The Constitution by Niki2

REAL WORLD EVENT DISCUSSIONS

The Constitution

POSTED BY: NIKI2
UPDATED: Sunday, December 12, 2010 07:36
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Friday, December 10, 2010 11:52 AM

Gettin' old, but still a hippie at heart...

All these people who scream loud and long about "non-activists" and the sanctity of the Constitution, yet seem to have no end of changes they want to make to it, confuse me.

Now it's these guys:

Quote:
Officials from ten states, including ones from Virginia, are pushing to add the Repeal Amendment to the U.S. Constitution.

The Repeal Amendment states, "Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed."

Several elected officials from the Commonwealth support the movement to amend the U.S. Constitution to include the amendment.

They include 6th District Congressman Bob Goodlatte, Gov. Bob McDonnell, Lt. Gov. Bill Bolling and Attorney General Ken Cuccinelli.

http://www.whsv.com/home/headlines/Virginia_Pushes_for_Repeal_Amendmen
t_to_Constitution_111026514.html

This measure would call for, I think, 23 states to agree to repeal laws...and there are enough solidly red states to do so, but those states are mostly the original Commonwealth and would reflect less than HALF of the population of America. I know there are those here (possibly the majority) who think all things (or the vast majority of things) should be decided by the states, but I think it's disingenuous to constantly cite the sanctity of the Constitution while at the same time trying to repeal it to fit one's agenda.

They want to repeal a bunch of Amendments, too-which they can argue doing away with gets us back to the oritginal Constitution, but nonetheless the Constitution had FLAWS (like women and Blacks not being able to vote), so do we really want to march forward to the past? One only need look at so many of the laws at the time the Constitution was drafted to know these things HAVE to evolve, surely, yet Tea Partiers in particular seem to believe that only going back to the 1700s is the right way for America.

I don't get it. I "get" the argument, but it doesn't make sense to me. And how people can claim the Constitution is sacrosant, then put forth motions to repeal it, confuses me further.

Hippie Operative Nikovich Nikita Nicovna Talibani,
Contracted Agent of Veritas Oilspillus, code name “Nike”,
signing off

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Friday, December 10, 2010 1:09 PM

FREMDFIRMA

No confusion here, they're lying hypocrites, and the Constitution is dead astraddle their fast track to Neo-Feudal Fascism.

And any fool willing to invest unquestioning belief in the words of known, proven liars is an enabler who deserves what they'll get as the inevitable "reward" once such scum reach enough power to have no further use for the damn fools.

-Frem

I do not serve the Blind God.

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Friday, December 10, 2010 3:14 PM

ANTHONYT

Freedom is Important because People are Important

Hello,

So... they could repeal things like due process and civil liberties.

If that's how they feel, I would encourage them to secede. I promise not to fight it.

--Anthony

Assured by friends that the signal-to-noise ratio has improved on this forum, I have disabled web filtering.

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Friday, December 10, 2010 4:31 PM

DREAMTROVE

I find opposition to this idea strange, and stranger that no one has pointed out the redundancy.

The proposal here is the process of Nullification, the specific right granted to the states by the Tenth Amendment.

I used to say that Americans were dumb because their knowledge of their own constitution stopped at the tenth, but clearly it stops a lot early. I'm afraid for most americans, it stops after the first and second.

In practice, very few people are familiar with the 10th, and this problem is so widespread that someone is proposing the 10th all over again as a new amendment to the constitution.

And what is equally odd, is that people are opposing it.

I'll actually oppose this amendment, even though I'm in complete agreement with its text on the grounds that it is redundant.

If I were to make a change to the Constitution, it would first be to strike the 18th and the 21st from the text. The 18th is not an amendment, since it has nothing to do with the process of govt, it is very clearly a statutory restriction of the freedoms of the people, and as such, is a statute, and its passage represents a corruption of process and a failure to understand the document.

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Friday, December 10, 2010 5:02 PM

ANTHONYT

Freedom is Important because People are Important

Hello,

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

This is my understanding of what the tenth amendment says.

The verbiage seems very different from the proposed amendment.

--Anthony

Assured by friends that the signal-to-noise ratio has improved on this forum, I have disabled web filtering.

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Friday, December 10, 2010 7:00 PM

TRAVELER

It has aready been done. The 21st Amendment repealed the 18th. There is no need to create an Amendment for this action.

http://www.imdb.com/mymovies/list?l=28764731
Traveler

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Friday, December 10, 2010 9:14 PM

DREAMTROVE

Do they intend that the states should be able to repeal laws of other states?

Maybe I misunderstood the amendment.

http://www.cato.org/pub_display.php?pub_id=12144

ETA: The states already have the power to render null all federal laws outside of the constitution, and a repeal amendment would not give them a new power to repeal the constitution, so the only change I can see is if the new amendment could be interpreted so that Texas could repeal Iowa's gay marriage law, etc.

But I don't think that's what they intend, and given that, I think they are just failing to apply the 10th, and perhaps they should see to that.

Realistically, the US practice of constitutional law has eroded to where virtually nothing of the constitution of rights stands. People claim they want to repeal Obamacare, but the bill not only violates the 10th blatantly but the 16th even more so. Opponents could easily accomplish their objectives in the context of the existing amendments.

Semantic argument:

Quote:
The Repeal Amendment should not be confused with the power to “nullify” unconstitutional laws possessed by federal courts. Unlike nullification, a repeal power allows two-thirds of the states to reject a federal law for policy reasons that are irrelevant to constitutional concerns. In this sense, a state repeal power is more like the president’s veto power.

http://volokh.com/2010/09/16/the-case-for-a-repeal-amendment/

I'm still not convinced this is a constitutional question. They are arguing the mechanism of Nullification here, not the existence of it, but this is only one mechanism of nullification, and the mechanism is not specified in the 10th, only that the states specifically have this power.

An interpretation of the repeal amendment that would allow it to forbid the enforcement or implementation of a law which was constitutional would be a direct violation of the 9th, that the rights of the people are limited to these amendments, but also that the stated rights cannot be used or abused to limit rights. Ergo, To use the repeal to specifically limit other rights would be a constitutional violation, so that interpretation would never hold, even though we know that such a decision would never hold up in court, you also know that such a reading would never enter the constitution without expressly repealing the 9th.

It has no chance of passing since it's not really a new idea, it is potentially a new interpretation of the 10th.

I don't see the need, since any state can reject any law based on its own freedoms under constitutional law, so those who don't want Obamacare in their state essentially need only say so. If the constitution is so eroded that even that won't hold, they can simply create their own healthcare program which voids it, which several states have already done.

The fundamental thought here is not incorrect however: The power of statues lies with the states, and the existence of Federal statutes is really unconstitutional. I think basically any federal statute could be repealed by the states through existing tools.

This is not an abuse of the constitution though, it's just an unintentional statement on the weakness of the document, that someone would feel the need for a redundant amendment, because the original text is being ignored. Certainly the intent is in line with the intend of the document. The founding fathers would certainly have been appalled by the concept of federal statutes, certainly of the nature we see today, but probably on anything outside of process concerns.

I'm always disappointed by the govt. when issues such as the marriage amendment come up that these are not process issues, and have no business in the constitution, which is a document of process. For this reason, I'm serious, that the 18th should not have been allowed in the text, rendering the 21st irrelevant. I would say that if they stand in the text that they serve as a reminder of this, but more I think it gives a new generation of morons the wrong idea.

This is not a new concept. Constitutional documents for virtually all organizations are recognized as process documents, to be differentiated from statutes.

So, no, I don't think this is an abuse of the constitution, it's stating what's more or less obvious, but it's also still really implied by the text. If this is a rule change, it should probably be implemented in an interpretation by the court. The easiest way to do this is with a test case, which would be easier to win that the opponents think.

My suspicion is that proponents don't want to make any changes, and that this is more political posturing, since everything that has the word "Amendment" in it these days is posturing.

If we're going to have an amendment which states the obvious, I nominate this:

"Constitutional Amendments cannot be statutory in nature." That would solve the problem of Anti-Gay Marriage amendments and other sheer idiocy from people who have no idea what a constitution is.

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Saturday, December 11, 2010 4:08 AM

ANTHONYT

Freedom is Important because People are Important

Hello,

I think we are interpreting the intention of their amendment differently.

First, it seems to me that two-thirds of the 'several states' can repeal a law of the 'several states' which means that they may be able to kill a law for their neighbors.

Second, it seems like they can kill any law or regulation without limit (since no limit is expressed or implied.) I am trying to think of what sort of law would be outside of their reach, here.

--Anthony

Assured by friends that the signal-to-noise ratio has improved on this forum, I have disabled web filtering.

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Saturday, December 11, 2010 4:59 AM

GEEZER

Keep the Shiny side up

Quote:
Originally posted by Niki2:
All these people who scream loud and long about "non-activists" and the sanctity of the Constitution, yet seem to have no end of changes they want to make to it, confuse me.

What's confusing? They want to offer an amendment to the Constitution using the method outlined in the Constitution, as has been done more than thirty times before.

This is somewhat different from having a Federal judge decide that a portion of the Constitution suddenly means something different from what it has meant for two hundred years, which is what most folks defending the 'sanctity' of the constitution believe as the problem with 'activist' judges.

"Keep the Shiny side up"

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Saturday, December 11, 2010 5:14 AM

KANEMAN

Now it's these guys:
Quote:

--------------------------------------------------------------------------------
Officials from ten states, including ones from Virginia, are pushing to add the Repeal Amendment to the U.S. Constitution.

The Repeal Amendment states, "Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed."

Several elected officials from the Commonwealth support the movement to amend the U.S. Constitution to include the amendment.

They include 6th District Congressman Bob Goodlatte, Gov. Bob McDonnell, Lt. Gov. Bill Bolling and Attorney General Ken Cuccinelli.

Nullification is already there in the form of the 10th amendment.....Do you oppose the Tenth as well?

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Saturday, December 11, 2010 5:15 AM

KANEMAN

Quote:
Originally posted by dreamtrove:
I find opposition to this idea strange, and stranger that no one has pointed out the redundancy.

The proposal here is the process of Nullification, the specific right granted to the states by the Tenth Amendment.

I used to say that Americans were dumb because their knowledge of their own constitution stopped at the tenth, but clearly it stops a lot early. I'm afraid for most americans, it stops after the first and second.

In practice, very few people are familiar with the 10th, and this problem is so widespread that someone is proposing the 10th all over again as a new amendment to the constitution.

And what is equally odd, is that people are opposing it.

I'll actually oppose this amendment, even though I'm in complete agreement with its text on the grounds that it is redundant.

If I were to make a change to the Constitution, it would first be to strike the 18th and the 21st from the text. The 18th is not an amendment, since it has nothing to do with the process of govt, it is very clearly a statutory restriction of the freedoms of the people, and as such, is a statute, and its passage represents a corruption of process and a failure to understand the document.

Ooops you beat me to it. Good to see someone with a working knowledge and some common sense.

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Saturday, December 11, 2010 5:35 AM

ANTHONYT

Freedom is Important because People are Important

Hello,

I must stress again that this does not appear to be Nullification. This appears to be the repealing of a law unconfined to the borders of the states involved.

--Anthony

Assured by friends that the signal-to-noise ratio has improved on this forum, I have disabled web filtering.

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Saturday, December 11, 2010 5:39 AM

CANTTAKESKY

Quote:
Originally posted by dreamtrove:
It has no chance of passing since it's not really a new idea, it is potentially a new interpretation of the 10th.

The way I understand it, it's very different from the 10th and from current repeal mechanisms.

The 10th gives States power to make laws on whatever is 1) not under the jurisdiction of the Constitution and 2) not prohibited by the Constitution. The power for a state to make laws against murder, for example, is a result of the 10th. It does not give States power to repeal federal laws enacted by Congress.

The current repeal mechanism relies solely on making new amendments to the Constitution. You want to repeal a federal law, you make a new amendment to Constitution to repeal it.

The Repeal Amendment would give state legislatures to repeal numerous and unlimited federal laws without littering our Constitution with new amendments for each and every law repealed.

I could be wrong. But that is the way I understand it.

Can't Take (my gorram) Sky
------
Everything I say is just my opinion, not fact.

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Saturday, December 11, 2010 5:51 AM

ANTHONYT

Freedom is Important because People are Important

Hello Sky,

I am reading it as you are.

--Anthony

Assured by friends that the signal-to-noise ratio has improved on this forum, I have disabled web filtering.

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Saturday, December 11, 2010 6:00 AM

PIZMOBEACH

... fully loaded, safety off...

some other thoughts on this:

http://www.aolnews.com/politics/article/tea-party-pushes-amendment-to-
veto-congress/19738270

"Because the 10 largest states are home to more than 50 percent of Americans, two-thirds of the states could comprise a minority of the population. Noting that the U.S. Senate already gives small states "outrageous over-representation" compared to larger ones like Texas, Levinson said the amendment "simply adds to the insult."

It would be fairer, he said, if it required that the two-thirds of the states must also comprise two-thirds of the population. "But that would defeat their real aim," he said, "which is to impede rule by the majority of Americans who live in large, urban states."

While conservative media have played up the amendment, the odds appear to be against it.

Consider: There have been about 11,500 proposed constitutional amendments since the first 10, the Bill of Rights, were ratified in 1791. Many, like school prayer, are introduced in every session of Congress. Yet only 33 reached the ratification stage and only 27 were adopted."

The UnUnited States of America.

Scifi movie music + Firefly dialogue clips, 24 hours a day - http://www.scifiradio.com

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Saturday, December 11, 2010 8:53 AM

FREMDFIRMA

Re: 10th Amendment.

Umm, the answer to a mostly ignored and unenforceable provision or law is not to write a new one with even more vague wording.

Haven't we had ENOUGH of that goddamn stupidity ?

You want the 10th Amendment to apply, then you MAKE it apply, even if you have to use force to do it - you don't just write ANOTHER one and go fucking with something which mighta worked if our idiot ancestors hadn't let Lincoln set precedent by using it for toilet paper whenever he pleased.

-Frem

I do not serve the Blind God.

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Sunday, December 12, 2010 6:56 AM

DREAMTROVE

I'm with Frem here. The repeal amendment is not different enough from the 10th, and the way to enforce the tenth is just to enforce it.

Anthony has a point also, the repeal amendment *could* be interpreted to allow some states to kill laws of other states, which is unconstitutional and a weakness of the bill. This makes a second reason to not do it.

CTS, "Nullification" is the application of the 10th to prevent a Federal Law from applying to a state. It's been used many times, and does not in fact lead to chaos as anti-10th crowd claims, because most nefarious laws, such as slavery, actually break all sorts of amendments. It's most often used to block legislation which is unconstitutional when the supreme court fails to strike said legislation down.

At any rate, what they want to do here with the repeal amendment can be done with the tenth. Certainly they can use it to block obamacare, what they can't do is use it to block massachusetts healthcare reform, or Romneycare, which is pretty much the same thing, and since no one was up in arms about that outside of MA then we can assume that no one really wants to do that, so the amendment is pointless.

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Sunday, December 12, 2010 7:36 AM

NIKI2

Gettin' old, but still a hippie at heart...

CTTS, I see it the same way you do. Right now, it seems to me any state can make their own law which is different from the Federal law, as long as it isn’t the opposite of an existing Federal law. Your example is perfect; there is no Federal law about the death penalty. I believe the same is true of same-sex marriage, although it seems to me DOMA precludes that (which is an interesting question if anyone can explain it to me). The opposite example would be our medicinal marijuana law, which DOES go against a Federal law, so the feds can (and do) arrest people who are behaving legally by California law.

THIS measure means if there is a federal law that 2/3 of the states don’t like, they can repeal it—yes, for EVERYONE, so you’re right Anthony, they can repeal a law against the wishes of other states. I see that as quite different from the 10th.

Pizmo, you nailed it completely. That is the purpose of this amendment exactly. It fools nobody, and is precisely an attempt (especially by low-population and Southern states) to repeal federal laws/amendments tey don’t like, and be able to repeal them for the majority of the population. I heard a rightie being interviewed about it, and it was fun to watch him slip and slide and try to evade that fact. Didn’t work, of course, and I don’t think the damned thing has a chance in hell, given everyone will recognize what it really is.

And of course you’re right; Americans are dumb, and don’t understand their Constitution beyond the first and second amendment. MOST Americans, I should say, and I would bet by a large majority.

Quote:
reject a federal law for policy reasons that are irrelevant to constitutional concerns

I didn’t catch that, which WOULD preclude anything in the Constitution or its Amendments being repealed. That answers my question, if accurate, and is something which hasn’t been mentioned in the arguments pro and con which I’ve heard.

DT, but: “Any provision of law or regulation of the United States” – doesn’t that include the Constitution? Those are laws, as well as those passed by Congress, it would seem to me. For example, the law that allows women to vote...it’s in the Constitution, but it’s still a “law”, isn’t it? Maybe I’m confused. “Constitutional documents for virtually all organizations are recognized as process documents, to be differentiated from statutes”—“recognized” yes, but does that mean they are definitively so? That would seem to speak to Anthony’s

Quote:
it seems like they can kill any law or regulation without limit.

I don’t think that, as thing stand, “any state can reject any law based on its own freedoms under constitutional law’—if so, any state could decide women can’t vote, couldn’t they? California has rejected the marijuana laws in making medicinal marijuana legal, but the feds can still come in and enforce FEDERAL LAW where that’s concerned...again, I’m confused.

Geezer, your statement

Quote:
They want to offer an amendment to the Constitution using the method outlined in the Constitution, as has been done more than thirty times before

doesn’t respond to mine. The people hollering about the sanctity of the Constitution are ALSO mostly against the Amendments to it; they talk about wanting the original Constitution, unhindered...which is stupid, in my opinion, because it would do away with voting rights, civil rights, and much more which weren’t covered by the Constitution initially so needed to be done by Amendment.. At the same time, these same people are in favor of all kinds of amendments which reflect what THEY want, and in many cases undo earlier Constitutional Amendments. To me this is a dichotomy...not recognizing that not EVERYTHING was covered in the Constitution and some things that were, are wrong (women’s right to vote, again). That seems only logical to me, but this proposed amendment would give them the freedom to undo ANYTHING they wanted, and undo it for everyone else, via minority rule. I believe the Constitution should evolve as society evolves, but not in a way that LESSENS people’s rights.

CTTS, I see it the same way you do. Right now, it seems to me any state can make their own law, as long as it isn’t the opposite of an existing Federal law. Your example is perfect; there is no Federal law about the death penalty. I believe the same is true of same-sex marriage, although it seems to me DOMA precludes that (which is an interesting question if anyone can explain it to me). The opposite example would be our medicinal marijuana law, which DOES go against a Federal law, so the feds can (and do) arrest people who are behaving legally by California law.

THIS measure means if there is a federal law that 2/3 of the states don’t like, they can repeal it—yes, for EVERYONE, so you’re right Anthony, they can repeal a law against the wishes of other states. I see that as quite different from the 10th.

Pizmo, you nailed it completely. That is the purpose of this amendment exactly. It fools nobody, and is precisely an attempt (especially by low-population and Southern states) to repeal federal laws/amendments tey don’t like, and be able to repeal them for the majority of the population. I heard a rightie being interviewed about it, and it was fun to watch him slip and slide and try to evade that fact. Didn’t work, of course, and I don’t think the damned thing has a chance in hell, given everyone will recognize what it really is.

And of course you’re right; Americans are dumb, and don’t understand their Constitution beyond the first and second amendment. MOST Americans, I should say, and I would bet by a large majority.

Quote:
reject a federal law for policy reasons that are irrelevant to constitutional concerns

Quote:
it seems like they can kill any law or regulation without limit.

Quote:
They want to offer an amendment to the Constitution using the method outlined in the Constitution, as has been done more than thirty times before

Hippie Operative Nikovich Nikita Nicovna Talibani,
Contracted Agent of Veritas Oilspillus, code name “Nike”,
signing off

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