A detailed proposal to redress the imbalance between state and federal power. [More]A profoundly dangerous and naive idea--any proposal is subject to political maneuvering and deal-making--witness the ongoing credit card/guns in parks bill. This would be no different, and a constitutional convention could leave us in considerably worse shape than we are now.
Besides which, this presupposes the fault lies within the Constitution--rather than with usurping "lawmakers" who ignore clear proscriptions and do what they want because they can get away with it. This bill would be no different.
You want to fix the Commerce Clause? We know what the founding intent was--follow it. Don't want foreign law? Where is the clause in the existing Constitution that allows it to even enter the equation?
He's trying to fix something that ain't broken.
I like how those who view this as an exercise in academia and political pragmatism think they can deal with corrupt statists and if they just somehow find the right incantation, all will be respected and put right.
The only way to convince a criminal not to press on with an attack is to make him fear the consequences. I see nothing for political predators to fear in this academic wish list.
Agreed. The tyrants want a fight. They will get one.
ReplyDeleteGood comment, David.
ReplyDeleteI suppose the problem is that there is not any 'enforcement clause' that can be used on politicians, judges, & bureaucrats for violating their oaths. Impeachment just doesn't seem to be enough.
I guess that's the reason behind Jefferson's quote on having a revolt every 20 years or so... or the ancient Greek's solution:
A Locrian who proposed any new law stood forth in the assembly of the people with a cord round his neck, and if the law was rejected, the innovator was instantly strangled. - Edward Gibbon, The History of the Decline and Fall of the Roman Empire
Cheers, & up the republic!
"f they just somehow find the right incantation, all will be respected and put right."
ReplyDeletespot on! it's potentially the equivalent of letting alexander hamilton decide what the word "limited" means.
there are no words to "capture" the liberty you truly intend to bestow. it all goes up in the flames that lit george orwell's pipe.
Not only is this proposal extremely dangerous, and in fact unnecessary, it is just band-aiding symptoms, not fixing the source.
ReplyDeleteThe teeth of the states were pulled with the passage of the 17th Amendment. Prior to that point, the state legislatures TOLD their Senators which way to vote on issues that affected state sovereignty: otherwise, they would pick someone else for the next term.
Until we can get that repealed, everything else is just a stop-gap solution. Maybe a NEEDED stop-gap, but still short-term just the same. THAT was the checks-and-balances of the constitution, not so much executive and judicial review, but conflicting interests between the House and the Senate. The Legislative branch was what the Founders really feared.
The real problem is the voters. They keep electing and reelecting asshats like Barney Frank, Feinstein, Boxer, Kennedy, etc, ad nauseam.
ReplyDeleteMost of our problems could be resolved by actually following the Constitution.
I see that Mr. Barnett teaches constitutional law, Therein lies the problem.
If one looks at the current situation regarding appointing Supreme Court Justices, one will see serious problems. It shouldn't matter if a judge is a "liberal" or a "conservative." Their job is to rule on issues to determine whether said issue follows the Constitution.
But when a judge throws his or her own political bent into the equation, the Constitution is tossed out in favor of a more "progressive" view.
"On every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."
--Thomas Jefferson, letter to William Johnson, June 12, 1823
"History is clear that the first ten amendments to the Constitution were adopted to secure certain common law rights of the people, against invasion by the Federal Government."
-- Bell v. Hood, 71 F. Supp., 813, 816 (1947)
"A treaty cannot be made which alters the Constitution of the country, or which infringes and express exceptions to the power of the Constitution."
-- Alexander Hamilton
Follow the Constitution. Punish elected officials who violate their oaths to protect and defend the Constitution, then immediately crap on that oath.
When oath-breakers are prosecuted, the problems will cease.
But "the people" won't have a problem with their rights being usurped until their TVs all stop working. Then all hell will break loose.
Damn right David. A con con would be an absolute disaster. Why should we hold out any hope that now, in 2009, with the bipartisan assault on our rights in full swing (such as Republican Rep. King sponsoring H.R. 2159)we can do better than was done in 1787, or better than what was done in the Bill of Rights?
ReplyDeleteWe wouldn't. The make up of the delegates to such a convention would probably be as full of sell out political hacks as is Congress. And once the con con is underway, they could propose ANYTHING. The state legislatures would not be able to call a convention only for certain proposals - once the door is open, it is wide open for whatever the delegates want to propose.
And under Article V, once a con con is underway, CONGRESS get's to decide whether the product of that convention - the proposed amendments - will be ratified by the state legislatures OR by ratifying conventions within the states (and Congress will decide how those are formed).
So, if the con con produced some nightmare fascist document, the state legislatures would be powerless to stop it since Congress could just do an end-run around the state legislature by imposing its own ad hoc system of ratifying conventions in each state, and if 3/4 of those conventions ratify the proposed amendments, then THAT would be THAT. Old Constitution gone, "new Constitution" in place.
Thus, 3/4 of the state delegations to the con con could drag the other 1/4 kicking and screaming right along with whatever the 3/4 want. And then again, with the state ratifying conventions, 3/4 of those could drag the 1/4 along and force them into a new socialist/fascist constitution.
How many truly stalwart constituionalist states do we have? What, Montana, Wyoming, Oklahoma, Idaho, Alaska, New Hampshire? And a bunch of toss ups?
Do we have more than 12 that would be hard-core liberty minded? I doubt it!
And out of those, with Congress setting up the delegate selection process, could we guarantee that the delegates would be true defenders of liberty?
And then for the ratifying conventions .... give me a break!
And if you don't like how the sell out Congress runs the whole show, guess what? You get to run to the current sell out courts for redress. Gee, I wonder how that would go?
This is one of the dumbest ideas ever proposed in modern politics.
Stewart Rhodes
Yale Law Class of 2004
Stewart, PLEASE leave this comment at the linked site. Barnett just left a comment saying "desperate times call for desperate measures."
ReplyDeleteOf course, we "principles freaks" trying our best to wake people up to prepare for truly desperate measures have no voice in the "polite" debate.
Those who do just don't understand that this is real and it is personal. It's ultimately an abstraction for them. History is something that only happens to people in books.
I'm just a layperson, easily dismissed because of it. You have the credentials to beard the lion in his den with professional credibility.
Consider it this way: the full-Socialist legal ground is going to be tread no matter what you do. Do you want to linger there when it's crossed a few years from now, after you're further hurt by more fiscal and policy damage? Or do you want to cross it now, quickly, when you're in better shape? I don't think we know how to stop the bondage -> freedom -> bondage -> freedom cycle, but perhaps we have some ideas how to make the time spent in bondage shorter. Give these power addicts a thousand doses of their drug and tell them to go for it. (Warn everyone who will listen to get out of the way.)
ReplyDeleteDavid Codrea said...
ReplyDelete"Stewart, PLEASE leave this comment at the linked site."
DONE! Though I did run out of room and was not able to tell him it was one of the dumbest ideas in modern politics - but perhaps that is for the best, since I should try to remain polite (though I still think it is an extremely dumb idea).
Sometimes people who make a career out of con law and such just cannot help themselves - they just have to try and use all that there fancy book learnin they got - even if it would lead to unmitigated disaster in the real world.
I really cannot see anything but complete destruction of our Republic coming out of such a convention. If 3/4 of the states actually propose such a con con, they will be committing political suicide, since what comes out will resemble Stalinist Russia far more than the Republic of 1787. You can kiss state sovereignty goodbye.
Stewart
Folks:
ReplyDeleteTo quote Ms. Rand, "Check your premises."
To wit, we have a statist/Marxist constitutional law professor in the White House. He is violating the enumerated powers of the President listed in Article II, section 2 of the Constitution by his and his subordinates' actions in the Chrysler secured debt cramdown and other aspects of the so-called "economic stimulus program."
The constitutional law professor in the White House is committing these unconstitutional acts with the aid and comfort of both houses of the Congress, who are:
a) also violating the enumerated powers of the Congress pursuant to Article I, section 8 of the Constitution by their ongoing passage of numerous unconstitutional laws, as well as
b) failing to commence impeachment proceedings, pursuant to Article II, section 4, against the President for violations of the Article II, section 2 limitations on his power.
You now have center-right law professors such as Barnett and Glenn Reynolds [see, e.g., this entry and this entry] supporting a de facto rewrite of the Constitution via a constitutional convention, which, as Stewart points out above, will quickly turn into a rout, in whole and in part, of all freedom-oriented points of view.
Don't think so? Then you should read Matthew Bracken's account of a (fictional, for now) con-con held in America's near future:
Excerpt from 3rd Bracken Novel - "Foreign Enemies":
"... Tell me something Doug. You’re obviously a smart guy. I’ve been out of the country for seven years. What the hell happened to America? I always thought Americans would fight to keep their freedom. What happened? How could Americans just roll over and give up? What happened? How could we give up our rights without a fight?”
“Well, we didn’t just ‘give up’ our rights. It wasn’t like that. Not at all. It’s more like they were stolen in broad daylight, at the constitutional convention..."Before you go and read the rest of the excerpt, consider these facts:
1) Statist/Maxist con-law professor in White House and his co-conspirators in Congress running amok in violation of the Constitution [thesis];
2) Center-right con-law professors calling for a con-con ostensibly to restrict the powers of the President and the Congress [antithesis]; and
3) Article V procedures that allow any subject matter -- or even a completely new Constitution -- to be considered and adopted at a con-con [synthesis].
Anyone who doubts what kind of Frankenstein will be created by a 21st-century Constitutional Convention needs to remember that the 1787 con-con was convened "for the sole and express purpose of revising the Articles of Confederation", not to create a whole new government of the United States. For more info on that point, see generally this record of the proceedings of the Continental Congress.
David, I disagree with one comment you made in the original post -- you said that Barnett is "trying to fix something that ain't broken."
An intellectually-honest examination of the historical record since at least the Recent Unpleasantness of 1861-65 will reveal, I respectfully submit, that the Constitution and Bill of Rights have failed, almost completely, in their stated purposes of protecting individual freedom and restraining government power.
One thing is for sure: Barnett's proposal -- and the mental gymnastics of constitutional law professors in general -- are not going to be the mechanisms whereby individual freedom is restored in North America.
That job is going to be, shall we say, less cerebral and much more action-oriented.
Up the Republic!
Concerned American
St. John's University School of Law
Class of 1989
"the Constitution and Bill of Rights have failed, almost completely, in their stated purposes of protecting individual freedom and restraining government power."
ReplyDeleteOr have the men responsible for abiding by it failed it?
What other document could achieve this goal if the people entrusted to uphold it subvert it instead--and if they are allowed to by an ignorant and apathetic populace?
Wasn't aware Reynolds had jumped on this bandwagon too. Doesn't surprise me. He (and Kates also) thinks registration would be Constitutional because the militia could be mustered and expected to bring certain required arms and accouterments. That this has nothing to do with what the militia man left at home seems not to enter their considerations.
I have an alternative proposal at http://www.constitution.org/reform/us/con_amend.htm which avoids many of the criticisms of Barnett's proposal. It does not involve having state legislatures petition Congress to hold a constitutional convention, but to adopt the identical proposals as proposed amendments sent back to the states for ratification.
ReplyDelete