Politics

[aknowledgeableperson]

Remember how our constitution came about. There was a convention to make a few revisions to the Articles of Confederation. Any attempt to have a convention to make a few changes may end up with results many may not like. Of course a number of states would have to vote and approve. Any amendment to go through Congress and approved by the states IMO would be almost impossible in today's political environment.

[phuqueue]

The real jockeying for power and wealth would take place during the drafting itself, and in reality, I can't say with any confidence that we would actually end up with a better constitution than what we have now if a constitutional convention were called, but I do think there should be an honest national conversation about the very real deficiencies in the current constitution instead of treating it as sacred and inviolable. One of those deficiencies is just how difficult it is to change it, which is why you see interest groups using the courts as an end around to de facto constitutional amendments instead of passing real amendments through the hopelessly broken political process.

Getting back to DCole's question about what I would like to see in a new constitution, the kind of litigation-driven power grab you are describing wouldn't be such a concern, because I would restrain the power of the courts to overrule the popular will in various ways (judges would be elected and/or subject to retention votes; their tenure would be limited; the legislature and executive would have co-equal authority to decide what is or isn't constitutional, as they theoretically should have under the current system but which was in practice usurped by the courts in Marbury v Madison; the amendment process would be easier and would better reflect popular will, ideally by putting it directly to a national referendum, albeit probably requiring a supermajority to pass; etc). Granted, a real constitutional convention would be a Pandora's box, and "my" constitution is almost certainly not what would ultimately be pulled out of it, so your concerns are fair. But your concerns are also already a reality under the current constitution, so at some point, something's gotta give.

[aknowledgeableperson]

I would hate to see a two party or three party decision on what is constitutional. What happens if there is no agreement. Besides Congress passed legislation with the idea it is constitutional and the president signed it with the idea it is constitutional so that leaves the courts with the final decision. What I wouldn't like are judges being elected or having a popular vote to remain on the bench. Instead have a time limitation to sit on the bench, say 15 years. At the same time have term limits for those in Congress. 3 terms for Senators and 5 terms for Representatives, and say a total of 20 years for a person to serve in Congress so a person can't spend 10 years as a Representative and another 18 as a Senator.

[DColeKC]

I don't see any terrible ideas but I'm not sure we could ever change the constitution substantially without a civil war happening first. That leaves the winning side to make the new rules which wouldn't do us any good either.

[phuqueue]

I'm not sure why a two- or three-party (made up of elected representatives) decision on constitutionality is worse than a decision by an unelected council (which was, in any case, chosen and approved by members of those parties anyway). What would happen if there were no agreement in the legislature over the constitutionality of something? Nothing. As with any other question, if the legislature can't come to a consensus, the measure fails. The legislature wouldn't be publishing legal opinions about what the constitution means the way the courts currently do, it would just be legislating, and its judgment on the constitutionality of its own actions couldn't be unilaterally overridden by the courts. Letting the courts have this final decision on constitutionality is exactly why the other two branches aren't really co-equal with them, particularly given the binding effect that legal precedent sets going forward. SCOTUS usually doesn't just accept or reject the matter that's in front of them as a one-off (though they sometimes claim to be doing this), they lay down broader principles, supposedly based on the constitution, that bind the other branches in the future unless/until SCOTUS itself decides to find new, different constitutional principles in some future case. We usually don't see it that way in practice, and SCOTUS rarely frames their decisions that way -- more often, SCOTUS nominally claims to respect its own existing precedent while introducing new nuance into it so that precedent need not actually control what they decide in the specific case before them (the decades-long attrition of Roe that preceded the Dobbs decision is one obvious example of this process). But the end result is the same. Congress and the president can guess at what they think is constitutional and act within that scope, but the ultimate arbiter is the courts, and the only recourse is a constitutional amendment, something that has only been accomplished 27 times (and is seemingly off the table for the foreseeable future), so is not realistically a card that can be played every time the court hands down a decision that the other branches disagree with.

Frankly I don't believe it's necessary to appoint anybody to police the "constitutionality" of any other branch's actions, or at least it wouldn't be if there were greater democratic control over the government. Voters could remove legislators or presidents (or judges, for that matter) who had clearly overstepped their bounds, and they could directly amend the constitution themselves in a national referendum. I don't think that you need more than that, because ultimately even the constitution itself should reflect the society it is meant to govern, not vice versa, so if voters choose not to punish politicians who have violated the letter of the constitution, that doesn't really strike me as a problem (provided, of course, that voters are genuinely empowered to punish politicians if they so choose). The only real counterargument cutting in favor of a constitution existing above the fray, not bending so easily to popular will, is on civil rights, but the court itself has an extremely checkered history there -- for every Loving, Brown, Roe, Obergefell, etc on the one side, there is a Dred Scott, Plessy, Korematsu, Dobbs, etc on the other -- so I'm not sure the courts are actually any more reliable a protector of such rights than the public.

I don't think term limits are an especially good idea. I think they seem appealing within our current context because we have an electoral system that insulates politicians from the public, so they can just keep leveraging the relatively small proportion of voters who make up their base into general election success. An electoral system more responsive to the actual wishes of the broader electorate would pose a greater challenge to unpopular politicians. And on the other hand, I don't see any reason why voters should be arbitrarily barred from continuing to return to office somebody whose work they are genuinely pleased with. Term limits ultimately destroy institutional knowledge, continuously forcing out people who have built up knowledge and experience in favor of replacing them with new blood that doesn't know what they're doing. The practical problem with this is that these new, inexperienced politicians still need to do something, and if they don't have more experienced colleagues to rely on, they're more susceptible to capture by special interests, which will present them with fully-drafted model laws and a convincing pitch on why they should pass them that obviously leaves out all of the counterarguments they would hear from the opposition, which might be unorganized, vulnerable individuals. I definitely understand the appeal in knowing that the clock is ticking on a Nancy Pelosi or a Ted Cruz, but I think it would be better to build an electoral system that simply makes it easier to dump these people when we hate them and keep them and their experience when we don't. You'd also likely end up with better politicians overall because even those predisposed to govern like a Pelosi or a Cruz under our current system would likely govern differently if they were exposed to that kind of public pressure (though I'd like to believe that Pelosi and Cruz specifically would be out on their asses).

[aknowledgeableperson]

Valid points but I guess I am just old school when it comes to the judicial branch and who has the power to say what is constitutional and what isn't. Face it although many legislators are lawyers that does not mean they are students of the constitution let alone have the time nor patience to go through the legal arguments one way or another. And, of course, with regards to the president there is no requirement of a law background. Yes judges, especially those on the Supreme Court, should be above the politics of the day but the makeup of the current SC is not well diversified. I believe 6 of the members of the past court were Roman Catholic which isn't itself bad but more than a few would be considered Conservative Catholics and members of the Federalist Society which predisposes them to be against abortion no matter what (Collins was very naive to believe what the nominees said about precedent).
With regards to new elected Senators and Representatives there is always to a degree turnover with each election so having new members doesn't bother me that much. Afterall we have the President limited to two terms do we not?

[Highlander]

The only real counterargument cutting in favor of a constitution existing above the fray, not bending so easily to popular will, is on civil rights, but the court itself has an extremely checkered history there -- for every Loving, Brown, Roe, Obergefell, etc on the one side, there is a Dred Scott, Plessy, Korematsu, Dobbs, etc on the other -- so I'm not sure the courts are actually any more reliable a protector of such rights than the public.

Checkered history for certain. But certainly better than the states who have a dismal record of protecting civil rights. The idea of "handing the issue back to the states" (whatever the rights issue is) should create concern for everyone, particularly people who care about the rights of the individual in conservative states.

[phuqueue]

Valid points but I guess I am just old school when it comes to the judicial branch and who has the power to say what is constitutional and what isn't. Face it although many legislators are lawyers that does not mean they are students of the constitution let alone have the time nor patience to go through the legal arguments one way or another. And, of course, with regards to the president there is no requirement of a law background. Yes judges, especially those on the Supreme Court, should be above the politics of the day but the makeup of the current SC is not well diversified. I believe 6 of the members of the past court were Roman Catholic which isn't itself bad but more than a few would be considered Conservative Catholics and members of the Federalist Society which predisposes them to be against abortion no matter what (Collins was very naive to believe what the nominees said about precedent).

I don't think it's really necessary for legislators or the president to have a deep background in constitutional law. Whether individual legislators are especially well-trained on constitutional law or not, it seems very unlikely to me that the legislature as an aggregate body could pass something of questionable constitutionality without the constitutional question being raised and vigorously debated. If it passes anyway, there are any number of ways that could be handled that don't require the courts to be vested with sole authority to approve or reject the law. I won't claim to know what's the best way to handle it, and I doubt there is any single objectively "best" way anyway, but a couple options could include treating a court ruling the same way as an executive veto (i.e., the issue is kicked back to the legislature, which could override the ruling with a supermajority vote) or sending it directly to voters in a referendum to decide whether to overrule the court or not. I'm assuming here that the legislature is acting in good faith in the first place, which I feel is a fair assumption provided that (as I keep harping on) the electoral system used to select that legislature is designed to reflect the will of the electorate. Voters would presumably get rid of a legislature acting in bad faith, and if they don't, then I guess I'm not going to second-guess the will of the voters, especially in a vague hypothetical. So if the legislature is acting in good faith, then it is unlikely that the law in question would be flagrantly unconstitutional (since the constitution itself should be more easily and democratically amendable when necessary, a legislature acting in good faith would pursue an amendment instead of passing an unconstitutional law), and if either the voters or a supermajority of legislators decide that they agree more with the arguments in favor of, rather than against, constitutionality, I don't see why nine judges should be empowered to unilaterally overrule them.

With regards to new elected Senators and Representatives there is always to a degree turnover with each election so having new members doesn't bother me that much. Afterall we have the President limited to two terms do we not?

It's true that some new members join in every election, and definitely having churn within the membership like that is a good thing, but there's a difference between natural churn that occurs as some people lose their re-election campaigns or retire or die or whatever vs. barring voters from returning somebody to office because they've already been there for some arbitrary number of years. I'm not unsympathetic to arguments for term limits under our existing system, where widely unpopular politicians are able to leverage that system to remain in office despite their unpopularity, and many of them are already captured by special interests anyway, but I wouldn't include term limits in a brand new constitution, where I would instead seek to make it easier for voters to get rid of politicians they don't like.

Checkered history for certain. But certainly better than the states who have a dismal record of protecting civil rights. The idea of "handing the issue back to the states" (whatever the rights issue is) should create concern for everyone, particularly people who care about the rights of the individual in conservative states.

Under our current constitution, this is absolutely true. "States rights" was always just a racist dogwhistle in the first place. I wouldn't advocate for kicking any kind of civil rights issue back to the states. I don't really know what the right answer is on this, because it's pretty easy to imagine that the electorate would have been as reluctant as the courts or any other government body to recognize the rights of whichever group of people at whichever point in the country's history, so my whole "give voters a real voice" thing is no guarantee that civil rights won't be trampled anyway. But vesting that power in the courts has been, at best, a mixed bag as well, and as we are seeing now, what the courts can give, they can also take away. That's why I don't see civil rights as a particularly powerful argument in favor of letting the courts act as the final arbiter of "constitutionality," but I won't claim to have the slam dunk solution to ensure that civil rights are always recognized and respected, though I definitely agree that civil rights should be regarded as a national/federal question, not something to be decided state-by-state.

[aknowledgeableperson]

" I won't claim to know what's the best way to handle it, and I doubt there is any single objectively "best" way anyway,"

There really is no "best" way to handle it. Every way has its plusses and minuses. Even our constitution as a whole isn't a perfect document. The debate about what our constitution says and how it is interpreted has been an ongoing debate since this country began its life under the constitution. The one side being it is a living, breathing document that is amendable to current times to the other being look at what is written and what did the framers mean when it was written. (It's been 40 plus years since my business law courses so forgive me if my description may be off a little bit.)

[DColeKC]

The only real counterargument cutting in favor of a constitution existing above the fray, not bending so easily to popular will, is on civil rights, but the court itself has an extremely checkered history there -- for every Loving, Brown, Roe, Obergefell, etc on the one side, there is a Dred Scott, Plessy, Korematsu, Dobbs, etc on the other -- so I'm not sure the courts are actually any more reliable a protector of such rights than the public.

Checkered history for certain. But certainly better than the states who have a dismal record of protecting civil rights. The idea of "handing the issue back to the states" (whatever the rights issue is) should create concern for everyone, particularly people who care about the rights of the individual in conservative states.

Isn't the idea of states rights part of the greater idea that we are a nation made up of many individual states? I understand that allowing states to have more say can have negative consequences but imho it ensures there's a place for everyone in this country. I've always thought that if you want to live life a certain way and avoid certain things, you should be able to do so even if it requires you moving to a less populated state like Montana for example.

If highly progressive thinking/living is your thing, Seattle, LA, Portland etc are great options. I just don't like the idea that every state should be the same and follow the exact same rules.

[phuqueue]

Well the "idea of states rights" is that it eventually became not ok for the right to engage in overtly racist language, so they adopted coded language instead that would still push the same buttons for their constituents, including DColeKC, who just suggested that it would be ok for recognition of fundamental human rights to be decided on a state-by-state basis cuz it'd be pretty crummy if people couldn't be treated as second-class citizens in some states, considering that Seattle is right there if it bothers them that much.

[DColeKC]

Well the "idea of states rights" is that it eventually became not ok for the right to engage in overtly racist language, so they adopted coded language instead that would still push the same buttons for their constituents, including DColeKC, who just suggested that it would be ok for recognition of fundamental human rights to be decided on a state-by-state basis cuz it'd be pretty crummy if people couldn't be treated as second-class citizens in some states, considering that Seattle is right there if it bothers them that much.

No, I suggest if we want certain things established as a right applicable to all citizens of this country, we codify those things using the existing system to do so. Problem is, if our elected officials actually do all these things they won't have anything else to dangle for votes.

Notice how suddenly now the house democrats are going to codify abortion rights full well knowing it has no chance of becoming law? Weird, why wouldn't they have done this over the last 50 years? Could it be because now they will say, "We might not have the senate votes now but if you hit the polls this fall and vote democrat, we can get it done!"

[phuqueue]

I don’t really know what codifying personal rights has to do with “states rights” to recognize (or not) those personal rights. You’re arguing in your first post for the latter but now in your second post seem to be cool with whatever rights as long as they’re codified (at the federal level, I assume, cuz if you’re talking about states individually codifying whichever rights they feel like recognizing then I don’t really think you’ve said anything to refute my previous post).

It’s not very realistic to produce a comprehensive list of rights that we will recognize. That’s why even the Bill of Rights includes a catch-all that basically says “people have other rights too, even if we didn’t list them here” in the Ninth Amendment. If you want to codify whichever rights you can think of, knock yourself out, but that shouldn’t imply that rights that haven’t been codified won’t be recognized, nor should states be empowered to decide which rights they will or won’t recognize.

I don’t really know what your point is about Democrats codifying Roe. Of course they’re going to campaign on it now, but their failure to codify it previously isn’t so they could keep it in their back pocket if Roe ever fell, it’s because Democrats don’t care about their constituents, don’t understand the material effects that the exercise (or not) of government power has on their constituents, and have traditionally welcomed members into the party who were hostile to abortion rights. At what point in the past fifty years do you think they would have codified it? Even the class of 2008 was full of blue dogs, not to mention that Obama himself didn’t bother to prioritize it (despite promising to do so during the campaign). The House can pass it now because they’re down to, I think, just one Dem rep who is anti-abortion, but that hasn’t always been the case. You attribute some kind of cunning to the Dems where really there is just ineptitude and lack of interest.

[DColeKC]

The point I'm trying to make is unless something has been codified on the federal level, it should be up to the states to shape and decide these important laws. What people in Alabama want will be far different than California residents. The idea is that states should be able to operate independently and with very little interference from the federal government unless they try to violate the United States Constitution.

What I'm opposed to is judicial activism. I'm not "cool with whatever" rights but we do have a system in place to overrule the states. Let's use it and until that's done, no one should be shocked certain rights are not universally treated the same state to state.

Point about the democrats not codifying this over the last 50 years is simple, they run on it, lie about it just to gather votes and support. You can't tell me there hasn't been ample opportunity to codify abortion rights. I completely disagree with the republicans position on abortion but if we're waiting for them to do something, it's only going to get worse for abortion rights.

[Highlander]

The only real counterargument cutting in favor of a constitution existing above the fray, not bending so easily to popular will, is on civil rights, but the court itself has an extremely checkered history there -- for every Loving, Brown, Roe, Obergefell, etc on the one side, there is a Dred Scott, Plessy, Korematsu, Dobbs, etc on the other -- so I'm not sure the courts are actually any more reliable a protector of such rights than the public.

Checkered history for certain. But certainly better than the states who have a dismal record of protecting civil rights. The idea of "handing the issue back to the states" (whatever the rights issue is) should create concern for everyone, particularly people who care about the rights of the individual in conservative states.

Isn't the idea of states rights part of the greater idea that we are a nation made up of many individual states? I understand that allowing states to have more say can have negative consequences but imho it ensures there's a place for everyone in this country. I've always thought that if you want to live life a certain way and avoid certain things, you should be able to do so even if it requires you moving to a less populated state like Montana for example.

If highly progressive thinking/living is your thing, Seattle, LA, Portland etc are great options. I just don't like the idea that every state should be the same and follow the exact same rules.

First and foremost, the laws of the states and their courts were made subservient to the Supreme Court of the US for a reason. The states have had generally an abysmal history of rights abuse (e.g., Jim Crow laws in the US after the civil war with watered down versions of these existing well into the latter half of the 20th century). The idea that the constitution is not a living document and that any specific item not covered in the constitution is open to interpretation by the states is not what our forefathers had in mind. That ideology continuously leaves open the door to rights abuse by local government every time there is an attempt to legislate an activity not specifically mentioned in the constitution (e.g. abortion).

Beyond that, I think the concept of states rights as presently used by conservatives is archaic. Look at the lines of political divisions in this country, except for a few outliers, they do not follow states boundaries. Look at the most recent election map by county https://brilliantmaps.com/2020-county-election-map/, it should be clear to everyone that true political division in the US is rural vs urban. There are a few exceptions of course (New Hampshire and Vermont being entirely blue and Oklahoma including their cities being entirely red and the rural black belt of the south along with trendy western counties being blue) but rural vs urban explains the vast majority of the divide in this country. Even NY state has more red counties than it has blue counties. States boundaries are not necessarily good places for drawing cultural and political boundaries. The point is that progressive Portland and Seattle have extremely conservative rural hinterlands and conservative states generally have very liberal cities. The idea should not be that there is a place for everyone but that everyone should have the same rights regardless of where they go.

Additionally, the US may have been just a collection of states for much of its history as population density was low, distances between population centers insurmountable for many and most people never left the neighborhood much less city that they grew up in. That has changed radically after WWII. Many if not most people have lived in multiple states. I've lived in seven states and I really just consider myself an American much more so than a Texan or Kansan or whatever state I am in. While I realize things will change from state to state, human and civil rights definitely should not.

[Major KC Fan]

Amen!

[Anthony_Hugo98]

The idea that the constitution is not a living document and that any specific item not covered in the constitution is open to interpretation by the states is not what our forefathers had in mind.

Isn’t that specifically what the 9th and 10th amendments outline though? Like, to a T?

[DColeKC]

Checkered history for certain. But certainly better than the states who have a dismal record of protecting civil rights. The idea of "handing the issue back to the states" (whatever the rights issue is) should create concern for everyone, particularly people who care about the rights of the individual in conservative states.

Isn't the idea of states rights part of the greater idea that we are a nation made up of many individual states? I understand that allowing states to have more say can have negative consequences but imho it ensures there's a place for everyone in this country. I've always thought that if you want to live life a certain way and avoid certain things, you should be able to do so even if it requires you moving to a less populated state like Montana for example.

If highly progressive thinking/living is your thing, Seattle, LA, Portland etc are great options. I just don't like the idea that every state should be the same and follow the exact same rules.

First and foremost, the laws of the states and their courts were made subservient to the Supreme Court of the US for a reason. The states have had generally an abysmal history of rights abuse (e.g., Jim Crow laws in the US after the civil war with watered down versions of these existing well into the latter half of the 20th century). The idea that the constitution is not a living document and that any specific item not covered in the constitution is open to interpretation by the states is not what our forefathers had in mind. That ideology continuously leaves open the door to rights abuse by local government every time there is an attempt to legislate an activity not specifically mentioned in the constitution (e.g. abortion).

Beyond that, I think the concept of states rights as presently used by conservatives is archaic. Look at the lines of political divisions in this country, except for a few outliers, they do not follow states boundaries. Look at the most recent election map by county https://brilliantmaps.com/2020-county-election-map/, it should be clear to everyone that true political division in the US is rural vs urban. There are a few exceptions of course (New Hampshire and Vermont being entirely blue and Oklahoma including their cities being entirely red and the rural black belt of the south along with trendy western counties being blue) but rural vs urban explains the vast majority of the divide in this country. Even NY state has more red counties than it has blue counties. States boundaries are not necessarily good places for drawing cultural and political boundaries. The point is that progressive Portland and Seattle have extremely conservative rural hinterlands and conservative states generally have very liberal cities. The idea should not be that there is a place for everyone but that everyone should have the same rights regardless of where they go.

Additionally, the US may have been just a collection of states for much of its history as population density was low, distances between population centers insurmountable for many and most people never left the neighborhood much less city that they grew up in. That has changed radically after WWII. Many if not most people have lived in multiple states. I've lived in seven states and I really just consider myself an American much more so than a Texan or Kansan or whatever state I am in. While I realize things will change from state to state, human and civil rights definitely should not.

The issue is we can't all agree what should and shouldn't be rights. How people want to live in rural communities is vastly different than urban and there's nothing wrong with that. If a state takes something too far, like outright banning Abortion than perhaps that's the catalyst for our federal government to codify the right properly. Until that happens and until we all can agree on what rights are universally accepted, states can make the rules as they see fit.

I think it is a imperfect system but it sure beats all major decisions being made at the federal level.

I want to protect states rights and the idea that two states in one country can be greatly different and feature very different ways of life. People are quick to say they'l leave this country if this and that happens. Surely they can manage to move to a different state if it's better for their way of life.

And let's face it, as the urban areas continue to swell, the rural voter gets less and less powerful. They'll likely not have much of a say within the next 100 years.

[grovester]

So I assume you're good with filibuster and gerrymandering reform, so we actually get a good democratic representation of what people want?

[droopy]

Gerrymandering is the biggest and most misunderstood enemy of democracy.