But with the Congress made up of people elected from the states, doesn’t that mean the states (ie, the states’ electorate) are effectively in control anyway? Or is this just an attempt at an end around specific legislation by Congress the supporters don’t like?
The same people driving the lawsuits that seek to dismantle the Obama administration’s health care overhaul have set their sights on an even bigger target: a constitutional amendment that would allow a vote of the states to overturn any act of Congress.
Under the proposed “repeal amendment,” any federal law or regulation could be repealed if the legislatures of two-thirds of the states voted to do so.
The idea has been propelled by the wave of Republican victories in the midterm elections. First promoted by Virginia lawmakers and Tea Party groups, it has the support of legislative leaders in 12 states. It also won the backing of the incoming House majority leader, Representative Eric Cantor, when it was introduced this month in Congress.
Like any constitutional amendment, it faces enormous hurdles: it must be approved by both chambers of Congress — requiring them to agree, in this case, to check their own power — and then by three-quarters of, or 38, state legislatures.
[…]
The repeal amendment reflects a larger, growing debate about federal power at a time when the public’s approval of Congress is at a historic low. In the last several years, many states have passed so-called sovereignty resolutions, largely symbolic, aimed at nullifying federal laws they do not agree with, mostly on health care or gun control.
rabid==I think you are right about the 10th Amendment other than ironically that the Bill of Rights itself was a compromise document in total in order to get the Constitution itself passed.
Its all definitional. I wasn’t paying attention a few days ago when I heard Obama justify his outrageous capitulation to the Pukes: its compromise. Paraphrased: “We would not have had a country at all if the high moral ground against slavery had been not compromised on.” (my humor is sic)
Just a very excellent argument but again its the premises that foul it up. With slavery, the balance was forming a country to guarantee freedom for white boys vs having no country at all and everyone a slave to Britain. Currently, the balance is deficit spending to give the rich even more money vs pay as you go. Not the same equity balance at all.
Silly Obama, put him on the Yellow brick road for a back bone.
Ummm… Who would want to turn the USA into Europe? “It’s the economy, stupid!” Guess what would happen? Think the recent problems with Greece, Spain, etc. We’d suddenly see the country (i.e. the other states) having to bail out stupid states after stupid state when stupid politicians try and implement stupid policies, but since we’d all still use the same dollar everyone else would be affected but unable to do much, depending on the legislature of that state. Bad idea.
Plus, this by definition adds overhead == bigger governments at the state level == more chances for screw-ups. Probably not a good idea, huh?
LOL Bobbo, saying the Constitution is not a governing document seems to putting/construing it a bit too simply.
#29, you know, if you want to get deeper, you could ask where it is that the courts were given the power to create new “law” through interpretation. You point out that the Declaration of Independence, while illuminating, is not the law, and so carries no weight of law, and yet it has just been assumed because of tradition that we are operating under the common law premise that courts can create law, rather than a civil law system where they cannot. The Constitution certainly doesn’t make any reference to the common law.
rabid–typo? I expressly did not say that. If you mean Declaration of Independence, that is just as I stated. Its not controlling and cannot be cited as authority==only for argument===just like the Kama Sutra, the NRA Handbook, or writing on a bathroom wall.
Read some more.
Sea Lawyer==you are losing me. When the USA got started, there was no law so common law it was. Over the years, the statutory framework has grown. I don’t know how valid it is to say we still have “common law” other than roots than have long since been dyed red,white, and blue?
It may be as simple as that controlling authority vs argument dichotomy that rabid needs to deal with?
No good examples huh? I’d like to know them.
isnt the decision of what is LEGAL/NOT legal, the choice of the people, IN THE FIRST PLACE??
ISNT that why we VOTE??
The problem is the GOV, isnt protecting the PEOPLE.
Sure go ahead and watch the Federal Government cut each state’s funding by how they vote.
Sparky==excellent. Yea, who can doubt that? And the Congress would be able to move “overnight” compared to months for the various State Legislatures.
Given “power” realities, you have moved me to be against this proposal. Damn, it coulda been the first Puke Proposal I was ever for!!!!
Yea, Verily.
and Sea Lawyer–the court got its power from itself in Marbury v Madison. Interpretation does involve “making” law to various degrees. The check and balance there being if the Courts make new law that Congress does not like, they can pass a new law to correct that. Usually that doesn’t happen for a variety of reasons from the result is exactly what the Congress meant but was too stupid to write, or, they are just corrupt and have been paid to shut up.
What makes USA “exceptional” is how long the separation of powers/checks and balances has actually lasted. Congress is obviously the weakest of the three branches when it comes to failing/being corrupted in this experiement with the Presidency not far behind and just easier to hide with the Supremes starting to hog the spotlight.
I see Somalia in our future.
#37, common law is a system, and one that is very much a core to our system of government. Take something like “fair use” as an example. Fair use is not something that was created through legislative action, but through judicial precident; it is a part of the common law.
Let’s see, and easy example:
Well you could look at a simple one of the first amendment:
Congress shall make no law … … abridging the freedom of speech, or of the press …
“Congress shall make no law” is an absolute state of what it shall not do, but this has been interpretted to mean “Congress shall make no law, except in the cases where we decide it can.” It is a semantical contradiction, but still a contradiction.
Sea Lawyer–excellent issue. Your example isn’t about common law at all, but its a good exercise.
Could a country exist if there was an ABSOLUTE freedom of speech legal system? Yes, I think it could. Fun to think about: FIRE!
Immediately then I wonder if the “freedom” in “freedom of speech” is about “prior restraint” or actually “punishment on utterance when false.” By some ways of thinking, its not “the speech” that is punished but rather the falsity? A chimera. Sometimes I can agree with that distinctions, most times, its not there.
So–lets use your example. I propose a Constitutional Amendment: It should start with: “Read the following, but exercise some common sense?”
Heh, heh.
Fragile isn’t it, this thing called civil society?
I see my thinking was a bit fuzzy. Always good to start with a little reading?
http://www.lectlaw.com/def/c070.htm
The best part of which is: “The U.S. is a common law country. In all states except Louisiana (which is based on the French civil code), the common law of England was adopted as the general law of the state, EXCEPT when a statute provides otherwise.”
Given the shelves of statutes that have been created, this is a good example of the “exception” swallowing the rule. I don’t read enough to be qualified, but I can’t recall a “common law” argument ever being made? Again, sure they exist especially as you go back in time.
Common law: technically right but totally irrelevant.
Sea Lawyer–I apologize. I think you are right about the fair use doctrine–being common law. I wasn’t thinking that stare decisis was common law, but my link says it is. Thank you.
Your “Fire!” example, which is often brought up, is more an example of how freedom to say what we want does not absolve us of responsibility for any resulting consequences. I’m not alone in my argument that it’s not necessary to make yelling “fire!” illegal as there are already adequate disincentives from doing so because of the liability you face from the injuries and property damage that would result from the panic you cause.
About the common law thing. It’s interesting that the commentary is often made how the U.S. Constitution can be printed on a couple sheets of paper, or that Britain has no formal Constitution, and yet the proposed E.U. Constitution a couple years back was the size of a novel. But the reason it was necessary was that most of Europe has a legal tradition of Civil Law, not Common Law, and under that system, judges are not permitted to craft ruling outside of what is explicitly codified in the law. There has actually some pretty interesting research supporting the idea that the reason why generally speaking former Brittish colonies have shown so much greater economic advancement (generally speaking) that the former colonies of other European nations is that their Civil Law systems could not adequately adapt to changing conditions like the Common Law system has been able to.
hah. Very Interesting Sea Lawyer. I need to read how civil law can be enforced “as written” and without the interpretation that common law seems to be the alternative to?
The whole point about “fire” is that there are cases where absolute rights come into conflict with one another–what to do?
Here is where very knotty unresolvable conflicts can be create by general language but the disappear when a specific example is considered? A legal system, like a banking system, like a religious system, can be good or bad/more or less so, depending on its terms and applications.
I guess “the common law” is so much a part of me that I can’t imagine the alternative. How does society “exist” under civil law? I think I’m missing something.
No stare decisis with civil law? That really doesn’t make any sense. I’d like something to read on this.
So get rid of the Constitution?
I thought Republicans, like Sarah Palin, LOVED the Constitution and talk ENDLESSLY about being “Constitutionalists”. Maybe like many words, they have no idea what it means or what they’re talking about. Wouldn’t surprise me.
Bobbo, well there are advantages to both I suppose. While civil law is much more rigid, you can in theory open up a statute and read what “the law” is. This is a stark contrast to our system where you can read the words of a statute, but in order to know “the law” you need to track down and understand any and all related case rulings that might be related to the subject. The downside being that you basically need to be a professional attorney to know what the law is in a common law system. Civil law is much more layperson friendly, but must be more explicit and as a consequence is far less flexible to respond to unique circumstances.
Sea Lawyer–I don’t understand how you can read the law and know what the law is. One example: The law says tenants have a right to occupy space according to the terms of their lease. Landlord and Tenant sign a lease for occupancy to start on Jan 1. comes Jan 1, the “old” tenant is staying over and not paying rent and has to be evicted.
Now–the law is clear but if new tenant sues landlord for failure to deliver occupancy, what is the proper outcome?
Some states make the landlord liable to the new tenant, others don’t. Its common law/stare decisis/court made law that determines this question.
How would a civil law jurisdiction decide the case? Note it is silent on what the remedies of the tenant or landlord all. The Gap.
Mind the Gap.
#39,
Watch STATES start charging HUNDREDS of dollars for interstate shipping (TRUCKS on freeways and in CITIES) Instead of $250 per year, ALL the trucks you want.
this law or would be unconstitutional and one of the major reason for session prior to civil war was states breaking away to do what they wanted so no
#52, please explain how a proposed amendment to the constitution could be “unconstitutional”?
Sea Lawyer: by conflicting with another/other provision(s) of the Constitution. Easy Peasy. You post as if you think words have meaning beyond how other people choose to interpret them? Would that it weren’t so, but it is.
Bobbo, once an amendment is ratified it is a part of the constitution, the constitution can’t be unconstitutional. Even with your desire to be contrary you should recognize the absurdity of that idea. As far as conflicts go, newer provisions supersede older provisions… That is how it usually works.
And speaking of the Constitution, the only thing I can recall ever being effectively nullified by the courts is the “privileges or immunities” clause of the 14th Amendment because the SCOTUS has decided it rather go down this convoluted rabbit hole of using connect-the-dots logic to use the “due process” clause to pick and choose how it applies the Bill of Rights restrictions on federal power to the states.
Sea Lawyer–contrarian, moi? Yes, thats true, but only when the facts/theory/argument allows. It is YOU however that is being contrary however. I’m not saying that a constitutional provision that the Supremes give null/limited effect to is not “in” the Constitution which is YOUR position, but if it conflicts with other Constitutional Provisions, then indeed it is “not Constitutional.” The rabit comes out of the hole, around the tree, and back into the hole. Prepositions/common usage count.
To that end there are at least a dozen rules of construction that are used with different weights the Court will rely on to resolve conflicts. Most recent in time does have great weight but it would all depend on the exact wording and the rights involved. Freedom of/from Religion for instance might strike down/modify a future “amendment” that did it great damage. Inalienable Rights can be read as broadly as the Commerce Clause.
The Supremes are mouthy lawyers. You gonna tell me that can’t tell a story to fit their end goal? Think of Bush v Gore.
Better to repeal the 17th amendment then this amendment. Would have the same effect.
This is just some more bullshit from the Right and Fox Propaganda. It stands about as much a chance of passage as does the Equal Rights Amendment.
#52
Specific trumps generality with respect to constitutional law and Amendments are more specific than the main body of the Constitution. Newer Amendments are considered more specific than older (except with the Bill of Rights where the order of precedence is reversed). Said another way, if some clause in the Constitution addresses a particular case more specifically than some other clause which is more general, the more specific clause applies.
“Unconstitutional” and “ignored” are two entirely different concepts. That the Court ignores certain aspects of the Constitution because they believe other aspects effectively make said provision null does not mean that it is unconstitutional. Amendments by definition are constitutional. Rather, the Court is simply saying said provision never applies or is always trumped by something else in the Constitution (e.g. 10th Amendment always trumped by the elastic clause or commerce clause).
Thomas–too simple (minded). The specific clause has more weight than a more general, the more recent over the older “but” these are weights in balancing the equities NOT trump cards. Show me pontification and absolutism, and I will show you something that more often is wrong than correct.
As to whether terms that are ignored/nullified are still “constitutional” as opposed to being “in” the constitutional that is definitional or interpretational. I don’t care how it is spoken of as long as its application in the real world is appreciated.
I’m sure you agree because my post is newer than yours.