09-07-2016, 08:18 PM
(This post was last modified: 09-07-2016, 08:25 PM by Eric the Green.)
(09-07-2016, 01:32 PM)Bob Butler 54 Wrote:That means that they say what it means. Chief Justice Warren famously said, "the Constitution is what we say it is." He was right. They do defer a lot to precedent.(09-07-2016, 10:54 AM)Eric the Green Wrote: But the Constitution clearly states that the Supreme Court decides what is to be regarded and what is not. The only "limits" (besides those stated in the bill of rights and other amendments) are spelled out in section 9 of article 1.
There were procedures written to change the constitution, including amendments and constitutional conventions. These both involved the approval of a supermajority of states. The Supreme Court was never intended to allow rewrites of the Constitution, but to interpret it.
Quote:(09-07-2016, 10:54 AM)Eric the Green Wrote: That, as you know, is an improper and very conservative literal interpretation. Article 1, Section 8 says the congress has the power to provide for the common defense and general welfare of the USA. Article 2 section 3 says that the president shall see that the laws are faithfully executed. The idea that such powers be limited to the needs of the 1780s as spelled out in the enumerated powers is a wrong interpretation, and such an interpretation could never meet the needs of the country. The constitution says the congress shall make laws necessary to carry out the enumerated powers and all other powers allowed under the constitution. It did not say that only the forgoing powers shall exist.
The theory on which the constitution was written is that the states remain sovereign powers, that the federal government only has those powers specifically enumerated. This is why the powers were enumerated. What you consider an 'improper and very conservative" interpretation is the interpretation used while the authors of the constitution were still alive.
As the proposed constitution was being ratified, there was a big debate on whether a Bill of Rights was necessary. Some said no. As the constitution did not enumerate a power to censor speech, what need was there for a Right of Free Speech? As there was no enumerated power to regulate firearms, what need was there for a Right to Keep and Bear Arms? While this logic seems sound enough, during the debates leading up to ratification, an awful lot of people wouldn't pass the new constitution without suspenders to go with the belt. They wanted a Bill of Rights. It didn't look like the Constitution would be ratified until both groups agreed that the first order of business would be to pass a Bill of Rights. That this debate took place at all clearly indicated that the original intent of the authors was that the list of enumerated powers was intended to be meaningful and binding.
The "theory" doesn't matter, of course (we've had that debate before). What is written, and adopted by amendment or convention, and how the Court interprets it today, is what counts; what some people thought about it 250 years ago is too hard to determine without endless debate.
The constitution clearly says that the enumerated powers are not binding. That's what counts, and you did not contradict my quotes from the Constitution. Some of the founding fathers, most-notably Jefferson, wanted to protect peoples' rights, just as the French had done, and some of the colonies had done. So they decided to spell out those rights. Clearly the proponents thought that the enumerated powers did not limit the government's powers to those enumerated in Sec.8. Hence, a bill of rights was needed.
Quote:(09-07-2016, 10:54 AM)Eric the Green Wrote: I don't disagree with much there, but the idea that we should need to rewrite the constitution every time the president and congress agree to do something which goes beyond the enumerated powers, would mean we would have to convene such a convention as an ongoing body. The Constitution provides for making the laws that are needed for the needs of the time, without having to call conventions or make amendments all the time.
The original intent was not that the federal government would get to expand its power whenever it feels like expanding its power. Expanding federal power was supposed to be ratified by a supermajority of states. Granted, the founding fathers did not anticipate how technology would explode, that the Industrial Revolution would essentially render a document perfectly adequate for an essentially agricultural society quite obsolete. At various times, the constitution was ignored because it was necessary. At other times, it was ignored for more nefarious purposes. The Jim Crow Supreme Court ruled that as the federal government is granted no police powers, it has no power to enforce the Bill of Rights. Thus it was up to the southern states to protect the rights of negroes. They... didn't.
Constitutions are not supposed to go into bitter detail. The Constitution is very short. At this point, I would not add a new line saying the federal government shall have the power to dredge harbors. I'd say it has the power to build and maintain interstate transportation infrastructure. Or do we really want to give them that blanch a carte? Still, the constitution for the European Union is much longer than ours. An awful lot of issues have become important since the founding father's time. I would like to see them seriously addressed. I would badly like to see a return to a limited government whose powers are limited by law. What we've got now is a runaway truck.
You are talking out of both sides. If the constitution should not go into "detail" but remain short, then it makes no sense to "return to a limited government whose powers are limited by law." As before, the constitution will have to be seen as living and flexible to meet the needs of the time, just as you said that a document conceived at the very end of the agricultural era would not suffice for an industrial and high tech era. So, further changes will render any such carefully enumerated and limited document moot within a short time. The 2nd Amendment itself was obsolete almost from the moment it was passed.
I don't know how a new constitution would limit the runaway power of the executive to wage war, when the power is not even granted to him in the constitution we have. I don't know how it could improve gun law, when all we have to do is observe what playwrite described. I don't think we need a new constitution so that we can build highways and dredge harbors; all we need is to recognize that these powers are already granted.
But the system needs serious changes, which might indeed require a convention, depending on how far we go. We need to outlaw money in politics; that will require an amendment to clarify that money is not "free speech." We need to end gerrymandering, but that needs no constitutional change, just a change in legislation. We may decide that only a parliamentary government, such as almost all other democracies have, provides better restraint on the president and a more unified government that can carry out a mandate, but be subject for an election whenever the leader says that the people call for it. That would call for a convention. We may switch to ranked choice voting and proportional representation; the former doesn't require a convention, but the latter might; I'm not sure. But the two party system is clearly out of date and the people don't want it. It may collapse, and ranked-choice voting and prop rep would ensure that a multi-party system allows all views some voice in what is decided, and that we are not reduced perpetually to the lesser of two evils. The conservatives have their pet proposals too, like a balanced budget amendment and a line-item veto, and secession and rebellion may be around the corner too.