The Founders, all of them men and some of them slave owners, had plenty of experience with home rule. They had endured the ravages of a revolution that put their new government in deep debt. Their country was bounded by Canada, the Mississippi River, Florida and the Atlantic Ocean. To presume to understand their intent with respect to government is suspect in the least, if not hypocritical in the extreme, except for one thing: amending the Constitution. And they made that difficult. Amending: Article V – Amendment spells out the process.
For the record, the President is not involved in the amendment process in any way. Incidentally, two-thirds of both houses must pass an amendment, and two-thirds of both houses are required to overturn a presidential veto. But, I digress.
Even if an amendment gets through Congress, it is not guaranteed to be ratified and then expires, like the Equal Rights Amendment did in 1982. The ERA intended to place into law the equality of women and men. It was sent to the states in March, 1972. But it failed to be ratified even though Congress extended the original seven year deadline to ten years.
The idea of Constitutionalism, as conservative columnist Krauthammer suggests, seems inconsistent with the Republican agenda and misses the point. It has nothing to do with the intent of the Founders, as stated. It is obfuscation. The real objective of any proposed Republican amendment is to attack the 14th Amendment, which the Repeal Act would do.
Before the 14th Amendment, the states could ignore the Bill of Rights. The truth is that the interpretation of the Constitution is what the Republicans are after. If they can succeed at eliminating the 14th, they can revive their crusade to overturn rulings in cases like Brown v Board and Roe v Wade, as I have written. Fortunately, the “Founders intent” was to make amending the Constitution something that the new Republican House majority will have little chance of achieving.
Article comments
— go to most recent comments1 - Baronius
Tommy - This article doesn’t seem to be well thought-out.
- You say that the Republicans want to rewrite the Constitution. It’s fairer to say that some Republicans want to add one amendment.
- You say that it’s suspect to presume to know the Founders’ intent. Why? They wrote quite a bit about it. And if we don’t follow their intent, what do we follow? Who’s to say what each generation’s interpretation will be? If the meaning isn't grounded in something, we may as well switch to a non-constitutional form of government.
- You say that constitutionalism seems inconsistent with the Republican angenda. In what way?
- You say that the real target is the 14th Amendment. But how would this amendment negate the 14th? It would allow states to repeal laws, not amendments. And on what basis do you make the claim about the Republicans’ intention? They’ve been quite clear about wanting to reduce the scope of government, which this amendment could potentially do, so why look for an ulterior motive?
2 - Clavos
The Federalist Papers, authored by three of the FFs (James Madison, Alexander Hamilton and John Jay, all writing under the pseudonym of Publius) present a good insight. Ben Franklin, another prominent FF, was a prolific writer -- there can be no doubt about his intentions. George Washington has been studied, analyzed and written about ever since by historians of every stripe -- no hidden secrets there, either. Thomas Paine was another prolific writer (of Common Sense). The rest, such important and influential historic figures as the Adams's (John and Samuel), Patrick Henry, John Hancock and others, have also been studied, analyzed and written about (in addition to their own writings) in prodigious quantities.
We Americans know (or at least should know) the intent of the FFs better than most other historical figures.
Just sayin'
3 - Dr Dreadful
It would allow states to repeal laws, not amendments.
That depends how you interpret the phrase "provision of law", Baronius. Does it refer only to statutes, or to the law in general? If the latter, that would encompass not only the Constitution but also case law.
But you're right, I can't see how this proposed (and sloppily-written, BTW) amendment is targeting the 14th in particular.
4 - Tommy Mack
The Founders had all died by the 1865 when the 13th Amendment abolished slavery, which had only been the intent of a few of them.
The Republican interest in rewriting or eliminating the 14th Amendment has already been articulated by its leadership, specifically by such prominent Republicans as Senators Lindsey Graham (SC), Jon Kyl (AZ), and Mitch McConnell (KY). Their reason is “Birthright Citizenship”, to which they object.
Among the purposes of the 14th Amendment was to make sure that the states could not legislate against it.
“No state shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States... [or] deprive any person of life, liberty, or property without due process of law, [or] deny to any person within its jurisdiction the equal protection of the laws."
My argument is that the 13th Amendment [Ratified 12/6/1865], 14th Amendment [Ratified 7/9/1868], and 15th Amendment [Race No Bar to Vote, Ratified 2/3/1870] are far from the Founders intent. The Repeal Act is a feeble attempt to end-sweep the 14th Amendment and, oh by the way, Constitutional Amendments are laws.
Tommy
5 - Baronius
Tommy, the Founders' intent applies to what the Founders wrote. The amenders' intent applies to what the amenders wrote. No one's talking about returning to the Founders' intent in matters of slavery or anything else that's been amended. We're talking about referring back to the Founders when an issue comes up upon which they haven't been superceded.
Are Constitutional amendments laws? Yes and no. A law can't overrule the Constitution. If this amendment is approved, states wouldn't have the power to get together and decide that the Supreme Court should be abolished, for example. The founding document can't be iterative.
6 - Baronius
Regarding the 14th Amendment, there's a lot of bluster against it with regard to "birthright citizenship", but no one's talking about weakening the amendment to alter the Roe or Brown decisions. I think you could make a good argument that the current interpretation of the amendment is flawed in its understanding of "subject to the jurisdiction thereof", precisely because the authors didn't explain it. There's nothing specific on which the current interpretation is based. But that being said, on the issue of immigration, politicians would rather get attention while not resolving it, than avoid attention while resolving it. If they were attempting to rewrite or reinterpret the 14th Amendment they'd be blowing horns and throwing themselves parades.
7 - Tommy Mack
For those who just tuned in, here is the test under discussion.
"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."
That is pretty badly written. Looked at objectively, the Repeal Amendment says that if the legislatures of 34 States vote together to repeal a federal law, they may repeal it. But it doesn’t work that way. If you don’t like a law, you take it to court -- the Supreme Court. Repealing laws is their job, not the job of the states.
Here is what the Constitution says.
Article III Section 1: “The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” And, Article III Section 2: “The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.”
As I said, the new Republican majority can beat its chest and proclaim all of the populist bills it wants, but getting a Constitutional amendment out of it is a lot more arduous task in reality than it is in their mythological Constitutionalism.
Tommy
8 - Tommy Mack
Baronius, regarding the "subject to the jurisdiction thereof" of the 14th Amendment, I agree with you. That is precisely where the Supreme Court is involved and not by overwhelming majorities in the court’s opinions.
The “amenders” were trying to put the Union back together, not looking into the future of “privacy” or of immigration. But, the 14th Amendment is profound in the Court’s interpretation of a lot of case law decisions that effect society and, as I said, that is the Courts job to decide, not the States.
9 - Baronius
"But it doesn’t work that way."
Well, that's the point of amending the Constitution, right? If you don't like the way it works, change it.
"If you don’t like a law, you take it to court -- the Supreme Court. Repealing laws is their job, not the job of the states."
No it's not. They don't repeal laws, Congress does (usually with the presidential signature). The Supreme Court may strike down laws.
10 - Tommy Mack
I stand corrected, sir, about the Court repealing law as I stated it. I confused "law" with "amendment." To repeal or abridge a Constitutional provision requires an amendment, such as the 21st Amendment repealing the 18th.
The rest is legislative, not necessarily Congressional, when a new law is passed that annuls a previous law. But, such changes end up in court anyway.
11 - STM
Tear the whole bloody thing up and start again.
12 - STM
And get rid of that pesky dangling participle in the 2nd amemdment.
13 - Baronius
Non-leading question: what does anyone think we'd come up with if we did scrap the Constitution and try again?
14 - STM
Something similar, with more rights. One of 'em might be the right to go somewhere without lunatics taking potshotsb at you because they were able to walk into guns 'r' us and get two guns for the price of one plus a free bonus box of armour-piercing ammo.
Ok, that's never going to happen, but you might at least get some commonsense controls, which is all you really need, and accept that an amendment designed to cover about 200,000 muzzle loading weapons essentially to protect against the British probably ought to be changed somewhat in a modern America of 300 million guns where you really don't need to have an uzi in the glovebox or an AK in the kitchen cupboard.
The right to get sick without going bankrupt wouldn't be a bad right, either.
15 - Baronius
It seems to me that the ability to forcibly commit/medicate the mentally ill would have also prevented this tragedy.
16 - Cindy
I agree Baronius! I think Republicans are mentally ill...please the pills and the straight-jackets!
17 - Baronius
Cindy, I think you think you're being facetious, but based on this and many other comments you've made, I think you'd gladly wear the jackboot if given the opportunity.
18 - Cindy
Baronius,
I'm only being facetious to a degree. I am usually making an analogy. You pretty much never do get my analogies--probably due to my lack of aptitude.
Allow me to spell out my point:
WHO DECIDES WHO IS MENTALLY ILL? THAT IS A PROBLEM.
So do you see my analogy? You would not want ME deciding, ow would you? Then why should I want someone YOU chose to decide?
How very unlibertarian of you.
(Of course, Libertarians do support the gov't when it is taking away the rights of anyone they deem worthy of that and when the gov't is running around the world treating others to its shock and awe campaigns. Then they are all misty-eyed and patriotic-like about the gov't.)
19 - Cindy
but based on this and many other comments you've made, I think you'd gladly wear the jackboot if given the opportunity
Let me say why that is. In my view I am a hostage in a world that has been filled with sickness by people. Chock-filled. I both love humanity and hate people, hate-humanity and love people.
Every single time I see the results of the horrors and sickness and sadness people create, I get angry. Anger is a defense against sorrow. It is easier to be snide than to be depressed.
Just my lot to work through. We've all got something. This keeps me busy. And I realize anger (of my sort) is rarely productive.
20 - Baronius
You complain that I don't understand the distinctions among the left, and you label me a libertarian? and say that libertarians are war-mongers? Hyeesh.
As for locking up the mentally ill, there's clearly a point that's too far, and not far enough. Let's say that when people who are known to be dangers to themselves and others are running around free to kill, that's not far enough. When people are being rounded up based on their political beliefs, that's too far.
21 - roger nowosielski
Interesting. Baronius turns totalitarian.
22 - roger nowosielski
We already have such laws in effect. They lock a person up for observation - 72 hours for starters.
23 - Baronius
Uninteresting. Roger attacks a strawman to provoke a response.
24 - roger nowosielski
Well, did you mean it, Baronius or did you not? If you didn't, then you're off base calling Cindy facetious.
25 - Clavos
Chill, Rog...