History

Are Conservatives Allowed to Amend the Constitution?

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Slate's Dahlia Lithwick and historian Jeff Shesol published an article on Friday criticizing the Repeal Amendment—which would allow the states to repeal federal laws or regulations if two-thirds of the states so voted—as evidence of a "conservative mission to destroy the Constitution in order to save it." The piece rests largely on the authors' claim that "Traditionally (and what is conservatism if not respect for tradition?) conservatives have railed against 'Constitutional tinkering,' while progressives have proposed all manner of amendments—some successful (women's suffrage), others not (equal rights for women)." In other words, any conservative that supports the amendment is a hypocrite.

Here's the trouble: This simplistic narrative bears little resemblance to the actual historical record. As George Mason University law professor David Bernstein points out, conservatives and libertarians played central roles in drafting and ratifying the very constitutional amendments that Lithwick and Shesol cite as "progressive":

For example, Senator George Sutherland of Utah, later to gain fame as a "conservative" Supreme Court Justice, introduced the women's suffrage amendment in the Senate…. With regard to the Equal Rights Amendment, it was drafted by Alice Paul and the National Woman's Party with advice from, you guessed it, George Sutherland. While some feminists who were also progressives supported the ERA, individuals who primarily considered themselves progressives, such as reformer Florence Kelley, opposed the ERA because it made no exception for "protective" labor legislation that only applied to women. Prominent Progressives like Felix Frankfurter condemned "the Alice Paul theory of constitutional law, which is to no little extent a reflex of the thoughtless, unconsidered assumption that in industry it makes no difference whether you are a man or woman."

Lithwick and Shesol also assert that conservatives "in the 1920s and 1930s" complained about the 14th and 15th Amendments to the Constitution. But of course it was conservative and libertarian judges and lawyers who turned to the 14th Amendment at that time to protect property rights and liberty of contract from government abuse while Progressive hero Louis Brandeis favored repealing the 14th Amendment outright. And let's not forget progressive President Theodore Roosevelt, who favored repealing the 15th Amendment since the black race was "two hundred thousand years behind" the white and therefore not yet ready to vote.

Furthermore, the major civil rights victory of that era, the Supreme Court's 1917 decision in Buchanan v. Warley, relied on the 14th Amendment's protection of property rights to strike down a residential segregation law. That case was argued and won by libertarian NAACP co-founder Moorfield Storey. As Bernstein observes, the Buchanan decision "met with general condemnation in Progressive circles."

The Repeal Amendment may or may not succeed in limiting government overreach, but there's nothing wrong with thinking it's worth a shot.

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  1. Dahlia Lithwick is the poster child for smug self-unaware ignorant bias masquerading as “journalism”.

    1. Yup. She is the worst.

  2. Since the Constitution contains within its original text a mechanism for amendment, it is silly to assert that employing that mechanism somehow shows insufficient reverence for that original text.

    It’s like saying that it’s conservative to own a car, but not conservative to drive it.

    1. Well, the Constitution contains a mechanism for declaring war when you want to blow shit up, too, but when was the last time a conservative did that?

      1. 1941.

        We havent had very many conservatives in congress since then.

      2. That was intended to be facetious, by the way; I completely agree with Fluffy’s point.

    2. Agreed.

      But I’m not understanding the reason why they want the amendment. Can’t Congress create a bill that says X will be repeal, and if it passes, it’s repealed?

      1. No, the state legislatures could vote for repeal in sufficient number and federal legislation would be repealed. Or, we could just have one chamber of congress represent the States in the legislative process like the Founders intended. Repeal the 17th Amendment instead.

        1. Hum. I’m not sure I like that idea. The state and the people of the state already get representation in federal government. If they are not doing what’s right for the state and people of that state, they should be voted out. I’d rather go back to the day when Senators are elected by the states themselves.

          1. Pre-17th the state governments chose the Senators. So the Senate was answerable not to the people as with the House, but to the states themselves.

            The 17th removed a major check on federal power and transformed this country from a representative republic to a representative democracy.

            Do you think that unfunded mandates would pass so easily if the state governments tasked with paying the bill were represented in the Senate?

            Do you think federal blackmail against the states, like putting conditions on federal highway funds, would pass the Senate if the Senators represented the state governments that were to be blackmailed?

            1. “”Do you think federal blackmail against the states, like putting conditions on federal highway funds, would pass the Senate if the Senators represented the state governments that were to be blackmailed?””

              That blackmail scheme is never up for a vote. The feds say do it or else. What would they vote on?

              1. Here’s the first example that comes to mind.

                http://en.wikipedia.org/wiki/N…..ct_of_1984

              2. “That blackmail scheme is never up for a vote. The feds say do it or else. What would they vote on?”

                The blackmail comes from Congress in the form of a rider on the appropriations bill that says something to the effect of “no state that does not do X, can receive highway funds”. That is all the 55 mph was. Any state could have ignored it. But if they did, they lost all their federal highway funds.

            2. Bingo. The 17th Amendment is really where our troubles started. Do you think the state of Connecticut would have allowed Chris Dodd to be the Senator from Countrywide or Alabama to become the Senator from Big Hollywood?

              Since Senators have to run statewide campaigns they are the worst about selling out to big interests looking for government handouts. The 17th Amendment basically destroyed the Senate.

              1. I meant Alabama to allow Hal Heflin “who was a big force behind modern copyright law”

          2. ” I’d rather go back to the day when Senators are elected by the states themselves.”

            Me too. If states are swamped by Federal overreach then returning to that arrangement seems like a much tidier way of fixing the problem. Not an easy sell, but neither is the Repeal Amendment.

          3. I’d love to repeal the 17th as well. Trouble is, repeal would not be enough–you’d have to write very definite *new* constitutional language to return the Senate to being the House of the States.

            Because well before the 17th’s ratification, progressive-types had passed laws in many states that pretty much bound the state legislatures to rubber-stamp the victor of a mandated popular vote. If by mammoth effort the 17th could be repealed, you’d need to either have those laws repealed as well, or have the repealing amendment mandate that the selection had to be by the state legislature independent of any other election.

            1. No legislature can bind a future legislature…

        2. I prefer bright lines between federal and state powers. I think this amendment would blur them more. I wouldn’t want state legislatures to ignore state law problems because of partisan politics of federal legislation they don’t like. It seem it would be a distraction from their intended job. I could easily see a situation where state budgets were not being passed because state politicans are too concerned with DADT or some other federal hot topic.

          1. And *this* is why the Amendment process is a good one: We’re actually talking about the wisdom of changing the Constitution. Proponents give their arguments, critics give theirs and we all decide if it’s a good idea or not.

            Contrast this with the progressives’ preferred method of using the judiciary to do the same thing, where one – or at most a handful – of insular judges make the change.

            I prefer the former method, myself.

  3. Going through the amendment process to change the Constitution is sooooo 1800’s. The proper way to change the Constitution is to pass un-Constitutional laws and have enough political hacks on the Supreme Court willing to mangle the interpretation of the Constitution to justify the new law.

  4. Conservatives aren’t allowed to amend the constitution. Libertarians are.

    Please drop the “and” bullshit. I’m sick of the Right, and I blame Jonah Goldberg for making us all fucking chummy. That doesn’t mean I want to go to the Left.

    1. That book, “Liberal Fascism” was probably a well calculated attempt to destroy libertarianism as an independent political movement.

      1. Re: Tristan Band,

        I read the book, and I did not get that very impression, although Goldberg’s contempt for Libertarianism is well-known. He does overstate his case against Progressivism a bit too much, as not all progressives were proto-fascists.

        1. Plus, some of the most important proto-libertarians were part of the Progressive movement or partly inspired it. Plus, he draws the wrong conclusion; if modern liberalism resembles fascism, that doesn’t make liberalism left-wing. It makes it right-wing. He also plays too fast and loose with labels.

          1. By “liberalism”, mean what passes for it in America.

          2. Re: Tristan Band,

            Fascism is not right-wing, it’s instead yet another iteration of collectivism (i.e. socialism.)

            1. Not all forms of collectivism are left-wing.

              1. Re: Tristan Band,

                Then let’s define what we mean, otherwise we’ll be dancing around each other forever. Let’s say there’s two competing (and mutually exclusive) political philosophies: Collectivism and Individualism. Whether collectivists fancy themselves “left” or “right” is meaningless. Same with individualists.

                1. To Mexicano Viejo,
                  You are right on. “Left” and “right” are the same side of the spectrum: greater state control. Libertarian is the other side. Either you believe in the sovereignty of the individual or you think the “greater good” of “the group” should dictate policy.

                  Those are the oppositional points on the spectrum.

                2. Calling the philosophy “Statism” instead of “Collectivism” probably gets the point across more clearly.

                  1. Calling the philosophy “Statism” instead of “Collectivism” probably gets the point across more clearly.

                    Yeah…isn’t a family a form of collectivism? Or a corporation? A church? A Wednesday night bridge club? A libertarian Blog? and my favorite if only because it pisses off Old Mex: The right to an inflation free currency?

                    also my +10 was meant for this comment:

                    shorter Tristan|12.6.10 @ 1:33PM|#

                    The left-right political spectrum means whatever the fuck I want it to mean!

                  2. Calling the philosophy “Statism” instead of “Collectivism” probably gets the point across more clearly.

                    Those who call themselves “Collectivists” like to believe that those who call themselves “Individualists” consider themselves to be islands, and that they are opposed to any collective action. This straw man argument allows those who call themselves “Collectivists” to justify to themselves the use of coercive force to get those who call themselves “Individualists” to engage in collective action.

                    So yes, “Collectivists” are indeed “Statists”, they just dress it up in the guise of cooperation.

              2. The left-right political spectrum means whatever the fuck I want it to mean!

                1. I actually define left and right the way that Rothbard did in his piece “Left & Right: The Prospects for Liberty”. Basically, conservatism involves hierarchy, theocracy, statism, collectivism, tradition, mysticism, etc (what conservatism has historically meant, even by more benign proponents like Burke). To the Left, liberalism (as is properly understood) which stands for liberty, separation of church and state, individualism, the free market, reason and science, abolition of privilege. Socialism, then, is a confused middle-of-the-road movement: trying to achieve liberal values through conservative means.

                  This is what “Left” and “Right” used to mean. It is still what it means, even if no-one acknowledges it. As for Statism vs collectivism, both are separate but mutually dependent phenomenon.

                  That make any sense for you?

                  1. This is what “Left” and “Right” used to mean. It is still what it means, even if no-one acknowledges it. As for Statism vs collectivism, both are separate but mutually dependent phenomenon.

                    So you are actually stuck in 19th century, along with the definition Rothbard offered for the Left-Right spectrum when it was relevant?

                    That makes a whole lot of sense. We are still struggling with the Divine Right of Kings, landed aristocracy, Mercantilism, and an imperialist Papacy. And be on the lookout for smallpox while you’re at it.

                    And whose brand of Socialism do you refer to as a “confused middle-of-the-road” movement? Owens’? Saint-Simon’s? Marx’s? Bakunin’s? Gentile’s?

                  2. You really don’t know anything about Burke, who had a big mutual admiration thing going with Adam Smith. And by extension you really don’t know anything about conservatism.

                2. +10

                  1. RE: joshua corning: Was that for me, or for someone else?

                    1. RE: joshua corning: Was that for me, or for someone else?

                      It was for your troll:

                      shorter Tristan|12.6.10 @ 1:33PM|#

                      The left-right political spectrum means whatever the fuck I want it to mean!

                      More specifically it was meant to criticize the whole fucking two dimensional political spectrum and the misuse of the word liberal.

                  2. Alright, point taken.

            2. It’s the Nockian split between state power and social power, and all of the variants that attempt to mask that basic distinction.

  5. Slate’s Dahlia Lithwick and historian Jeff Shesol published an article on Friday criticizing the Repeal Amendment ? which would allow the states to repeal federal laws or regulations if two-thirds of the states so voted ? as evidence of a “conservative mission to destroy the Constitution in order to save it.”

    The Repeal Amendment is not needed, all you need is nullification, which IS constitutional. That renders the criticism from these two nitwits moot.

    1. I’m for the Repeal Amendment on balance, but I worry that it would weaken nullification ability even more. I can’t think of a valid current example, so I’ll use a 150-year-old one: If Illinois decided to ignore the Fugitive Slave Act, but a “Repeal Amendment” challenge failed, could the Supreme Court say that Illinois’ nullification was void, and use Federal authority to return fugitive slaves?

      I suppose it’s moot, because States have used nullification so rarely that it’s not that meaningful, but it would seem even less likely to be used if there’s a Repeal Amendment.

      1. Nullification is used so rarely that i don’t see it as much of a loss.

      2. Re: Wesley,

        I suppose it’s moot, because States have used nullification so rarely that it’s not that meaningful, but it would seem even less likely to be used if there’s a Repeal Amendment.

        That’s not true: States have relied on nullification MANY times, including not obeying Prohibition (both alcohol and drug), not wanting Real ID, etc. There are so MANY instances of nullification even in modern times that would make the head of the head of the SPLC spin like a top.

    2. I’m not seeing where nullification is Constitutional. Do you have the value-added version?

  6. In other words, any conservative that supports the amendment is a hypocrite.

    That’s like saying that originalism equates to supporting slavery and opposing women’s suffrage.

    Textbook straw man argument.

  7. “The piece rests largely on the authors’ claim that “Traditionally (and what is conservatism if not respect for tradition?) conservatives have railed against ‘Constitutional tinkering,’ while progressives have proposed all manner of amendments?some successful (women’s suffrage), others not (equal rights for women).” In other words, any conservative that supports the amendment is a hypocrite.”

    Total BS.

    What conservatives complain about is liberals “creatively” reinterpreting the Constitution to effectly amend it without actually having to go through the amendment process to do so.

    Getting an actual amemdment passed requires getting a substantial majority of the public to agree with what you want to do via an amendment.

    Liberals know that they can’t do that so they have gone the route of getting activist judges appointed to the federal courts and Supreme Court to claim the “living” Constituion actually menas whatever they want it to at any point in time.

    1. Another favorite liberal trick is to creatively reinterpret the Constitution in some bizarre way. And then when conservatives try to change it back accuse conservatives of being ‘activists’ with no respect for precedent.

      No one does double speak and self deception better than liberals.

      1. No one does double speak and self deception better than liberals partisans.

        The liberals do not have a monopoly on that game. When it comes to dirty words, or law enforcement, the other team does pretty good too.

    2. Another favorite liberal trick is to creatively reinterpret the Constitution in some bizarre way. And then when conservatives try to change it back accuse conservatives of being ‘activists’ with no respect for precedent.

      No one does double speak and self deception better than liberals.

        1. Isn’t it wonderful when people can come to agreement twice?

      1. In a way, it’s quite the homage that liberals feel the need to adopt the conservative charge of “judicial activism.” It’s been an effective attack for the right precisely because it rings true with most people. Of course, I suspect that part of the reason is to muddy the waters and confuse voters as to what may constitute judicial activism.

        1. Strange that the text of the Constitution is perpetually open to judicial interpretation yet to ever tamper with one of those interpretations is tantamount to heresy.

          1. Yes, what liberals advocate is a “living constitution” but “dead precedent” (at least the precedents they like). Liberals are entirely utilitarian in their arguments. You cannot expect them to be logically coherent in their positions.

  8. Blacks have been well-trained for voting purposes.

  9. Repealing the 17th Amendment would be better.

    The liberal/progressives believe we have a WikiConstitution that they can change at will.

  10. Justifying your personal views even if it requires rewriting history.

  11. Conservatives and Libertarians used the 14th amendment to protect economic liberties, which are essential to a human being’s pursuit of happiness. Which is troubling to now hear Conservatives and “Tea Partiers” hoping to repeal not only the 14th amendment, but the 17th amendment, and having the states veto federal laws. We have been down this road in our history before, and the idea that the states can protect us from the federal government is a lie that will be used by the state governments to run roughshod over our rights. The biggest threats to our liberties are both the state and federal governments, so it’s necessary that the 14th amendment limit the power of both. More importantly, it’s necessary that the people, and not the states, be represented in the Senate. That is, IMO, a better safeguard to our liberties in the long run.

    1. What are you talking about? Who wants to repeal the 14th Amendment besides your strawmen?

      1. Lindsey Graham, John Kyl, Mitch McConnell, and John Boehner are now strawmen.

        1. citation needed.

      2. It has become fashionable among anti-immigration advocates (including some politicians) to advocate repeal of the 14th Amendment (or at least Section 1) to get rid of “birthright citizenship.”

        1. The question is whether such an effort would result in eliminating the 14th or just removing the offending provision, as birthright citizenship is not terribly germane to the balance of power between states and feds.

        2. “Clarification” would be a better term. The people who wrote the 14th would spin in their graves if they could see what mischief the courts have done in “interpreting” their words.

          1. Maybe, maybe not. The Declaration of Independence actually bitches about the King prohibiting foreign immigration in order to control the size of the colonies. The 14th amendment happened somewhere in between “too few” and “too many”.

  12. while progressives have proposed all manner of amendments?some successful (women’s suffrage), others not (equal rights for women).” In other words, any conservative that supports the amendment is a hypocrite.

    Dahlia forgot about the three big horseapples progressives dropped in America’s lap in early 20th century: The 16th, 17th, and 18th Amendments.

    1. And the Progressives were hardly left-wing. This was widely agreed until Jonah Goldberg’s self-serving book ruined this distinction. Read Rothbard’s “Left & Right: The Prospects for Liberty”.

      1. Actually, left and right are relative to the situation, and have always been. The reason why the Nazis have been considered right-wing has nothing to do with where they’d fit on the American spectrum. Rather, it’s a reflection of where they fit in 1930’s Germany.

        They were right-wing because they were nationalist, and their Communist opponents were internationalists. But the Nazis were also for animal rights, conservationism, and the welfare state.

        1. The spectrum does not work this way in reality. and has nothing to do with internationalists or a comparative analysis.

          The left is unipolar and everything else radiates from it and is assumed to be “right wing”

          One should note that the whole system was invented by the left to serve its own purposes. Anyway who is using it and is not left wing is doing themselves a disservice.

        2. the Nazis were also for animal rights

          Except for the people they considered to be animals, but whatever man, keep playing the “those things where the Nazis agreed with me were flukes but those things where they agree with you are significant signs of deep and meaningful similarities” game.

      2. And the Progressives were hardly left-wing. This was widely agreed until Jonah Goldberg’s self-serving book ruined this distinction. Read Rothbard’s “Left & Right: The Prospects for Liberty”.

        So no true Scotsman Progressive would ever infringe on the people’s liberties? Good to know.

        Meanwhile, back in 1912, the Progressive Party’s official platform included: direct primaries, women’s suffrage, regulation of interstate commerce, the income tax, and regulation and/or prohibition of the manufacture and sale of alcohol.”

    2. I’m not so sure I would include William Howard Taft as a progressive, unless the 16th amendment was his only progressive indiscretion. But if he is a progressive in your eyes, I would ask “Have we ever had ANY non-progressive presidents?”

      Also, it is interesting that you mention the 17th amendment on this blog since this is a case where the federal government(in this case the Senate) was opposed to the 17th amendment and states were the ones who moved to get it adopted. In fact it still wouldn’t be adopted if many of those states hadn’t gone to direct election of the senators for their states. These senators were the ones that finally made the adoption come about.

      As far as prohibition goes, I don’t think that the progressive women (those who thought women should have the vote) or the KKK or the IWW are a likely pairing but this is one amendment that had lots of support on both sides of the political continuum.

      1. Tubby Taft also expanded the ICC (Mann-Elkins), added postmasters to the civil service, and created the Bureau of Labor so no, he had other doings beyond the 16th Amendment. As for a non-Progressive President, Jefferson comes to mind, in that he at least appeared to feel some measure of anguish over expenditures of the people’s money.

        Nothing factually wrong with that. Problem is, the 17th Amendment accomplished nothing more than creating a second House of Representatives that is subject to the whims of the people, but whose members get to sit longer than the President.

        Self-righteousness makes strange bedfellows. Frances Willard, the president of the Woman’s Christian Temperance Union made speeches to the effect of “if you don’t support Prohibition, then a big, drunk, black male might kick in your door and rape your white women at any moment.” What Klan sympathizer couldn’t get behind that sentiment? As an added bonus, it gave the Klan another reason to shake their fists at German Lutheran and Irish Catholic immigrants who were “takin’ their jerbs.”

        As for the IWW, they never established an “official” position in favor of prohibition, however, to quote some of their early 20th century literature “you can’t fight booze and the boss at the same time.”

  13. Too much power should never be possessed by the few, it should always be shared by the many. When power is overly concentrated, the invariable and inevitable result is tyranny and disenfranchisement.

    This is why Leftists/liberals/Progressives (or whatever the latest dishonest euphemism is that they have chosen to hide behind) always seek to concentrate power. They never seek to diffuse it. A powerful institution can be infiltrated and subverted, the people as a whole cannot. Oh, they’ll hoodwink a segment of the public, but never more than around 20%.

    So naturally they are opposed to anything that will undermine the power of the federal government. They want to make sure that all of the eggs are in one basket so they can steal it.

  14. As much as I love the repeal the 17th stuff, it will never happen. Too many stupid people out there who will believe the media line that direct election is a divine thing and that anyone who is against it is against universal suffrage and an elitist.

    Most normal people already think that their state governments are superfluous anyway and would never buy the line that it would make them stronger, they’d just see the repeal amendment as an attempt to take away their voting rights and neuter the feds for no good reason.

    But I really want to be wrong on this one. It would be a great day in America if it were to happen.

  15. In 1961, D.C. was given three votes in the Electoral College, by amendment to the Constitution. In the last ten years or less, Puerto Rico has tried to get a federal court to hold that it should have Electoral College representation under the Constitution we currently have, and Congress has made noise about granting D.C. a seat in the House (plus one in Utah, for partisan balance). To pundits like Lithwick, that’s how you show fidelity to the Constitution — don’t “amend” it or anything, just get somebody to say it already says what you want it to say. If you want to actually amend the Constitution, you’re a hypocritical meddler. Which is kind of f’ed up.

  16. I wholeheartedly agree with you that conservatives and liberals have made successful and unsuccessful attempts to amend the constitution.
    I don’t know why anyone would want to trade the tyranny of the federal government for the tyranny of the state government though.
    I would suggest that if we want an amendment to overturn federal laws that some among us think overreach, then instead of giving the power to government (whether federal or state), we should pass an amendment that achieves the same by saying that any law passed by the federal government could be overturned by a 2/3 majority of the US voting population.
    People should have the power not governments!
    By the way, I don’t like the idea of a minority running things and this amendment as it is currently written would allow a little more than 30% of the country to make the laws.
    The smallest 34 states in population comprise about 95 million people and the other 16 states make up the remaining 215 million.
    As you can see from this, I am not giving DC any representation. My personal belief in this matter is that while I believe in ‘No taxation without representation’, we should stop taxing DC residents.

    1. I don’t know why anyone would want to trade the tyranny of the federal government for the tyranny of the state government though.

      For the reasons James Madison described. If you don’t like your state government you can move to another state, but if you don’t like the federal government (and it doesn’t like you) then you’re screwed.

      People should have the power not governments!

      The only way people can exercise their power is via some sort of government. That we will have government is not debatable. What’s up for discussion is what sort of government it will be.

      I don’t like the idea of a minority running things and this amendment as it is currently written would allow a little more than 30% of the country to make the laws

      No, it would not. It would allow that 30% minority of the country to be free of laws passed by the majority in other parts of the country, not to make laws.

      There would be nothing to stop the hapless saps in California from imposing all sorts of stupid laws on themselves, but this amendment would make it more difficult for them to impose those stupid laws on the people of Wyoming.

  17. “For the reasons James Madison described. If you don’t like your state government you can move to another state, but if you don’t like the federal government (and it doesn’t like you) then you’re screwed.”

    If you don’t like the federal government you have the same two options. You can move (in this case to another country) or you can stay and use your vote and activism to change things.

    “The only way people can exercise their power is via some sort of government. That we will have government is not debatable. What’s up for discussion is what sort of government it will be.”

    Why isn’t it debatable? But even so, why not a direct democracy which rids us of both state and federal bull.

    “No, it would not. It would allow that 30% minority of the country to be free of laws passed by the majority in other parts of the country, not to make laws.”

    Actually, I was wrong when I made this statement. It should have read a little over 15% could make the decisions. I still believe that making a supra-deliberative body for the Congress not only adds more complexity but more unworkability.

    Thanks but I’ll still vote for direct democracy!

  18. If you don’t like the federal government you have the same two options. You can move (in this case to another country)

    No, you cannot. Countries do not allow people to move to them without permission. They are not comparable to states within the US.

    Why isn’t it debatable?

    Because of the track record of people living without government.

    why not a direct democracy which rids us of both state and federal bull.

    How does direct democracy rid us of both state and federal bull?

    I was wrong when I made this statement. It should have read a little over 15% could make the decisions.

    You’re still wrong whatever the percentage. That 15% you think would be making the decisions would not be doing so. They would not have the power to make law, only to negate it.

  19. Well, yes there are some countries you can’t go to. Just like there are some neighborhoods here you can’t move into.

    I would suggest that it isn’t the lack of government that is the problem it is the size of the government. Give me a few track records of people under 1000 that didn’t do well without government.

    If ALL bills were voted on directly there would be no need for a Congress. That gets rid of a lot of bull right there.

    When Congress makes a bill that is a law. When it repeals that law that too is law even if you want to say they only negated it.

    All these are relatively small points though. This is amendment is not really well thought out.

    Say you want to get rid of Obamacare. All it would take is for 34 states to vote to negate it. Then for those 34 states there would be no Obamacare but in the other 16 states there would be. Now Obamacare has to be funded. So does this mean that those 34 states would not have to pay into it? I would assume that it does. In the years to come those 16 states have a completely state run health care system and only serves those who live in those 16 states. You go on vacation to one of those states and get shot in a hold-up but can’t be treated because you aren’t covered in that state. Sorry that is a worst case scenario.

    Let’s take something more sensible. There are a number of states that are not financially well off at present. Those states negate the Defense Department budget. They don’t have to support the half of our discretionary budget that goes to our defense. In this case that would be borne by the remaining 16 states?

  20. yes there are some countries you can’t go to. Just like there are some neighborhoods here you can’t move into.

    No, those two things are not at all “just like” one another. The neighborhoods here you “can’t” move into are neighborhoods you can move into, legally speaking. You may not want to, you be not be able to afford to, but you are entitled to move there if you wish. But you cannot just decide one day “I think I’ll go live in Switzerland”. You need the consent of the Swiss government for that to happen.

  21. Say you want to get rid of Obamacare. All it would take is for 34 states to vote to negate it. Then for those 34 states there would be no Obamacare but in the other 16 states there would be. Now Obamacare has to be funded. So does this mean that those 34 states would not have to pay into it? I would assume that it does. In the years to come those 16 states have a completely state run health care system and only serves those who live in those 16 states. You go on vacation to one of those states and get shot in a hold-up but can’t be treated because you aren’t covered in that state. Sorry that is a worst case scenario.

    I guess you think I’m supposed to be upset and outraged by this scenario, but frankly my dear, I don’t give a damn.

    1. Nope. I wasn’t trying to get anyone upset or outraged and would be surprised if one extreme example created this. This example and the one that shows how the full cost of the US defense might have to be borne by 16 or fewer states were just examples to show that this amendment as written is a blunt instrument (instead of a more precise or complex one)that might have unintended consequences.
      Maybe a better example would be a trillion dollar bailout of the oil industry attached to a 50% reduction of all income tax rates. In this case the 34 states that vote to negate the bill would continue to pay the higher income tax rates.
      If this doesn’t work just think of any poison pill that Congress could put in a law which makes the negation at least as bad if not worse than the original law.
      As a neo-libertarian, I’m nowhere near as sanguine about trusting big government as you are and so I’m trying to show where this amendment could be improved.

  22. “…why not a direct democracy…”

    Because direct democracy is unwieldy in a polity small enough where all voters at least know of each other, much less a sprawling nation of 300 million. It’s a gimmick and structurally potentionally worse for personal liberty than the supposedly constitutionally limited representative government we currently have.

  23. It’s perfectly appropriate for conservatives and libertarians to propose and promote constitutional amendments. Ignoring the constitution is the hallmark of the progressive agenda.

  24. The problem with the amendment to allow two-thirds of the States to rescind a specific federal law or regulation is that it is retail when the problem is wholesale. We need to redress the underlying distortions of the Constitution which have allowed the federal government to usurp the States’ original constitutional powers, not nitpick at separate individual usurpations.

    What we really need is the ability to amend the Constitution to restore the original constitutional structure which limited the federal government. However, this is difficult to achieve when Congress holds a monopoly on initiating constitutional amendments.
    A better solution than the proposed “repeal amendment” is an “amendment amendment” which gives the States the ability to initiate constitutional amendments without the cumbersome convention presently required by Article V. This will allow grassroots constitutionalists to effectively devote their resources to initiating amendments carefully drafted to achieve the restoration of the original constitutional structure, instead of expending effort on particular laws or regulations.

    See http://www.timelyrenewed.com for more specifics on this proposal.

  25. Not a bad idea, Timely. Actually, if I remember correctly, the founding fathers thought that the citizens of the US would get together every 20 or so years and completely rewrite their Constitution.
    I liked your website too.

  26. sives supported the ERA, individuals who primarily considered themselves progressives, such as reformer Florence Kelley, opposed the ERA because it made no excep

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