you will prevent that?

And, what's so sudden about disagreement over the human language in the Constitution?

But wait, you're not "interpreting", you're picking up the Founders intentions on your fillings, because somehow you know precisely the meaning of every word they compromised on in the documents.

You even know what THEY meant by words that didn't exist in their day, considering the "living" qualities of language and the evolving nature of meaning.

What about a 100-capacity clip, you might ask the Founders if you could be transported into their midst during their deliberations (why deliberation if things are so obvious and literal?)?

They'd all look at you and say, we've never heard of such a thing. Quit making stuff up. Except maybe for Sam Adams, who would sidle over to you later and shield his mouth with his hand so some of the other couldn't hear and ask if you could procure one of them ... clips .. did you say .. for him?

It would seem Sebastian's quest for balance assumes and depends upon interpretation of the words agreed upon 230 years ago.

Otherwise, why have nine judges on the Supreme Court? Vote, schmote. Why not just one Judge to wave away any questions whatsoever with a "Don't even go there."?

You. You could signal your decisions with puffs of smoke through the chimney of the Supreme Court Building.

No need for appellate courts either. Appeal what?

One Judge, no attorneys required, and thus pretty much a sizable chunk of the commentariat at OBWI and other blogs worth their weight out of jobs.

We're currently five states from reaching the number needed to mandate a convention

That's gonna need a cite.

Also if you could get me those straight-from-the-text definitions of "cruel and unusual punishment" and "unreasonable searches and seizures" and "probable cause" that would be just terrific.

BTW, there are a whole bunch of folks with lots of big guns and who know how to use them who took an oath to defend the Constitution and, I can assure you, would be really unhappy with your ideas concerning it. And they would not think it was a game either.

They also wouldn't think it's a game when your side is doing the same. I'm just saying. And, um, that's not even vaguely far from what you're doing when you argue that the only "literal", "original" understanding - excuse me, reading - of the Constitution just so happens to align oh-so-neatly neatly with all your own prejudices and peccadilloes.

(I must admit I've found last page or so of this cynically entertaining, what with all the "anti-po-mo" proponents blithely asserting that long-standing, venerable, and quite involved unsettled issues in linguistics and philosophy of language are in fact just recent petulant temper-tantrums by selfish gits who refuse to admit they might be wrong. 'Cause, ya know, language would become totally unambiguous, always and forever, if all us whiny entitled blighters could just get over ourselves and see what words are written!!!one!!)

Seriously, you don't get to call for radical action and then make rules about what radical responses and results are acceptable to you.

Seriously, what radical action?

Brett says we need a reset, because the practice has drifted too far from the original intent.

I say, I'm fine with that. I.e., I don't object.

There is, in fact, provision *in the Constitution itself* for it to be modified as needed. It's called "Article V", perhaps you would like to read it.

The only guy here talking about "radical action" is you.

There is a political process, or there is a war. I.e., armed insurrection or civil war. This is not a hypothetical option, and it's not out of the question. There are lots of folks running around, today, building up their personal arsenals and just waiting for a good enough reason, in their minds, to start shooting their neighbors.

So, you decide which way you want to roll. You want a war, you'll get a war. You want a political process, leave the guns at home.

I'm not making any rules, the rules are laid out in the Constitution. And I'm not telling you what to do, you can do whatever the hell you want.

I'm just pointing out that what you're talking about is not a political process, it is civil war.

Not an option I would choose, personally, but that's just me.

Phil? That some parts of the Constitution rather specifically call for judgment calls, does not make other parts of the Constitution ambiguous. There's a reason living constitutionalists are always going on about the same few clauses, and originalists are always talking about phrases like "Commerce with foreign Nations, and among the several States, and with the Indian tribes." It's because some parts of the Constitution are ambiguous, but not all parts of it.

The problem isn't that living constitutionalists see ambiguity. Everybody does. It's that living constitutionalists see nothing BUT ambiguity. If you were ever willing to admit that a clause of the Constitution that stands in your way was actually quite clear, you might be less aggravating.

There are lots of folks running around, today, building up their personal arsenals and just waiting for a good enough reason, in their minds, to start shooting their neighbors.

probably doesn't hurt that there's an industry fronted by demagogues telling people that the only way to survive the inevitable coming revolution is to buy their product. stockpile them! buy accessories! tell your friends the revolution is coming! get them to buy our product!

idiots.

That some parts of the Constitution rather specifically call for judgment calls, does not make other parts of the Constitution ambiguous.

No kidding! Now, we're getting somewhere - that is, to the next question: What makes you, as opposed to someone else, THE authority on what is and is not ambiguous?

It's that living constitutionalists see nothing BUT ambiguity.

Cite, please. (Along with that Constitutional convention cite when you have time.)

If you were ever willing to admit that a clause of the Constitution that stands in your way was actually quite clear, you might be less aggravating.

Stands in my way of doing what? What exactly have I expressed a desire to do for which the Constitution bars my way and I won't admit it?

What's funny is that the only person who has expressed a desire to do anything like the things avedis is complaining about is Brett, who wants a convention. Is avedis going to shoot Brett?

"What makes you, as opposed to someone else, THE authority on what is and is not ambiguous?"

I'm not "the" authority. Neither am I going to abdicate my judgement. I'm calling it as I see it. And what I see is sophistry run rampant.

I'd probably worry I was a crank, if I didn't have so many people whose lying eyes see the same thing.

Crank? Who said crank?

That must be a hazy penumbra of the literal words written, unmovable in meaning through time, by others in this thread.

The word crank in not in this document, which according to Google and other search providers, will last forever for all to see, never to be amended.

I'm gonna go read about the Commerce Clause and see where the interpretative conflicts are today, as opposed to the late 18th century, regarding commerce with foreign nations and the notion, now the law of the land, that corporations are people and may freely pass back and forth between national borders without regard to citizenship unlike, say, people, or as corporations think of them, as labor and cannon fodder.

Amendments? Here's a couple:
1. Corporations are not 'natural persons' as mentioned above.
2. All U.S. citizens have the inalienable right to vote without conditions.
3. Any law which mandates legislative super-majorities to enable legislation must be passed by the same super-majority % of voters.
4. Add more commas to the 2nd Amendment.

As for originalism, I would agree with Saul Cornell. http://dissentmagazine.org/online.php?id=478> It is a scam.

Yr. Obdt. Servant,

Crank?

is that a tool
it that a fool
an action perhaps
is it an ill tempered person
or is it a nasty drug

words have meaning.....why, plain as the nose on your face
for if they do not have meaning
all is permitted.

Mitt Romney picks up the endorsement of another murderous, Confederate, traitorous anti-American vermin (the opinion of squirrels, hedgehogs, and wild boar everywhere), the rest of whom will fall in line soon against the former slave in the White House.

http://www.washingtonmonthly.com/political-animal-a/2012_03/helping_romney_win_the_allimpo035807.php

Also, apology not excepted, Rush.

When they start the violence, those two, among many, are mine.

What I find interesting is that Brett interprets the "provide for...the general Wefare" part of the Taxation and Spending Clause in such a way that, while not entirely unreasonable, has no language to support it specifically as the "correct" interpretation. Nowhere does it say anything about it being a limitation on other powers, nor is it necessary to think that it makes all the other powers moot or redundant or the listing of them unnecessary.

It is just as "PoMo" as every other interpretation I've heard of language in the Constitution that isn't entirely clear in its meaning. But he's an originalist, so it's okay, I guess.

(...not that I disagree that the Commerce Clause is abused at times.)

I think maybe people misunderstood my question, which is probably my fault.

"Name 2 non-procedural [so not changing the day of presidential elections or the age of potential presidents] policies that you think are both GOOD and non-Constitutional to the extent that implementing them would REQUIRE an amendment."

and I probably should have added "even under the living constitutionalist concept".

Most of the things offered seem to just require the change of about one person on the Supreme Court. In those cases, it might be clearer to have an amendment, just to shut people up. But I don't see anything that from the living constitutional point of view REQUIRES an amendment in order to push it through.

The corporations thing definitely doesn't require an amendment. The only think that even comes close is maybe sapient's thing on the 2nd amendment, and even that ONLY because 5 Supreme Court justices recently ratified the long held understanding. It would be one thing if sapient clearly thought that the 2nd amendment gave an individual right, and that to reverse that he needed an amendment. But it looks like sapient believes that they got it wrong.

I'm asking for things where you think the Supreme Court IS RIGHT in their interpretation of the Constitution and you THEREFORE want to change it by amendment.

I think maybe people misunderstood my question, which is probably my fault.

"Name 2 non-procedural [so not changing the day of presidential elections or the age of potential presidents] policies that you think are both GOOD and non-Constitutional to the extent that implementing them would REQUIRE an amendment."

and I probably should have added "even under the living constitutionalist concept".

[...]

But I don't see anything that from the living constitutional point of view REQUIRES an amendment in order to push it through.

"Also, while you're at it, I'd like you to tell me if you've stopped beating your wife."

You can interpret it that way if you want, but it gets to the heart of the distinction between the living constitutionalist/textualist debate. I fully admit that I've never been able to understand the the contours of the living constitutionalist understanding. Whenever I try to talk about it from the understanding I have, I get accused of strawmanning. That it is why I'm not assuming the answer, I'm just trying to clarify the question.

Actually, I think I could have been a bit more on point in critiquing your challenge:

But I don't see anything that from the living constitutional point of view REQUIRES an amendment in order to push it through.

"Additionally, no true Scotsman puts sugar in his porridge."

But I don't see anything that from the living constitutional point of view REQUIRES an amendment in order to push it through.

See, that would be hard for you to judge, since you do not identify as someone who holds the living constitutional point of view.

Perhaps the 'living constitutional point of view' is not what you think it is.

Also:

The corporations thing definitely doesn't require an amendment.

Fine. Tomorrow, or at least on Monday, I will phone my rep and my senators and tell them I'd like them to introduce a law prohibiting for-profit corporations from participating in the political process in any way.

No money donated to parties, no money donated to PACs, no money donated to 527's. No lobbying.

How far will such a bill get?
What will the objection to such a bill be?

"See, that would be hard for you to judge, since you do not identify as someone who holds the living constitutional point of view."

Quite. But I would think that someone who does hold that point of view could try to explain it.

The guns example demonstrates what I'm talking about. Sapient seems to believe that Heller was wrongly decided, and to overrule that decision he would like an amendment. Ok, but he doesn't think getting what he wants requires an amendment, it just requires getting one more right thinking judge to go his way.

What I'm looking for from a living constitutionalist is an issue in which you believe that a right thinking judge will look at the Constitution, correctly interpret it, and not be able to do what you want policy-wise. That would *require* an amendment. Pretty much the only things I can think of that we could [hopefully] agree on is things like: changing the voting age from 18 to 16 would require an amendment because even a living constitutionalist is going to have trouble convincing people that 18 means 16. But once we get past things like that, I have no understanding of the limits living constitutionalists think they have so I can't think up a good example.

Actually, just to be clear, can someone confirm that they think an amendment would be necessary to change the voting age, and we wouldn't just have to appeal to "changing societal understandings about the the relationship between voters and government" or some such.

Isn't voting age a bit of a special case, in that there is a large amount of administrative recording that goes to support it and it is a discrete event at a particular moment in time? In looking up age of consent in wikipedia, it notes

"While the phrase age of consent typically does not appear in legal statutes"

At the risk of being all po-mo, confusing things that are definable in that way and things that aren't (such as terms like 'free exercise' or 'speedy') is a bit of a problem.

At any rate, not being particularly versed in any of this, some googling turned up David Strauss' recent book on this, and this piece, taken from the intro, says:

Pick up a Supreme Court opinion, in a constitutional case, at random. Look at how the Justices justify the result they reach. Here is a prediction: the text of the Constitution will play, at most, a ceremonial role. Most of the real work will be done by the Court's analysis of its previous decisions. The opinion may begin with a quotation from the text. "The Fourth Amendment provides . . .," the opinion might say. Then, having been dutifully acknowledged, the text bows out. The next line is "We"-meaning the Supreme Court-"have interpreted the Amendment to require . . . ." And there follows a detailed, careful account of the Court's precedents.

Where the precedents leave off, or are unclear or ambiguous, the opinion will make arguments about fairness or good policy: why one result makes more sense than another, why a different ruling would be harmful to some important interest. The original understandings play a role only occasionally, and usually they are makeweights or the Court admits that they are inconclusive. There are exceptions, like Heller, the recent decision about the Second Amendment right to bear arms, where the original understandings take center stage. But cases like that are very rare.

Has anyone read the book? Sounds interesting.

What I'm looking for from a living constitutionalist is an issue in which you believe that a right thinking judge will look at the Constitution, correctly interpret it, and not be able to do what you want policy-wise.

In my opinion, both Golan v. Holder and Hosanna v. EEOC from this session qualify. Both were "rightly" decided from an originalist standpoint, both resulted in crappy outcomes, and both would require amendments to get different results.

Actually, just to be clear, can someone confirm that they think an amendment would be necessary to change the voting age

I think a strong argument can be made that states are free to allow people younger than 18 to vote, since nothing in the Constitution restricts the age for obtaining the franchise, just codifies an age at which it cannot be denied by the states. Voter registration is not a federal function.

Although I don't know how you could amend the Constitution to get a better result in Hosanna, anyway, short of an amendment that reads, "Guys, we know what a minister is and isn't, so knock it off with this nonsense."

Has anyone read the book? Sounds interesting.

I haven't read the book, and it does sound interesting, but what Strauss describes in this passage is a concept that all law students learn in their first year - that the language of the Constitution, of statutes, and of contracts, for that matter (where the parties are often living and available to testify as to their intent), the body of decisional case law applying to the particular language in question is applicable to interpret it. That's why, often, "magic words" and legalese are used in private contract - because the language has already been tested in court, and there's less opportunity for dispute about its meaning going forward.

As I've mentioned, the framers of the Constitution were not clueless about the way the common law worked. They understood very well that the language of the Constitution was general, and would be applied case by case in the courts to unanticipated situations. This was the way the law worked then as well as now.

Fine. Tomorrow, or at least on Monday, I will phone my rep and my senators and tell them I'd like them to introduce a law prohibiting for-profit corporations from participating in the political process in any way.

Actually, russell, I do believe that you could make such a change at the state level (speaking of federalism). Although I'm sure that Massachusetts has adopted the Model Corporation Act and has corporation law similar to that in most states, presumably Massachusetts could amend its statutes to require at their formation to specifically exclude the power to donate corporate funds to political campaigns, or indirectly support political causes. It would be difficult to draft so that it would accomplish its purpose, but I think that legally it would work. I'd love to read a discussion of the constitutionality (not feasibility) of doing this.

But once we get past things like that, I have no understanding of the limits living constitutionalists think they have so I can't think up a good example.

I was going to suggest an amendment abolishing the electoral college, but that struck me as a "procedural thing" that appeared to be excluded in the clear and unambiguous language of your request.

Funny, and English is my native tongue.

What I'm looking for from a living constitutionalist is an issue in which you believe that a right thinking judge will look at the Constitution, correctly interpret it, and not be able to do what you want policy-wise.

All Power To The Soviets.

What I'm looking for from a living constitutionalist is an issue in which you believe that a right thinking judge will look at the Constitution, correctly interpret it, and not be able to do what you want policy-wise.

As noted above, I don't consider myself a "living constitutionalist", but I'll once again suggest an amendment making a clear distinction between natural persons and 'person' as a legal construction, with the clear statement that the former hold inalienable rights, and the latter only the rights we grant them by law.

It would, if I understand things correctly, take quite a parade of 'right thinking' justices to walk 150 years of SCOTUS findings on the topic.

presumably Massachusetts could amend its statutes to require at their formation to specifically exclude the power to donate corporate funds to political campaigns

I take your point, but they would simply incorporate in a more accommodating jurisdiction.

Is that what you want policy-wise, bobbyp? See, it's a trick question. (I half kid.) But I think it's a question that you could put to anyone, just to see where it goes, even a textualist or originalist.

What do you want as policy that you think requires an amendment, and why?

I'd be lying if said I wanted a total ban on firearms outside of law enforcement or the military, but there might be living constitutionalists who would want such a policy and who would think such a thing would require an amendment.

It seems some of our originalist don't think they would need an amendment to allow any citizen to own nukes, free of government restriction.

But this question somehow applies specifically to "living constitutionalists" (however defined), as opposed to other people.

Hairshirt,

It was a trick answer. As a democratic socialist, I have been trying to think of an answer to Seb's question wrt industrial and economic democracy, but alas, I am unable to come up with a laundry list of specifics that would fit neatly into the questions constraints. Needless to say, my political vision would most likely require some radical social rearrangements, including possibly changes to The Word.

On a more mundane level I would like to see the Electoral College abolished. In the context of this discussion, an amendment to TheUnambiguousWords would seem to be necessary and does meet Seb's requirements I should think.

Another is the current GOP craze to disenfranchise people who are unable to "produce your papers, please". Standard issue Constitutional Analysis would most likely find these egregious trimmings of the franchise to be "Constitutional", and I am not aware of a serious legal challenge to these abominations on Constitutional grounds. An amendment would seem to be necessary to change the policy.

My question to the originalists would be, "How on god's green earth can you justify the Scalia reasoning in Heller?" In its own terms, it was a parody of very so called principles he espouses.*

*see also Bush v. Gore

but there might be living constitutionalists who would want such a policy and who would think such a thing would require an amendment.

Such an amendment would merely seal the deal of political victory....not unusual wrt some other notable amendments.

"It seems some of our originalist don't think they would need an amendment to allow any citizen to own nukes, free of government restriction."

I think we wouldn't need such an amendment to allow any citizen to own nukes, free of federal restriction. State restrictions are a separate matter, of course; The federal government is one of enumerated powers, the states, not so much.

But I've noticed there's a tendency on the left to just ignore the possibility that a problem might be handled at the state level.

In this instance, I'd wonder what sort of resources some states might have in dealing with certain isotopes, but whatever.

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