–by Sebastian
I read Kevin Drum almost every day, and today he hit a bunch of issues that I think are worth thinking about. One of them is this one. It talks about Obama's vexing about face on medical marijuana. In light of recent discussions, it strikes me that this is a perfect area for federalism. The federal government could choose to take itself out of the field and let states deal with it. It is a highly contested area, with lots of possible solutions. Why not let different states try different things? If you want to live in a marijuana-free state, fine. If not, also fine. Is marijuana really so important that we need a broad national strategy to deal with it?
Instead, look what is happening:
As fear of federal prosecution lessened, more states began adopting or considering medical marijuana laws; where the practice was already legal (as it was in California), there was a boom in the marijuana trade. Operating in a grey market between the federal prohibition and untested state rules, dispensaries of all kinds operated without much supervision.
….Though law enforcement officials could not point to any commensurate increase in crime, all that activity made the federal government uneasy: It realized that tacitly allowing states to regulate medical marijuana had far-reaching consequences that it wasn’t entirely comfortable with
Now isn't that interesting. The feds couldn't find any evidence of the alleged purpose for regulating marijuana (crime) but nevertheless they felt that letting it out of their control made them uneasy. So….the Obama administration decided to reassert their authority and crack down. That is a classic centralized government fear and a classic centralized government response. It doesn't have to be that way. We could have states that decide they don't want marijuana and other states that decide they don't care. Like many things, marijuana just isn't important enough to require a national government response. You could have your opinion on it, and I could have mine, and different states could have legislation that dealt with it differently.
That is the vision our United States was founded on, and we could probably use a little more of it.
With one minor quibble, I’m in complete agreement. Not just regarding marijuana, but regarding drug laws generally.
The quibble:
That is the vision our United States was founded on
I’m not sure there was anything like unanimity among the founders on how weak or strong the federal government should be.
I’m not sure they have any particularly clear guidance to offer on the topic. As far as I can tell, they were as confused about it as we are.
Me too. I hate the war on drugs. Washington is a medical marijuana state. I’m not sure what the law says exactly but there are people who have licenses to grow it.
I think we can agree that banning marijuana was not part of the US founding vision. 😉
Some of the founders seem to have grown their own supply of weed.
On the very narrow topic of marijuana I’d agree that most of it should be left to the states, although the feds could set some minimum standards. A possible line of division could for example be the THC content giving right of regulation to federal agencies, if a certain level is exceeded*. I leave the topic of interstate commerce out here since that is a question of its own.
*Over here there was for a long time a total ban on planting hemp. These days hemp may be planted provided the THC content does not exceed a very low level (roughly: if a joint has to weigh 100 pounds to get high, then the state assumes that you do not grow the stuff for hallucinogenics).
“I’m not sure there was anything like unanimity among the founders on how weak or strong the federal government should be.”
While that IS technically true, it’s worth remembering that vast range of opinion covered the gamut from something which would be today attacked as tantamount to anarchy, to something an actual anarchist would be genuinely comfortable with. Even Hamilton, who was something of a monarchist, never ventured to suggest a federal government with as comprehensive power over the lives of individual citizens as we have today.
Transplant any of the founders to today’s US, and they’d shortly be imprisoned for seditious conspiracy.
As for those who though Obama was seriously going to permit semi-re legalization of even pot, what’s that Glen Reynolds is always saying? Oh, yeah:
“Another rube self-identifies.”
Two reasons that I can think of for medical marijuana not being good issue for federalism:
1) drugs already cross borders very easily, so allowing the legalization of marijuana in only some states would still significantly affect the black market in other states; those other states would be unhappy.
2) we don’t have state drug laws or agencies, we have the FDA; every state that chooses to legalize marijuana would have to fund a new agency to regulate it. State-by-state regulation of marijuana wouldn’t benefit from the economy of scale that the FDA does.
I guess you could have the FDA step in and regulate on behalf of those states that do want to legalize medical marijuana, but then you have people upset that federal money is being spent on it.
The thing about it is, there is already a very significant marijuana trade in all 50 states (up to and including the very hard to get to states of Alaska and Hawaii). The nationalization of drug laws hasn’t stopped that.
Further we have an excellent example of the whole thing in booze both in the negative example of the Prohibition, and the positive example of dry counties now.
I’m not sure why you think we would need to deal with the FDA, states are perfectly capable of doing safety regulations on their own. And the DEA leans heavily on local law enforcement already, so heavily in fact that if local law enforcement didn’t help them they would be severely hampered.
So Julian, how exactly does that differ from alcohol? A drug with a demonstrably greater impact on crime. A drug which is illegal in some counties, and restricted (to state-owned stores) in others. Yet can be (and is) easily transported across state and county lines.
The fact is, there are people who just want to run everybody else’s lives. Enough of them to be electorally significant, apparently. And, while sex is apparently going to be prominent this electoral cycle (at least as long as Santorum is in the race), drugs are the biggest area.
Not only do we (or at least a sufficient minority to block change) insist on having the federal government involved at home. We have a national government which vigorously strong-arms other countries around the world to make their laws closely conform to how we think drug laws ought to be.
It differs in that, in the case of the first Prohibition, our government came to it’s senses, and backed down. While in the case of the second Prohibition, it got stubborn, and doubled down. So the harm from the second Prohibition has been considerably worse, and longer lasting.
“The thing about it is, there is already a very significant marijuana trade in all 50 states (up to and including the very hard to get to states of Alaska and Hawaii). The nationalization of drug laws hasn’t stopped that.”
We have N tons of marijuana sold in the US every year, maybe nationalization has “stopped” that level from rising to 1.5N. Plus, we’re discussing legalization in some states while keeping it illegal in others. States where marijuana remained illegal would be unhappy if the flow of marijuana into their jurisdiction; that reaction might be irrational, but it would make the solution that Sebastian makes politically unusable.
“I’m not sure why you think we would need to deal with the FDA, states are perfectly capable of doing safety regulations on their own.”
I think we’d need to deal with the FDA because marijuana is a drug and as far as I know most states don’t have the infrastructure to monitor drug testing, because none of them do it at all, because the FDA currently handles it. California might be an exception.
“Perfectly capable” is doing a lot of work in that sentence. I may be “perfectly capable” of becoming a neurosurgeon but there is a transaction cost to do so.
“So Julian, how exactly does that differ from alcohol?”
Alcohol is legal in every state. There is no meaningful political support for banning it in any state that I know of. Marijuana is less politically viable for legalization.
Sebastian, Brett, and WJ are being too rational (not a pure compliment) about this, I think. You guys imagine, I think, that federalism would work out because everyone could preference-sort and end up in a state that had the drug laws they like.
But “voting with your feet” can be expensive or undesirable to move for other reasons, and people also remain unhappy even about policies that have no appreciable effect on them and may be happening on the opposite side of the country: see marriage, gay.
Also, different states having different purity and safety standards for marijuana, or any drug, would lead to states that have high standards facing an influx of lower-grade or possibly unsafe marijuana, and their regulations suddenly aren’t doing much work.
All arguable reasons for why devolving marijuana regulation to the states would be problematic.
Would it be more problematic than chartering corporations, or operating Medicaid programs, or defining minimum standards for participating in various public welfare programs, or defining school curricula, or defining standards for whether a vehicle is safe to operate or not, or licensing people to own and carry a weapon?
All things that we do state by state now.
I don’t know. To be honest, it doesn’t seem any more or less complicated than any of those things.
Marijuana is an interesting case because our current attempt to outlaw it is arguably one of the most harmful public policies we have. It’s a ridiculously bad policy, both on principle and in its execution.
So, my vote is get rid of it. And no, I’m not a pot smoker, I have no dog in the fight other than observing what a freaking waste of time, effort, money, and human life our current policy is.
Some states or other jurisdictions may find that too liberal an approach. So, fine, let them regulate it as they will, if they will. Like they do with lots and lots of other things.
It might turn out to be not worth their while, in which case good riddance to it.
I think it comes down to perhaps the most important difference in conservative and liberal reasoning: Conservatives, by and large, are trying to minimize the worst case, at the expense of making the best case unachievable. Liberals are trying to maximize the best case, at the expense of making the worst case achievable.
If you let states make their own policies, they might not all have the best policy, so liberals object to this foreclosing any real chance of everything turning out best possible.
But, if the federal government makes all policy uniform, it may very well be uniformly bad, the worst case conservatives try to avoid via federalism.
@Brett 12:29 PM:
Amen, brother, amen!
“Would it be more problematic than chartering corporations, or operating Medicaid programs, or defining minimum standards for participating in various public welfare programs, or defining school curricula, or defining standards for whether a vehicle is safe to operate or not, or licensing people to own and carry a weapon?”
Well, not that my intuition is worth much, but monitoring the safe production, storing, and distribution of a drug seems very different from those things you’ve listed. Drugs, especially those used as often as marijuana, get bought and used much more than guns. It might be the case that people would participate in marijuana purchases than partake of welfare. Improperly administered school curricula cannot poison or sicken thousands of people in several weeks.
I don’t know how states that currently allow medicinal marijuana monitor their supplies, and I don’t know how much it costs, but I imagine that having a regulatory regime spring up for marijuana de novo would be expensive, though maybe taxes on the drug could pay for it.
Regardless of whether marijuana is uniquely different from the programs you’ve listed, it is certainly additional. Could states afford to regulate marijuana right away, at least before they’ve begun to break even on the hypothetical taxes?
Julian, we’re not talking here about a synthetic drug where, if you screw up the synthesis, you might have a side reaction cause some toxin to be produced. This is a natural drug, like caffeine. The level of regulation required is no more than that required for tea or coffee.
Most of the current problems we’ve seen with pot have been consequences of the drug war, like toxic herbicides being sprayed on a crop, and it being quickly harvested in response. Legal pot would be far less problematic.
The need for comprehensive regulation is vastly exaggerated, IMO.
“Well, not that my intuition is worth much, but monitoring the safe production, storing, and distribution of a drug seems very different from those things you’ve listed.”
If we were talking about a dangerous drug like cyanide you might have a point. But in reality we are talking about a remarkably safe substance, marijuana, which isn’t nearly as dangerous as say Tylenol (super easy to cause permanent organ damage) or Aspirin (a noticeable blood thinner). We are talking about something that is safer than the notoriously unregulated caffeine. The toxic dose of marijuana is more than you can smoke without passing out.
I don’t even smoke marijuana, but I can see almost nothing legitimate about trying to restrict it at all, much less engage in the ridiculously overblown, and super-damaging-to-civil-liberties drug war. The idea that cops can break down your door without a warrant because they think they might have smelled pot (or will claim to have smelled pot) is ridiculous.
“We have N tons of marijuana sold in the US every year, maybe nationalization has “stopped” that level from rising to 1.5N. ”
First of all, so what?
Second of all, I seriously doubt it. Pot is notoriously easy to get in the city, the countryside and the suburbs, suggesting that the limit to the amount sold is much closer to the demand side than the supply side. I.e. people are getting pretty close to the amount of pot that they want already. But even if it when from N to 1.5N, if the illegality and therefore crime associated with it vanished because we made it legal, who cares that the amount used went up? The social damage went way way down.
Improperly administered school curricula cannot poison or sicken thousands of people in several weeks.
?!?!??
I don’t think very many folks have been sickened or poisoned by marijuana use. With the possible exception that Brett notes, that of folks consuming MJ that has been poisoned, deliberately, as part of some weird drug control effort, to either kill the plant or discourage its use.
Marijuana has been used, widely, for both medical and recreational purposes for thousands of years. It was commonly used in this country, safely, for both medical and recreational uses, with no particular regulation, until the 1930’s.
It requires a program of careful state oversight about as much as chamomile, or Kava root. Actually, Kava root is probably more dangerous, if it’s not properly prepared you can wreck your liver.
There are no doubt examples where a lot of the concerns you’re raising are relevant, but MJ is not really one of them. Sebastian has chosen his test case for federalism well.
I think an answer can be discerned by making the following changes to the statement
I don’t even
smoke marijuanaget to do it all that much, but I can see almost nothing legitimate about trying to restrict it at all, much less engage in the ridiculously overblown, and super-damaging-to-civil-libertiesdrugwar on sex.This is not to ridicule Sebastian’s sentiment (nor to make a comment on anyone’s sex life, especially my own), but attitudes towards drugs are a lot like attitudes towards sex. You want to have some restrictions, but a lot of them are more than a bit overzealous. Which kind of points to the problem with assigning this to federalism. If folks have such an irrational, visceral reaction to it, having folks doing it next door is not going to be something you really can simply ignore, unfortunately, no matter how logical it would be to do so.
One thing where THC is a bit more tricky than CH3CH2OH is that with alcohol there is a rather straight connection between consumed amount, blood level, effects on behaviour and degradation over time (pathological alcoholics are a bit more complicated). To my knowledge the same is not true for THC. No ‘x hours after consuming amount y the effects will have disappeared’. And there seems to be no easy gadget like the breathalizer to check on the spot. So, for safety related activities (driving cars, handling machines etc.) this unpredictability could mean trouble. Otherwise I’d say similar rules for DUI should apply. I also would set the legal age for consumption rather high since THC seems to have negative effects on the developing brain but not the adult. Also a proven effect of THC is to hamper memorization for a significant time period after consumption, so students should beware and abstain at least a month before exams. All of this does not justify a ban any more than it did for alcohol (we know how that experiment worked).
So the harm from the second Prohibition has been considerably worse, and longer lasting.
A harm that, unsurprisingly, breaks down along racial lines. Funny how that works at any level of government. Automatically trotting out states’ rights as some sort of universal panacea for all that ills us does not sway me in the slightest.
As with most things….it depends.
I’m hugely in favor of legalizing marijuana (for adults only) at the federal level. I wouldn’t be averse to states going forward first to “experiment” with legalization, but don’t really think that it’s all that helpful in the long run to have multijurisdictional policy about such things. (The alcohol variations are annoying for a lot of reasons – it’s not really true that beliefs about alcohol vary that much among jurisdictions – most of the laws vary because of quirky historical economic vestiges from the aftermath of prohibition.)
Marijuana has been used, widely, for both medical and recreational purposes for thousands of years. It was commonly used in this country, safely, for both medical and recreational uses, with no particular regulation, until the 1930’s.
That’s true, but the political act of “legalizing” it, or sanctioning something that hasn’t been legal for quite awhile, brings to the table its safety with regard to driving. The world has changed substantially since the 1930’s, and the anti-vice people use driving as an anchor for all of their objections. If, say, Obama were to decline to enforce laws criminalizing marijuana, anybody causing an accident when driving-while-high would immediately supplement his opponent’s reelection effort. Whatever bad thing ever happens when someone is smoking weed is going to (for awhile at least) be a political liability to any politician who comes out in favor of legalizing it.
That’s just a reality that people who have more urgent priorities don’t really want to have to manage. The only thing that “federalism” helps with is to increase the chances of someone taking it on.
Sure, federalism has some (very narrow) purpose. But all in all, most people don’t think of themselves as citizens of their particular state, so they don’t really prepare themselves to contend with different laws when the drive an hour down the road. I am against anything that encourages people to identify themselves as a “citizen of Virginia” or a “citizen of Massachusetts” rather than a citizen of the United States. In my experience, the more provincialism, the more racism. Let’s not go back that way.
brings to the table its safety with regard to driving.
It’s already against the law to drive while impaired due to use of substances, independent of the legality of the substance.
There are lots of things you can’t, and shouldn’t, do while you’re high, for whatever reason.
Salvia divinorum is legal in most jurisdictions, but nobody is recommending that you drive a car while under its influence.
Whatever bad thing ever happens when someone is smoking weed is going to (for awhile at least) be a political liability to any politician
It’s a damned shame that no politician has found it to be a political liability whenever some kid finds themselves assaulted or killed while doing time in prison for some dumb-@ss marijuana offense.
Or, just doing hard time at all, for that matter.
There’s always some very good practical reason to not do something that needs doing. Good political leaders do the right thing anyway. That’s what “leadership” is.
most people don’t think of themselves as citizens of their particular state, so they don’t really prepare themselves to contend with different laws when the drive an hour down the road.
Maybe my perspective on this is due to living in New England, where six states other than my own are within an hour or two of driving.
But IMO, or at least my experience, folks who are in a situation where they have to pay attention to different laws in different jurisdictions get used to it quite readily, and take it in stride.
“To my knowledge the same is not true for THC. No ‘x hours after consuming amount y the effects will have disappeared’. And there seems to be no easy gadget like the breathalizer to check on the spot.”
Back before we had breathalizers we used to have rules about measuring impairment. For various reasons which I don’t have time to go into now I’m not largely convinced that getting away from that to the BAC tests was an actual improvement, though it did at least have the positive outcome of making it slightly harder for the police to lie about the whole thing when they stopped you.
But I wonder if the breathalizer thing for MJ is really just a function of the fact that at the moment we just need to test for its presence to smack you down with the full force of the law. Is it that the test is scientifically non-feasible, or just that it has been technologically unneeded for our current regime. Who would currently buy an impairment test for MJ when it would have no legal force?
bobbyp “A harm that, unsurprisingly, breaks down along racial lines. Funny how that works at any level of government. Automatically trotting out states’ rights as some sort of universal panacea for all that ills us does not sway me in the slightest.”
I try to take you seriously, but when you say things like this I wonder if you’re just joking. First, I don’t believe that anyone is suggesting states’ rights as a universal panacea. In fact I’ll go on record right now and say that states’ rights [probably] won’t cure cancer. But second, if you believe what you’re writing there, so what? If it is the case that harm along racial lines appears at all levels of government, big or small, why mention it at all in this discussion? If true, your statement is neither an argument for or against it.
You would have been better off suggesting that there is something about states rights which always makes it worse for black people than national level rules–and then cited Jim Crow laws. Of course, as you point out, the current national laws fall very heavily on black people–far worse than state rules did, so for purposes of drug laws you’ll have to rely entirely on the Jim Crow history rather than looking at the national-level present. But at least that would make sense as a position.
I’m just wondering: Federal Government versus “federalism” (state government) versus counties, cities, families, people….
What is this about, actually? Finding the smallest common denominator?
I’m about cross-culturalism. I think it’s absolutely great to go to another country and eat mostly the food from that place. Nice. But to meet people who flatly refuse to eat food from any other place? Interesting, but kind of creepy too.
I mean when you distill it into what really happens, it’s all about blue-eyed people not really wanting to pollute themselves with brown eyes. Not to mention skin.
How much provincialism do you really want to have?
“Federalism” – local control. Cool. Sweet. Excellent. I might even try it myself. Maybe I’ll even be a libertarian. Because I’m happy with creating my own laws. Cool. I’ll just make my own universe. Just me and mine.
To me it’s a rule of law issue. Like it or not, we have a constitution, supposedly the highest law of the land, which sets up a federalist system.
We either have a federalist system, amend the Constitution to no longer set one up, or have a government which routinely flouts the highest law of the land.
I personally don’t find that third alternative very palatable, though it’s the situation which actually prevails.
I try to take you seriously, but when you say things like this I wonder if you’re just joking. First, I don’t believe that anyone is suggesting states’ rights as a universal panacea. First, I don’t believe that anyone is suggesting states’ rights as a universal panacea.
Hey, hold on a darned minute. You’re the one who brought up the vision thing….
I give you Ron Paul (a general case).
I give you Brett Bellmore (he always sneaks it in…a particular case).
In the instance of drug policy, perhaps OK. I’m very much ok with legalization. You still have issues of purity/health that should be handled at a federal level. Federal taxes still apply to tobacco and alcohol I believe. For an interesting and opposing view of drug policy from a liberal perspective…go visit Reality Based Community. Brett knows the place.
On race….not so much.
Like I said. It depends. Remember, slavery was part of the founding fathers’ vision. Just sayin’.
Who said anything about it being a universal panacea? Restoring the rule of law is the start of fixing things, not the end.
And, note, I offered two ways of restoring the rule of law in this country. I might prefer the constitution we have now being enforced, to it being amended to agree with practice, but either would restore teh rule of law.
“You still have issues of purity/health that should be handled at a federal level.”
Why?
“For an interesting and opposing view of drug policy from a liberal perspective…go visit Reality Based Community. Brett knows the place.”
I think you’re talking about samefacts.com, which I read at least once a week, though to be honest they’ve gotten very preach-to-the-choir in the past two years.
But again, why is the federal level necessary? Would it be such a horrific thing for California to legalize marijuana while Delaware didn’t?
Sapient “I mean when you distill it into what really happens, it’s all about blue-eyed people not really wanting to pollute themselves with brown eyes. Not to mention skin.”
Zoink, where did that come from? Don’t you think it is very possible that one community might think that the Marijuana/Drug war calculus comes out to legalization while other communities might think otherwise? That might even be race independent, right?
“I’m about cross-culturalism. I think it’s absolutely great to go to another country and eat mostly the food from that place. Nice. But to meet people who flatly refuse to eat food from any other place? Interesting, but kind of creepy too.”
I don’t understand what you’re trying to get at with this. Are the federalists the people who have cool food because they allow for ‘other places’ or the people who flatly refuse to eat food from any other place?
My point is, Sebastian, that I don’t see the modern United States as people whose culture is driven by their particular geography, other than as a legacy of the pre-Civil War days. There’s nothing inherently, in modern terms, “Virginian” about me even though I’ve lived here most of my life. I don’t get together with a bunch of other Virginians and decide to buy a gun every day, for example. Most Virginians who live in urban areas are Democrats, not Republicans. Most Virginians who live in suburbs are Republicans, not Democrats. I have more (politically) in common with people who live in cities anywhere else in the United States as i do with people who live five miles away from me.
There’s no way to start from scratch on any issue in this country and debate it logically, including marijuana. Most of the kids I grew up with smoked dope. Many of those same people would support putting eighteen-year-olds in jail for doing the same thing they did. This has little to do with the issue itself – it’s that they’ve taken one side or another in a culture war.
Stressing “states’ rights” as a way to solve problems just feeds provincialism, and localized identity. Why do we want to do that?
One reason why the German constitution is significantly longer than the US one is that the competences and responsibilities of the federal and the state governments are spelled out in detail. Also, unlike in the US, there are two types of bills, where the first type only needs a vote in the Bundestag (House), while the second goes to the Bundesrat (Senate) afterwards. Into what category each bill belongs is also clearly defined in the constitution (and takes up a good deal of space too). To change the constitution also requires different procedures depending on which part it applies to. Some parts are off-limits 100% (Bill of Rights), others require a 2/3 majority.
Since the Bundesrat is not elected directly but consists of members of the state government, there is no need for an additional state-by-state approval.
I’m sympathetic to this argument: but I’m sympathetic because I favor legalization. The states rights angle would just be tactical for me.
I’m gonna spend some time thinking about Brett’s “liberals go all-in for the upside, exposing us to ultimate downside” vs “conservatives seek to limit downside, foreclosing upside” formulation. My gut reaction is there may be something to that.
I don’t see the modern United States as people whose culture is driven by their particular geography
Not necessarily geography, although it’s more relevant than I think you credit. But certainly region, due to the combination of geography and history.
Population density is also a factor, as you note, and legitimately so, because the practicality and effectiveness of centrally provided services is quite different in areas with different population densities.
Localized identity is a reality. I identify as an American, but I also identify as a northeastern urban / suburban white collar householder. I identify as both, because I am both. Where policy on the recreational use of marijuana, or any of a very broad range of other questions, is decided has little to no effect on that, one way or another.
Stressing “states’ rights” as a way to solve problems
IMO there is a lot of daylight between the “states’ rights” issue per se, and the idea of devolving responsibility for policy making and implementation to the states where and when that makes sense.
There are certain things that unequivocally belong at the federal level. Deciding whether marijuana should be classified and managed as a potentially dangerous narcotic is not one of them.
If folks are dead set against it, they can simply outlaw it in their jurisdiction.
As a practical matter, a number of states in the US are more than prepared to either decriminalize or make legal the use of marijuana in any of a variety of contexts. The folks who live in those places are generally fine with it, they have the legal and institutional infrastructure to support it, and in many cases have been operating under their local law for years.
I don’t see what value is created by the feds stepping in and saying they can’t carry on as hey wish.
As far as the threat of a return to Jim Crow days, I personally do not find that likely. IMO the constituency for it is not what it was 50 or 60 years ago, and more to the point, I don’t think black people in this country will ever put up with that crap again.
It requires a program of careful state oversight about as much as chamomile, or Kava root.
I do a lot personal injury trial work, mostly on the defense. Eighteen wheeler and construction accidents seem to comprise maybe 40% of my docket. Add drunk drivers and you get up to 50%.
If marijuana were legalized, I wonder what added level of impairment related injuries I can expect to have to defend (which means settle, since an impaired crane or forklift operator or truck driver really doesn’t have any defenses).
It’s fine to think about mature adults finishing off the day with a joint and a bag of Cheetos, listening to some music and transitioning out of the stress of the day. I do that every day with a couple glasses of wine.
But not everyone drinks at home and not everyone behaves responsibly. My point is that there will be a cost to decriminalization and that cost will be, first and foremost, the innocents who are killed or maimed by stupid people doing stupid things, and secondarily, the cost imposed on employers of the impaired employee. The tertiary costs are the added load to the healthcare and welfare system when the injuries inflicted either don’t immediately result in death or there is survival but long term disability.
Employers who cannot administer daily drug tests and who often are not in a position to observe their employees before the work day begins, are particularly exposed because one accident materially impacts insurability for liability matters, and most small businesses don’t have the heft to self-insure.
If I were writing the rules, the pain associated with any impairment-related incident would be heavy and long term. At a minimum.
As far as the threat of a return to Jim Crow days, I personally do not find that likely. IMO the constituency for it is not what it was 50 or 60 years ago, and more to the point, I don’t think black people in this country will ever put up with that crap again.
And to add to this, the body of federal constitutional law would still apply to every state. That’s not going away.
While I favor legalization, one problem we would have is enforcement of DUI. There is no equivalent of the breathalizer for pot, right? You can test for it, but all it will tell you is “this person used pot sometime in the past couple of weeks.” So you’re basically asking the police to utilize their discretion to determine impairment…
I still think the overall result will be positive. But that’s a real problem.
“My point is that there will be a cost to decriminalization and that cost will be, first and foremost, the innocents who are killed or maimed by stupid people doing stupid things….”
You might have a minor point, but only if legalization leads to more use than currently. i doubt it would. Anyone who wants to use cannibis today can find it and consume with little trouble or risk.
DUI? who cares? Why was the driver pulled over? Where they swerving around? Give them a reckless driving ticket. Again, legalizing it isn’t going to cause a sudden increase in use or driving under the influence.
When I feel like smoking, I know where to go to get a bag. The process takes maybe an hour. Possibly up to a day during a dry spell. High school kids have even more efficient sources.
The war on drugs has failed. Anyone who thinks that the laws have made it difficult to obtain or too risky to use, is out of touch with reality.
You might have a minor point, but only if legalization leads to more use than currently. i doubt it would. Anyone who wants to use cannibis today can find it and consume with little trouble or risk.
Well, sure, there’s no reason to think that legalizing pot would lead to more use. Use would probably fall off, with allure of forbidden fruit stripped away. Or not.
As for risk, there is a risk of going to jail if found with pot in your car. Now the risk would be of going to jail if impaired.
Personal anecdotes don’t prove a lot, but if you want a list of actual cases where impaired drivers have created monumental tragedies, I can give you quite a list from my personal experience.
The war on drugs has failed. Anyone who thinks that the laws have made it difficult to obtain or too risky to use, is out of touch with reality.
So, in addition to pot, what else would be decriminalized: crack, PCP, meth, heroin, coke?
Who pays to maintain the crack heads and other useless addicts who won’t have the good taste to overdose and take themselves off the table?
If we are only decriminalizing pot, we aren’t ending the war on drugs, we are just redefining the battlefield.
“If we are only decriminalizing pot, we aren’t ending the war on drugs, we are just redefining the battlefield. ”
True, but we’re redefining the battlefield in such a way as to take away by far the largest component of the drug war.
Who pays to maintain the crack heads and other useless addicts who won’t have the good taste to overdose and take themselves off the table?
Well, massive federal production and distribution of crack would be a lot less expensive from a federal government perspective than the current drug war, thus potentially resulting in lower taxes and/or greater government services to the non-useless addicts, so really, it’s a win-win.
Surplus population and all that.
Well, since you asked, McKT, I think most currently illicit substances should be legalized and the ludicrous – and failed – war on drugs ended.
Cannabis, LSD, Mescaline, Psilocybin, MDA, various analogues of those psychedelics, opium and diluted cocaine (in beverages) should all be available just as alcohol is today. There would probably be a substitution effect that would dramatically lower the use of the truly nasty substances like crack.
However, use of crack and heroine would continue, illegally, to some extent; especially by hard core users. This use pattern, IMO, has nothing to do with recreational getting high or exploration of consciousness – normal and healthy human behaviors. It is more akin to slow suicide and is caused by severely disfunctional social and economic conditions and profound personal psychological issues. Correct the environmental issues associated with crack culture and provide improved mental health services and you end the addiction problem. Still, I fail to see how crack or heroine addiction is functionally different or more problematic than severe alcoholism. Or, for that matter, prescription opiate abuse. If you can live with one risk, then you can live with the other. Then again, maybe there is a difference. Race.
As for impaired drivers causing tragedies, that is irrelavent to the discussion, unless you are suggesting that there would be more impaired drivers out there. You have already admitted that there wouldn’t be.
I’ll second avedis.
People get high now, but with the added bonus of the absurd WoD. Lose-Lose!
There is no great choice here that leads to utopia. The best we can do is choose the LOTE (much as we do come election time).
But not everyone drinks at home and not everyone behaves responsibly.
And, it makes sense to penalize people for behaving irresponsibly.
Were I to hazard a guess, my guess would be that legalizing or decriminalizing MJ would increase the total number of users by 10-15%, max, and the folks who would take it up would largely be on the responsible side of the ledger.
We currently deal with people driving not only while drunk, or high on marijuana, but also on meth, prescription meds, talking on the phone and/or texting, and just plain too tired to be driving.
If you are operating a vehicle while impaired *for whatever reason*, you should be held responsible for that.
In the case of marijuana, specifically, I don’t see that decriminalization of legalization will significantly change the driving issue one way or another.
The war on drugs has failed.
More than failed, it creates harms that did not exist when the substances it seeks to control were widely and publicly available.
It’s not just not productive, it’s counter-productive.
McTx: My point is that there will be a cost to decriminalization and that cost will be, first and foremost, the innocents who are killed or maimed by stupid people doing stupid things, and secondarily, the cost imposed on employers of the impaired employee. The tertiary costs are the added load to the healthcare and welfare system when the injuries inflicted either don’t immediately result in death or there is survival but long term disability.
And no innocents are harmed by the current policies? Nor employers? Nor the healthcare/welfare systems? Hell, it seems fairly clear that several nations have been effectively destroyed with much innocent suffering by the first world’s war on drugs.
And no innocents are harmed by the current policies? Nor employers? Nor the healthcare/welfare systems? Hell, it seems fairly clear that several nations have been effectively destroyed with much innocent suffering by the first world’s war on drugs.
All true. As Rob says, LOTE. If there was a firm consensus that (1) driving/working/injuring others under the influence and crimes committed under the influence would be punished harshly and (2) that anyone stupid enough to render themselves an addict is on their own with absolutely no safety net, including no right to emergency room treatment for drug-related health conditions, I could be persuaded.
I wouldn’t hire an addict and I would protect every employer’s right to refuse an addict employment. Addicts would be unemployable and I am not interested in underwriting that lifestyle.
A couple of things:
Just want to reiterate my general agreement with most others here that legalizing marijuana would be a good thing. The drug war in general has done more harm than good. That said, the policies post-legalization (or decriminalization) would, like other food and drug issues, be best regulated on a federal level. What bobbyp said.
There are certain things that unequivocally belong at the federal level. Deciding whether marijuana should be classified and managed as a potentially dangerous narcotic is not one of them.
What about other foods and drugs, and the FDA, etc? We have as prototypes pharmaceuticals, alcohol, tobacco, for three. (The sale of alcohol is regulated by states because of the legacy of prohibition, and is an annoying regime for both businesses and consumers of alcohol.) If people grow their own marijuana for personal consumption, I’m not sure why any government agency should be involved (except that maybe states could, on an individual basis, allow that to happen). But once people sell it, it needs to be checked for strength, purity, etc., just like any other consumable product. Doesn’t it? I would suggest too that if medical claims are made for it, they need to be verified by the agency we rely on to do that (the FDA).
Bottom line: marijuana is a substance that I believe should fall under federal regulation when it’s sold for profit. If states want to legalize it for personal consumption, that would be fine with me.
(As to addictive drugs, I think that’s a whole different issue.)
As far as the threat of a return to Jim Crow days, I personally do not find that likely. IMO the constituency for it is not what it was 50 or 60 years ago, and more to the point, I don’t think black people in this country will ever put up with that crap again.
I agree that Jim Crow laws won’t likely come back, not against black people anyway. I think that undocumented workers are going through a very similar (not quite as bad) hate scene right now in jurisdictions where they are perceived to be a “problem” – mostly border states but not exclusively there. I used to read the comments following Washington Post articles, but quit doing so because the hate speech was so venomous, mostly by people hating on immigrants. (I rarely read the Post anymore, for that matter.) We’ve seen hate legislation in various states already. Alabama and Arizona immediately come to mind. It’s already being done.
The question is, do we want to encourage provincialism? After WWII, provincialism diminished hugely with certain types of bigotry falling down with it. A lot of this was because soldiers, who previously had been sheltered by their various rural farming communities, were exposed to a very diverse group of people (Catholics, Jews, immigrants), and then came back from the war and settled in colleges and jobs all over the country. It’s arguable that attitudes changed enough to pave the way for the civil rights movement. Basically, the WWII vets made a start at kissing provincialism goodbye. Why would we want to bring that back?
Yeah, we all “identify” with our geography, climate, friends, lifestyle choices. But ask a “real Virginian” whether I (who have lived in Virginia for over 45 years) am a “real Virginian.” You’d get the answer “no.” Why? Even though I have ancestors who came from England prior to the Revolution, I don’t claim any ancestors from the Civil War. And even though some of my pre-Revolutionary ancestors settled in Virginia for awhile, they weren’t around during the Civil War. So, sure, I like my town – the red clay, the azaleas, the dogwoods, the gentleman farmer vineyard owners. But my ancestors didn’t pledge allegiance to Old Virginia.
I wouldn’t hire an addict and I would protect every employer’s right to refuse an addict employment. Addicts would be unemployable and I am not interested in underwriting that lifestyle.
I assume the above applies to alcohol as well. Does it apply to tobacco?
I think that undocumented workers are going through a very similar (not quite as bad) hate scene right now in jurisdictions where they are perceived to be a “problem” – mostly border states but not exclusively there.
You won’t see much, if any, of that in Texas. Recall that Perry was pilloried by his fellow Repubs for signing a law that allows the children of illegal immigrants to attend state colleges and universities at in-state tuition rates.
Texas, despite the rhetoric and if left to its own devices, would probably be open to granting amnesty and guest worker status to most illegal immigrants and citizenship to those with longstanding ties to the community.
I assume the above applies to alcohol as well.
It does. I had an associate attorney with a drinking problem. That person refused to get help, insisting that I was wrong and there was absolutely nothing wrong with him/her. I had to let that person go. OTOH, I would hire a recovering addict with a demonstrated history of staying clean and being in some kind of program.
Does it apply to tobacco?
No. Tobacco is a health risk, not a cognitive or judgmental or motor skills impairment issue.
We have as prototypes pharmaceuticals, alcohol, tobacco, for three.
It makes sense to me to have national standards for pharmaceuticals, as we have for food etc. It makes sense to have international standards for pharmaceuticals, for that matter, because they are bought and sold across international borders.
To the degree that marijuana is bought and sold on a national or international market, it seems wise to have national or international standards for quality, purity, etc.
My impression was that the question on the table was less about how MJ might be regulated as a consumer product, and more whether the decision of whether it should be legal to buy, sell, possess or use MJ could be delegated to the states. IMO it can and likely should.
Regarding alcohol and tobacco, policies about both vary fairly widely from place to place, and IMVHO it’s just not a problem. You describe it as an “annoying” regime, but to be perfectly honest, I don’t think it’s really that big of a deal. Much less so than trying to figure out a single national policy that will accomodate, frex, both Las Vegas and pre-2009 Salt Lake City.
I quite agree with your concern about the level of anger directed at illegal immigrants. IMO immigration policy is quite specifically a federal responsibility, per Article I Section 8. AZ and AL are unique places, for many reasons, their approach to handling immigration is simply one among many.
I’m not sure what you’re getting at when you talk about “provincialism”. People in different parts of the country are different. They want different things, they think different things are important. There are many reasons for that, and greater or lesser centralization of certain government functions isn’t really going to make a dent in that.
I’m not a states’ rights advocate, and I’m fine with a robust national government. But there’s a pretty broad range of things which I think the states could handle perfectly well, and likely in ways that would be more effective and appropriate their populations than doing so at the federal level.
“…that anyone stupid enough to render themselves an addict is on their own with absolutely no safety net, including no right to emergency room treatment for drug-related health conditions, I could be persuaded….”
Does that statement apply to the obese, who are addicted to food? You know that obesity is the number one driver of healthcare insurance costs. Obesity also effects cognitive and motor skills as much as it probably often reflects psychological imbalances.
Any how, the thread is, indeed, about state versus federal control of (currently) illicit drug use and trade. I am with Russell on that issue, “It makes sense to me to have national standards for pharmaceuticals, as we have for food etc. It makes sense to have international standards for pharmaceuticals, for that matter, because they are bought and sold across international borders.
To the degree that marijuana is bought and sold on a national or international market, it seems wise to have national or international standards for quality, purity, etc.”
States could, however, reserve the right to develop and implement their own growers’ licensing policies, taxation policies and such, above and beyond what the fed.s put in place.
Does that statement apply to the obese, who are addicted to food?
Last time I looked, obesity does not produce judgmental, motor skill or cognitive impairment. That said, I am open to ramping up health insurance premiums for lifestyle decisions that drive up health costs. And reducing premiums for people who maintain their weight and their health, who get screened and follow medical advice.
I think obesity does impair the ability the work effectively and to think straight. Increasing insurance premiums on these people sounds good from a free market perspective, but they would be priced out of the market; just as bad drivers are priced out of the auto insurance market. Then we would have a lot of beached whales flapping around dying on street corners. We digress………
I think the reason we have the federalism issue around drugs is that the feds refuse to act reasonably. To the contrary, with all of the federal crime fighting agencies addicted to all of the tax money and becoming, figuratively, obese from overconsumption, the fed.s cannot think objectively or reasonably about drugs. They just absolutely refuse to. Therefore, some states inhabited by free thinking Americans have started what amounts to a minor rebellion against federal tyranny. It is all quite interesting.
anyone stupid enough to render themselves an addict is on their own with absolutely no safety net, including no right to emergency room treatment for drug-related health conditions, I could be persuaded.
As an aside: I sort of see your point here, however there are some people who are not well set up to deal with chemicals.
As George Carlin said about his father, he was a great guy, but he could not metabolize ethanol.
It can be tempting to look at addiction as a massive failure of self-control and/or -discipline, but sometimes it’s as much biology as anything else.
Net/net, IMVVVHO, the most productive approach is to deal with it as a primarily medical problem.
When you get the chemicals out of the bloodstream, then maybe you can circle back and deal with psychological / personality defects.
Some people are gonna flame out and die, no matter what you try to do for them. Some don’t, and go on to do some beautiful things. I’m sure we all know some of each.
As another aside:
In late middle age, my old man apparently became a big fan of marijuana. My step-brothers were big partiers, he gave them a lot of sh*t about it, they said “don’t knock it till you try it”, so he tried it.
And he liked it. Quite a lot. For various reasons, my father had a lot of heavy stresses in his life, and MJ was one of the few things that would really let him chill.
Spark a bone, put some Chet Baker on, and float away for a while.
This was in the 70’s and early 80’s, when he was in his 50’s and early 60’s. During this time, he was the director of quality assurance for the avionics division of a large and very significant military contractor.
Apparently, it never interfered with his work, or his personal life for that matter, in any significant way.
At some point he figured it was kind of a high-risk proposition for a guy in his position to be getting stoned, and he put it down. It was a purely pragmatic decision.
MJ, and many other commonly occurring plants etc., have been commonly used for both recreational and medicinal purposes as a normal part of human culture for thousands and thousands of years.
Longer than writing, longer than urban settlement, longer than many aspects of our current daily life.
Animals with complex nervous systems like to get high. You can look it up. We can try to make laws about it, but biology will out.
George Carlin is right. Medically speaking, alcoholism at least is clearly a mixture of innate (genetic) and environmental components. I’m pretty sure (without a literature search) that is also the case for cocaine and benzodiazepines (Valium and others). I’m not sure about methamphetamines and narcotics, but I’d be surprised if the same is not the case for them.
Has anyone explained *why* cannabis and some other drugs are illegal? Are the feds being arbitrary in making them illegal?
“Some people are gonna flame out and die, no matter what you try to do for them.”
Exactly.
And that is not just regarding drugs. It is a reality covered by a huge range of legal activities that carry some degree of danger. This would include “junk food” which, if eaten in sufficient quantities, as it often is, will lead to a host of costly and fatal diseases.
Why cannot the illegality of drugs be constitutionally challenged on the grounds of being arbitrary and needlessly restrictive (or whatever lawyers can come up with). In a “free” society, I should be able to get high. In doing so, how am I impacting the safety and welfare of my fellow citizens? I think you would need to prove that I am before you restrict me. i also think you would need to show that I am endangering others beyond the levels associated with other common, but legal, activities (like alcohol use, fast food, sky diving, stock car racing, legally prescribed medicines, bow hunting grizzly bears…..).
How can the feds just make something illegal on a whim? Especially something that a sizeable proportion of us want?
My personal take on drugs is that we can either set up the system to minimize harm to people who act sensibly, or set it up to minimize harm to self-destructive people. The problem with doing the latter is that it’s not, generally speaking, reducing the total harm. It’s just redistributing it away from the people whose actions caused it.
So, instead of self-destructive idiots self-destructing, we, all of us, self-destructive and sensible, get to live in a police state. With high rates of non-victimless crime, with world terrorism financed, with civil liberties eroding.
And with the self-destructive still using drugs!
I’d rather see a system that tried to minimize the harm the self-destructive did to others, and otherwise left them to their own devices.
It’s unfortunate when people destroy themselves. It’s a crying injustice when people who do everything right get destroyed as a result of trying to save the self-destructive from themselves.
well said, brett, but why are the drug laws consitutional?
“No. Tobacco is a health risk, not a cognitive or judgmental or motor skills impairment issue”
Yeah, but you’re the guy paying the insurance bill.
It should be acknowledged that much of what’s on Schedule 1 is there for entirely political reasons, and that medical opinion has been largely ignored into the bargain.
There was no ‘marijuana problem’ until a way of othering Latinos was wanted. Likewise cocaine & heroin in the 40s, only the target here were blacks, and the entheogens in the sixties, when politically active youth and intellectuals were targeted. Since there *was* no spotty state response to these non-problems, there could be no justification for a federal solution to incompatible legislation, for example. So to say that the matter should be turned over by the federal govt. to the states is ludicrous. It was only ever a national gin-up.
Since there is no significant body of law interdicting these substances among the states predating the federal action, there’s nothing to ‘return’ to the states. Better to remove them from Scheduling entirely, and nullify existing state laws – almost all of which derive from the law-and-order hysteria of the Nixon & Reagan years – as a reflection of the de-scheduling.
It the several States individually care to have the debate internally, bully for them.
In Europe the crusade against cannabis had nothing to do with race. To my knowledge the main pushers for a ban (and organizers of public disinformation campaigns) were certain chemical companies that wanted to eliminate the cheap home-grown competition to their synthetic products (including, sad irony, heroin(e)). Hard drugs are a diferent matter. Bans started early with opium (a number of laws and instututions still have opium in their title) and expanded later to cover stuff like cocaine. That was clearly about public health. Britain in ultimate hypocrisy had already banned opium at home when it forced China to let the stuff in through the Opium Wars (the emperor personally complained and pointed this out to Queen Victoria but never got an answer).
“well said, brett, but why are the drug laws consitutional?”
At the federal level? I don’t believe they are. It’s just that the federal courts were effectively suborned between Prohibition Mk I and Prohibition Mk II, and are now out of the business of limiting the federal government to it’s enumerated powers.
Indeed, if you look at the earliest statutes in the war on drugs, such as the Harrison Narcotics act, they were written as (Outrageously high) taxes, because the people writing them were fully aware that the federal government lacked any authority to ban a substance.
Indeed, from Rock Island Armory, (A related case in the area of firearms, where the same dodge was used to impose a ban on newly manufactured machine guns.) the then Attorney General,
“”explained in detail how the [Act] would be based on the tax power. Cummings denied that machineguns could be banned, because ‘we have no inherent police power to go into certain localities and deal with local crime. It is only when we can reach those things under … the power of taxation that we can act.’ “
That was the legal understanding concerning federal bans as recently as 1991: They were unconstitutional, and the federal government had to be satisfied with Rube Goldberg work-arounds based on the power to tax. (Which the Court held ceased to be constitutional if the feds refused to accept the tax and allow the conduct once it was paid.)
It’s only in the last few years that Congress has finally gotten around to claiming an actual power to ban anything, as a result of their increasing contempt for the notion that the Constitution imposes actual limits on their power.
From Nigro v. United States, (A case concerning the Harrison Narcotics act.) the Court ruled,
“”In interpreting the act, we must assume that it is a taxing measure, for otherwise it would be no law at all. If it is a mere act for the purpose of regulating and restraining the purchase of the opiate and other drugs, it is beyond the power of Congress and must be regarded as invalid….
…
Congress by merely calling an act a taxing act cannot make it a legitimate exercise of taxing power under § 8 of article 1 of the Federal Constitution, if in fact the words of the act show clearly its real purpose is otherwise.”
The latter statement might actually be regarded as having some relevance to another question of federal power before the courts right now…
Some people are gonna flame out and die, no matter what you try to do for them. Some don’t, and go on to do some beautiful things. I’m sure we all know some of each.
The most recent person I knew who flamed out and died was a beloved friend who might not have died had he been comfortable continuing to self-medicate with marijuana. He was a good man, but beset by various demons that marijuana helped keep at bay. Psychiatrists, etc., might have helped, but he just wasn’t the kind of person to put his faith in that kind of medicine. (He did try though.)
I’m in favor of legalizing marijuana. I’d rather not have it be a “federalist” cause – I’d rather it be a national cause, but it could just as easily be a municipal cause or whatever. I don’t think that there’s anything magic about “states” that makes them the better governmental organization to do things. And “states’ rights” creep me out because of the history of “states’ rights.”
Thanks Brett. That was very helpful and makes sense. I figured as much.
Why cannot someone get this before the Supreme Court?
At any rate, kind of puts the whole federalism v states rights in a new perspective.
I would agree, there’s nothing “magic” about doing things at the state level, although the priciple of subsidarity has something to it.
Similarly, there’s nothing “magic” about the double nickel. But if traffic cops are routinely ticketing some people for speeding for going 45 in a 55 zone, while favored people get to go 70 in the same areas unmolested, your problem isn’t that 55 is being violated, it’s that you don’t have the rule of law.
We happen to have a constitution, supposedly the highest law of the land, which establishes a federalist system. We either run such a system in practice, amend the Constitution to no longer provide for one, or have lawless government. There is no fourth alternative.
IMO, our entire legal system has been warped at the federal level, by the systematic legal double-think necessary to run a national system under a federalist constitution. We should bring practice and black letter law into agreement. I have my preference as to which should change, but one of them must.
Russell, you raise a good point. Here’s the difference I see between alcohol and, e.g., crack. A person finds out he/she is an alcoholic when they start drinking. There’s a genetic component and an environmental component. I don’t think anyone fully understands the mechanism or the degree one feeds off the other. But, the alcoholic doesn’t drink his/her first drink thinking, “hey, I am at risk of becoming an addict here and ruining my life and others’ as well.” It’s typically a gradual slide into the abyss.
Crack, meth, etc are known, highly addictive drugs. Use them X number of times and you’re there. Well, I say, if you choose this path, you are on your own. Death by exposure, starvation, overdose, whatever, is your endgame. Have a nice life. If drugs are going to be legal, once there is an established record of addicts being left to themselves, hopefully others will learn from those examples and stay away from the hard stuff.
Another thing about alcohol: I have a number of friends–close and very close friends and an immediate family member–who are recovering alcoholics. For all but one of them, AA is what got them clean and helps them stay that way. The other fixed his problem with religion–total immersion and it worked. I can’t explain the mechanism.
I don’t know if there is a crack analogue to AA because, quite frankly, the only crack/meth addict I know is hopelessly addicted and is a constant drain on his/her parents’ resources and emotions. They’ve spent more money than you can imagine trying to help their child. There is no help for it other than letting their child either go the way of all flesh or find it within him/herself to want to change badly enough to do it on his/her own.
The pain that addicts put their families through is immense and unrelenting. The pain they inflict on strangers through accidents and criminal acts, the same.
Yeah, but you’re the guy paying the insurance bill.
Yes, I am. As it happens, I have two smokers on my payroll. One is insured on her husband’s insurance and the other is on my nickel. For whatever reason, I drew the short straw on health risks. With 11 employees, I have three who either directly or through an insured dependent, hit our insurance very, very hard. Smoking is the least of the insurance load I carry. But, OTOH, I have the money and I don’t mind paying the freight. Every single one of those folks works hard and well for me, so it’s more than a fair trade.
All of that said, in a perfect world, individuals would be rated and charged premiums for controllable, unhealthy lifestyle choices, including obesity and smoking. In that perfect world, I would require any employee with such a rating to pay the difference out of their pocket.
We happen to have a constitution, supposedly the highest law of the land, which establishes a federalist system.
I would say (a) that this statement needs some fleshing out, and (b) that your sense of what the Constitution does and does not say has been a matter of debate since about 1789.
Curiously, “federalism” in the US originally referred to a political movement, and then a political party, that argued quite strongly for a stronger, rather than a weaker, federal government.
Similarly, there’s nothing “magic” about the double nickel.
One of the strongest examples in favor of federalism, in the sense of devolving policy-making responsibility to the states, is the inappropriateness of a national speed limit.
Which, if I’m not mistaken, we no longer have.
The other fixed his problem with religion–total immersion and it worked. I can’t explain the mechanism.
IMO, he exchanged one addiction for another. The new one is healthier.
…
As the WoD is currently a federal thing, step 1 in reversing it has to be at the federal level too, no?
After that, the question is what role shall the feds have going forward? I think involving the FDA makes all sorts of sense. To the extent we wish to preserve the ban on some substances that are imported, keeping some federal interdiction capability also makes sense (realistically, we might get MJ legalized, but I find it hard to see a majority going for legalization of, say, coke or heroin – at least until the MJ legalization worked out reasonably well).
I think the alcohol model is one way to go. Each state (and often each municipality) does its own thing to a large extent. I’m ok with that, though no doubt it can be frustrating if you live in a “dry” country or find the old Blue Laws annoying (I long since adapted to CT’s rules and don’t even really notice them).
McKT, I don’t buy your distinction between alcohol and amphetamine regarding foreknowledge of addiction potential.
First, everyone knows that alcoholism is a real risk. God knows there have been enough celeb.s that have made this fact salient to even the least educated among us. So I disagree with your description of a relatively innocent slide into alcoholism.
Second, there are people who use meth in a reasonably responsible fashion – weird as that sounds. I have never even tried it myself, but I have known a number of people that have used it. You probably won’t accept this as a fact, but I’m putting it out there anyhow. The military has dispensed meth to troops and pilots for the obvious purpose of keeping them awake and sharp when pushed beyond normal limits. I have known people that have occasionally used meth for similar, non-mil, purposes. I don’t personally approve of this, but all of those I know that did it came out of it just fine. No addiction. No long term damage.
There are also people that even use heroine responsibly. They hold good jobs and enjoy heroine on weekends or whenever it’s use won’t interfere with life’s duties and obligations.
Addiction is the result of extreme irresponsible abuse. You have to work at getting addicted to become an addict (though I think crack might be an exception).
The reefer madness (or substitute most other drugs for reefer) myth is just that. A media concoction to scare (mostly) white middle and upper class conformists.
“and (b) that your sense of what the Constitution does and does not say has been a matter of debate since about 1789.”
What bothers me is that parts of the Constitution had their meanings suddenly become “a matter of debate” in the 1930’s, which had been understood to be crystal clear for 140 years prior. It’s amazing what can become “a matter of debate” if people stop regarding sophistry as shameful.
As the quotes from court cases I gave above indicate, as recently as the 1990’s it was understood that the federal government didn’t actually have any authority to ban something. You wonder how a consensus as to the meaning of something can last that long if the language were genuinely ambiguous…
Brett, it’s great to be having an actual conversation with you here, but your comments are a bit too arch/vague for me to follow sometimes.
Any chance that you could, occasionally, refer overtly to what you’re talking about? It would make things EVER so much more clear
You wonder how a consensus as to the meaning of something can last that long
I guess my point is that there was no such consensus.
Here’s a potentially stupid/inapt/redundant thought, just jumping in without having read through the 70+ comments:
Would you say there was a consensus that we didn’t need a National Electrical Code before we started using electricity on a large scale? My point here isn’t that the NEC is law or anything like that. It’s just that something new came along that needed to be addressed.
Perhaps that’s why the Constitution became interpreted in new ways after many years without quite so much need for interpretation. Society and technology changed. Things got a bit more complicated.
That’s not to suggest that there hasn’t ever been tortured legal reasoning along the way, rather that sophistry isn’t the only reason new issues and arguments came about. In many cases, it’s not that they were settled long ago. They just hadn’t been necessary before.
Brett: As the quotes from court cases I gave above indicate, as recently as the 1990’s it was understood that the federal government didn’t actually have any authority to ban something.
Rock Island Armory, if my googling is correct, was a district court case and your quote above is something the Attorney General said in 1934 (which was cited in the district court case). As a district court case it has it has no precedential value essentially anywhere, IIRC, and it doesn’t appear to have been appealed (I would guess because there were other counts in the indictment that stood and the U.S. proceeded on those counts).
It’s only in the last few years that Congress has finally gotten around to claiming an actual power to ban anything, as a result of their increasing contempt for the notion that the Constitution imposes actual limits on their power.
The last few years? Define few. I mean, hasn’t it been against federal law to possess drugs (and other things) for decades?
I mean, the federal gov’t can’t ban the possession of tactical (or even strategic!) nuclear weapons by private citizens?
More generally Brett, you seem to have this idea that the legal conclusions as to what the Constitution does and doesn’t mean on federalism/commerce issues were set down correctly long ago (let’s just say pre-1930) and that somehow any change since then is illegitimate/illegal/an affront to the rule of law.
Why can’t it be the reverse, for example? Or why can’t the facts have changed and thus the legal conclusions? E.g., how long did it take to get from one side of this country in 1930? How long in 1830? It takes ~6 hours now via commercial jet. Don’t you think that might have some impact on the ability of Congress to regulate commerce or things that affect commerce?
I don’t get the worry over driving or workplace safety. Is doing stuff while stoned any safer for the fact that pot’s illegal? And alcohol’s legal, but drunk driving isn’t. At the same time, various employers require drug and alcohol (a legal substance) testing for their employees (and contractors), particularly in certain areas of work where impairment would be particularly unsafe. Why would any of that change? From an employment and driving perspective, why would now-illegal pot be treated any differently than potentially legal pot?
“More generally Brett, you seem to have this idea that the legal conclusions as to what the Constitution does and doesn’t mean on federalism/commerce issues were set down correctly long ago (let’s just say pre-1930) and that somehow any change since then is illegitimate/illegal/an affront to the rule of law.”
Yeah, basically that’s originalism: Laws get their meanings at time of enactment, if you subsequently want to change their meanings, you go through the formal process of amending them, rather than just convincing a judge to conveniently discover that they really mean something remarkably different from anything anybody previously thought.
Look, it’s not like the pages of the Constitution were stuck together, and nobody noticed until the New Deal Court pried them apart and found a clause giving the federal govenrment all these powers nobody previously thought it had.
No, the justices were just intimidated into saying the Constitution meant something nobody had thought it meant, and then were gradually replaced with other men who’d spout the same BS voluntarily. All because actually writing amendments, and submitting them to the states to possibly be rejected, was just to tedious to bother with.
Imagine the nightmare a Constitutional Convention would’ve been in 1932. Or 2012, for that matter.
Nightmare, I tell ya.
I do generally agree that some updating should be done, rather than arguing about (for example) what the line about a “well-regulated militia” means here in 2012. We’d have to define “arms” a little more carefully (tactical nukes probably won’t make the cut), for instance. The amendment would probably end up being 800 pages long.
In theory, that’s precisely what we ought to do: draft it up, debate it in Congress and then send it to the states.
In reality? I cannot imagine it actually working out well, given the political climate. Which brings us back to Russell’s statement a few days ago about the country reaching the point of ungovernability…
So Brett there’s no force to be given to factual changes then? I mean, it would be one thing to say Congress can’t regulate corn grown in your own field for your personal consumption in 1800 when 99% of people are doing the same thing, but in 1930 when 80% of corn is grown for distribution to others (I’m making up the %s but I think you get the idea)?
Laws get their meanings at time of enactment, if you subsequently want to change their meanings, you go through the formal process of amending them, rather than just convincing a judge to conveniently discover that they really mean something remarkably different from anything anybody previously thought.
Well, I think Scalia’s critique of the legislative history to statute applies here, in that whose meaning controls? There are currently 535 House and Senate members.
I mean, if we could somehow survey the people who signed the Constitution and asked each of them to explain in three paragraphs or less what “To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes” meant, we’d get as many different answers as people. And let’s not forget it seems that many of the people who wrote the Constitution and Bill of Rights seemed intent on violating its provisions right from the get go.
So, we’re left with the text. And it’s a sparse text (for better or worse).
Further, we’re now 223 years from the adoption of the Constitution, how are we to divine what the “original” meaning of this or that phrase at this late a date? You seem to imply that SCOTUS precedent was just fine up until FDR, does that apply across the board?
I meant to add after “There are currently 535 House and Senate members.”:
All of whom likely have differing interpretations of any particular statute.
Maybe the original intent in many cases was to leave a fairly wide space in which to move about, in anticipation of life not being exactly the same however many years into the future. I mean, should freedom of speech only apply to what you can say without amplification or broadcast technology? Should the right to bear arms apply only to muskets and flintlocks (or whatever – I don’t know from guns.)
Yeah, basically that’s originalism: Laws get their meanings at time of enactment, if you subsequently want to change their meanings, you go through the formal process of amending them, rather than just convincing a judge to conveniently discover that they really mean something remarkably different from anything anybody previously thought.
Brett, have you read Plessy v Ferguson? I am morally certain that, if we suddenly went back 80 or 100 years in how we interpret the Constitution, you would not be very happy about that.
It is not unheard of for judges to get something wrong the first time they address an issue. Or, when the facts change, to have to look at what was previously decided in a different way.
Another question: how far back would you go? Pre- or post- Marbury vs. Madison?
Finally, could you give two good examples of what you mean by the Supreme Court “conveniently discover[ing] that they really mean something remarkably different from anything anybody previously thought”?
“In theory, that’s precisely what we ought to do: draft it up, debate it in Congress and then send it to the states.
In reality? I cannot imagine it actually working out well, given the political climate.”
That’s your excuse? It was ok to rob the bank, because you can’t imagine they’d have given you the money voluntarily?
Essentially what you’re saying is that pretending to have a constitution which actually has the status of law is all well and good, but it’s too much bother to actually go through the tedious motions, like writing up amendments when you want to change it, and taking the risk that they might not get ratified.
We can’t have a real constitution, because you might not win all the arguments, some of the changes you want might not be popular enough to get ratified, some changes you don’t want might actually be popular.
Should the right to bear arms apply only to muskets and flintlocks (or whatever – I don’t know from guns.)
You’re close. In the context of what the framers had in mind, a solid argument can be made that the 2nd amendment reaches only weapons that can be carried by one person and that fire only once when the trigger is pulled. Militias aren’t so limited, but the individual is. Arguably.
That’s a really silly analogy, Brett.
However, it is indeed an excuse for failing to update the Constitution more than we actually have.
We can’t have a real constitution, because you might not win all the arguments
I don’t win all the arguments now, Brett, so that’s not the issue. No, I envision a clusterf*ck that would make our current politics look sane and calm. Perhaps I’m wrong, but that’s what I see.
I also think your “everybody was on the same page until the 1930s” argument is a really big stretch, but I didn’t care to take it on.
You’d be on stronger grounds arguing that it’s a right of the invidual to carry to whatever they decide to have the average infantry soldier carry, since the idea was that private citizens would own, and be familiar with, arms suitable for military use, so that they could rapidly be constituted into a military force in an emergency. Tenche Coxe’s, “Their swords, and every other terrible implement of the soldier…”
Anyway, to sum up my point: There’s no “in theory” when it comes to the rule of law. The rule of law means just precisely that you DO IN PRACTICE EXACTLY WHAT YOU’RE SUPPOSED TO DO IN THEORY., no more, no less. You follow the blasted rules.
Even if they are inconvenient, or might not result in you winning every battle…
You’d be on stronger grounds arguing that it’s a right of the invidual to carry to whatever they decide to have the average infantry soldier carry, since the idea was that private citizens would own, and be familiar with, arms suitable for military use, so that they could rapidly be constituted into a military force in an emergency.
Not really. The drafters were fairly bright. Weapons back then were swords, knives, hand axes, pistols, long guns and cannons. “The right to keep and bear . . .”, i.e. the right to be armed at the house and to carry one’s weapons was the basis for a militia that could be called up. Times changed and so did technology. Do you really think the framers intended that any adult could own and possess a wire guided anti tank missile, or a hand held SAM? The 2nd amendment was passed in the aftermath of a successful rebellion and during ongoing wars/battles/skirmishes with Native Americans and at a time when the national and state gov’ts lacked the funds to maintain a standing army and, more importantly, to arm a ready reserve.
I’m glad we have the 2nd amendment and I believe it is a personal right, not a collective right. But it doesn’t extend to anything a modern soldier can carry into battle. Hand grenades? Mortars?
Wouldn’t gang warfare and the Mexican and Columbian cartels be something to behold then? And the framers, if they could foresee, would sign on to this? I think your construction is taking what was plainly intended and giving it a modern meaning remarkably different than anything a sane group of men, way back when, would ever countenance.
It does seem like the framers left the door wide open for tyranny with “…..for the common Defence and general Welfare of the United States…..” because we now have government “experts” telling us what is a threat to us and what needs to be done about it to protect the general welfare – which is peg they hang the war on drugs hat on (as well as the war on terrorism and all that it legally entails) – and then moving forward with all kinds of laws that go against the spirit and intent of the original document.
And we have no say in any of it.
I think that it is time to call a CC and have the parameters of “general welfare” be more clearly defined.
It’s the one area where I am sympathetic to the libertarian position. I’d rather have less (or none) fed govt “help” than more; and certainly less than we have today if they are going to drive mack trucks through the open door.
“I’m glad we have the 2nd amendment and I believe it is a personal right, not a collective right. But it doesn’t extend to anything a modern soldier can carry into battle. Hand grenades? Mortars?”
as things sit today, a civilian cannot own/carry *anything* a soldier carries into battle except the same side arm.
True, a fully automatic submachine gun or rifle can be owned by a civilian if, after much onerous, expensive and invasive processes, he still is deemed acceptable to do so by the feds. But this barely counts, at best.
spirit and intent…meant spirit and letter
As I have stated repeatedly, I think the US constitution is only around still because it has been conveniently ignored when it became inconvenient. And that did not start with FDR but at the latest with the Sedition Act of 1798. The US has made a system out of Inter Arma Silent Leges, i.e. each and every war has been used as an excuse to trample on some part of the legal code, including the constitution. The ‘serious people’ have rarely protested in earnest, either because they were not the victims (but instead profitted) or they feared that real protesting could make them the targets.
I would agree that a lot FDR* did was legally questionable (btw, the same holds true for Lincoln) but I think that the alternatives would have been extremly ugly and democracy would not have survived except maybe as an empty shell. Well (or actually not), we may repeat the experiment soon.
*in peace and war
Democracy would not have survived drafting formal amendments, and submitting them to the states for ratification? Why, would FDR have abolished democracy if it had refused to give him his amendments, the way he threatened the Court if it wouldn’t stop enforcing the Constitution against him? I guess that is somewhat plausible.
It’s actually a funny comment, as the same reasoning which justifies ‘amendment’ by judicial subornation would also justify setting aside elections. It’s hard, after all, to imagine them turning out well in the present political situation…
Anyway, I suppose we’ll find out soon, as pressure is building for a constitutional convention, soon we’ll either bring practice and constitution into agreement, or the political class will stop bothering to pretend they’re bound by a constitution.
“More generally Brett…”
See. I warned you guys. 😉
Anyhoo, as I understand it from my old hippie days high and laughing at reefer madness, the feds initially (in 1937, another Roosevelt fiasco) said you had to have a tax stamp to possess MJ, but Catch-22, nobody could obtain such a stamp. I’m not sure what current federal law is regarding MJ….perhaps some here could fill us in.
Brett may also be interested to refresh his knowledge of the long history of drug BANNING at the federal level even, miribile dictu, at the height of the Lockner Era, a period of run amok judicial activism that B.B. tends of elide
just aboutalways, and assert, despite copious evidence to the contrary, that there was some kind of widespread, nay universal, agreement as to the meaning of the Constitution during that time.As to legalization…our drug war is a social travesty with huge costs. There is always going to be about 10-15% of the population with tendencies toward addiction. We should treat this as a public health issue, not a criminal one.
Re, for some strange reason, J. Crow: A devolution to federalism would not bring it back in its most egregiously oppressive form….but, well, I was going to say something insightful here….damn.
All I mean to say is that appeals to federalism as an overarching principle make me very nervous. Local control of what? Why? Those are the issues? Let’s discuss the issue at hand…drug legalization at any/all levels. Sneaking federalism into it is, to me, is a sure way to make me suspicious that some larger agenda is in play.
“All I mean to say is that appeals to federalism as an overarching principle make me very nervous. Local control of what? Why? Those are the issues? Let’s discuss the issue at hand…drug legalization at any/all levels. Sneaking federalism into it is, to me, is a sure way to make me suspicious that some larger agenda is in play”
There is no any/all levels without federalism. There is the federal level or nothing. And I can tell you right now that legalization in California/New York is WAY more likely than legalization nationwide.
The thing about letting states do their own things is that it can work to progressive advantage as well as disadvantage. If some states are willing to go further than others, they CAN under federalism. They can’t nowadays.
(Of course part of this is an offshoot of doing so much through the judiciary instead of trying to win through legislatures. If you don’t believe you can win anywhere, you have to get everything done through the federal judiciary).
they CAN under federalism.
Thank you for making my point. CAN what? Go further how? You tout federalism as an end, not a means? The other way ’round? Or is it the case that you believe ‘your side’ will be more politically successful under a system of greater state sovereignty? cf the Virginia rape with medical instruments law (pending). Nay, I shall not automatically genuflect to this sort of ‘going further’ under the premise that federalism rules.
Then the backhanded slap about going “through the judiciary”….the standard issue conservative agenda is there. It is as plain as it is unwise IMO, but these are in essence political differences, and I guess you fight them, in the words of that highly touted SecDef (hahahahahahahah)Donny Rumsfeld with the tools at hand instead of the tools you wish you had.
Some who tout this principle so highly might want to give more study to the history, brief as it was, of the C.S.A. It was in many respects a governing disaster, and took “a house divided against itself” to some truly ludicrous places even among the true believers.
Democracy would not have survived drafting formal amendments, and submitting them to the states for ratification? Why, would FDR have abolished democracy if it had refused to give him his amendments, the way he threatened the Court if it wouldn’t stop enforcing the Constitution against him? I guess that is somewhat plausible.
No, I think without FDR opening the emergency valve, the status quo would have blown up ending either in a fascist or bolshevik system (the latter less likely). The amendment route would imo not have worked at all or would have been too slow to prevent that. Btw, I do not believe that the usual suspects would even have accepted amendments, had they miraculously passed (cf. income tax, alleged invalidity of). FDR was a reluctant reformer and Obama is not even an FDR (and no true one is in sight). If the things go like they do now, the next GOPster POTUS will either let the system go over the cliff or even push the accelerator personally. Without the valium of modern entertainment this could already have happened. There is bread and circuses but the bread is going to be removed from the list. We’ll see how long the games can cover for that. And as revolutions tend to go, the results will in the short to medium term be ugly and not a (re)turn to a more fair/equal/democratic/etc. system. And the loudest ‘defenders of our threatened sacred liberties’ will be the cheerleaders on the march. And it won’t be happy days for the true libertarians. Another prediction: the military will stay strictly neutral and make favorable arrangements with whoever wins.
Ah, “We had to destroy the Constitution in order to save it.”
FDR was a President for Life who had no patience at all with not getting his way on everything. The Constitution got in his way, the Constitution had to give way. Amendments weren’t pursued because he wasn’t of a mind to give anybody a choice about the changes.
Yeah, I think we’re headed for a revolution, and thinking like your’s, that the rules are just too much trouble to follow, are a large part of why.
Maybe the original intent in many cases was to leave a fairly wide space in which to move about, in anticipation of life not being exactly the same however many years into the future.
We have a winner.
The argument about what the text of the Constitution “really means”, and what the founders’ “real intent” was, has been going on since day one. The founders themselves were the first ones to have the argument.
And no, Brett, it was not that evil Hamilton on one side, and everybody else on the other.
FDR was a President for Life
FDR is dead. No longer a threat to the nation.
So, for that matter, are a host of other POTUS who pushed the constitutional envelope as far as they possibly could.
Cheney, not quite a POTUS, is, for our sins, still with us. In my book he’s the all time heavyweight champion of creative textual parsing, with the one-man ‘Fourth Branch of Government’ doctrine.
Where was the mob of originalists on that day? Why didn’t we see them surrounding the Naval Observatory, Gadsden flags and assault rifles in hand, demanding the restoration of constitutional government?
For that matter, where was one lousy freaking libertarian blog post demanding the restoration of constitutional government?
It’s all purely a matter of principle until the targets get selected.
Yeah, I think we’re headed for a revolution
Be careful what you wish for.
The Rules. Which are, of course, subject to only your interpretation. Anybody else’s is wrong.
If there is a revolution, Brett, you might want to spare a look in the mirror before you start laying blame.
Anyway, it’s possible that calling a CC might be the LOTE option (in other words, I could be wrong about my pessimism).
Again, Brett my fear isn’t about losing arguments. I’d expect to lose many. I’m a Democrat. We expect to lose. 😉 Seriously, of course I would worry about the arguments & who wins/loses them. But that’s actually secondary. If that was my only worry, I’d be calling for a CC.
My fear is disunion and the chaos (and possibly warfare) that I fear that entails.
I have no objection, btw, to Congresscritters proposing amendments. But I don’t think it’s surprising that we haven’t seen any such efforts go anywhere for a long time.
Watching events unfold in Syria makes revolution an unattractive option.
That said hedging with a few shares in Acme Guillotine Inc. might be a good idea.
Revolutions generally don’t go well. Ours worked out amazingly well, all things considered (and still there was some nasty stuff that went down).
You say you want a revolution, well, you know…
Our’s was not a revolution. We had our independence, de facto, with our own political institutions, and then King George launched a war against us to undo that. The ‘Revolutionary’ war isn’t the revolution that’s the exception, it was a war of defense.
I think it takes a fairly narrow view of history to think there’s a noteworthy probability that we’re headed for revolution now or in the near future, as compared to other points, say, since the Civil War. As bad as things may seem, domestic tranquility is pretty high. What protests do occur are mild. Crime rates are low. Things are generally pretty damned stable.
It seems there is a mindset among some percentage of the population that sees tyranny and unrest in what are relatively mild, if still objectionable, abuses by government and relatively mild reactions to the same.
Not to pick on Brett, but this phenomenon is typified by a recent comment of his that comes to mind on the stimulus packages in which he uses the phrase “the real horror” of the stimulus – the real horror.
Hyperbole becomes literal and perspective is lost.
My theory is that the US is way too diversified, religiously, culturally/ethnically, geographically, etc for revolution to develop.
There would have to be some large and deeply effected umbrella category into which most of the current divisions (e.g. catholic, Russian immigrant, hispanic, white college eductaed, East coaster, deep south….) would fall and then re-identify with, before a revolution could begin to come together.
The great depression did not result in revolution.
I really cannot imagine what would.
Brett: We had our independence, de facto, with our own political institutions, and then King George launched a war against us to undo that.
What? All of a sudden de facto things are okay in law and war? This seems to be a bit of a switch.
Our’s was not a revolution. We had our independence, de facto, with our own political institutions, and then King George launched a war against us to undo that. The ‘Revolutionary’ war isn’t the revolution that’s the exception, it was a war of defense.
Doesn’t this play a wee mite heavy on the “Us v. Them” myth that pretends that Loyalists (or for that matter, the apolitical) were an insignificant portion of the Colonial population?
Back on the topic of federalism, bobbyp asks “they CAN what”?
The answer is “do things differently”.
Brett identifies early on an interesting way of looking at it. Liberals want to nationalize everything because they see the huge potential upside: if we get things right, they are right EVERYWHERE. Conservatives fear a huge potential downside: if we get things wrong, they are wrong EVERYWHERE.
Both sides, consisting of human beings, aren’t particularly consistent about the concept when their ideas about what are right or wrong are trending the way they like or don’t like on the national level. The US Constitution tried to straddle these in a pretty neat way–by trying to nationalize certain things and let states go on their own way on other things.
In the past seventy years ago, we’ve pretty much abandoned the straddle allowing both sides to just go whole hog on the national level on everything. But isn’t it possible that we’ve gone too far?
Can’t we even ask the question “is this really so important that we can’t let different states come to different answers”?
Another issue (that I don’t know the answer to but think might be worth thinking about).
Did the nationalization of the debate on nearly everything significantly contribute to large scale hyper-polarization and gridlock? I *speculate* that by trying to stamp out provincialism, our more tribal loyalties may be getting displaced onto political parties. That cure might be worse than the disease.
Our’s was not a revolution. We had our independence, de facto, with our own political institutions, and then King George launched a war against us to undo that. The ‘Revolutionary’ war isn’t the revolution that’s the exception, it was a war of defense.
Interesting take. I think this would be the minority view.
I think it takes a fairly narrow view of history to think there’s a noteworthy probability that we’re headed for revolution now or in the near future, as compared to other points, say, since the Civil War. As bad as things may seem, domestic tranquility is pretty high. What protests do occur are mild. Crime rates are low. Things are generally pretty damned stable.
I agree. Worst case, down the road, is disunion, not revolution. Which is why Russell’s comments on devolution are a very nice middle ground.
Right, I think “disorderly breakup” is much, much, much more likely that what we’d call a revolution. Even that doesn’t strike me as likely, but it’s possible.
If I thought that was a realistic threat, btw, I’d be on the Russell/McKinney bandwagon. LOTE, baby. 😉
Did the nationalization of the debate on nearly everything significantly contribute to large scale hyper-polarization and gridlock? I *speculate* that by trying to stamp out provincialism, our more tribal loyalties may be getting displaced onto political parties. That cure might be worse than the disease.
Quite possible.
When/where did we “go to far” though? I hope we agree that Civil Rights legislation in the 60s was not “too far.” That was a resort to Federal action to enforce minority rights being trampled by the States. The Feds proper role is (in part) to step in if a state/local government is violating Constitutional rights.
Apply to gun control. 2nd amendment. Given How can Connecticut be allowed to go its own way? It can’t.
So there are some issues – indeed, many of them are the very hot-button issues we would like to defuse – that I don’t think can be devolved. Gun rights are an obvious one.
How about state campaign finance laws? 1st amendment issue. No going your own way, right?
Abortion you can devolve, I guess, if Roe is overturned.
I’m not totally against the general idea here, but could you give me some examples of issues that are paralyzing us that could be devolved to the benefit of all?
Arg. Too far. TOO. Sloppy proofreading.
I’m not totally against the general idea here, but could you give me some examples of issues that are paralyzing us that could be devolved to the benefit of all?
Two of the more paralyzing issues are abortion and healthcare, the latter both philosophically and as a budget item. Abortion requires that Roe be overturned, which could go either way.
Medical marijuana, school curriculae and social services are all wedge issues that different states could handle differently.
I particularly would like to see HCR and social services devolved, for several reasons. One, to get the cost off of the federal budget. Two, with 50 states taking a stab at the issues, the chances of someone, somewhere getting it right, or closer to right, go up. Three, locals could decide for themselves how richly or not they want to spend and tax themselves accordingly.
Health, safety, commerce and financial regs would remain federal as would civil rights.
Gun rights are an obvious one.
Gun laws already vary widely from state to state. About the only thing you can’t have is an absolute ban on ownership.
Which, to me, makes sense.
There already are a broad range and number of things that are devolved to the states, either explicitly or de facto.
Some things, for example Medicaid, or some aspects of eduction, are a mix.
I don’t see the idea as that much of a reach. And I think Seb’s point upthread about existing, and long standing, regional differences getting projected onto the parties is apt.
We’re mired in arguments that nobody is going to win, and that nobody really has to win.
I don’t care if my brother in law in AZ has a big collection of guns. Conversely, I don’t really care if folks in MA have to jump through nineteen hoops to get a concealed carry permit.
I don’t care if somebody in CA gets high. I don’t really care if folks in OK want to start a high school football game with a prayer, as long as nobody is being coerced into saying it.
Etc etc etc.
None of these things really bug me. They’re all just examples of people in a particular area living the way they want to live.
This is an unusually large country, and has a very wide range of kinds of people in it. I don’t think it’s going to be possible to function effectively as a nation if we keep arguing about stuff like this.
We have bigger fish to fry.
This is an unusually large country, and has a very wide range of kinds of people in it. I don’t think it’s going to be possible to function effectively as a nation if we keep arguing about stuff like this.
We have bigger fish to fry.
Exactly.
russell: I don’t really care if folks in OK want to start a high school football game with a prayer, as long as nobody is being coerced into saying it.
I might agree with you if, e.g., those (especially the students) who didn’t wish to say the prayer were respected and not ostracized, or if the prayer were not universally (at least in OK, I have to imagine) Christian (will there be an Islamic prayer as well/instead of? Or even Barukh atah Adonai Eloheinu Melekh ha’olam, asher kid’shanu b’mitzvotav v’tzivanu l’hadlik ner shel Shabbat?).
Unfortunately, not so much it seems. And as school events such as football games are state actions unless we’re talking about two private schools, they’re going to have to deal with the First Amendment, it seems to me.
My theory is that the US is way too diversified, religiously, culturally/ethnically, geographically, etc for revolution to develop.
Not a unified one. But a violent breakup would be revolutionary too in my book. Also there is what is called the revolution from above. That one works best against a population that is split and polarized because one group can be used against the other. The Tea Party was a small bore attempt at such a thing but even there the dangers for the instigators became obvious. Stirred up to defeat Dem projects and win the midterms the useful idiots released part of their anger against the very establishment that had called them up (in disguise). We will see in the not too far future, whether that frightened the wizard’s apprentices enough, or they will try again.
The great depression did not result in revolution.
It was believed at the time (and still so by at least some historians) that another round of Hooverism would have triggered one and that FDR did what he did only because of that. He would not be the first aristocrat breaking ‘sacred’ custom to save as much of the status quo as possible. The Prussian reformers did under Friedrich Wilhelm III and Bismarck under Wilhelm I. They managed to keep the basic system until 1918 and then went out with their heads still attached. Louis XVI did not and his high aristocracy would have taken his head instead of the people had he tried. The financial aristocracy of today sounds a lot like their French forebears, esp. on the topics of taxes. And then there is Russia…
No, there will be no guillotine in Times Square but political murder will become en vogue again (and some strategically targeted organized mob violence). Personally I am quite surprised that the former has not yet really started (until now only some rubes have answered the call and failed miserably). And the more unrest the less free will society get.
I’d like to press the reset button on the general issue of devolution/federalism and ask how a significant portion of these culture-war quibbles rise to something more than an annoyance for people who read blogs or newspaper editorials or watch cable news (or whatever else you can think of). Where’s the beef?
I mean, yeah, there are some stupid arguments going on over this stuff, but is that really reason to move a significant number of policy decisions from the federal to the state level? I don’t necessarily have a problem with doing that if it makes sense. I just don’t know that the “culture wars” are anything more than stupid and annoying, thus I’m not sure that they should be the impetus for much of anything, other than maybe blog comments.
I find a significant percentage, though not necessarily a majority, of the human species to be annoying and stupid, which makes me think they’ll be annoying and stupid about something or other, not matter what and even if we eliminate all the issues they’re being annoying and stupid over right now.
Maybe I just forgot some examples of some serious “culture war” problems we’ve been facing, even if I wholeheartedly agree that we have bigger fish to fry.
I might agree with you if, e.g., …
That specific example comes from a long conversation I had with a guy on RedState, way back in the day. He was from OK, 99% or more of the folks in his town where Christian and primarily evangelical Christian, and football games were a combination of social gathering, community identity lovefest, and quasi-religious experience. They were a heavy tribal ritual. In his town.
I took basically the position you take, and would take that position if someone were to suggest reciting Christian prayers en masse before HS football games in my town, for all of the reasons you cite.
But OK is not MA. So I’ve been told, anyway.
I’m not sure I can assume that anybody in that guy’s town was harmed by them saying a prayer before a Friday night ball game.
The flip side might be the case of a kid who is both strongly religious, and valedictorian, and who wishes to speak about the connection they see between their faith and their academic life.
Some people in the audience may be offended. Should the kid leave the god stuff out, or not? If so, whose rights are being abridged?
Maybe everyone could just chill, and recognize that not everyone is like them, and let some of the culture stuff go.
I can’t tell you where the line is, because I don’t know.
russell: But OK is not MA. So I’ve been told, anyway.
I’m not sure I can assume that anybody in that guy’s town was harmed by them saying a prayer before a Friday night ball game.
…
Maybe everyone could just chill, and recognize that not everyone is like them, and let some of the culture stuff go.
A couple things. I actually considered throwing in an exception to my comment that if “everyone” agreed that having a prayer was just fine, then I wouldn’t mind, but those situations seem few and far between, even in that guy’s town (I would assume).
Further, while I’m inclined to take the “maybe everyone should just chill” route myself, it seems that majorities in places such as the OK small town (or in the case of many of my relatives, the IA small town) are particularly NOT inclined to “just chill” should anyone publicly object to how things are, or even merely suggest doing things differently.
The harm is the blatantly obvious message that you’re not “really” part of the town, or the county, or the state, or America, so why don’t you GTFO? Or worse.
“Gun laws already vary widely from state to state. About the only thing you can’t have is an absolute ban on ownership.
Which, to me, makes sense.”
Jim Crow in the South but not the North made sense to Bull Conner, too. Didn’t mean a compromise was really possible. Right now the RKBA battle is at the same stage the fight over Jim Crow was immediately after Brown: Massive resistance, in the hope that a President opposed to the civil liberty in question can replace one or more Justices, and make the whole thing go away.
But it’s an enumerated civil liberty, right there in the Bill of Rights, and that makes it real line in the sand material, gives the defenders of this liberty no reason at all to think compromise of the sort you want is reasonable.
Repeal it if you want local option.
The answer is “do things differently”.
I can’t let that pass absent a greater level of specificity. McTx trotted out a few ideas. I was underwhelmed. Leave health care to the states? You can’t be serious. Education? Well, you might be suprised to learn that mostly is under local and state control. Guns? Please. Give that one a break. Abortion? Devolving to state sovereignty is merely special pleading….sorry, no dice.
I’m all for trying things differently or at a more local level (how about true democracy in the workplace?), but absent some specifics, my guard is still up, and McTex only reinforced my concerns as his plea for local control was tightly entwined with a rather obvious political agenda. That’s OK, but let’s be unashamed to call it what it is. Having a political agenda is not a drawback in my book. Obfuscating it is.
As others have pointed out, we have an incredibly diverse country. The scary and hoary monster of federal control has not obviated that fact significantly. If we are less parochial or locationally less differentiated these days, I’d say it’s due more to technology (auto, plane), mass marketing, and mass communications.
THERE IS PLENTY OF LOCAL CONTROL. Do you believe you municipal judge, cop, politician, or building official is tied up, bound hand and foot by the oppressive federal government? If you do (and by you, I do not mean “Sebastian”), I’d suggest taking a deep breath and find a nice landscape to look at. Rest the fervid mind.
It couldn’t hurt.
So there’s no local option for leaving gun laws more open than would be required by the 2nd Amendment, without repealing the 2nd? Or is it that you think there’s no such thing as more open than the 2nd Amendment requires, since it means “no restrictions whatsoever?”
Brett: But it’s an enumerated civil liberty, right there in the Bill of Rights, and that makes it real line in the sand material, gives the defenders of this liberty no reason at all to think compromise of the sort you want is reasonable.
It wasn’t until 2010 that SCOTUS decided the 2d A. applied to the states, more than 220 years after its adoption (and more than 130 years after the 14th A). How do you square your apparent approval of this with your view that, e.g., the commerce clause jurisprudence was just fine until FDR clubbed SCOTUS circa the 1930s?
This lgm post discusses John Nance Garner, FDR’s second term vice president. From the post
When discussing the Flint sit-down strike of 1937 last weekend, I noted John Nance Garner’s support for using soldiers to bust the strike. It reminded of just how awful Garner was. And how close we were to a Garner presidency in 1940.
We remember that Franklin Roosevelt won an unprecedented third term in 1940, but we don’t pay much attention to what would have happened had he followed convention and stepped down. The almost certain Democratic nominee would have been John Nance Garner and given the nation’s repudiation of the Republican Party during the 1930s, he would probably have won the Oval Office as well.
Reading the rest of the post, it does suggest that FDR ran more to prevent Garner from becoming president than because he ” had no patience at all with not getting his way on everything”.
Right now the RKBA battle is at the same stage the fight over Jim Crow was immediately after Brown
Local police chiefs are hosing down gun owners in the streets? Sicking dogs on them? Beating them to death?
Sorry, I’m not seeing it.
My observation was that gun laws vary widely from state to state. You can’t absolutely ban gun ownership, because the 2nd Amendment doesn’t allow that. I think that’s fine.
Comparing gun owners to disenfranchised black people ca. the 1950’s and 60’s is borderline paranoia.
I have family members with lots and lots of guns. I know lots of other folks with lots and lots of guns. I have no problem with it.
Nobody is coming to take any of those people’s guns away. Nobody. And, I have no problem with that.
The FBI estimates that there are about 200 million guns in private hands. Not cops, not military, private. Somewhere between 40 and 50% of households have a gun.
In many states in this country, there is NO permit requirement to buy a gun, NO registration requirement to own. Some, but by no means all, states require a license to own. Some, but by no means all, require a permit to carry a handgun. Few if any require a permit to carry a rifle.
And, I’m fine with all of that. Don’t point your gun at me, and we have no problem. Live your life.
There is no realistic scenario in which guns are going to be taken away from people in this country. None.
Seriously, I have no idea WTF you are on about.
I can tell you that if folks keep waving their guns around and threatening to shoot people who they disagree with, there will be at least one more gun owner, and that person will be me. And I will shoot the f*** back.
So perhaps you and folks like you are among those who should learn to chill.
I wonder whether Washington State will pass a law requiring insurers to cover abortion.
his plea for local control was tightly entwined with a rather obvious political agenda.
BP–which political agenda did you infer from my comment? And why is it ‘obvious’?
Right now the RKBA battle is at the same stage the fight over Jim Crow was immediately after Brown: Massive resistance, in the hope that a President opposed to the civil liberty in question can replace one or more Justices, and make the whole thing go away.
I missed the massive resistance part. My take is the left has decided this issue is a loser and is staying the hell away from it. Smart move.
BP–which political agenda did you infer from my comment? And why is it ‘obvious’?
A fairly standard right wing/conservative political agenda. Stand up a be proud of it. There is no need to hide behind ‘states rights’. That’s so 1850’s and 1950’s. This is the 21st century. Or so I hear.
A fairly standard right wing/conservative political agenda.
Hmmm. I must have missed the memo from Conservative Central advising that all right thinking conservatives should lobby for devolving medicare, medicaid, food stamps, unemployment and other safety net duties to the states. I’ll look around for it.
I must have missed the memo from Conservative Central…
I’ll call Roger Ailes and get you another copy. It was issued with the same memo wherein you are to speak of the “Democrat Party” and the directive to commonly preface your remarks with “The Left always……”
And always remember: Hold that finish! 🙂
My favorite in these comments was the assertion, “the left wants to nationalize everything”.
An oldie, but a goodie.
“It wasn’t until 2010 that SCOTUS decided the 2d A. applied to the states, more than 220 years after its adoption (and more than 130 years after the 14th A). How do you square your apparent approval of this with your view that, e.g., the commerce clause jurisprudence was just fine until FDR clubbed SCOTUS circa the 1930s?”
The tale of how we had no 2nd amendment jurisprudence at the Supreme court is a sordid one, which doesn’t reflect well on the Court. The Court’s deliberate misconstrual of the 14th amendment, (According to it’s author, intended to guarantee to the freed slaves, among other liberties, the right to own guns.) protecting state laws from the 2nd amendment. While the first federal gun control laws didn’t come until the New Deal, to be met with a freshly neutered Court with no interest in overturning any law. Then seventy years during which the Supreme court refused cert to any case where the 2nd amendment was raised as an issue. All in all, some 140 years of malign neglect, until the Court finally took a case. Not a pretty picture at all.
Revenge of the angry white people.
i most certainly don’t want my local RED state to run all social safety net issues. Society is a no-no here in LA, i’m just fortunate to have a job, cause so little of my taxes ever go to help the poor and needy. these people live outside under the over passes and empy corners of vacant building. Brothers’ keepers( RED staters) my eye! Save me from my local RED state, please.
Society is the enemy of the local R party here, always has been since the Blacks took over the cities. ever since George Wallace. Watching my mother protest Integration in the streets and voting for George Wallace. was with her in the streets, couldn’t leave a little child home alone. so, i got to see those angry white women curse the Gov.
Abortion and gay rights are not things i want the local states to run or rule on. bad enough having the National R party tell all of us who and what we can love or marry. but devolve to the local OWNERS? yikes.
frankly the idea of anybody thinking that gun rights were worth fighting over. let everybody kill each other with their guns. just stay away from me or i’ll shoot back.
there just seem to be such a different concept of what is your right and mine.
your religious/political point of view limits my rights is where i want the Gov,Big Brother, to stand in and say you can’t stop me from being equal to you. just because i don’t have the same political power as the Elites do, nor would i ever be accorded such rights, if i had to expect a RED state to be “humane.” or principled.
scares the daylights when i see the comparison of states voting for the Civil Rights acts and this concept of Big Brother telling me i can’t have an abortion if i want to , or marry a same sexed person. States Rights are a death sentence to the Outsiders.
i never heard God came in the Human form yet. though i see it implied that some of us are less than cause we don’t believe and accept that you have the Right thinking and therefore are “Better” than me do to your Beliefs. Christian Taliban in my book.
frightening to see the intolerance for tolerance of pluralistic beliefs. that’s when enough is enough. letting others force ONE version of Rights down and on the lesser who have the wrong beliefs or opinions.
geez, frightening to see. And Let us devolve into local areas of Political obeisance? i guess all the Blue people will have to move to Blue States/Area, RED people into RED states… like what happened after the British left India.
don’t see how imposed authority can solve this nowadays. before the unsettled questions were not actively fought RED MEAT issues.
i have to thank Lee Atwater and Karl Rove for their successfull campaign to divide and conquer America.
gosh what a future we as Americans have to look forward to. yours, mine and NOT ours. i often wish the lines for the Blue and Red states was plain and simple.
this rule by fear and might is not condusive to a United States, just empowers Big Brother more and more each day. i thought the Right didn’t like Big Brother, except for the Culture Wars, that is. One of Many, E Pluribus Unum is long now, thank you R’s very much.
E Pluribus Unum is long gone now. is what i wanted to type.
Bart: Look at that hunk of junk.
Grampa: [sputters] You’re ignorant! That’s the Wright Brothers’ plane! In Kitty Hawk in 1903, Charles Lindbergh flew it 15 miles on a thimble full of corn oil. Single-handedly won us the Civil War, it did.
Bart: How do you know so much about history, Grandpa?
Grandpa: I pieced it together, mostly from sugar packets.
Some red states would still ban interracial marriage, if it was up to the locals. Rachel Maddow had some jaw-dropping polls on that not long ago. Maybe folks would not go to public lynchings anymore but probably not protest any ‘private justice’ outside publicc view.
Beleck’s India/Pakistan analogy is a good one, I think, although the US is not that far YET. Btw, if you can get your hands on ‘Jinnah’ (played by Christopher Lee), it’s worth a view.
“Local police chiefs are hosing down gun owners in the streets? Sicking dogs on them? Beating them to death?”
Not so long ago, the feds were shooting women holding their babies, and burning people alive, in order to intimidate gun owners. Maybe you forgot about that?
The analogy is not perfect, as no analogy is; At least in the 1st civil rights battles, the executive branch was on the side of civil liberties, not generally opposed to them.
As always, we SuperUsers encourage you to attempt to argue counter to other people’s actual statements, as opposed to holding them responsible for statements some third party may or may not have made.
Not so long ago, the feds were shooting women holding their babies, and burning people alive, in order to intimidate gun owners. Maybe you forgot about that?
Is this a Waco and/or Ruby Ridge reference?
While I’m noting commenter shortcomings:
Brett, the veiled reference is not your best point-maker. It’s best to come right out and say what you’re trying to say.
CC: self.
I’d like to point out, btw, mainly to Russell & McTex, that Brett agrees with my point regarding “devolving” matters such as gun rights. 2nd Amendment. RIGHT. Brett, and anyone who sees things that way, would never accept CT going its own way on such matters, because he sees any gun control as a violation of an enumerated right. The End.
If your purpose here is to defuse the “culture wars” I’m not sure it would work.
Is this a Waco and/or Ruby Ridge reference?
Yes, if I’m not mistaken those are Ruby Ridge and Waco / Branch Davidian references.
IMVHO, both of those cases were unnecessary displays of force by the government. And people died in them, unnecessarily.
Also IMVHO, in both cases there was cause for government interest in the type and amount of ordnance that the Weavers and Koresh were assembling, whether allegedly or IRL. As well as the association of folks involved, in the Weaver case in particular, with organizations involved in acts of violence.
Shorter me: I have no problem with the FBI wanting to check out the Weavers, or the Branch Davidians. I think bringing what was essentially a military assault against both was wrong and likely criminal.
And all of that said, again IMVHO, neither provides a realistic analogy to the civil rights efforts of the 50’s and 60’s.
Last but not least, I don’t see that either case amounts to a program intended to ‘intimidate gun owners’. Nor do I know any gun owners who were intimidated by either action.
Unless you’re interested in assembling a personal arsenal of machine guns and hand grenades, I’m not sure why anyone would feel otherwise.
If your purpose here is to defuse the “culture wars” I’m not sure it would work.
I agree. The problem with the “culture wars” too is that they’re mostly worth winning. Gay hating isn’t a regional issue. Women’s rights isn’t a regional issue. Immigrant bashing isn’t a regional issue. Guns aren’t a regional issue either – and I’m not on Brett’s side of the Constitutional fence on that one. (The reason why the recently repealed once-a-month gun restriction was enacted in the first place wasn’t to reduce gun violence in Virginia; it was to eliminate Virginia as the illegal gun running capital of the East Coast. Before its enactment, 40% of guns involved in gun crimes in NYC were from Virginia.)
Everybody here, in fact, about half of people everywhere, want marijuana to be legalized (and far more want it done for medical purposes). The biggest demographic disparity isn’t by region; it’s by age group. That’s the trend regarding most “culture war” issues. The throwbacks are largely old white people. Maybe we should have nongeographic “states” and a new federalism based on age. (Not.)
The fact that we have a state/federal system with states having power over issues that are truly local (land use and local police power) is okay, and has always made a certain amount of sense. Most culture war issues, on the other hand, are civil rights issues of one sort or another. Drugs and guns (anymore, since most liberals believe that they have lost the gun control battle) are pretty low on anyone’s list of “culture war” issues in the first place.
And always remember: Hold that finish! 🙂
Odd you should mention this. I plan to hone my game starting tomorrow and not let up until sunset Sunday.
If your purpose here is to defuse the “culture wars” I’m not sure it would work.
I just want to localize them.
I don’t see that either case amounts to a program intended to ‘intimidate gun owners’. Nor do I know any gun owners who were intimidated by either action.
A former BATF employee who was at Waco is now behind bars, Federal bars. He was discharged from BATF after the conflagration, but no charges were brought. He went to work for a client of mine, and actually did pretty good work. But, he was and probably still is, an adrenalin junkie.
Two-three years ago he was involved in a prank involving an altered flash-bang grenade at a bachelor’s party. One of the attendees lost part of a foot (flash-bangs are not supposed to inflict injury of that type). The feds swooped in pretty shortly thereafter and prosecuted this former BATF employee who was at Waco with a level of enthusiasm usually reserved for high profile terrorists.
As I said, he is now behind Federal bars.
And, whatever he did or didn’t do or is believed to have done or believed not to have done, he is a pretty decent guy whose intent was, in the many instances I observed or interacted with him, good. He is not a bad man.
My conclusion: the BATF was mortified by what happened at Waco and wishes mightily they could have a do-over, without that that particular employee around. And that particular employee: I know him. He is perfectly fine with 2 amendment absolutists. His is one, as a matter of fact.
Intent to intimidate? No, just the opposite. And a powder keg situation, which is what it was, exploded. That happens, unfortunately.
Frankly, I wish the government had left Weaver and Koresh to their own devices so that we could have enjoyed the spectacle today of the former brandishing his weaponry at Tea Party fetes while threatening the life of the President and the latter joining the other clowns as a candidate in the Republican Presidential primary and enjoying front-runner status for a week or two as the dangerous and probably murderous Republican base careened their support to him in yet another anyone-but-Romney surge.
I’d enjoy watching Koresh packing the house with his underaged harem and regaling the electorate with his views regarding birth control.
Foster Friess’ witch wife no doubt would leave a Hansel and Gretel long trail of aspirin along the campaign path as she unclenched her knees for the two of them.
McK, don’t go bringing facts in here, you’re going to confuse some easily-confused people.
BTW, relevant!!
I think one of the most interesting developments in the drug war would be if a major state ordered its police force not to participate in drug investigations. It probably won’t happen, but it would be fascinating watching the federal government respond.
Actually it might not be fascinating. We might just see the federal government threaten to cut off everything everywhere until the state complied.
I think one of the most interesting developments in the drug war would be if a major state ordered its police force not to participate in drug investigations. It probably won’t happen, but it would be fascinating watching the federal government respond.
I thought this had already been litigated (though I forget in what context), with SCOTUS ruling that, no, the federal government can’t dragoon state police, or employees generally into serving the feds’ ends without permission of the state.
We might just see the federal government threaten to cut off everything everywhere until the state complied.
Yes, this is the obvious work-around, “if you don’t help us out in drug investigations, we’ll not provide you with highway funding,” or whatever. Hopefully this would require an act of Congress but to the extent the Executive has discretion over handing out funds that may be sufficient.
“…..he is a pretty decent guy whose intent was, in the many instances I observed or interacted with him, good. He is not a bad man.”
???!!!????
He’s an A hole adreneline junkie that used to have a badge. I’ll bet if I tossed a flashbang into your office you would NOT think I was a good guy with a boys will be boys sense of humor. Would you?
You get a Waco or a Ruby Ridge or innumerable doors kicked in and injuries and deaths and confiscations of private property by the govt because there are LAWS that enable + ecourage psycho adreneline junkie criminals with badges to act out their base antisocial impulses.
That is at least half the problem with these laws. The govt employes brutal thugs and turns them loose on the public under the guise of enforcing the laws. The govt cure is worse than the alleged societal ailment.
P.S. Flash bang grenades are not harmless little things. They frequently cause serious injury and even death. These tragic events are recorded facts.
The worst part is that these dangerous weapons are used against citizens who are merely *suspected* of a crime – or happen to be in the company of citizens suspected of a crime and they are often deployed without warning.
NYC cops at least have had the decency to cease use of flash bangs because they are so dangerous and, quite frankly, storm trooper-esque.
There is no war on drugs.
There is a federal govt war on citizens – real flesh and blood tax paying people – who might (or might not) be using drugs.
“The govt employes brutal thugs and turns them loose on the public under the guise of enforcing the laws.”
No “guise” about it. The terror is actually central to the enforcement.
You’ve got a very difficult to enforce class of victimless crime laws here, in gun control, which are widely viewed by the enforcement targets as utterly illegitimate attacks on a basic civil liberty. Right off the bat you’re missing the two most effective tools law enforcement has: People complaining to them about the violations, and a population which actually feels some moral obligation to obey the law in question.
So what’s left, if you really want to enforce the law? Only ramping up the terror, unfortunately. And for that you WANT brutal thugs turned loose on the public. Remember, Waco was perpetrated by people who were promoted for what happened at Ruby Ridge.
It’s basically the same reason enforcement of drug laws is abusive. Because victimless crime laws can’t be effectively enforced without terror.
I will grant you that the Democratic party has figured out, (And it took a LOT of teaching!) that being honest about their hostility to the 2nd amendment isn’t smart politically. So Kagan lied her head off about accepting Heller as binding precedent and the 2nd amendment as an individual right during her confirmation hearing.
I fully expect, should Obama get the chance to replace one of the Heller/McDonald majority, that he’ll appoint a virulently anti gun fanatic, who will dutifully lie during their confirmation hearing, and then vote to razor blade the 2nd amendment out of the Bill of Rights when the first test case comes along to give them the chance.
And then the shit will really hit the fan.
Agreed Brett.
It is much easier to establish a fascist police state if the populace is disarmed such that they cannot have a level playing field on which to fight back against the gestapo. Hence the hostility to 2 amendments rights. Bullies that throw flashbangs and shoot women and children do not want to face men with guns.
If anyone thinks that is far out, consider this. All i need to do is make an anonymous tip of sufficient quality – say that McTex is dealing and has drugs in his office – and there is a fair chance that he will have a flashbang in his lap before lunch. That’s all it takes these days.
Or that he is a “terrorist”…. or…….
There is a federal govt war on citizens – real flesh and blood tax paying people – who might (or might not) be using drugs.
Wait a second. How much police misconduct is done by federal officers? It’s mostly local and state police, right? And state drug laws, or states happy to work with the feds to enforce federal drug laws.
I’ve been enjoying your comments lately, avedis, but I’m not sure about this one.
And. I know there are people with guns, and other people who don’t have a problem with people having guns. I have a problem with unfettered access to guns by irresponsible people who don’t know how to keep them away from their kids. Could someone suggest how we do something about that? Because it happens all the time. It even happened once to someone I knew.
“How much police misconduct is done by federal officers?”
A lot. However, your point is taken. LLE is equally culpable – perhaps more so on a quantitative, if not qualitative, measure. That said, LLE is empowered, ultimately, by decisions and policy at the federal level that permits or perhaps even condones the abuses.
My main point should be parsed out because I think it is important. The war is not on “drugs”; mere inanimate objects. Rather it is on people, citizens, who use or are suspected of using drugs.
“I have a problem with unfettered access to guns by irresponsible people who don’t know how to keep them away from their kids. ”
Agreed in that children should be taught firearm safety. Yet this is a red herring. The incidence of firearm accidents involving children is miniscule compared to a host of other preventable tragedies that befall them. The real problem is parents that are just plain irresponsible in all regards and probably should not be having much less raising children. Of all the serious and not so serious undertakings in life that government seeks to control, it is amazing that there is no restriction, educational requirement, permit application, etc in order to bring a new life into this country; quite the contrary actually, as we have discussed recently.
Back to children and guns; I know when I was a boy my old man had two locked and loaded weapons in the house. I knew where they were. I never ever dared to even look at them without his permission. By the time I was ten I had my own rifle, in my room and with ammunition. I knew how to handle it safely. Just about all of the boys I knew came up the same way. By the time we were twelve or so, we could go out hunting by ourselves without parents. I can’t remember there ever being an accident as a result. So I think it is a matter of proper parenting and education.
What does this have to do with federalism? I dunno. Something I’m sure………
If anyone thinks that is far out
I think it’s far out.
My old man had a gun in the house for most of his adult life. Of my three brothers in law, three have guns, and two are fairly avid collectors with a number of guns, apiece. My sister in law’s husband can cite muzzle velocities for a bewildering array of guns from memory.
I know a lot of people with guns. None of those people has ever been hassled about owning a gun, none has ever been denied a gun, none has ever had a gun taken away.
None, never. Not one, not once.
There is no national campaign, secret or otherwise, to disarm the American public. It does not exist.
Weaver came to the attention of the feds because it was alleged that he had threatened to kill the President and the governor of Idaho. He got involved with the ATF because he was at an Aryan Nations meeting. Aryan Nations are violent white supremacist terrorists.
As screwed up as every aspect of the federal handling of Weaver’s case was, I have no problem whatsoever with the FBI checking out a guy who is alleged to want to kill the President and a governor, and I have no problem with the feds checking out somebody with an association with the Aryan Nations.
The Branch Davidian raid had its origins in an attempt to execute a search warrant on the Waco compound. There was some reason to believe that Koresh was modifying legal assault weapons to convert them into fully automatic weapons, and there was reason to believe Koresh was screwing underage girls.
Here is a catalog of the firearms actually recovered from the Waco compound after the raid.
Again, the raid was an ungodly clusterf***, but I have no problem with the feds investigating folks (a) claiming 12, 13, and 14 year olds girls as their “wives”, and (b) assembling arsenals of military grade ordnance.
To argue that these two incidents are evidence of some systematic campaign to disarm the American public bears no resemblance to reality.
There are 200 million firearms in private hands in the US, today. How many of those have been seized in the last year? In the last 10 years? In the last 30 years?
In general I don’t really give a crap about stuff like this. If you want to pursue some odd hobby, or lifestyle, or political agenda, fine with me. Live your life.
I like drums, you like guns. Fine with me.
Unfortunately, folks who get fired up about the government coming to take their guns seem to end up killing people. So, I do give a crap about it.
Lots of shit has hit the fan already. For every person you cite who has been killed or harmed in some half-assed federal raid, I can cite somebody who has been killed by some crazy gun fetishist.
There needs to be a lot less shit hitting the fan. Not more, less.
Nobody’s taking your guns away. Go to wherever it is in your house that you keep your guns, and look. They’re there.
You want some kind of absolute, unrestricted access to any kind of ordnance, in any amount, for any reason that suits you?
Sorry, that’s not what the 2nd Amendment says.
You want to own a firearm for your personal use? With damned few exceptions, you are free to do so. Enjoy.
Nobody’s after your damned guns.
What does this have to do with federalism? I dunno. Something I’m sure………
Precisely. 😉
Wait, I used that “;)” once before here and got chided for it. Don’t take it wrong, sir. Apparently I am not aware of all internet traditions.
Come on, Russell. If you are innocent, you have nothing to hide, right? Now where have I heard that before? Hmmmmm…….
😉
“Weaver came to the attention of the feds because it was alleged that he had threatened to kill the President and the governor of Idaho.”
“Alleged” being the operative word.
“He got involved with the ATF because he was at an Aryan Nations meeting.”
Hmmm. So now there is another ammendment or two or three being violated – something about freedom of speech and right to assemble. maybe something about unreasonable searches and seizures. But you are ok with that? Just going to meetings of certain groups get’s you “checked out”. I note that “checked out” equates with black helocopters and snipers gunning down family members. Again, all ok if you are an alleged member of a group with ideas Russell disagrees with?
Yeah yeah, “Aryan Nations are violent white supremacist terrorists.” Can you prove this – the terrorist part? Each and every member? Sure they talk some smack, but how much of that has been acted out? Not much if any.
Any how, my point wasn’t even about guns per se. Actually it was more about drugs and you help make it for me. All I need to do is make an accusation – an anonymous tip would suffice – and you can have flash bangs thrown at you and your door kicked in.
I, like you, find the Aryan Nation’s ideology offensive. However, I recognize that they have the right to believe whatever hateful nonsense they want to. They also have the right to speak their minds, to assemble and to own guns. All without being interefed with by the govt, let alone shot down in their homes.
Ditto Koresh. Again, we have a murky accusation (of child molestation) being the premise for a full scale assualt by govt forces with deadly force including tanks.
“I like drums, you like guns.” Actually, I prefer guitars to guns. To me guns are a necessary evil in a cruel and violent world. Any man that wouldn’t pick up a gun to defend a woman or child is a fool and a coward, IMO.
“There needs to be a lot less shit hitting the fan.”
So just keep your head down and your finger in the wind, don’t make waves and only speak the party line is Russell’s recipe for the good life in the USA? Because, you know, step out of line and the man may come and take you away….
“Nobody’s taking your guns away. Go to wherever it is in your house that you keep your guns, and look. They’re there.”
Actually someone did take some guns away from me. When I first moved to the socialist republic of new york from a southern state, I met a local deputy who lives near by. Just neighbor meeting new neighbor. As the conversation went on I told him how there had been a rabid racoon in the barn I had to shoot it before getting the barn ready for horses. he asked what I shot it with and I replied “a 357 magnum” and then, thinking a cop would find it interesting, I added, “both my wife and I have one….” Next thing i know he is asking me to hand over both revolvers because, unbeknownst to me, in new york you have to have special permission to own a handgun. the process is rediculously cumbersome and takes up to two years and, worse, for me, it required local people (same county) to vouch for my character and family members don’t count. I didn’t know anyone outside of family, being new to the area. Fortunately, once I realized what the cop was up to I clammed up and failed to mention the .45 and the 9mm.
More than three years after they were taken, I had finally completed and been approved for the permit process. I then learned that the revolvers had been sold at auction having exceeded the storage time.
So yeah. My guns were taken.
“You want some kind of absolute, unrestricted access to any kind of ordnance, in any amount, for any reason that suits you?”
Yes. It is my right. You don’t like guns so you are happy having them restricted. There are people that don’t like drugs and are happy to have them restricted. There are people that like porn and there are those that wnat it restricted. There are people that don’t like abortions and birth control and want them outlawed…where does it stop?
Look, if i want to build a ranch and grow pot and opium and have 47 wives and have a ma duece with a hundred belts of ammo each in fortified bunkers as well as a mortar section with crates of HE ready all around the property because it gives me the warm fuzzies and helps me sleep better at night, then i have the right to do that. The fact that Russell or some coast dweller doesn’t like it and doesn’t value it positively don’t mean squat; or shouldn’t. Maybe this is where the federalism issue comes in. There are probably states that would elect to allow me to live that life style sans federal interference in state matters.
The more I think about it, the more I am for the states. Concentrated power is tyrannical power. Whatever complications are involved with states setting their own laws re; drugs, guns, etc the cost of the complications is outweighed by the benefit of disolving the fed’s growing tyranny.
Freedom must be valued above ease of administration.
All we’ve got here is a demonstration that Russel swallowed the propaganda line on Ruby Ridge and Waco hook, line, and sinker.
Randy Weaver was a racial separatist. Not my cup of tea, obviously, or I wouldn’t have a mixed race son, but he was neither violent, nor particularly seeking to force his views on other people.
But he had a real history as a racial separatist, was known in racist circles, so the government though he’d make a really good infiltrator for them into the Aryan Nation. THAT was his Aryan Nation connection: The government wanted him to infiltrate it for them. He said no.
So they entrapped him. A very poor guy, they offered him big bucks to do a “gunsmithing” project for them: Provided him with a shotgun, and a line to cut at, and paid him to cut on the dotted line. An eighth inch shorter than was legal, a felony. (Let’s not get into, at the moment, the idiocy of making it a felony to cut on the wrong side of a dotted line.) Then arrested him, and offered to drop the charges if he’d be their infiltrator.
He refused, and holed up on his own land.
So they sent him the wrong date for a court hearing, and he didn’t show up at the right date. (Admittedly he didn’t show up at the right date, either, but it was lose-lose no matter what he did, by design.) Now he’s a “fugitive from justice”, neat as can be. Still won’t be their stooge.
So they decide he will make a nice test for all this high tech surveillance equipment they want to try out, and spend over a million dollars ringing his shack in the woods with cameras. Only one day while they’re on their rounds, the father and son are out hunting, and the dog barks at one of the agents.
So they shoot the dog, right next to the boy, and the boy, perhaps thinking HE is the target, fires back, and they kill him.
Now he’s really holed up, and in mourning, too. So they move in, and start trying to “talk him down”, you know, by suggesting this can all be resolved, and he and his son can go on with their lives. You know, the son they killed?
Then they issue shoot on sight orders, and their pet sniper kills his wife while she’s standing in the door of the shed holding their infant. He finally caves.
And come the trial, he gets off, because a fancy pro bono lawyers notices something in the news coverage, gets photos from the press, and manages to prove that the feds altered the crime scene after the press photos were taken, to conform to their fraudulent version of events.
The guys in charge get promoted. A box shipped to Waco breaks open in the post office, and out falls a few demil’d hand grenades. (The Davidians made money selling those “Complaint department, take a number.” curios out of them.)
Again with the millions in survailance, only this time the plan is an assault from the start, because they need some good press; Seems somebody got wind of the BATF’s nigger hunting license booth at the racist “Good ole boys” roundup they send agents too each year.
The plan goes pear shaped, the parts of the surveillance videos covering disputed events turn up blank, the Davidians agree to surrender if the press comes in first with cameras, having heard what went down at the Ruby Ridge trial, and all ends in fire.
Stupid 2nd amendment fanatics, thinking the BATF are a bunch of thugs just because of little things like this…
So yeah. My guns were taken.
The rules for keep and carry are different in NY then they are wherever you moved from.
If you follow the drill in NY, you can have a handgun there.
Don’t like the drill? Don’t move to NY.
Federalism. It cuts both ways.
Yeah yeah, “Aryan Nations are violent white supremacist terrorists.” Can you prove this – the terrorist part? Each and every member? Sure they talk some smack, but how much of that has been acted out? Not much if any.
You have some homework to do.
“You want some kind of absolute, unrestricted access to any kind of ordnance, in any amount, for any reason that suits you?”
Yes. It is my right.
No, it’s not. There is no right to have absolute and unrestricted access to any kind of ordnance, in any amount, for any reason.
You don’t like guns so you are happy having them restricted.
I have no problem with guns. None.
I think it’s fine for jurisdictions to regulate the ownership and use of guns if it makes sense for them to do so.
What they cannot do is absolutely ban ownership of firearms, because the SCOTUS has ruled that the 2nd Amendment is an individual right.
The rights guaranteed in the Bill of Rights are inalienable, but they are not above regulation or restriction. You can’t yell “fire” in a movie theater and claim 1st Amendment protection. Unless, of course, there actually is a fire.
What you are b*tching about is, as it turns out, federalism.
All we’ve got here is a demonstration that Russel swallowed the propaganda line on Ruby Ridge and Waco hook, line, and sinker.
Actually my understanding of events in both cases are the same as yours. IMO both events were total, unnecessary cockups, and arguably criminally so.
Further, IMVHO the BATF should be disbanded. Everything they touch turns to crap. And people get killed.
My point about Weaver and Koresh was a very simple one:
Both attracted attention the attention of the feds for good reason. Yes, if you receive black powder and hand grenade parts in the mail, it’s reasonable IMVHO for the feds to follow up. Yes, if somebody claims you threatened to kill the POTUS or the governor of your state, it’s reasonable for the feds to follow up. Yes, if you hang out with groups that advocate the violent overthrow of the government and violence against other people, it’s reasonable for the feds to follow up.
None of this has bugger-all to do with whether there is any kind of federal plan or intent to disarm Americans. Saying that Ruby Ridge or Waco demonstrate such a plan simply does not pass the smell test.
Federalism. It cuts both ways.
Yeah, the argument that, based on his guns being taken from him by a local according to state law, gun laws should be devolved to the states, to increase his liberties and prevent his guns being taken away isn’t one of avedis’ best.
What he’s really after, ISTM, based on his presented anecdote, is federal-level, absolute enforcement of the 2nd Amendment such that state and local governments are prevented from restricting or regulating gun ownership.
That’s a different sort of federalism.
I didn’t say it demonstrated such a plan. (For that you can go to statements by various politicians, before they figured out honesty was political suicide.) It demonstrated that enforcement of gun control laws was, you know, really, genuinely, comparable to marchers being hosed down, and all the other violence that happend during the civil rights marches. That the war on the 2nd amendment hasn’t been all peaches and cream, it’s been as bloody as it’s partisans could get away with, and maybe a bit more.
“Don’t like the drill? Don’t move to NY.”
Actually, don’t let your plane be diverted to NY, and held over due to a snow storm, either, if flying with checked guns. They’ll use the opportunity to charge you with a felony, as they have hundreds so far.
That’s what “local option” gets you, in a country where people actually travel further than 50 miles from their birthplace, and sometimes have their plans disrupted. Felony charges for innocent behavior, because of local officials who are malignly opposed to this enumerated civil right.
Actually, don’t let your plane be diverted to NY, and held over due to a snow storm, either, if flying with checked guns. They’ll use the opportunity to charge you with a felony, as they have hundreds so far.
Holy sh*t. Got a link on that?
…
And see, here we agree on the limits to federalism.
I still think the Civil Rights Movement is a stretch of a comparison, but only a stretch of degree (not kind). The parallel is there.
I support a re-write of the 2nd amendment to allow for *some* regulation. I don’t have a problem with someone owning guns. I do think it’s reasonable for local authorities to put up some hoops to try and limit irresponsible ownership (a basic gun safety class seems a reasonable requirement to me). I’m abivalent about banning categories of guns (assault rifles, etc). I’m persuadable there. I also think we ought to specify what sorts of other weapons are acceptable. I really don’t think it’s a good idea to have individuals acquiring high explosives, missles, and other heavy weapons (I have no issue with somebody buying a de-militarized tank, but a fully operational one? Pass). If a particular state wants to allow that, well, ok, but I’d want the revised amendment to make it acceptable for, say, CT to restrict such things.
Federalism: you takes the good with the bad.
“What he’s really after, ISTM, based on his presented anecdote, is federal-level, absolute enforcement of the 2nd Amendment such that state and local governments are prevented from restricting or regulating gun ownership”
Yes. In lieu of that, the next best would be states where i could do what I want.
As it is, I get neither.
Like i said, i am not all that concerned about guns per se. It’s any issue, guns, drugs……
sex, rock ‘n roll…
What we oughtta do is we oughtta ban fans so’s the shit has no place to hit and can’t fly.
I’m curious about avedis ratio of 47 wives to 100 bandoleers of ammo.
Seems a little heavy-handed to me.
I mean, I can understand feeling outnumbered when all a guy wants to do is watch the game on the satellite TV and you’ve got yourself 47 headstrong women stomping around wondering why you haven’t cleaned out the gutters yet which you said you would do last weekend and the one before and then the full phalanx of 47 declare “Get it yerself, Jasper!” in unison when you wonder if they could grab you a beer while they’re up.
Is there dissension in the ranks? Do some of these women want to leave the compound? Perhaps two-by-two and hand-in-hand, the hubby’s affection being so diffused, there being only so many hours in the day and bullets in the fun gun?
Regarding ordnance, I myself collect unexploded artillery shells (got em on a shelf in my apartment) and I’m building a live replica of Little Boy, the bomb that done the deed in Hiroshima, in my living room.
What the landlord and the other tenants don’t know bout my local option won’t hurt them.
Seriously though, boys, my solution to all of this is to ban all officialdom at all levels of gummint from packing heat for any reason whatsoever and leave the enforcing to the individual and whatever non-gummint militia-type congregations y’all come up with.
Then real quick we could get down to finishing once and fer all the endless “you can’t make me”, yes, I can”, “no, you can’t”, “you and what army” crapola the Founders bequeathed us.
To clarify my position, I would prefer a federal level solution *if the federal level would follow an originalist interpretation of the Constitution and then actually adhere to that interpretation*.
Since that apparently isn’t going to – maybe can’t – happen and instead we get an increasingly restrictive interpretation that seems best suited – or perhaps more accurately, less evil – for affluent power holding inhabitants of, primarily, the east coast, I look to the states to have the flexibility to craft laws which best reflect the the needs and desires of the local populace.
The feds clearly do not want to surrender power, yet they do not want to interpret the Constitution widely enough to grant enough elbow room in the law to meet the different needs of our diverse population. This is the problem.
I’m curious.
If the ATF had de-escalated and removed all of their weaponry from the vicinity of the Waco compound and THEN served the search warrant, only to be refused entry, then what?
Let’s say the Waco Compound was instead a Catholic church and the priest and his minions were holed up inside armed to the teeth and refused entry to authorities with a search warrant gathering evidence about the alleged rape of 47 (that number again) minor choirboys.
What then?
As an aside, no wonder the Catholic Church doesn’t want to be forced to provide contraception. They don’t need it, given some of their employees’ activities.
Another suggestion to the Feds: Pink and yellow helicopters. Black is for evening wear and for those in mourning.
I’m not sure the gun control example is a counter example in the way you seem to think.
I can’t speak for everyone, but MY argument is that the Constitution tried to strike a number of important balances. One of them was between the states and the federal government. That balance has gotten ignored to the point where (so far as I can tell) pretty much anytime the federal government wants to have its view win over the states, it does. That is the definition of failing to strike a balance, so I’m talking about ways we can think about striking a balance.
Arguing that creating a complete imbalance such that states would always win any state/federal disagreement is not trying to strike a balance. To the extent that you’re arguing against that, you’re not arguing with me.
The Constitution has a number of specific rights. Despite what the Supreme Court tells us, it is clear that those rights were to be applied against the states by the privileges and immunities clause of the 14th amendment and that the privileges and immunities clause wasn’t meant to be interpreted, literally as a nothing clause (which is exactly how the Supreme Court has interpreted it).
So the bill of rights is part of the balance. I realize that lots of people here aren’t excited about certain parts of the bill of rights, but they are there.
I’m not arguing for a complete free for all. I’m arguing for a balance. At the moment there is definitely not a balance.
…for affluent power holding inhabitants of, primarily, the east coast…
Is this a reference to DC, or something else?
Sebastian, I agree with the perspective you just laid out in your last comment.
“Is this a reference to DC, or something else?” Both.
How can DC and the type of people that inhabit it corridors of power relate to the life style of an Idaho rancher?
http://www.humanevents.com/article.php?id=49695
It’s one of the many abuses by anti-gun jurisidictions which cause gun owners to laugh bitterly when they’re told that they’re imagining that they’re being persecuted.
The way it works is that there’s a federal law that says that, if it’s legal to have the gun at the beginning and end of your trip, you can’t be charged for just passing through a jurisdiction where it isn’t legal. But NY takes the position that if you actually stop, (Maybe you need to get gas?) you’re no longer passing through, an they can get you.
So every year a lot of people flying from one gun friendly destination to another pass through NY, and if their plane is held over due to weather or repairs, they have to take possession of their checked baggage, including the guns. At which point they are now in violation of NY law, and when they recheck the bag, the NY police will, by arrangement, be notified to come and arrest them.
Because Mayor Bloomberg is exactly the sort of anti-gun maniac we’re told are history…
The fact that Russell or some coast dweller doesn’t like it and doesn’t value it positively don’t mean squat
What’s your problem with the coast? I kinda like the ocean, myself.
*if the federal level would follow an originalist interpretation of the Constitution and then actually adhere to that interpretation
Here is the full text of the 2nd Amendment:
What does that mean?
If you can have one gun and only one gun, is the “right to keep and bear arms” satisfied?
Or does “shall not be infringed” apply not only to the basic ability to own a gun, but instead refers to any restriction, whatsoever, on personal and private gun ownership?
If it’s an absolute rule against any restrictions or limits at all, does that mean I can have a machine gun? A bazooka? An RPG launcher? A surface to air missile? A tank?
Can I have one of these?
If you want to own a gun, but do not and have no intention of participating in the militia, does the guarantee apply to you?
And WTF is it with those weird commas?
If it was all that simple, we wouldn’t be arguing about it.
I can understand feeling outnumbered when all a guy wants to do is watch the game on the satellite TV and you’ve got yourself 47 headstrong women stomping around wondering why you haven’t cleaned out the gutters yet
I sometimes reflect upon the fact that the Biblical patriarch Jacob was married to two women, and they were sisters.
It’s one of the many abuses by anti-gun jurisidictions which cause gun owners to laugh bitterly when they’re told that they’re imagining that they’re being persecuted.
As regards the NYC thing described in the Human Events article you cite, I see your point.
I agree, that is messed up.
Pretty sure Idaho has two senators and at least one representative, but it’s been a while since I’ve taken a civics class.
Also when gun owners (qua gun owners, so BB doesn’t try to get flippant about convicted felons) are being systematically denied the right to vote, and are in danger of being killed just for trying to do so, and are kept out of public schools, and are required to use separate bathrooms (which sometimes consist of just a hole in the ground), and separate drinking fountains, and are refused service at businesses, and are arrested for trying to get that service, and are required to sit at the back of buses, and are systematically killed for looking funny at white people, can someone let me know?
What’s that? That’s not going to happen, ever?
russell, I like the ocean too. However, I do not think that a resident of Virginia Beach or NYC or LA should be able to dictate that an Idaho rancher should live according the coastal life style.
I am a Militia of One. So yes. I should be allowed to own any weapon system I desire if I can afford it. In Switzerland private citizens are all members of the militia/military and they keep fully automatic assualt weapons in their private residence. Works out just fine. Not as weird as you want to make it out to be.
The commas: It’s the same font everyone here ends up posting in. Maybe you just need to become more habituated. Relax and gaze intently at each of the following for a minimum of one minute. Enjoy,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,
“Pretty sure Idaho has two senators and at least one representative, but it’s been a while since I’ve taken a civics class.”
Yep. They do. That’s 2 versus 98.
So no senators from Wyoming or Montana or Nebraska or South Dakota or Iowa or Utah or New Mexico or Texas or Arizona or Oklahoma, then? And Washington, DC has 98 SENATORS????? Interesting. Congress has changed since I last checked the senate.gov page.
Sucks to be Idaho, I guess. RIP.
In Switzerland private citizens are all members of the militia/military and they keep fully automatic assualt weapons in their private residence. Works out just fine.
That would be fascinating if it were true, which it isn’t.
So, what you clearly meant to say is, “Swiss males undergo directed military training, and are permitted to keep an unloaded, semi-automatic rifle at home, but are not permitted ammunition unless part of a very specific unit.”
We, need guns, to, keep, all of them fancy-,pants New, Yorker type editors, from, confiscating, our superfluous c,o,m,m,a,s.
If Twitter and email had been around for the Founders to communicate the Constitution and its Amendments they could have dispensed with punctuation, paragraphing, and capitalization altogether.
When Ben Franklin would recite the Second Amendment over a pint, he would enclose the words “well regulated” in air quotes to add to the confusion.
Then he and Sam Adams would fall out into the street and go at it with exclamation points drawn.
“but are not permitted ammunition unless part of a very specific unit”
It wasn’t clear that they were not permitted to have ammunition, only that they were not provided it by the government.
However, they all did get to keep a semi-automatic weapon.
The Same 2 NY and all those other awful coastal states get. That particular whine gets no sympathy from me.
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As for the Human Events story: ok, that’s messed up. I tried to find any other stories about it and found this:
http://volokh.com/2010/03/30/unexpected-flight-delay-hotel-stay-criminal-prosecution-for-gun-possession/
That’s a really crappy application of local laws. I don’t know if it’s burecratic stupidity or a shakedown (or a bit of both).
It does show, however, that just saying “federalism!” doesn’t solve our problems. That situation has to be addressed by the Feds (forcing NY to quit harrassing gun owners who are clearly trying to comply with the laws).
Well all ObWi rapier wit aside we still have a situation where some states want to legalize cannabis and the fed.s will not permit it.
So regardless of cute little civics lessons concerning representative governement in the US something is happening that appears to be foiling its application.
Seriously, are Idaho ranchers sufferring under current federal gun laws? Does complicance with such require living a “coastal lifestyle?”
(Or, in the voice of Idahoan Napoleon Dynamite: What the heck are you even talking about, avedis?)
Marty, these two clauses seemed to read that way to me but maybe I’m wrong. Hartmut will hopefully be able to tell me, as I’m sure he knows more Swiss people than I do:
Only special rapid deployment units and the military police still have ammunition stored at home today.[5]
and
The sale of ammunition – including Gw Pat.90 rounds for army-issue assault rifles – is subsidized by the Swiss government and made available at the many shooting ranges patronized by both private citizens and members of the militia. There is a regulatory requirement that ammunition sold at ranges must be used there.
BTW, I’m fine with pot legalization. Go for it. When I sat on the grand jury, the number of piddling possession cases we had to hear was enough to make you tear your hair out.
And with the gun laws, what Rob in CT said. If there are cracks in the system, let’s patch them up so that people otherwise complying with the law are not unfairly punished.
But a bunch of otherwise untroubled people (and, not incidentally, white people) sitting around and claiming the mantle of the suffering that occurred under Jim Crow is wholly obscene. It’s nice to think otherwise, but all injustices are not created equally.
Hairshirt can you seriously be saying that someone living a rancher lifestyle has the same salient interests as someone living in say NYC?
Also I find your argument interesting because there was recently a discussion here wherein no one including myself wanted to have abortion or contraceptive laws imposed by a particular constituency. The original topic of this thread was federal cannabis law which most of us think onerous and wish to not have imposed from the federal level.
When it comes to guns which most here don’t have sympathy for federal restrictions are viewed more positively.
So I’ll spell it out for you as it relates to gun ownership. New Yorkers tend relatively speaking to use guns to rob and shoot each other and living in a population dense high taxation/high civil service area they have a more responsive police force than would be the case out on a ranch and therefore the need and value of guns in NYC is less that out on a ranch in Idaho. NY and NYC have more political clout in DC than do Idaho ranchers. Thus the interest of NY is more likely to carry weight regarding federal law formation around gun ownership than that of Idaho ranchers.
Are ranchers suffering? Maybe or maybe not. It doesn’t matter. it is the principle that counts.
Why does anyone need a fully automatic weapon? I don’t know. Why does anyone need to smoke pot? there are other legal ways to get high like alcohol and legal ways to relieve pain like drugs prescribed by a licensed physician. Why does anyone need to have sex except for procreation?
Why do we need anything? Maybe we should all just do whatever we are told to do and nothing more and be happy with that. Is that what you want?
Now we just need to figure out who gets to do the telling and who gets to be the follower.
avedis: NY and NYC have more political clout in DC than do Idaho ranchers.
Well, NYC alone has five times as many people living in it than people in the whole of Idaho, all of which (I’ll assume) are not ranchers. Are you saying NYC/NY shouldn’t have more political clout in DC than Idaho ranchers?
In fact, I’m not sure what you’re saying. Different state rules via federalism good? Bad?
Hairshirt can you seriously be saying that someone living a rancher lifestyle has the same salient interests as someone living in say NYC?
No, I can’t. Why would you ask such a question?
Are ranchers suffering? Maybe or maybe not. It doesn’t matter. it is the principle that counts.
What principle? The issue is whether or not federal gun laws violate 2nd Amendment rights. Short of that, I don’t know what principle you mean. You’re not suggesting that any law limiting what people can do in any way violates some sort of general principle, are you?
I mean, I agree that it shouldn’t matter what people do when it doesn’t affect anyone else in an appreciable, negative way, and that any law, even if it’s constitutional, that limits anyone’s actions should be justified on the grounds that it protects the rights or well-being of others.
But I’d like to know what it is that ranchers in Idaho can’t do as the result of decisions made in Washington, DC and how those limitations are unjustified.
Or even in the abstract, given your stated, absolute stance on any and all restrictions, if there are no undue dangers to the populace in the unfettered possession of weaponry. How much destructive power should any given individual be allowed to possess, despite the risks that power poses to others, despite the benevolence, caution and competence of the possessor of that power? Is there any point at which that risk should not be borne by everyone else such that their rights outweigh those of the one who wishes to hold a source of destructive power?
(The other funny thing is that legislative power imbalances tend to actually favor the distinguished gentlemen from Idaho and other rural states. A senator representing 1.6 million Idaho residents has exactly the same legislative power and same number of votes as a senator representing 37 million Californians. Thanks to Senate rules, a single person representing 1/300th of the US population can prevent things that a clear majority of the Senate — and, by implication, their constituents — wants to pass. And it happens all the time!)
It is much easier to establish a fascist police state if the populace is disarmed such that they cannot have a level playing field on which to fight back against the gestapo.
HOW OFTEN DO I HAVE TO SAY IT: THE NAZIS DID NOT DISARM THE POPULATION!!!
FIREARM POSSESSION WENT UP AND USE OF FIREARMS WAS TEACHED AT SCHOOL. THEY HAD COURSES IN HAND GRENADE THROWING FOR PETE’S SAKE AND BOYS COULD FAIL THEIR GRADES IF THEY DID NOT GET RESULTS GOOD ENOUGH:
Fascist states want the ‘true’ citizens to be armed against the ‘enemies’. For comparision: communist states also often teached basic military skills at school but were extremly hostile to private ownership.
In the special case of Central European fascism (and esp. the related but not identical Nazism) there were often referrals to medieval and pre-medieval practices, like ‘a free man must be armed, the non-free (and non-members of the tribe) must not’. The similar strict rules for length of hair got not adopted though (for obvious practical reasons).
Phil: Basically, the Swiss government provides ammo to reservists, which they must not use save in specified emergencies, and have to return after their enlistment. It also provides a subsidy for ammo purchased and used at shooting ranges for practice. This doesn’t mean that you can’t buy unsubsidized ammo and bring it home.
You just do so at your own expense.
Switzerland is not quite so pro-gun as they used to be, but they’ve got a long way to go before any gun controller would want to replicate their system here.
Hartmut will hopefully be able to tell me, as I’m sure he knows more Swiss people than I do:
Not that many actually, and I am not following Swiss politics in detail (apart from the fact that traditional Swiss xenophobia went up to 10.5 in the past few years. What I remember about the gun question is that the state comes down like a ton of goldbricks on anyone using their service weapon unauthorized. So, if a Swiss person feels the need to use a firearm, it will not be the state-issued one. Btw, Switzerland took its militia system so seriously that they were the last European country still to send conscientious objectors to jail. When I went to school a slow shift had begun (pushed by international condemnation). COs had to stay in jail only at night but could go to work during the day. It must have been the late 80ies before they dropped that too. But I think there is still a strong stigma attached to it.
—
In addition to my short rant above: In Nazi Germany there were official directives to interpret the existing gun laws (some of which were btw imposed by the Entente powers after WW1) hyperleniently for full citizens (citizens that were both Staats- and Reichsbürger) and hyperestrictively for second class citizens (Staats- but not Reichsbürger), i.e. ‘non-Aryans’. The Nazis tended not to make new laws but to bend old ones to their requirements. Hitler formally ruled through a special article in the Weimar constitution (§48, Notverordnungen = Emergency Directives/Orders) in combination with the Enablement Act that extended its applicability. There never was a Nazi Constitution. It was not needed. Cue comparisions to the USA PATRIOT Act. If Patriot Act II had been adopted (at times there were pushes for it), it could have served essentially the same function, allowing POTUS to rule by executive order bypassing Congress. Btw, which party held the WH at the time?
Hartmut: THE NAZIS DID NOT DISARM THE POPULATION!!!
Thank you, Hartmut, for some historical accuracy.
Avedis: Agreed in that children should be taught firearm safety. Yet this is a red herring. The incidence of firearm accidents involving children is miniscule compared to a host of other preventable tragedies that befall them. The incidence of children’s death from guns is about the same as children’s death from car accidents (circa 2003). When one weighs the usefulness of shooting against the usefulness of travelling, one wonders whether it’s worth it to have as many children die from shooting as from travelling. Just me probably.
A cute map of our state-by-state differences when it comes to the worst:
http://pleated-jeans.com/wp-content/uploads/2011/01/The-United-States-Of-Shame-Chart/
Just to play with it, I read today at Digby’s joint that the Utah legislature is going to do away with sex ed in the schools altogether unless it is abstinence-only.
Funny, that local legislative color, given that Utah, according to the map, has the highest rate of on-line porn subscriptions among the 50 states. I guess they aim to privatize, offshore, and automate sex education for their kids.
Vermont took another tack to limiting out-of-wedlock births by somehow conniving the highest infertility rates in the country.
Montana has the worst drunk-driving problem in the country, but it looks like they have the courtesy to drive to Wyoming to engage in fatal car crashes while driving drunk.
Louisiana has themselves a wicked gonorrhea problem, especially during Mardi Gras when tourists from Utah visit hepped up on porn but not knowing how to open a condom wrapper, not to mention having just passed through Colorado to get coked up.
Presumably New Jersey elected a fat guy to lower their highest tax rates in the country.
Now maybe Mississippi can elect a skinny guy to raise their low taxes to fight their obesity plague.
Washington state has the highest incidence of bestiality, but the animals in question apparently flee to Alaska, the suicide capital of the United States to kill themselves and/or vote for idiots for Governor.
North Carolina has the lowest teacher salaries, which ought to piss off Texas, which has the lowest high school graduation rates. Somehow Maine garnered the top spot in dumbness, despite their higher teacher salaries and graduation rates.
Florida has the most identity theft, which explains why Marco Rubio doesn’t know what country he’s from and also why most of those free Medicare scooters are being stolen from the rest of us by Tea Partiers using aliases.
South Dakota is the rape capital, Nebraska has the most violence against females, so is it any wonder that the males in those states don’t settle in Oklahoma and try to mess with the highest population of female criminals, who probably kick the formers’ butts if they tried anything.
They drink all day and everything in Arizona, while in Wisconsin they compress their alcoholism into short spurts of binge drinking.
Have at it.
I can’t for the life of me figure why there is any difference between quartering Federal troops in a woman’s vagina and quartering state militias in a woman’s vagina.
Also, odd that the same political party who used Willie Horton as the centerpiece of a Presidential campaign now doesn’t want Willie or his victims access to birth control AND wouldn’t mind so much if the victims were forced to have Willie’s unwanted babies.
Unless the victims live in Rhode Island.
States-righters: the original promoters of diversity.
I do not think that a resident of Virginia Beach or NYC or LA should be able to dictate that an Idaho rancher should live according the coastal life style.
The laws for firearms, as for many things, are quite different in ID and NY.
So, your wish has been granted.
I am a Militia of One.
OK then, what you’re making makes total sense now.
I should be allowed to own any weapon system I desire if I can afford it.
You’ll forgive the rest of us Militias Of One if we collectively respond with a resounding “No Freaking Way Dude”.
No, avedis, you cannot have any weapon system you can afford. The 2nd Amendment does not grant you that right, and nobody occupying the same continent (or, possibly, planet) as you is interested in you having that right, either.
Nor, frankly, do I find it believable that you would be interested in any random individual US citizen having that right, either.
I don’t mean to speak for you, I just don’t believe you’re that reckless or dumb IRL.
In Switzerland private citizens are all members of the militia/military and they keep fully automatic assualt weapons in their private residence. Works out just fine. Not as weird as you want to make it out to be.
The Swiss system is that while you are an active militia member, you keep an automatic weapon and ammunition at home.
If you use that weapon and/or ammo for anything other than military training or actually repelling an armed invasion of the nation of Switzerland while under the direct command and control of the Swiss army, your @ss is grass.
So, not quite the gun-owning nirvana you are imagining.
And no, not weird at all.
As I have said here and elsewhere on a number of occasions, IMVHO the Swiss system is extraordinarily reasonable, and I’d be delighted if we did something similar.
…but they’ve got a long way to go before any gun controller would want to replicate their system here.
Not so fast, Brett. Liberals need to arm. The Swiss plan looks good for that purpose, and our youngsters can work off a few calories in the bargain and spend less of their time running up burdensome student debt. Might make war less palatable to our “political class” as you call them.
😉
This is an interesting press release from ATF.
10 years for one count each of: (i)conspiracy to make a false statement or representation with respect to information required to be kept in records of a licensed firearms dealer; (ii) possession of a firearm bearing a removed or obliterated serial number; and (iii) making a false statement or representation with respect to information required to be kept in records of a licensed firearms dealer?
That seems a little harsh.
http://www.statisticstop10.com/Causes_of_Death_Kids.html
Sapeint I don’t know where you get, “The incidence of children’s death from guns is about the same as children’s death from car accidents (circa 2003)”. See the link above. circa 2002. Auto accidents far outweigh gunshot deaths. 14 gunshot deaths for a childrens’ mortality rate of 0.46%. Fuel for liberal hysteria? Sure. Reality enough for serious policy making? Not really.
“No, avedis, you cannot have any weapon system you can afford. The 2nd Amendment does not grant you that right…”
Hmmm. So my militia can’t have these weapons but Blackwater and similar private org.s can?
What’s up with that?
Personally, I’d draw the line at tactical nuclear weapons.
Avedis,
The sovereign state may piece out some of its monopoly of force on a contract basis to a designated private actor. It is subject to withdrawal at any time.
But you have to apply. I’m sure there’s a form somewhere.
Ah, the “Weberian” definition of the state, which typically gets thrown out with no recognition that it is fundamentally contested.
That’s the European concept of the state, which was consciously repudiated here in America, where the people are viewed as the sovereign, who partially and contingently delegate some of THEIR sovereignty to the state, not the other way ’round. “Novus ordo seclorum”, a new order for the ages.
You really can’t understand either the Declaration of Independence, or the 2nd amendment, if you’re determined to view the state from a European, fundamentally statist, standpoint.
“The sovereign state may piece out some of its monopoly of force……..”
So you agree then that gun control is all about preserving monopoly force and perhaps less about the Bill of Rights however interpreted?
Good.
Agreed. The line should be drawn at tactical nukes.
Excellent point Bre. That’s what I’m talking about.
However I am afraid you used too many commas.
“Bre” is, of course, Brett… Don’t know why it cut off my name.
I’m more than a bit of an originalist, which I regard as essentially a form of intellectual honesty: That’s just how you interpret texts, unless you’re determined to arrive at a meaning you find congenial regardless of where the text actually takes you. Which is just intellectually dishonest. Sophistry doesn’t have a bad enough rep anymore, because it’s so convenient for a government that doesn’t like it’s constitution.
From an originalist perspective, the 2nd amendment isn’t so much about hunting and target shooting, (Those would have naturally fallen under the unenumerated rights of the Ninth amendment.) as it is about making sure that a militia can be raised at need even if the government doesn’t want it to be possible.
To that end, the people are guaranteed the right to own and carry “arms”, which was understood to mean, in Tenche Coxe‘s words, “Their swords, and every other terrible implement of the soldier…”
That is to say, we have a right to own and practice with whatever weaponry is normally carried by soldiers. Nothing too terrible for the government is too terrible for the people, because such rights as the government has, it can only have gotten from the people.
In short, if the government doesn’t want machine guns to be “arms”, it has to stop issuing them to it’s troops.
Further, I’ll note that the federal government actually has no constitutional authority to ban ANYTHING, anything at all, outside of the District of Columbia, and such land as it has purchased with the permission of state governments. So, no, the federal government can’t ban nukes.
State governments could, of course, as they aren’t carried by soldiers, and so don’t fall under the 2nd amendment. But that’s no consolation to liberals, because liberals don’t really conceive of state governments as real, somehow. Anything worth doing has to be done at the federal level…
Aw cripes!
We cede the tactical nukes, tanks, interplanetary laser weapons, and rail guns to the government and we the people get to keep the shotguns, the hunting rifles, the handguns, and the derringers so we can shoot each other in darkened upstairs hallways without a “who goes there?” or spray a little automatic gunfire around the public square.
That we humor each other over the inside joke that it might be substantially any other way here or in Europe is one hell of a time waster but yet another reason to expand bandwidth.
I’d vote today to withdraw my assent to government force. Disarm the government, including the IRS and all local and state law enforcement. Disband the military. Find Eric Prince and give the vermin a desk job and return the Blackwater “campuses” to wildlife refuges.
Let see how that works.
Meanwhile, Wayne La Pierre sows fear among squirrel hunters which leaves only the squirrels wondering why so many commas were wasted on keeping their murderers in business.
And quite frankly his demagogic support for concealed carry in bars, public buildings, churches, etc has me wondering whether I just shouldn’t start the shooting to roust out the assh*les who think they need to carry a weapon in my presence while I’m carrying out whatever business I have in any of the above mentioned venues.
Why exactly do Second Amendment purists cling to the impure, ridiculous, muddled phrasing of the Second Amendment?
How about a rewrite. You get one comma and a lengthy footnote listing the specific weaponry an American citizen may possess …. in 2012.
Have at it. Flamethrowers better be on the list.
“Why exactly do Second Amendment purists cling to the impure, ridiculous, muddled phrasing of the Second Amendment?”
Because it’s the highest law of the land. Already the highest law of the land. And we see no reason to shift the burden from you repealing it, to us getting it reenacted.
Would I have written it differently in the first instance? Likely not, were I a member of that generation, as I’d have been writing to the standards of that time’s punctuation and style.
The amendment is not particularly hard to understand, for people who are not at pains to fail the task.
Fine.
In which case, all, (wo)me$n R created(;) e=qual?
Which era’s customary punctuation and diction is that?
let’s just ban abortions and birth control along with certain weapons and cannabis. OK?
Ok!
So, no, the federal government can’t ban nukes.
See, for a lefty, I am basically a second amendment hawk. IMVHO it’s sound, constitutionally and otherwise, to not allow a ban on the ownership of firearms. Again IMVHO, the 2nd Amendment was written to ensure that private citizens would have guaranteed access to firearms. Further, IMVHO the context in which the 2nd Amendment was written was one in which there was a justifiable suspicion of standing armies, and a concern that military force not be exclusively available to the federal government.
Shorter me: I am far from hostile to the idea that private citizens should have constitutionally guaranteed access to firearms, not least because it creates a counterbalance or bulwark against a tyrannical central government.
It doesn’t bug me at all that there are 200 million firearms in private hands in this country.
If I were a hard core 2nd Amendment advocate, I would seize upon this as the best available olive branch. If you are looking, in any way shape or form, for common ground, that is about as good as it is going to get.
That said, when folks talk about “a militia of one”, or “the federal government has no authority to ban nuclear weapons”, I have to say that you have left me behind.
If you are not operating under, and are not responsible to, the authority of the government of the state you live in, you do not meet the constitutional definition of a militia. You may be an individual, or a group of individuals, who like to shoot guns and play soldier. But you are not a militia.
If you think that the federal government has no rightful authority to ban the private ownership of nuclear weapons, you are straight up living on a different planet from me, and not one I care to visit let alone live on.
In short, it’s an interesting hypothetical point, perhaps one that would be fun to bat around in the grad student lounge while passing the bong around, but IRL it’s freaking insane.
And I mean no personal disrespect to Brett when I say this, because quite frankly I both enjoy and value his perspective here.
But if following the logical consequences of your point of view leads you to the point where the personal ownership of nuclear weapons is an option, you may want to think about walking that back a bit.
I mean, seriously, WT freaking F?!?
As always, my two cents.
Regarding Blackwater, since you ask, I would like to see that outfit broken up and sold for parts, and Eric Prince behind bars. Outsourcing military and/or diplomatic security functions is horsesh*t.
A cute map of our state-by-state differences when it comes to the worst:
I can, and am quite willing to, personally attest and affirm that MA, my state of residence, has the worst freaking drivers in the United States of America.
Utter and complete crap drivers, rudely and aggressively so. Intentionally and determinedly bad. It’s a point of pride.
Your typical NYC cabbie is, head and shoulders, a superior driver when compared to the average MA motorist.
Well, whether a second amendment hawk or dove, I do like to remain reality based: “Citing the most recent data from the U.S. Centers for Disease Control and Prevention, the report reveals that 2,827 children and teens died as a result of gun violence in 2003 more than the number of American fighting men and women killed in hostile action in Iraq from 2003 to April 2006.”
Walking, talking, breathing people can’t have their brains blown out by abortion, birth control, or cannibis.
Hey, let’s ban certain types of abortion, birth control or cannibis, but leave the safest and most useful types, the vast majority of types of those things, readily available. (Analogies are fun!)
“If you are not operating under, and are not responsible to, the authority of the government of the state you live in, you do not meet the constitutional definition of a militia. You may be an individual, or a group of individuals, who like to shoot guns and play soldier. But you are not a militia.”
Indeed, this is true, and I frequently commented back in the early ’90’s, that if the federal government had really wanted to deal with the militia movement in a way so constitutionally sound that they couldn’t put up the least argument, they would have simply said, “Fine, you’re a militia. We hereby appoint the following officers to run you.”
But, of course, the problem was they didn’t particularly care whether anything they did was constitutionally sound, which was part of why there was a militia movement in the first place.
This does not, of course, change the fact that the 2nd amendment guarantees a right of the people, not the militia. Because, of course, if it did the latter, the government could negate the amendment by just not HAVING a militia, which possiblity was just exactly what the amendment was supposed to deal with: A government that didn’t want a militia.
After all, a well regulated militia may be necessary to the security of a free state, but the state doesn’t necessarily want that freedom to be secure.
Sapient, it is well worth remembering, when you read statistics like that, that the group “children and teenagers” includes criminals who happen to be eightteen or nineteen, and who are generally viewed as adults. Who make up by far the majority of those deaths, which is they’re not broken out by particular ages in gun controller statistics.
Suffice to say that, when one gangbanger old enough to vote or join the army kills another gangbanger old enough to vote or join the army, and gun controllers weep about the accidental death of a “child”, I am unimpressed. You want to save children from accidental deaths, there’s lower hanging fruit, like, say, banning bathtubs.
sapient the majority of those killed in your reference statistic are teens. Only like 50 +/- are children. The teens overwhelmingly involved in shootings associated with gangster and other criminal lifestyles. So what killed them? Guns or criminality? Or that and a host of social ills.
As much as I am for legalized drugs I am sure drug abuse has killed per annum at least as many youths but probably also was a feature – probably a contributing feature – in the gun deaths you cite.
I am not at all impressed or moved by your dead shot children gambit.
“Walking, talking, breathing people can’t have their brains blown out by abortion, birth control, or cannibis.”
Says you. Other people say that cannabis will definitely scramble your brains and that abortions literally scramble a child’s brain.
You guys are looking for rational arguments as to why you should be free to have the things you want while still denying others the freedom to have what they want. Doesn’t work. For the Constituion to work it needs to apply to everyone at all times and it needs to be left free from interest group interpretation.
…and it needs to be left free from interest group interpretation.
It is heartwarming to watch Avedis and Brett devolve to anarchism over the course of this discussion. pffft! Who needs federalism? Sovereignty by any other name is merely another lie to perpetuate oppression! Moving it from the federal to the state level does nothing to address the overarching problem…..the fact that the state itself is inherently immoral.
Property is theft!
Workers of the world unite!
Power To The People!
One big union, One big Strike!
Welcome to my world!
Russell: Are those MA drivers really that bad?
There was an era in my life that I would have traded a tactical nuke for a pound of good maryjane, but I got over it.
I think the Taliban, in fact, trade their poppy crops for any kind of high-powered weaponry they can get their hands on out there on the true free market we all aspire to.
What, a guy can’t request a simple rewrite of an amendment without being accused of gun-grabbing?
How about adopting the haiku form for all of the Amendments.
Or maybe e.e. cummings style with the words arrayed all over the page.
If I have time in my busy blogging schedule I might try rewriting the Amendments in the hilarious mode of those lists of do’s and don’t’s (feral apostrophes) the traveler finds on cheap Chinese hotel room doors.
Or maybe in the soporific style of the instructional assembly manuals that come with any number of kid’s toys under the Christmas tree or unfinished furniture with the diagrams of nine different types of screws and locknuts.
Really, I’m surprised those skeptical of government (which, at OBWI, is just about everyone, but each to their own tastes) haven’t reacted to the odd phraseology and punctuation of the Second Amendment as they do to nearly all written government pronouncements: How many addled bureaucrats did take it take to write this crap? It seems to change directions more often than Donald Trump’s combover. But what do you expect from a bunch of unelected elitist, snuff-driven bureaucrats meeting in private to decide for us what kind of government THEY decide is going to be shoved down our throats.”
See, if the Founders had written the documents in an online forum, we would have been arguing in court for the last 235 years about why, why, for what earthly reason, did they put EVERY word, comma, and jot in italics.
Department of manipulative statistics, sapient, that one is a doozy.
First its definition of children is 2-19, but its photo sets focus on toddlers.
Second it includes suicides, apparently under the theory that people can’t kill themselves without guns? (Ask Europe about that one btw, or Japan with its much higher suicide rate and much lower gun ownership rate).
Third, in typical fashion 6 of their 8 points don’t even address the largest component of gun death–gang violence (which BTW is largely fueled by drug money that wouldn’t be so easily available under legalization regimes) and the two they have are really pie in the sky idealistic. Also that violence tends to be by the 17-19 year component of the statistic, less children, more adult.
Interestingly I would tend to suggest that drug legalization would reduce those statistics more quickly and with less government intrusiveness than trying to create yet another status/possession crime.
Trying to enforce large scale possession crimes is exactly what is corroding our civil rights vis-a-vis the police in this country. I’m not thrilled with the idea of ADDING to that rather than subtracting from it.
That is a policy preference that has nothing to do with federalism. But it illustrates Brett’s point about how centralization of rules is a gamble, it spreads out bad rules which wouldn’t have taken root everywhere.
“But it illustrates Brett’s point about how centralization of rules is a gamble, it spreads out bad rules which wouldn’t have taken root everywhere.”
Aside from your questionable use of commas I agree with this statement completely Sebastian.
“Department of manipulative statistics, sapient, that one is a doozy.”
Exactly. There is more than a hint of disingenuous argument when someone as intelligent and adept as sapient misuses statistics in this manner.
But what do you expect from a bunch of unelected elitist, snuff-driven bureaucrats meeting in private to decide for us what kind of government THEY decide is going to be shoved down our throats.”
Insofar as they insured the soundness of their loans to the Continental Congress to pay for the Revolutionary War, they succeeded admirably.
Says you. Other people say that cannabis will definitely scramble your brains and that abortions literally scramble a child’s brain.
Okay. So you’re disputing the fact that guns can blow people’s brains out, literally, whereas those other things cannot, by citing some people’s subjective characterizations. Yet, I’m one of the people searching for a rationalization.
I doubt even the most conservative of judges would support your completely absolute and absurd interpretation of the 2nd Amendment. Say “la vee.”
“So you’re disputing the fact that guns can blow people’s brains out, literally, whereas those other things cannot, by citing some people’s subjective characterizations. Yet, I’m one of the people searching for a rationalization.”
Huh? WTF?
I am just saying that some people say that abortion is murder and some people say that drugs will fry your brain and kill you just as dead as a gun; albeit more slowly.
You don’t like to have these people’s opinions turned into law because your disagree with them.
Your disagreement does not make them wrong.
Abortion, after all, does end a life jusdt as surely as a gun does. The humaness of that life that is ended is the subject of endless debate, but it is a life of some sort nonethe less.
People do die from drug related conditions and accidents or more directly from overdoeses etc. Just as dead as if shot in the head by a gun.
You and I are ok with these risks and ethicical questions – though honestly i am almost on the fence regarding abortion – and therefore want people to be free to make their own choices.
You are not ok with guns. I don’t know why and it doesn’t matter. What does matter is that if you are not ok with something you want to restrict other people’s freedom. I am not ok with that aspect of your approach because honestly I don’t see where you are any different from those seeking to ban abortions and wage war on drugs.
You are not for freedom as per the Constitution. You are for imposing your brand of liberal agenda.
You are not ok with guns. I don’t know why and it doesn’t matter. What does matter is that if you are not ok with something you want to restrict other people’s freedom.
Therein lies the rub. Saying I’m not ok with guns may or may not be accurate. What I’m not ok with is an absolute interpretation of the 2nd Amendment that allows anyone to have any weapon that can be produced. The reason I’m not ok with that is because I see the potential for one person to violate the rights of and restrict the freedoms of others. If you could only hurt yourself with a given weapon, it wouldn’t matter a wit to me if you had it.
The funny thing about this whole discussion is that I don’t really have a strong opinion one way or the other about existing gun laws because I haven’t really examined them very closely. You may be able to convince me that most of them are unconstitutional, or at least unnecessary. I don’t have a great desire to see people denied access to guns just for the sake of denying people access to guns.
I just see some serious problems with your absolute way of viewing gun rights in that it ignores other rights, as though the right to keep and bear arms trumps all others, even if only potentially.
But I live on the coast.
I’m bi-coastal, which really gets the geographical originalists up in arms.
The sh*t really flys in fly-over country.
Isn’t it interesting that three people managed to gainsay sapient in the exact same manner without even attempting to provide a single cite? Not saying they are or are not correct, but we’re just supposed to, I guess, inherently trust them for some reason. Despite at least one of them having gotten one easily discernible fact fabulously wrong in this discussion already, and another having a history of being … a unique interpreter of history.
You want a cite for the fact that “children and teens” includes 18 and 19 year olds? Or you just doubt that the firearm death rate for 17-19 is higher than for 4 year olds?
Ok, seriously, when you’ve been fending off a sh*t-storm of fraudulent and misleading stats for years, you tend to forget that somebody who isn’t on the receiving end might want proof those are turds, not tootsie rolls.
GunCite- Gun Accidents
Or, Gun Safety for Kids and Youth
From the latter:
“Of the total firearms-related deaths:
73 were of children under five years old
416 were children 5-14 years old
2,896 were 15-19 years old”
Betcha think a gun in the house is 43 times more likely to kill somebody in the house than an intruder, too. 😉
“The reason I’m not ok with that is because I see the potential for one person to violate the rights of and restrict the freedoms of others. ”
Yeah. Me too. That one person (or entity) is the govt.
Another is the criminal that seeks to harm me or my loved ones.
http://www.guncite.com/gun_control_gcdguse.html
A link off of Brett’s link is really interesting. It speaks to how often guns are used defensively against an attacker. Apparently happens much more frequently than even I thought.
Regarding your specific concerns, avedis, how big of a personal arsenal would you need to thwart the government or a criminal? And how much risk should your arsenal be allowed to pose to others before your rights begin to encroach on theirs?
But, again, I don’t have any specific limits in mind. I would guess that you’d be able to have about as much as you could possibly need for practical purposes if I were the King of Gun Laws.
“….how big of a personal arsenal would you need to thwart the government or a criminal? ”
I guess up to and including the Jihadist have. Seems to thawrt the worlds greatest militaries very effectively.
“Isn’t it interesting that three people managed to gainsay sapient in the exact same manner without even attempting to provide a single cite? ”
I read and quoted from his cite…
I don’t have a great desire to see people denied access to guns just for the sake of denying people access to guns.
I agree. But you would think that asking people to register their guns, or be required to take “gun safety ed,” or to be restricted (at all) in the amount of damage that one emotionally disturbed person can do in a 5 minute period – you know, kind of like driving is restricted to people who have proved that they have reached a certain age, can see the road, and know how to operate the car – you would think that these minor safety requirements would just “kill” people.
I said upthread that I knew a kid who killed another kid with a gun. But upon further reflection, I knew that kid when I was a kid. Since I’ve been grown I can think of at least 2 other people I’ve met who, when kids, killed another kid with a gun. I also knew personally two women who was killed by their husbands with a gun: one case was murder; in the other, the man was exonerated – he was just “cleaning his gun.” Yeah, right.
Anyway, guns are a very quick way for people who have volatile tempers to act out impulsive aggression with very deadly results. I have conceded that people who agree with me on this issue have lost the battle, and it’s not something that I even think about much anymore. Except that Virginia is now being run by people who don’t respect any aspect of the Constitution other than their interpretation of the Second Amendment. Despite the fact that the VA Tech shooting happened here (most of these victims were probably 19 or over, so I guess they should have been packing heat themselves), there is a refusal to concede that automatic weapons just aren’t a great thing for everyone to have.
Again, I’m done with this battle. My side has lost. But nobody’s going to be changing my mind anytime soon about whether people should have these kinds of weapons.
Sorry, Brett, I’m not going to click links to issue advocacy sites that, if I were to proffer some pet-issue equivalent, you would dismiss out of hand as hopelessly biased. I’m sure you understand.
I believe the Second Amendment is an individual right. I believe in a right to self defense. I believe in a right to own a firearm for protection or hunting or sport or whatever. (I nearly bought one myself after we had a break-in last year before reason got the better of me and the words “horse” and “barn door” came to mind.)
But I don’t believe that people should be able to have whatever size and capacity ordnance they want, whenever they want, up to and including weapons of mass destruction. I believe there are significant social ills that result and need to be taken into account, because you don’t know who the bad guys are until they become bad guys. (Like the Cleveland firefighter who, a couple of years ago, shot three of his neighbors dead in cold blood on the Fourth of July. He had 12 guns in his house.) And you’d better believe that I cast a skeptical eye at people who are vocally anti-government (and have short tempers, a propensity for misattributing blame, paranoia and/or stated frequent alcohol and drug use) and who are enthusiastic about getting as many guns with high-capacity magazines as I can. I’d let my 16 year old nephew have a gun before I’d let them have one.
And, in the interest of fairness, here’s a defensive gun use from my own city from just yesterday: http://blog.cleveland.com/metro/2012/02/duplex_owner_wounds_young_intr.html
I guess up to and including the Jihadist have.
The 9/11 guys came to the table with box cutters and some martial arts training.
Not making any particular point here, just an observation.
And you’d better believe that I cast a skeptical eye at people who are vocally anti-government … and who are enthusiastic about getting as many guns with high-capacity magazines as I can.
I am with Phil on this.
My druthers, open carrying hand guns and assault rifles, along with signs explaining how the ‘tree of liberty’ needs to be ‘watered’, to open political meetings would result in forfeit of your right to keep and carry.
IMVHO that behavior is nothing more or less than explicit physical intimidation. It is, precisely, brownshirtism.
So, folks who are inclined to engage in that behavior should be happy that the current powers that be are more accommodating of them than I would ever be.
“…that the current powers that be are more accommodating…”
You guys still have it backwards. The govt doesn’t get to dole out rights to us as it sees fit. Quite the opposite. We give the govt power as we see fit. Ideally in very limited amounts and in very limited situations.
You can live free and accept that freedom can be messy and even a little bit dangerous or you can abdicate your freedom to the govt for the false promise and illusion of safety. You guys have chosen the latter where guns are involved. I choose the former.
Where drugs are concerned we are on the same page because drugs don’t scare you as much as guns and therefore you don’t seek the protective skirt hems of the govt.
Any time we are fearful and give the govt power to “protect” us from what we fear we create a host of problems with long term ramifications. Among these problems is that once given power the govt grows proportionally more dictatorial and more greedy. It never returns what it was given. Precedents are created. The police state expands.
You guys have chosen the latter where guns are involved.
It seems you’re not reading very closely, unless the only way not to choose the latter is to believe there can be no restrictions on or regulation of weapons possession whatsoever. I’d also say the freedom you seek is illusory. There’s really no way you’re going to stop the government if it is truly determined to disarm or kill you, and it’s highly unlikely that such would be the case in the first place. It seems to me a weird, paranoid fantasy.
As far as criminals go, a shotgun would probably be sufficient, not that I think you should be limited only to having a shotgun (read twice if necessary).
The messy part of your stated version of freedom just happens to involve a lack of freedom for other people, but you either don’t see that or don’t care. Liberty!
In my local news, 14 of the 16 indictments handed down by the grand jury were drug charges. None involved weapons charges.
link
“Sorry, Brett, I’m not going to click links to issue advocacy sites that, if I were to proffer some pet-issue equivalent, you would dismiss out of hand as hopelessly biased. I’m sure you understand.”
Phil, the second link was to the University of Michigan Health System. While I don’t suppose I’d go so far as to describe them as “utterly unbiased”, to describe them as an “issue advocacy site” does seem a bit much, especially since, to the extent that they have a bias on the subject, it’s closer to yours than mine.
I ‘understand’, I simply don’t approve of people who ask for cites, and then reject them without even clicking on them. Apparently without even affording them mouseovers, given your rejection of that one.
“There’s really no way you’re going to stop the government if it is truly determined to disarm or kill you….”
I disagree. I’d say the Taliban has done a pretty good job of stopping the best of the US Mil.; just as their predecessors, the Muj, did to the Russians.
Ditto the Viet Cong.
Chechnyans versus Russians….so so, but at least gave it a fighting chance.
Should I go on with examples?
“it’s highly unlikely that such would be the case in the first place. It seems to me a weird, paranoid fantasy.”
Well, it’s not something I sit around thinking about much less losing sleep over. In fact, prior to this thread I probably had not thought about since before the last thread of similar content either here or somewhere else and that was a long while ago. You really have too many stereotypes popping up in your head when it comes to gun issues. However, let’s ask 6 million Jews how much of a paranoid fantasy it is. How about 1.5 million Armenians? How about 10 million +/- Russian “enemies” of Stalin et al.? Cambodian enemies of Pol Pot? ………?
It can’t happen here because….well…..it just can’t….? Is that going to be your response?
“There’s really no way you’re going to stop the government if it is truly determined to disarm or kill you….”
I disagree. I’d say the Taliban has done a pretty good job of stopping the best of the US Mil.; just as their predecessors, the Muj, did to the Russians.
Ditto the Viet Cong.
Chechnyans versus Russians….so so, but at least gave it a fighting chance.
Should I go on with examples?
“it’s highly unlikely that such would be the case in the first place. It seems to me a weird, paranoid fantasy.”
Well, it’s not something I sit around thinking about much less losing sleep over. In fact, prior to this thread I probably had not thought about since before the last thread of similar content either here or somewhere else and that was a long while ago. You really have too many stereotypes popping up in your head when it comes to gun issues. However, let’s ask 6 million Jews how much of a paranoid fantasy it is. How about 1.5 million Armenians? How about 10 million +/- Russian “enemies” of Stalin et al.? Cambodian enemies of Pol Pot? ………?
It can’t happen here because….well…..it just can’t….? Is that going to be your response?
I agree, it’s not a topic I’ve given a lot of thought since the government stopped burning it’s own citizens alive. Did give it a lot of thought back then, though.
At present, the armed population of the US has the entire US military outnumbered about 30 to one. Assuring that was, according to founders’ statements, largely the point of the 2nd amendment, so I’d say it has, despite the worst efforts of gun controllers, worked pretty well.
With such a huge disparity of numbers, even assuming that a civil war didn’t lead to large parts of the military switching sides, (There are select forces which could probably be counted on to fire on Americans, but you wouldn’t want to rely on most units being willing.) and assuming US ground forces won every single engagement, the US going to war with it’s own population would be a losing proposition. And that’s even setting aside the fact that the military needs to be supported by the very country it would be attacking, and so would be faced with a logistics nightmare. It’s not like you can expect to win a war carpet bombing your own cities…
Again, this is as planned, the point of having an armed populace is to take the military being able to effectively subjugate it off the table.
The most likely scenario pitting the US military against the nation’s armed citizens would be some President deciding that he was going to make a real effort to forcibly disarm the country. I have a hard time imagining even the most virulently anti-gun President being that stupid. But, again, that’s not to say they don’t have their daydreams, only to say that deterrence works. But it works only because we spent decades fighting the gun control movement’s efforts to reduce the number of gun owners by attrition to the point where it might have been feasible.
So, in short, I don’t see the government trying to use violence to disarm Americans, and terror didn’t work out so well when they tried it. They’re back to resorting to subterfuge, and handicapped more than a little by the fact that they have to lie about what they’re up to throughout most of the country.
But an ambition thwarted is not the same as lack of ambition, and those of us who fought in the political trenches over the last few decades to beat back the gun control movement have little interest in humoring people who think they were nice folks only interested in reasonable regulation.
They weren’t, and aren’t.
It seems to be true, that while a human can be intelligent,
mankind as a group are stupid lemmings one follows the other .
group thinking, and the milgrim experiments prove this.
when expanded powers of the government are opened due to a flimsey case, then the door to total state control has already been opened. Our lives are now on servers, cameras etc all getting compilied – for what? not in our individual or even marginal best interest.
Germany had such a record system, history played that one out.
It is only a matter of time before all our private lives, individual freedoms are long gone, if not already lost and we are too ignorant to know it.
So all the guns vs no guns is all a moot point.
those who want guns and amo will have it ,
black market items may well fund a new economy that favors others than the 1% new markests will about.
I disagree.
Well, not so fast. HSH seems to be placing this issue in the context of the individual as opposed to the state or the yin/yang of freedom amid a sea of others (i.e., society) and their rights.
You assert an undivided universal right to arm yourself to the teeth because of the possibility of….black helicopters?
To bolster your case you cite….civil wars. It strikes me that civil wars are situations where armed combatants, acting in highly disciplined (yo! freedom!), armed groups inflict inhumane violence on each other to determine ultimate sovereignty. ‘We The People’ is nice, but sometimes there are more than one version of just which of us constitute the ‘We’ part.
Under normal circumstances, this is not an issue. We are not in conditions of civil war or anarchy. Sane gun regulations under such conditions is not evil. The aggregation of unrestrained gun ownership has rather obvious implications for social tranquility (Wyatt Earp, which see).
And also please be advised that if the civil war comes, you will have all the opportunity you could possibly ever desire to join your side and fire weapons. It’s pretty much the way things roll when that happens….as your historical examples so aptly demonstrate.
Regarding the confiscation of commas, turns out there were two versions of the Second Amendment, one version ratified by Congress and one ratified by the States at the time.
So, it was rewritten with fewer commas, apparently without informing anyone to this day. Samuel Adams was said to have drunkenly accosted fellow patriots in the Boston pubs patting the pockets of his waistcoat and demanding the return of the two missing commas, or else.
From Wikipedia:
“There are several versions of the text of the Second Amendment, each with slight capitalization and punctuation differences, found in the official documents surrounding the adoption of the Bill of Rights.[5] One version was passed by the Congress,[6] while another is found in the copies distributed to the States[7] and then ratified by them.
As passed by the Congress:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
As ratified by the States and authenticated by Thomas Jefferson, Secretary of State:
A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.[8]
The original hand-written copy of the Bill of Rights, approved by the House and Senate, was prepared by scribe William Lambert and resides in the National Archives.”
By my count, that’s a two to one ratio of Federal government commas over state commas.
Federal and State periods were in balance from the get-go — one each.
I see no provision at any level for individual possession of semi-colons, question marks, exclamation points, or quotation marks.
I knew a guy once who kept colons in locked storage for special occasions, but I heard through the grapevine that his punctuation armory blew up before he could use them on the government or individuals out to get him.
You could see the smoke cloud from miles away.
He lost a testicle and some livestock.
You guys have chosen the latter where guns are involved.
The folks disagreeing with you on whether any or all ordinance should be available to private citizens represent a quite broad spectrum of opinion.
There is no “you guys” who have chosen anything in particular.
You react to the phrase “the powers that be”. The powers that be are in that position because a lot of people voted for them.
You may view a prohibition on private ownership of, frex, machine guns as a crazy power grab on the part of an unaccountable tyrannical state.
I, personally, view it as a government implementing the will of the people, in the interest of the people.
There aren’t that many people in this country who are interested in the widespread ownership of machine guns, let alone hand grenades, bazookas, etc.
The 2nd Amendment guarantees that private citizens can keep and bear arms. In this country, private citizens can, in fact, keep and bear arms.
So, mission accomplished. Well done, founders.
If the requirements to keep and carry that are in effect in NY, or MA, or CA, or wherever, are not to your taste, and it’s that important to you, I’d say don’t live there.
It’s a free country, you can live anywhere you like.
See, federalism!
I note and am in general agreement with Brett’s comments on the Waco and Ruby Ridge raids, and also on Bloomberg’s enforcement of NYC rules on people who happen to be stuck in the airport for reasons not of their choosing.
All of those things suck. IMVHO.
I’ll also chime in to say that I wish we had the 2nd Amendment text what was presented to the states. It is coherent English, unlike the text passed by Congress.
Damned commas.
Ahem.
Three commas for the Federal government and one for the states.
Three to one ratio.
My bias regarding commas, like that regarding guns, is the fewer the better.
So, just by doing an accurate count, we aren’t as overly comma’d as previously estimated.
Headed in the right direction.
security of the state can be from enemies foreign AND domestic
Russel, punctuation was rather informal at that time, with commas being placed wherever you thought somebody was going to pause for a breath. Perhaps the 2nd amendment was transcribed by somebody with a breathing disorder?
“You may view a prohibition on private ownership of, frex, machine guns as a crazy power grab on the part of an unaccountable tyrannical state.
I, personally, view it as a government implementing the will of the people, in the interest of the people.”
The government is, purportedly, implementing the will of the people, in the interest of the people, any time it legislates on any topic. Abortion, say. Or whether you can buy pornography. The reason we have a constitution is to require that will to be tempered on some topics.
“There aren’t that many people in this country who are interested in the widespread ownership of machine guns, let alone hand grenades, bazookas, etc.”
Funny thing, you make it virtually impossible to get a license to do something, prohibit items manufactured more recently than the 1980s from being sold, and impose a 10,000% tax on the ones you do permit sale of, and demand for just about anything goes down.
I have no particular interest in having a machine gun under the current legal environment, (Couldn’t afford to keep it fed…) though were the law more reasonable, a select fire semi-auto weapon would be no more pricy than the semi-auto version, and why wouldn’t there be demand for more options at the same price?
Indeed, were the law more reasonable, it wouldn’t be illegal to sell guns with noise suppressors, (Which, Hollywood to the contrary, don’t reduce the noise to a quiet “thwip”, just to a level which won’t cause deafness.) and the incidence of deafness among gun owners would decline substantially. But I guess it’s just the will of the people that gun owners suffer deafness for their choice of hobby.
Just curious, Brett. What hobby thing would you be shooting at with a machine gun? Is there machine gun target shooting? Blowing away many, many animals at once? What kind of hobby is it to kill massive numbers of (defenseless in the face of machine gun fire) creatures? Again, just wondering since it’s not a “hobby” I can imagine enjoying in my wildest dreams or nightmares.
In his 2/24 11:30 post, Seb talked about the authors of the Constitution trying to find a balance. I think that’s exactly right.
IMVHO, we currently have a reasonable balance between the right of people who are interested in owning a firearm being able to own one, and the right of everyone, including folks who are gun owners, to live with a reasonable level of safety and general public order.
Not all gun owners are responsible. Not all gun owners are even all that sane. Not all gun owners understand how to safely manage, handle, and operate the firearms they already own.
Some people are violent, reckless, and/or stupid. Do you want to institute a “not violent reckless or stupid” test for prospective gun owners?
I’m guessing the answer is “no”.
So yeah, I think it’s a good idea to not let private individuals own machine guns.
As Brett notes upthread, the current very wide distribution of firearms among the population, along with the natural disinclination of the military to attack their own countrymen and women, makes it unlikely that our own military will be used against us.
Mission accomplished.
I guess it’s just the will of the people that gun owners suffer deafness for their choice of hobby.
As an aside, when I practice drums I either wear sound-isolating headphones or rifle range ear protectors.
When I play loud gigs I have a set of db-reducing ear plugs that I wear. I got mine from my audiologist, they weren’t terribly expensive.
I’m sure these things are available to gun hobbyists as well.
Back in the day, commas were inserted to let the out-of-breath take a moment to compose themselves.
Semi-colons were inserted to permit those with consumption, those gasping for air as a result of sexual innuendo brought up in company, those Founders who hyperventilated over whether or not taxation should be opposed even WITH representation, and the Barney Fifes among the populace patting their pockets frantically for their bullet in case an American Indian should show up at the fence line with a Trojan Turkey to retire to their beds until the next Circuit Judge passed through.
Periods are self-explanatory. The speaker was dead.
In the event of a question mark, a mirror was held up to the speaker’s mouth and someone ran off to invent ice in a kind of Ted Williams let’s save the head option in case Abner Doubleday required a batting coach.
Say this comment to yourself in the voice of Edward Everett Horton and consider Henry Ford’s words that “History is Bunk”.
“Is there machine gun target shooting?”
Well, duh, of course there is. For people who can afford that much ammo, anyway. I hear it’s a blast, something like the rush from driving a drag racer.
Mind, you probably figure the government could reasonably ban drag racers, too; Too dangerous for driving to the grocery store to pick up a gallon of milk, after all.
And the sound level of a firearm discharging in your hand is sufficiently high that neglecting to wear ear protection even once can permanently degrade your hearing. But I suppose you’re right, it makes perfect sense to require an FBI background check and $150 tax to own the $1.50 gun equivalent of a muffler.
A funny story about stupid government stuff. On the drum tip, not guns.
A buddy of mine back in college days sent away to India for a set of tabla. Tabla are the drums used in classical Indian music, at that time it was hard to find them in the US.
So, the guy gets a call from customs. The drums are being held in NJ, and they want to know what’s in them. One drum is basically a large metal bowl, the other is a wooden cylinder, and they’re sealed by the skin heads, which are held in place by about a million leather straps.
Customs, of course, is curious because the wooden drum is kinda heavy, heavier than you might expect, and they come from some obscure corner of India, and they look like they’d hold a lot of whatever you might put in them, and they smell kinda funky.
Who wouldn’t want to know what was inside?
So, says the customs guy, if you don’t mind, we just want to cut those leather covers off so we can take a peek. Is that OK?
Buddy jumps in the car and high-tails it to the Port Authority to rescue his gear before the customs morons can turn it into a useless pile of metal, wood, and shredded hide.
So, yeah, government is a PITA. The alternative sucks, too, only more so.
Full automatic fire is not all that accurate in shoulder fired rifles/carbines. It is best for suppressive fire during fire and manuever tactics. It is best for this Mil application.
If the purpose of the 2nd ammendment is to help keep tyranny in check then citizens should be able to own weapons comparable to what is available to the govt. Otherwise, no need. Yet, ownership could still be a right without any other purpose that enjoyment (i.e. pursuit of hapiness). Full auto fire can be a blast.
So, the guy gets a call from customs.
That was nice, anyway.
In other news, another day, another mass shooting.
“Russel, punctuation was rather informal at that time, with commas being placed wherever you thought somebody was going to pause for a breath. ”
This is . . . not true. I don’t know a more polite way to put it.
I mean, for one thing, have you never read a novel from the same period? For another, do you honestly think the writers believed someone could say “Congress shall make no law respecting an establishment of religion” without breathing, but not “A well-regulated militia?”
Stick to engineering. Whenever you delve into issues of writing and language and syntax it’s just bad for everyone.
“IMVHO, we currently have a reasonable balance between the right of people who are interested in owning a firearm being able to own one, and the right of everyone, including folks who are gun owners, to live with a reasonable level of safety and general public order.”
I think so too, which is why I don’t really understand how gun control or the lack thereof is supposed to be a counter-example in our system. First, if you want something to be considered Constitutionally important, amend the Constitution and stick it in there. Guns are so there are Constitutional minimums that the states have to deal with.
My point remains that the balance has shifted really really far toward the “federal government makes rules in any area it wants” zone and that there are lots of issues where there is no good reason for that.
and that there are lots of issues where there is no good reason for that.
…back on topic again…won’t you ever cease? And “lots”? “Lots”? Really?
Reel off twenty or so. Should be easy, neh?
(really want to get off this gun discussion…). Find something else to fire up the troops!
speaking of “firing up”, what happened to the cannabis discussion? And what do guns have to do with cannabis any how?
Unlike guns, cannabis does not enjoy some consitutional minimum that the states must adhere to.
Some of the founding fathers were hemp growers. They probably couldn’t imagine a need to include or inummerate the various crops that a farmer could grow in the consitution. After all, what sort of bizarre power elites would criminalize such a useful crop as hemp? In fact, it would seem that laws concerning crops would be exactly the sort of thing best left to the states.
Some where way up thread, way pre-gun discussion, I asked on what consitutional peg does the federal govt hand its hat when making cannabis illegal nationally. There was no answer. Is the law constitutional?
I asked on what consitutional peg does the federal govt hand its hat when making cannabis illegal nationally. There was no answer. Is the law constitutional?
Yes.
No, (I’ve already related a legal opinion from the dawn of the war on drugs, when they were still admitting this.) but the Supreme court has been suborned, and no longer issues honest rulings on the subject. Legal ‘realists’ will insist that this is functionally equivalent to constitutionality, but it’s not, in as much as it requires you to have a dishonest Court.
Reel off twenty or so. Should be easy, neh?
I don’t know if I’ll hit twenty or not, but off the top of my head:
1. Speed limits
2. Land use
3. Licensing requirements (what they are, whether to have them) for some professions or trades
4. Public utilities (whether to have them, what things are provided, operations)
5. Wildlife management, perhaps also fisheries
6. Gambling (whether to allow it, whether it is a public or private enterprise, rules for who can operate a gambling facility)
7. Motor vehicle licensing and operation
8. Many, or at least some, aspects of natural resource management – mineral and water rights, etc.
So, there’s 8 in about 5 minutes. Lots of these already are devolved to the states, and that seems good, to me.
There are also lots of things were, IMVHO, a mix of state and federal responsibility is appropriate.
Education, where many details of operation could be devolved to the states (or beyond), but where national standards for curriculum and performance are, IMO, a good idea. Pi should never be equal to 3, even if the state of Indiana wishes it to be so.
Financial regulation and corporate governance.
Some public assistance programs. Medicaid is currently funded and operated by a mix of federal and state effort, and that seems to be reasonably effective.
The thing that first got me thinking in terms of federalism was the national speed limit. 55 mph in the west, where cities are hundreds of miles apart?
Not everything makes sense, or at least the same kind of sense, in every context.
I dunno as I am a simple guy, but it seems pretty straightforward to understand the non-constitutional point that Brett makes and it seems like one has to suffer painful logical gymnastics to arrive at the constitutional position that sapient presents.
Thanks to both for answering my question.
Another school shooting today, btw. This one’s about half an hour from where I’m sitting.
10 kids died in mostly preventable car crashes today – and the day’s not over yet.
http://www.car-accidents.com/teen-car-accidents.html
I dunno as I am a simple guy, but it seems pretty straightforward to understand the non-constitutional point that Brett makes and it seems like one has to suffer painful logical gymnastics to arrive at the constitutional position that sapient presents.
The thing that bugs me is that this (hemphasis mine):
did not narrow the circumstances sufficiently to disallow federal enforcement under the Commerce Clause.
Meanwhile, judging from my experience, people who want to smoke weed and don’t have to worry about employment-related testing (or whatever concerns aside from legality) are smoking weed. So, constitutional and civil-rights concerns aside, resources in law enforcement, court systems and incarceration are being, um, wasted.
The Constitution of this great land will not be fully realized until a teenager can mount a howitzer on a Buick and drive it through the school cafeteria wall and put a shell through he and she who done em wrong.
I suspect the police answering the 911 call in Phil’s shooting example are filling out CRIME reports while the police answering the car crash 911 calls are filling out ACCIDENT reports.
But I suppose being obtuse is the better part of valor.
Commas. 220 years later and the placement of commas is a salient issue.
Seriously, I like the founders and all, and having a written constitution seems a good idea, but at some point things get a little out of hand.
I mean, to go all legal realist for a minute, I’m not sure why we’re to adhere to what a bunch of aristocrats thought were good ideas more than 220 years ago. I guess on rule of law grounds this is a decent course to take, but unfortunately it also happens to require going up to 11 to effect changes, and so other outlets will be found.
Thus we get SCOTUS effecting changes, which on balance I think has worked out well, because getting 3/4 of 50 states spread out across nearly 5000 miles to agree on anything when, like, any person 18 years and older can vote, is a fair bit different and more difficult than getting the white male landed gentry of 13 colonies along the Eastern seaboard (COASTAL ELITES!!!) to agree.
That said, not sure what changes to suggest. Musing, the Senate needs to go, quite clearly, maybe re-district the House without regard to state lines? Perhaps even redistrict the states (e.g., does the dividing line between Kansas City MO and KS make any sense at all? Or, to hit closer to my home, Omaha and Council Bluffs?).
Yeah, I really wish we had never brought car accidents into this. On a micro level, the vast majority of people in this country can’t live a normal life without driving. On a macro level, our economy would be crippled without people driving. That’s how sh1t gets done day to day, unfortunate as that may be, given how we have structured our society. Not that there aren’t plenty of restrictions on how, when and where people can drive, anyway, as implemented to address the health and safety of the general public, mind you, if any of that sounds familiar. (Sheesh…)
“Commas. 220 years later and the placement of commas is a salient issue.”
No, 220 years later and people who’ve lost the political fight over gun control have been reduced to whining about punctuation. Doesn’t make it particularly salient.
We pretend to adhere to “what a bunch of aristocrats thought were good ideas more than 220 years ago” because the resulting document is the only basis today’s aristocrats have for ordering the rest of us about, so they don’t dare admit their contempt for it.
If they ever set out to get rid of it, they’d have a civil war on their hands, because it’s a heck of a lot more popular than they are. And, oh does that rankle them.
“I mean, to go all legal realist for a minute, I’m not sure why we’re to adhere to what a bunch of aristocrats thought were good ideas more than 220 years ago. I guess on rule of law grounds this is a decent course to take, but unfortunately it also happens to require going up to 11 to effect changes, and so other outlets will be found. ”
We don’t absolutely have to have a Constitution. We could have a purer democracy where Congress can do whatever it can pass. I’m pretty sure that could cause other problems though. The problem with our current straddle (don’t bother trying to amend the Constitution and just hope to appoint judges who will do what you want) is that it elevates the political importance of judges, it kills transparency [unless you are so naive as to believe that judge nominees actually answer truthfully in confirmation hearings], it dramatically reduces accountability [judges are almost impossible to get rid of, their mistakes are VERY difficult to correct, and they don’t have very many feedback mechanisms to discover when the are wrong even on pure legal issues, much less on policy issues] and it can lead to semi-random results depending on what judges are on the panel that you get unless your case goes all the way to the Supreme Court [which even lots of worthy cases don’t].
It is another balance issue that we’ve allowed to drift further and further out of whack, to the point where people seriously talk about the most important part of electing a President as being the fact that he appoints Supreme Court Justices. That is nuts.
Brett: If they ever set out to get rid of it, they’d have a civil war on their hands, because it’s a heck of a lot more popular than they are. And, oh does that rankle them.
I don’t think I disagree with this general sentiment, but I would argue that any resulting civil war would probably be a product of what (most) people think the Constitution says as opposed to its actual text and 220+ years of SCOTUS/federal court case law. IIRC the general populace wouldn’t approve the Bill of Rights if put up for a vote, at least based on polling data from a while back (early 1990s).
There’s nuts and then there are nuts:
Wyoming craves an aircraft carrier from which to launch punctuation sorties against …… I don’t know, Coloradans?:
http://digbysblog.blogspot.com/2012/02/things-happen-quickly-sometimes.html
Without a saltwater port within a couple thousand miles or so, a quick glance at a map shows Yellowstone Lake and Flaming Gorge Reservoir as the only freshwater bodies of water that might be able to handle the draft of an aircraft carrier.
I’d sink it with a kamikazi raid but I’m afraid the keel would come to rest with the deck still 40 feet out of the water and ten we’d have to spend the rest of day strafing the cowboys rushing to and fro on horseback in their tooled boots and turquoise belt buckles to their battle stations.
America’s laugh track grows more manic by the day as we approach pratfall Armageddon at the hands of cackling ignoramus risen to the rank of Admiral and piped on board by neurathenic sociopathic tea-tossers.
Let us now commission the U.S.S. Douchebag.
Seb – I don’t think I disagree with your comment either. But suppose the Constitution flat out said it couldn’t be amended,* what then? Do we need a revolution every 50-75 years? I mean, I’d argue close to the “unamendable” point right now. So….?
Count: Let us now commission the U.S.S. Douchebag.
Funny, I have a draft TiO post where I ask whether the GOP nominee candidates know they’re running for President of the United States of America/Leader of the Free World and not, like, Mayor of Douchebagville.
I can’t decide if it’s scarier that they know or don’t know.
“Wyoming craves an aircraft carrier….”
See? And all i want is a M249 SAW and maybe a few RPGs. Wyoming is pretty darn near Idaho – the Idaho of my examples (see above). So I think I am being pretty reasonable.
Why oh why strafe the cowboys? Some Coast dweller fantasy?
And, not to further any stereotypes that I have been trying to dispel, but seriously, if you don’t like the Constitution (i.e. the fundemental law of the land) you can always become an expat somewhere where there is no foundational doctrine and the laws are always changing along with the ruling huntas; except you might not like it because such places tend to have a lot of gun violence.
“Some Coast dweller fantasy:
I’ve lived in Colorado for going on 35 years.
I’ve worked with Wyomingites and they are fine people but, heck, if cowboy sailors on an aircraft carrier gone aground in Worland seems funny, think how hilarious strafing them might be.
Plus, I’d love to see the Wyoming Navy march in review during the Cheyenne Days parade.
And, not to further any stereotypes that I have been trying to dispel, but seriously, if you don’t like the Constitution (i.e. the fundemental law of the land) you can always become an expat somewhere where there is no foundational doctrine and the laws are always changing along with the ruling huntas
I keep hunting (!) for the A. Whitney Brown commentary from Saturday Night Live where he says at one point that we’re in this together because a bunch of white slave owners didn’t want to pay their taxes, but can’t seem to find it.
The thought of 16 inch naval guns built after single action colt model, writ giagantic is kinda funny; esp with yosemite sam at the helm.
“but I would argue that any resulting civil war would probably be a product of what (most) people think the Constitution says as opposed to its actual text and 220+ years of SCOTUS/federal court case law.”
I think that would have to be, “as opposed to it’s actual text OR 220+ years of Scotus/federal court case law.”; The actual text and the case law aren’t exactly in agreement, especially over the last 80 years or so.
“I’d argue close to the “unamendable” point right now. So….?”
I wouldn’t agree. So far as I can tell no one has seriously tried to put an amendment up on anything important in my lifetime. When was the last serious attempt at an amendment? Flag burning in the 1980s? That is 30 years ago. (The marriage amendment wasn’t serious so far as I can tell, it was a rallying point).
Brett, obviuosly we are screwed by dumb ass consumerism culture and fat and happy libs and conservatives alike.
“Freedom” is a joke to be trademarked, branded and sold by whatever special intrest group has enough bucks to make it fly for the cause du jour. Learn to live within your fears. That is hapiness American style.
Doesn’t make it particularly salient.
Things are easier to interpret unambiguously if they parse well grammatically.
And actually, my mention of the commas was meant to be humorous.
Oh well, I’ll be here all week, try the veal.
We pretend to adhere to “what a bunch of aristocrats thought were good ideas more than 220 years ago”….
Plus all of the ways it has been changed by amendment, plus all of the ways it has been interpreted in the intervening 220.
If they ever set out to get rid of it, they’d have a civil war on their hands, because it’s a heck of a lot more popular than they are.
If we decide it’s no longer working well, we have options other than civil war.
you can always become an expat somewhere where there is no foundational doctrine and the laws are always changing along with the ruling huntas; except you might not like it because such places tend to have a lot of gun violence.
That would the UK, for one. Not so much gun violence, at least as compared to here. Not in the last 300 years or so, anyway.
What doesn’t seem to be registering with either you or Brett is the idea that your understanding of what the text of the Constitution says and/or means may not be authoritative.
You’re welcome to your reading of the text. So are the rest of us.
And no, it’s not blindingly self-evident what the text means in all cases, nor is it always self-evident what the authors intend.
In the case of the 2nd Amendment, if you’re not opposed to a standing professional army, and you’re not expecting all able-bodied citizens to participate in a citizen militia under the command of the state government, you’re not aligned with what the framers had in mind.
Somewhat uniquely among the Bill of Rights, the 2nd Amendment includes not just a statement of the right, but an explicit purpose for the right. We can argue about whether the right is intended for individuals or a corporate “the people”, but the reason that the right is guaranteed is stated quite specifically.
I’m not hearing much talk about disbanding the US Army and introducing universal conscription into state-level militias. All I’m hearing is “I want a gun, dammit!”
If you’re gonna go originalist, you have to sign up for the whole enchilada.
“So far as I can tell no one has seriously tried to put an amendment up on anything important in my lifetime.”
The ERA?
I often ask myself, self, how is it that the Bible, the Constitution, the Koran, and every printed word by the Regnery Press must be “interpreted”, when every word is the literal, unmovable truth, there being no synonyms nor feral punctuation, nor ambiguity ever in the utterance of men, though I’m not so sure about women, the masters of ambiguity?
Once a document is carved in stone, why have judges?
As to the Constitution itself, and subsequent case law, I’m a big fan. I’m in love with the idea that the Constitution is a living document that exists on basic principles, and is interpreted by judges trained in the common law, who apply the principles to novel facts, unfolding a successive recognition of various human (and perhaps animal and environmental) rights, increased dignity, increased social compassion, and in the end evolved humanity. Obviously, as a human institution, it doesn’t always work so divinely, but eventually (perhaps) it works pretty well.
My view of the Constitution is an aspirational one. It’s a view shared by many, and the degree to which it is borne out depends on who ends up on the Supreme Court. That’s why I fight for executives share my view, and who appoint Supreme Court justices who share my view of the Constitution.
The UK, by the way, doesn’t have an integral written Constitution, but (contra russell’s point) any British lawyer will point out that it does have a Constitution. The fundamental documents of British history (the Magna Carta is an obvious example), as well as leading cases in the common law, comprise fundamental legal doctrine that is, in essence, a Constitution. Our Constitution is similarly no longer an integral document, but consists of the original document, plus interpretive case law.
My love for the system doesn’t always translate into a love for each opinion of the Supreme Court. Obama has appointed justices with whom I agree 90% of the time. That’s a huge reason I would support him – that his appointees bring the aspirational closer to the real.
As to what the “founders” had in mind about the Second Amendment, it’s informative, but not conclusive. There weren’t machine guns in 1776 or 1789, much less mustard gas and barbed wire, or nukes. We figure out what principle is at stake as applied to a wholly different world. Reasonable people can (and obviously do) disagree.
Brett: I think that would have to be, “as opposed to it’s actual text OR 220+ years of Scotus/federal court case law.”; The actual text and the case law aren’t exactly in agreement, especially over the last 80 years or so.
You see, this is sort of my point. The Constitution is a short document. It includes vague and general statements like “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;” and “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers”, and “nor be deprived of life, liberty, or property, without due process of law” etc.
The meaning of these words is not exactly clear in a great many situations. So the courts fill in the blanks, provide context, and address ever-changing factual scenarios. And yet for some there is this belief that everything is/was perfectly clear and the damn SCOTUS has screwed it up, or had it right at one point and then screwed it up, or finally fixed things in 2010, or whatever.
Every time this topic comes up, I ask Brett to give me a clear, unambiguous definition of “cruel and unusual punishment,” and he never, ever, ever does. Because tackling the topic would give away the game, and force him to admit that things change with the times, and thus we cannot simply go by the words on the page.
Sebastian: So far as I can tell no one has seriously tried to put an amendment up on anything important in my lifetime. When was the last serious attempt at an amendment?
Obviously this depends on what you mean by seriously and important. Phil notes the ERA. Potential others: Balanced Budget? Repeal Roe? You poo-poo the marriage amendment, but I’m not so sure. Line item veto? Term limits?
But perhaps no one has seriously put up an amendment on an important issue in recent memory because they know there’s no chance of it ever passing? As I’ve noted before, there hasn’t been a “real”* amendment since 1971. And I’m actually shocked that the 24th Amendment was ratified (I can’t imagine it being ratified today).
*I’d argue the 27th Amendment is an outlier given its history.
And since I’m on a roll (or not), even some of the provisions that seem clear are likely not on closer inspection. Take Article V, which reads: The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
What does that last clause mean? I think it means that 3/4 of the States can’t get together to amend the Constitution so that, e.g., Texas gets only 1 Senator (or 3 Senators, for that matter). But what if 3/4 States vote to abolish the Senate altogether? Okay? I suppose since all States now have 0 Senators that’s okay, but do you really think that’s what the Founders meant?
Or suppose 3/4 of the States voted to change the name of the Senate to Parliament, and then provided that Texas got only 1 member while every other state got 2, is that okay under Article V? After all, there’s no longer a “Senate” and thus no State has been deprived of its “equal Suffrage in the Senate” without consent.
What does even the 19th Amendment mean?
What part of (,) don’t you understand?
What Ugh and sapient said. (russell who? ;^) …I kid, of course.)
But what if 3/4 States vote to abolish the Senate altogether?
Or, vote to make Senators elected directly, by popular vote, so that states per se have no suffrage at all.
I ask Brett to give me a clear, unambiguous definition of “cruel and unusual punishment,” and he never, ever, ever does.
Cue The Comfy Chair!!
I keep hunting (!) for the A. Whitney Brown commentary from Saturday Night Live where he says at one point that we’re in this together because a bunch of white slave owners didn’t want to pay their taxes, but can’t seem to find it.
I recall the history teacher in Dazed and Confused reminding her students on the last day of school in 1976 to remember what they were really celebrating come the Bicentennial on the 4th of July – a bunch of rich, white slave owners not wanting to pay their taxes.
“But perhaps no one has seriously put up an amendment on an important issue in recent memory because they know there’s no chance of it ever passing? As I’ve noted before, there hasn’t been a “real”* amendment since 1971.”
I’d argue that no one bothers because it is much *easier* to try to appoint pet judges who will rule your way. You don’t have to explicitly take difficult stands, you don’t need to convince many people, you never need to subject it to a vote, you don’t even have to admit that the issue is important to you. Why in the world go through a publicly accountable amendment process? Politicians hate public accountability, so they will do anything they can do avoid it.
This actually brings us neatly back to marijuana and the history of booze prohibition. Constitutionally you needed an amendment to ban alcohol. It was clearly understood that the powers of the federal government, while vast, didn’t extend that far and that to get it at a federal level you needed an amendment. But now, the government doesn’t blink an eye.
The ERA is also instructive, but in almost the opposite way you think. It was proposed in 1923, back when people thought amending the Constitution was important. It has also been almost entirely read into the equal protection clause making the political impetus for it almost entirely symbolic.
The ERA is also instructive, but in almost the opposite way you think.
How do you know what I think?
It was clearly understood that the powers of the federal government, while vast, didn’t extend that far
Can you expand on this a bit, please?
The feds regulated lots of things before the Volstead Act and the 18th Amendment.
a bunch of rich, white slave owners not wanting to pay their taxes.
C’mon now, there were also a bunch of New England tea smugglers tired of having the East India Company undersell them.
Phil, I was responding to ugh, not you. But to the extent that I can read your words, I can see that you offered it as a counter-example, while I see it as an example.
Russell, “Can you expand on this a bit, please?”
I’m not sure what you want me to expand on. The point I’m making is that it was well understood that whatever the precise limit of federal power was, it didn’t extend so far as the power to ban the trade and consumption of a substance (even if you call that ‘regulating commerce’). Since they wanted to ban the trade and consumption of alcohol, they did the proper thing when the Constitution didn’t allow something that they wanted to do, and amended it.
They added “After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited. ”
Interestingly, what was then seen as a cornerstone of progressive policy making, is now seen more as moral busybodies in action.
Also interestingly, the repeal went through the state convention process (the only one to do so), because the state legislature process was considered to be beholden to the Temperance Leagues but the issue was important enough to go around legislative gridlock and appeal directly to the state voters.
“You see, this is sort of my point. The Constitution is a short document. It includes vague and general statements like “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;””
You see, this is sort of MY point: You claim that “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;” is somehow vague and general. But it’s quite specific on several points: It’s commerce that’s being regulated. Further, it’s a specific subset of commerce.
And yet, we get the Court, under the guise of interpreting that clause, permitting the regulation of things which are not commerce, or which if commerce, are not part of that specific subset of it. Contravening such specific language as makes up almost the entirety of the clause!
IOW, it may be general, but it ain’t THAT general.
The problem here, I think, is once you view ambiguity as a license to claim a document means what you want, everything is going to look ambiguous. Even things most people would find perfectly clear.
Constitutionally you needed an amendment to ban alcohol. It was clearly understood that the powers of the federal government, while vast, didn’t extend that far and that to get it at a federal level you needed an amendment.
I’m no great student of history in general, nor Prohibition specifically, but might an amendment have been “necessary” to avoid prolonged legal challenges from established monied interests in the alcohol business, the analog of which did not exist where it came to marajuana? Might that have been more a matter of a political calculation than a purely constitutional one?
it was well understood that whatever the precise limit of federal power was, it didn’t extend so far as the power to ban the trade and consumption of a substance
The Pure Food and Drug Act was 1906. That’s a pretty substantial federal claim on regulating substances intended for public sale and consumption.
Why was that OK, but banning the manufacture and transport (not the consumption, in fact) of alcohol required an amendment?
Sebastian: I’d argue that no one bothers [to try to amend the Constitution] because it is much *easier* to try to appoint pet judges who will rule your way. You don’t have to explicitly take difficult stands, you don’t need to convince many people, you never need to subject it to a vote, you don’t even have to admit that the issue is important to you. Why in the world go through a publicly accountable amendment process?
But you end up trading the certainty of an amendment for the hope of finding out that an appointed judge is sympathetic to your position, not to mention that judges are appointed by POTUS (with Senate advice and consent) so we’re getting to tertiary (or more) degrees of indirectness here for a regular legislator, whereas voting on an amendment is a direct way of expressing a view.
Politicians hate public accountability, so they will do anything they can do avoid it.
But there are accountability moments every 2, 4, 6 years, with people running against one another. It’s not like we’re choosing from a bunch of people whose only public statement is that they believe in “Truth, justice, and the American way,” no? No politician ever takes a firm stand on one thing or another?
This actually brings us neatly back to marijuana and the history of booze prohibition. Constitutionally you needed an amendment to ban alcohol. It was clearly understood that the powers of the federal government, while vast, didn’t extend that far and that to get it at a federal level you needed an amendment. But now, the government doesn’t blink an eye.
“It was clearly understood” by….? Everyone? 80% of the population? 80% of eligible voters? 80% of the judiciary? Some other % of any of those groups/some other group? Lochner, in 1905, was a 5-4 decision. Wickard in 1942 was 8-0. Obviously those aren’t directly on point, but I think nevertheless illustrate that the scope of federal government powers was a source significant dispute, well more than 100 years ago and were not “clearly understood.” Indeed, 1905 will mark the halfway point in post-Bill of Rights America in just a few years.
The ERA is also instructive, but in almost the opposite way you think. It was proposed in 1923, back when people thought amending the Constitution was important. It has also been almost entirely read into the equal protection clause making the political impetus for it almost entirely symbolic.
It hasn’t been “read into” the equal protection clause, it’s always been there. Why should we pay fealty to the ignorance of prior generations?
Brett: You see, this is sort of MY point: You claim that “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;” is somehow vague and general. But it’s quite specific on several points: It’s commerce that’s being regulated. Further, it’s a specific subset of commerce.
And the “necessary and proper” clause? IIRC the point in Wickard was, even assuming Roscoe was not engaged in commerce or interstate commerce, that if Congress could not regulate his conduct (and those similarly situated) it could not in fact regulate interstate commerce, and thus regulating Mr. Wickard’s conduct was a “necessary and proper” application of the commerce clause power.
Russell, what you said about England not having a constitution is not ecaxtly accurate. Please see; http://en.wikipedia.org/wiki/Constitution_of_the_United_Kingdom for a basic primer.
Ugh, there’s a standard principle of interpretation, (I forget the latin.) that says, “To list is to exclude.” The interstate commerce clause lists the sorts of commerce Congress may regulate. There would be no point in listing particular sorts, if Congress were permitted to regulate other sorts.
You’re just making excuses, as the Court did, to transform the “interstate commerce” clause into the “regulate” clause. You want the Constitution to suddenly start permitting Congress to regulate things which are neither commerce nor interstate?
Amend the damn document to say Congress has that power. It’s the necessary and proper clause, not the convienent and eh clause.
Russell, the food and drug act of 1906 was for a completely different purpose that outlawing consumption. In fact, the purpose was to make consumption safe by ensuring proper labeling and manufacturing (i.e. no poisonous adultrants).
See prohibition says thou shalt not. FDA 1906 says thou shall if thou wisheth and the feds shall make it safe.
Hijack the commerce clause a few times for expediency, and then wonder aloud, years down the road, that: by golly, everything looks muddy.
“But there are accountability moments every 2, 4, 6 years, with people running against one another…”
Oh please. Grasping at straws are we? You have to know that dog won’t hunt. With such a dismal array of candidates to choose from you can’t be serious. They all work for the same boss any how. So throwing them out does nothing other than keep them in.
“Hijack the commerce clause a few times for expediency, and then wonder aloud, years down the road, that: by golly, everything looks muddy.”
Precisely
the food and drug act of 1906 was for a completely different purpose that outlawing consumption.
First of all, the 18th did not outlaw consumption. It outlawed the manufacture, sale, transportation, and import/export of intoxicating liquors.
The feds had long claimed and exercised the power to regulate or even ban certain commercial activities. So, I’m not seeing how the amendment was required for the purpose of establishing the federal authority to do so in the case of alcohol.
I’m not saying it’s not there, I’m saying I don’t see it.
Hence, my request for the expansion.
Russell, what you said about England not having a constitution is not ecaxtly accurate.
The UK has no written Constitution. They have lots of documents, and lots of common law, and lots of established practice.
But no written Constitution.
From your cite:
From an 1819 case of some renown regarding the necessary and proper clause (emphasis supplied):
We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional
You’re free to disagree with that, of course.
You’re just making excuses, as the Court did, to transform the “interstate commerce” clause into the “regulate” clause. You want the Constitution to suddenly start permitting Congress to regulate things which are neither commerce nor interstate?
Well it says “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
What is your interpretation of the use of commerce “with” foreign Nations and Indian Tribes and how that differs from the use of “among” in respect of the several States? And how do those differences feed into the N&P clause? And how do changes in factual circumstances feed into the former/latter/both?
I’m not making excuses (I am, after all, just an a$$ on the intarwebzzies), I’m just saying your conclusions are not manifest.
avedis: Oh please. Grasping at straws are we? You have to know that dog won’t hunt. With such a dismal array of candidates to choose from you can’t be serious. They all work for the same boss any how. So throwing them out does nothing other than keep them in.
Why don’t you run for office then to rearrange the dismal picture? Heck, suck up to the “boss” and then turn around and bite him/her in the a$$ when you’re in. Show the world the farce of American “democracy”! It might be refreshing.
Russell,
The need for an amendment is obvious. As recently as a hundred years ago or so people took the Constitution seriously. They did not assume, as many do today, that the feds can just make any law they want to. Nobody believed that the federal government held the power, under the Constitution as originally written, to ban the production, distribution, and sale of alcohol. Congress and the states had to amend the Constitution.
They could have amended the Constitution to merely grant the federal government the necessary power, leaving it to Congress to decide whether to actually pass such a law. This was the route taken, for example, with the income tax.
But that would have required the battle to be fought twice, once to pass the amendment and once to pass the law. And it would have left Prohibition vulnerable to repeal by a majority in Congress plus the President.
So the proponents wrote the ban right into the Constitution, which required another amendment to repeal it.
“Why don’t you run for office then to rearrange the dismal picture? Heck, suck up to the “boss” and then turn around and bite him/her in the a$$ when you’re in. Show the world the farce of American “democracy”!
I’ve thought about it. Might yet happen.
So, which of the originalists is going to define “cruel and unusual punishment” for me? You’ve all got a direct pipeline, apparently, into the eternal minds of the Founders, so let’s hear it.
Oh, also, can you define “due process” while you’re at it? And “unreasonable searches and seizures?”
They did not assume, as many do today, that the feds can just make any law they want to.
Who are these many? Are any of them commenting on this blog?
Nobody believed that the federal government held the power, under the Constitution as originally written, to ban the production, distribution, and sale of alcohol.
Got a cite for that?
“Got a cite for that?”
I’m sure I can find one. Most thorough histories of the temperance movement and prohibition offer that explanation.
“Who are these many? Are any of them commenting on this blog?”
They are all around us. The silent majority that does nothing while our rights are taken from us. As for whether or not any are commenting here, I would say that a review of this thread indicates that some are.
avedis: The need for an amendment is obvious. As recently as a hundred years ago or so people took the Constitution seriously. They did not assume, as many do today, that the feds can just make any law they want to.
Contrast this with Brett’s suggestion upthread of a revolution should there be some sort Constitutional repudiation. Why would people bother to revolt if they don’t take it seriously?
I’ve thought about it. Might yet happen.
Well good on ya then!
But that would have required the battle to be fought twice, once to pass the amendment and once to pass the law.
Look, not to pile on, but first came the 18th Amendment, then came the Volstead Act.
And there wasn’t that much of a battle. The 18th passed 46 states to 2, and Volstead passed the House 287-100, was vetoed by Wilson, and then his veto was overridden.
So, Wilson excepted, both the Amendment and the law appear to have had a lot of support.
I’m hearing a lot of “everybody knew” and “it was widely accepted” and “of course” but none of us were actually there at the turn of the 20th C.
So if you’re going to assert that the idea that the feds could ban the production and sale of some consumer good was a remarkable novelty, then maybe some kind of documentation would be good.
Like, was there any strong argument *at the time* that it was unconstitutional? If that exists, it should be pretty easy to find, and would give evidence that *at that time* it was widely believed that the feds had no such authority.
There are lots of reasons folks might like to back up their policy with an amendment, other than a need to establish the federal authority to pass a given law.
Hey, first off, I am not Brett. I often agree with what he has to say, but some times I do not. I am actually concerned that these days anyone can do whatever they want to the Constitution and no one would would care enough to act in opposition. Heck, we have an allegedly liberal POTUS who asserts he has the right to summarily assassinate US citizens who are merely suspected of certain things, like terrorism. In fact he not only asserts this right, he has acted out and exercised it. You will still vote for him, right?
As for a revolution resulting from amendments to the big C, this did not happen exactly as Brett envisioned. However, there was, as a result of the 18th, a widespread glorification of disrespect and disregard for the law, cultural impacts of which we are still experiencing to this day, as well as the development of a hugely powerful criminal syndicate. So there was some form of revolution; albeit on the backside as opposed to the front side of the amendment. Now I am grasping at straws in defense of Brett 🙂
russell, you need to show that the federal govt did indeed outlaw certain consumer goods prior to the first quarter of the 20th century. I don’t think you can. Therefore banning a good, especially one as popular as alcohol, would, indeed, be a novelty. BTW, I’m using all the commas I want, in the way I want.
As noted, none of were around when these events were taking place much less involved in the actual processes. All any of us can do is read history and speculate.
“Look, not to pile on, but first came the 18th Amendment, then came the Volstead Act.”
You apparently missed my point. The amendment made it illegal and the act specified how the illegality was to be enforced.
What i was originally refering to with, “But that would have required the battle to be fought twice, once to pass the amendment and once to pass the law.” was passing an amendment that gave the feds the power to generally make things – anything along the lines of consumer goods – illegal and then pass a separate law making alcohol production, sale, etc illegal. That’s two fights to make alcohol illegal.
What they did was one fight to make it illegal.
russell, you need to show that the federal govt did indeed outlaw certain consumer goods prior to the first quarter of the 20th century.
No, really, I don’t, and I’m not chasing that rabbit down the hole.
Seb started the booze thing with this:
Followed by:
Bolds mine.
My point is not that the federal government had banned lots and lots of consumer products prior to Volstead.
My point is that, if it was as well and clearly understood at the time that Prohibition was an unconstitutional expansion of federal authority, I would expect to see some discussion of challenges to the amendment on constitutional grounds.
Like, when folks more recently pushed for an anti-flag-burning amendment, there were challenges on 1st amendment grounds.
I do not see a record of challenges to the 18th on Constitutional grounds. So, I find Seb’s claims about contemporary understandings of the limits of federal power to be questionable.
If you’d like to answer my actual question, that would be great, but I’m not really interested in jumping through seventy nine other hoops.
People have had lots of different understandings of the limits on federal power, beginning in 1789 and continuing right up to today. Assertions that something is “obviously” unconstitutional, or that the text “obviously” means one thing or another, ignore the actual history and the actual facts on the ground.
It’s great that you feel strongly about your point of view, but that doesn’t make your argument convincing.
“No, really, I don’t, and I’m not chasing that rabbit down the hole.”
I suspect because you’re pretty certain you’re not going to find a rabbit down that hole.
“I do not see a record of challenges to the 18th on Constitutional grounds.”
Why would you expect there to be a record of challenges to a constitutional amendment on constitutional grounds? What grounds would that be? That it wasn’t properly ratified?
People had varying view of the extent of federal power, but it’s no use pretending that the current view of the extent of federal power was even remotely mainstream prior to the early 20th century. You can’t get around the fact that they DID go to the rather considerable trouble to amend the Constitution for Prohibition, but not for the war on drugs. That just flat out makes no sense, unless a rather different conception of how much power the federal government had was dominant at the time.
Sure, there were probably some people back in the 19th century who thought Congress could do pretty much anything under the guise of regulating interstate commerce. There were people who thought they were Napoleon, too.
Brett and Avedis are both correct that in the 20th century, the role of the Federal government (through Supreme Court decisions) expanded substantially, and that the Interstate Commerce Clause was an important area where this happened.
The question is, on the whole, was this good or bad? Why do we want to go back to the 19th Century? The first two-thirds of the century was an argument over whether slavery was okay if certain states enjoyed it, and whether the rest of the states had to enforce the “rights” recognized by the slave states. The last one-third of the century was an adjustment period after a devastating war was fought on that issue. Meanwhile, the Native American population was being annihilated, the railroad and oil barons were developing monopolies, and the welfare of workers was ignored. It was all mitigated by the fact that there was a whole lot of land that the government was handing out to people for free if they were hardy enough to make use of it. The U.S. came into the 20th century trying to adjust its economy from a slave-based society to one based on paid work (where exploiting industrial workers was the middle path). Was it really all that lovely? Just because drugs weren’t banned?
Basically, after 1932, the Federal government asserted more centralized power and, in doing so, became strong enough to lift the country out of poverty, prevail in a brutal world war, create an economic powerhouse (with the interstate highway system), and eventually support a civil rights movement whose classes of beneficiaries continue to be added to this day.
And we’re talking about “devolution”? Why? Because we want to be a bunch of banana republics, some of which we can smoke lots of pot, and others of which we can shoot a lot of guns?
Seems (to me) like a high price to pay. Sorry if I just don’t understand.
“No, really, I don’t, and I’m not chasing that rabbit down the hole.”
Yeah. You do. Because if there is no rabit in that hole, and there isn’t, then your whole premise falls apart; which is another way of saying, “what Brett said”.
“My point is not that the federal government had banned lots and lots of consumer products prior to Volstead.”
Well go on then, please name some. Thanks.
“The question is, on the whole, was this good or bad? Why do we want to go back to the 19th Century?
And we’re talking about “devolution”? Why? ”
The problems of slavery and the treatment of Indians, while horrendous by any standards, wasn’t the result of an interpretation of the Constitution. It was the result of those out groups not being considered fully human, let alone citizens, by white christian culture of the time.
Are we devolving from a Constitutional perspective? Yes, absolutely. As I said, the POTUS that probably 99% of OBWI commenters will vote for a second term because he is the best of the options boasts of summarily killing US citizens on mere suspicion. Civil rights erode at an increasing pace, even under this “liberal” POTUS.
“My point is that, if it was as well and clearly understood at the time that Prohibition was an unconstitutional expansion of federal authority, I would expect to see some discussion of challenges to the amendment on constitutional grounds.”
and, if that is your point, then you don’t have a point.
Maybe the smart money knew it could make out like bandits on bootlegging and everyone else was intimidated by the need to appear righteous; not to mention the need to court the political wave of the times that icluded the arriving women’s voter block.
Who cares?
What is this philosophy of russell? 100 million lemmings can’t be wrong? The wise founders said stop, there’s a cliff ahead, but the lemmings went over it anyhow and thus the founders are proven wrong? By that thinking slavery would be fine. Warrantless wire tapping would be ok. ……..whatever hysteria grips the nation would be just fine and dandy as long as there are no serious legal protests. And they say *I* devolve into anarchy?
sapient, the socialist govt of China has also been able to do great things in a short period of time. Remarkable, really.
Still, I do not want to live under such a system.
Like I said, one can always become an expat if disenchanted with what our country is supposed to be all about per the document that lays it all out.
I suspect because you’re pretty certain you’re not going to find a rabbit down that hole.
Correct. To my knowledge, the feds did not ban any consumer product prior to Prohibition. They did lots of other things, but banning the manufacture and sale of a consumer product was not one of them.
My MF’ing point is that I’m not seeing any evidence that it was well or clearly understood in 1919 that federal power did not rightfully extend to banning the production and sale of alcoholic beverages.
Can you demonstrate that it was? Because I’m not freaking seeing it. Seb has asserted it, but I don’t see it, anywhere.
Why would you expect there to be a record of challenges to a constitutional amendment on constitutional grounds?
Are you saying there has never been a challenge to a proposed Constitutional amendment on Constitutional grounds?
it’s no use pretending that the current view of the extent of federal power was even remotely mainstream prior to the early 20th century.
That isn’t a claim I’m making.
There are quite a number of things that are dead normal now that were not mainstream prior to the early 20th C.
That’s one of the reasons the current-day mainstream view of the limits of federal power isn’t what it was in 1800, or 1850, or 1900. For better or worse.
Because if there is no rabit in that hole, and there isn’t, then your whole premise falls apart
Please feel free to state what you understand “my premise” to be. Because I’m not sure I’ve advanced one.
For the record, it’s been asserted in this thread that it was widely understood in 1919 that federal power could not extend to banning the production and sale of alcoholic beverages. And, that that common understanding was why it was necessary to amend the constitution.
What I’m asking is for someone – anyone – to support that assertion from the historical record.
I’m making no claims about what the limits of federal power should, or should not be. I’m not advancing any ‘premise’. Sebastian made an assertion, and from my understanding of the historical record, I don’t think the assertion is supportable.
If anyone would like to address that point, I’m interested.
Not from the point of view your personal preferences, not from your assumptions about what the founders thought. From the freaking historical record. Of that particular time.
There are about eighty seven million reasons why the federal government has expanded from what it was in 1800 to what it is now. In My Very Humble Opinion, a will to tyrannical power is not very high on that list. Your opinion may differ.
To my eye, personally, the history of the feds getting involved in regulation is more or less a record of them jumping in, often fairly unwillingly, to try to avoid having the bed be well and truly besh*tted.
Even Prohibition, as asinine an exercise as that was, was an attempt to address an actual problem. It just wasn’t a problem that was well addressed by a constitutional amendment.
But, that’s just my observation.
Either way, it’s freaking moot, because what we have now is the product of 200 plus years of history. If you think you’re going to unwind that, you have another thing coming. If you’re holding out for the federal government we had in 1800, you’re not going to get it, because we don’t live in the world we lived in in 1800.
If anyone has examples of folks contemporary with Prohibition objecting to it because it represented an undesirable and unconstitutional expansion of federal power, I’d love to see them. I’m not saying they don’t exist, I’m just saying I don’t see them.
And since I don’t see them, I am not convinced that folks at that time shared a widespread common understanding that Prohibition represented, specifically, an unusual expansion of federal power.
Thank you.
and finally, russell, it occurs to me that you have even less of a point than i thought you did at first. In fact it is so less of a point that it is negative in value and works against your own argument.
the reason there was an amendment was also because there was a recognition that there was no constitutional authority or leeway to do what they wanted to do. You cannot object on constitutional grounds to something that you are writing brand spanking new into the constitution.
If I want to write a law that says that people with blond hair and a height of 6′ 2” or greater are “uber citizens” and have a right to sieze any property they desire from others not meeting those qualifications, then you can challenge the law on constitutional grounds.
On the other hand, if i want to write an amendment to the constitution that says the same, then I must recognize that I can’t write a legal law and need to change the very foundation of law itself in order to to enact what I want. I must realize that the current constitution doesn’t allow me to do what I want to do. I have to change the constitution.
Can it be any clearer?
you have even less of a point than i thought you did at first.
Yes, quite right. The penny drops.
I’m not advancing any theory at all about the limits of federal power. Not here, and not at the moment, anyway.
I’m asking a question about Seb’s assertion.
Sorry it took so long for that to occur to you.
You cannot object on constitutional grounds to something that you are writing brand spanking new into the constitution.
Well yeah, you can, and people have. Go look and see, Google is your friend. Start with “proposed amendments to the US constitution”.
There have been some doozies.
yes, russell. a lot of amendments are proposed. Very very few are passed/ratified. it all depends on the mood of the nation, the alignment of interests, the alignment of the stars…….those that do not pass are simply not voted for by the necessary majorities. Can you point to any proposed amendments that were shot down based on constituional law? I don’t mean just lip service or noise from the peanut gallery. I mean an actual legal challenge that killed the proposed amendment. I don’t think there are rabbits in that hole either.
Here. Money quote:
There have also been amendments proposed to:
Ban interracial marriage. These were challenged due to conflicts with the 14th Amendment.
Insert language explicitly acknowledging a Christian god into the preamble to the Constitution. These was challenged on 1st Amendment grounds. Likewise, numerous amendments explicitly exempting school prayer from 1st Amendment restrictions on establishing religion.
Seriously, you can find this stuff with just a few minutes’ effort.
Also:
I mean an actual legal challenge that killed the proposed amendment.
As we all know, this is not how amendments to the constitution are challenged. They are put to votes. Since the purpose of an amendment is to change the basis on which the law is made, mounting a ‘legal challenge’ is sort of beside the point.
The substantive argument raised against VOTING FOR the amendments I’ve cited above is that they were in conflict with other rights or conditions guaranteed elsewhere in the existing Constitution or its amendments.
So, challenged on constitutional grounds.
What I would expect, if there was some widespread contemporary consensus that Prohibition represented an unprecedented and up-until-then unconstitutional expansion of federal power, would be some record of challenges to the 18th BASED ON THAT PREMISE.
Examples of that may exist, but I have looked and have not found them.
If you are aware of any, I’d appreciate your pointing me to them.
If not, perhaps it’s time to put this thread to rest.
No bans prior to the dictatorship of Frankie Roosevelt? I suggest some here delve into the history of opiate bans and the Harrison Act of 1914. The subsequent court interpretations are especially juicy….those crazy early 20th century guys and their activist courts!
Why, it’s as if they just made sh*t up….Just like John Marshall did.
This thread=

It also occurs to me that Sebastian and Brett may want to have a conversation about the ERA. Sebastian appears to be saying that its failure is indicative of the fact that the rights it purported to outline were by then already understood to be read into the existing language. Brett has previously stated that the failure of the ERA absolutely forbids the government from acting as if it had passed – i.e., protecting the righs outlined in the amendment. And when pressed on whether those rights were covered under existing equal protection language, respondent refused to answer.
Controversy!
I suggest YOU delve into the history of the Harrison act. Here’s the text.
Find the ban there? Because I see a tax. Yes, a tax which was, historically, intended to be abused as a de facto ban. But it was written as a tax, and why?
BECAUSE THEY KNEW THEY DIDN’T HAVE THE POWER TO BAN THINGS.
I mean, seriously, I quoted the AG saying just that, a couple pages back.
I had a long comment prepared, and then saw avedis had put it all much more succinctly. Indeed, there isn’t much point in arguing with you, you’re incapable/unwilling to admit when you face evidence that contradicts you, like the prohibition amendment.
But then, what would you expect? Your whole position is based on not letting the words force you to admit something means something you don’t like. Why wouldn’t we expect that to extend to this argument? Once somebody goes full Po-Mo, words are useless.
And, show me where somebody argued that the Anti-Miscegenation amendment was actually argued against on the basis that, “Hey, you can’t amend the Constitution that way, it would be unconstitutional.”
Rather than, “Hey, we just went to the trouble of passing the 14th amendment, no, we aren’t interested in carving out exceptions, go away.” Which is not a constitutional argument, it’s a policy objection.
The problem here is that a strong (all powerful?) problem solving federal govt is fundemental to the liberal perspective. That is why words and facts are not getting through. There is a need to believe versus rational thinking.
Witness sapient being enamored with FDR’s programs* and subsequent military and economic achievements; which he thinks are the result of increasingly expanded federal powers.
As I said, there is no doubt that centralized authority can mobilize a country to achieve great progress; just as it has in China or just as it did in Nazi Germany. The allure is hard to resist.
Note: at this point we already have the massively consequential problem of defining “progress”.
However, that is not what the USA is supposed to be about because with that concentration of power comes a lot of negatives – or potential negatives – as well.
The liberals here want the concentrated power of a strong fed as long as it uses that power to do what they want. They then hope that they can use legislation and votes to ensure that it does, indeed, use the power to continue to produce their desired outcomes. They forget the double edge sword of their form of govt. People with opposing views on law and govt can also then use legislation and votes to do what they want. In fact, they do.
I have been saying for several election cycles – maybe the last 25 years – that there is no difference between libs and conservatives. Both want to hijack unconstitutional power to further their vision of govt and society. Both make us ultimately less free. And both are wrong from the perspective of the founders.
* I am for public works programs and think they would be a good solution at this time. I do not see where public works for a limited time frame is unconstitutional
Better red than dead!
If everyday consumption of these weren’t banned by the Federal Government, I could win this thread with a bang:
http://www.balloon-juice.com/2012/02/28/from-way-downtown-bang/
Oh, they aren’t banned yet?
Well alright, my next new entrepreneurial mission: Set up a privately run cross-country rail-gun target range. My range would permit the paying public to use six rail guns placed along the eastern edge of the Colorado plains.
The targets would be in other states. Talk about flyover country, whooee!
Rail gun #3 would be sighted for the Carolinas, should they opt in — and given the Constitutional proclivities in them thar parts (concealed railguns will be permitted in bars in South Carolina at the very least), I expect full cooperation at least from some localities in those states.
The FAA might object, but unless you’re a fan of anagrams, I (popping my bifocals up and down over my eyes here to focus) I don’t believe an “F” and two “A”s in that particular order come within spitting distance of each other in the Founding documents.
Yes, yes, interstate commerce quibbles and all but my feeling is that, at the very least, the contents of carry-on baggage should be regulated by the states, nail clippers a no-no over Pennsylvania, but dynamite concealed in a turban good to go for the more adventurous types in Idaho.
We’re going to need a Judge to sort all of this out.
I’d suggest lawyering up.
1924-Heroin Act
I want an attorney.
Rather than, “Hey, we just went to the trouble of passing the 14th amendment, no, we aren’t interested in carving out exceptions, go away.” Which is not a constitutional argument, it’s a policy objection.
OK, I see it now. Amazing that I mistook one for the other. Perhaps it was the fact that “we just” represents a fifty-year span of time that confused me.
The liberals here want the concentrated power of a strong fed as long as it uses that power to do what they want.
Who’s a liberal here?
How do you know what “the liberals” here want?
We’re now at the “you’re a poopyhead, no you’re a poopyhead” stage, so maybe it’s time to give it a rest.
We need a new toy. Maybe I’ll post a front-pager on corporate personhood….
I love me a bold statement extolling the inviolability of the Constitution, or any wrought-in-stone document, followed immediately by an asterisked footnote pleading for exception.
It’s like a ten-point diet plan, followed by a footnote noting: “Any reference to forbidden sweets, desserts, or carbohydrates in the above plan does not preclude wolfing down three cupcakes with custard filling and sprinkles on top per day.
The Interstate Highway System and much of the work of the Bureau of Reclamation and the Army Corps of Engineers are constitutional only in the sense that we make sh*t up as we go along and we wouldn’t know what to do with all of the concrete we’d have to jack hammer out if we insisted on literal interpretations, though I’m pretty sure Clarence Thomas would tell us where to shove it, but only in written form.
As the droll Ben Franklin pointed out when asked “What have you wrought, sir?”
“Given the weaselly, general language we were able to agree on after the fellas and I nearly came to blows numerous times, a Republic, depending on which Judge before whom you bring your case.
If your only Judge is God, your conscience, and the commas in the Second Amendment, this is going to be one hell of a rodeo!”
There is a need to believe versus rational thinking.
Ay, there’s the rub. A country founded by an elite class consisting of Enlightenment toffs, slave owners, and bean counting merchants who consciously excluded a majority of the population from political power placed their dead hand on the future due to our inability to change The Word. And those whose political agenda miraculously dovetails with their interpretation of The Word retreat to the Sacred Text and give us their never ending exegesis about what The Words Actually Say despite the fact that there have been bitter disputes about What The Words MEAN since they were written.
There has not been presented one scintilla of evidence that we are “less free” today than in the past, and in fact, I would argue that more people today are more free than in the past. This is an incontrovertible fact.
So yes, it pisses me off to be lectured to by wordsmithing fundamentalists with a political agenda, who miraculously “know” what I think, who ignore vast swaths of our political history, and decry the loss of their freedom to own (certain kinds of) guns or ingest (certain kinds of) drugs…..and…that’s….it? Because they have proved that we are no longer an agrarian nation? Freedom is gone! Really?
I refuse to answer any more questions without my attorney present.
The problem here is that a strong (all powerful?) problem solving federal govt is fundemental to the liberal perspective.
Really? I thought the problem here was that a purported common understanding of federal power at the time of prohibition was in dispute.
The fact that an amendment was passed doesn’t mean that there needed to be one to ban alcohol from a purely constitutional perspective. It simply means that that was the method chosen, and that could have been for a number of reasons.
Russell’s assertion is that you’d need to show some evidence of the common understanding at the time of federal power Sebastian et al assert existed. As demonstrated, amendments can be challenged on constitutional grounds, especially if people have a common understanding that the amendment is in conflict with the constitution as it exists without that amendment.
What I don’t see anyone saying on this thread is that the alcohol ban was a good thing, just because it was an exertion of federal power, or that it would have been a good thing if it were done without an amendment.
But go on arguing with imaginary liberal opponents who are just in love love love with federal power, if that makes you happy.
All power is a double-edged sword. I think liberals do get that, and worry about what expansions of power will cause down the road (such as the assassination policy). I certainly worry about that. And yet, if I lived in a swing state, I would vote LOTE as normal, and that means Obama. I don’t live in a swing state, though, so I get to toss Gary Johnson a vote. 🙂
A few wrap-up points, and then I’m done:
I think strict originalism, much like biblical fundamentalism, has problems. Because the Constitution (while clearer than the many-times-translated Bible) had a group of authors who disagreed about things and occasionally committed the sin of being vague.
I have some sympathy for the Brett/Avedis position here, but only to a point. There *are* parts of the Constitution that are ambiguous. People’s understanding of words and norms change over time. Hence “cruel and unusual” might mean witch burning at one point, and might mean any form of corporal punishment at another point.
I *do* think that the 2nd Amendment is sufficiently clear as to need changing before you can ban weaponry (though I don’t see a safety class requirement as out of bounds, though I’m sure Brett sees that as “infringement”). It needs updating, since we’ve developed a lot more weapons since 1789. Said updating should be cautious and keep the right of self-defense firmly in mind.
I’m less sympathetic to the claims regarding the commerce clause. Seems to me that with modern transportation & communication, more and more of commerce is interstate (and international). I’m not saying there was never overreach, but I think the claims are overblown.
I don’t think it’s a coincidence that a lot of the things under discussion on this page have been from the early 20th century: the USA was out of land it could steal from the NAs, and was starting to fill up. Population growth was impressive. We were becoming increasingly urban. And that puts pressure on a system designed for a far more agrarian, sparsely populated society with a dangerous frontier.
Any reference to forbidden sweets, desserts, or carbohydrates in the above plan does not preclude wolfing down three cupcakes with custard filling and sprinkles on top per day.
I like that diet.
Except, being the effete coastal elitist snob that I am, I want creme brulee and tiramisu. With a nice port and a double decaf espresso.
Come the revolution, those things will be the mandatory snacktime treats in all of our state run resettlement camps.
You will learn to love your serfdom!
Via Charles Pierce, we revisit Utah, where last we saw the leading online porn subscription State proposed legislating only abstinence-only sex education (so much for hands-on learning) in the schools:
http://www.foodsafetynews.com/2011/02/bill-proposed-in-utah-to-exempt-state-from-new-fda-law/
e. coli representatives have yet to comment on the proposed law, but the off-the-record gut feeling among e.coli from the other 49 states is that their brethren in Utah will quickly adapt to facilitate local cramping.
They are observing events in Utah closely.
This twist in states rights/food safety may also take e.coli’s attention away from a long-running internal dispute, to wit, what the hell is the purpose of the period after the e.
Salmonella, for its part, objects to any regulation at any level of government whatsoever, believing that the Constitution trusts that individuals can make their own determinations regarding food safety with a simple sniff test while bent over the open refrigerator in their bathrobes at 2:30 in the morning.
Is that the meatloaf left over from Sunday dinner? Let’s see, it’s Wednesday and it seems to be moving, or do my eyes deceive me.
Too bad the FDA guidelines regarding squirming meatloaf are out of print.
Nice summation, Rob. I am generally in agreement.
Bottom line, no one has told me why it is Constitutional to outlaw cannabis. I say it is not and that laws to that effect are over reaching by the feds.
Also, if you don’t like the Constitution or feel that as originally written it is no longer applicable to modern issues, you don’t get to simply ignore it or pervert it. Rather, you must hold a convention and amend it.
Let’s say we agree that federal bans (on anything) are unconstitutional.
So let’s say CA legalizes but AZ does not. People in AZ go over to CA to buy and bring it back. Is there a federal role there, or do the AZ Staties just need to hang out on the border, searching people’s cars, at which point we have to talk about the 4th amendment, right?
Imports of cocaine from South America to states where it’s banned: federal role? Interdiction on the high seas and whatnot?
Amazon starts selling pot over the internet… do the Feds have a proper oversight role there? To what extent? Say CA has laws regarding safety/purity/potency that Oregon does not. There is a dispute. This escalates to the Feds at some point, right?
Bottom line, no one has told me why it is Constitutional to outlaw cannabis. I say it is not and that laws to that effect are over reaching by the feds.
I think it depends on the execution. I don’t like the ban, but I don’t know that a ban, in and of itself, is unconstitutional. I’d say there are all sorts of constitutional rights being trampled in the current execution of the ban, and perhaps that any effective ban is a practical impossiblity without violating a number of fundamental constitutional rights (not that the current ban is even effective while violating people’s rights, so imagine the ban being effective with further contraints than are now imposed on the government).
So the constitutional question may be academic, leading us to the same anti-ban position, if for slightly different reasons.
(But, hey, it’s a blog, so it’s all pretty much academic, anyway.)
Speaking of the 4th, here is the text:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Right off the bat, I see the word “unreasonable.” That’s going to be a shifting target, right there, just like cruel and unusual.
The bit about warrants is more specific, which is nice.
So, does one need a warrant for any search? It isn’t clear to me just from the amendment. Present practice in the drug war seems to be “no, come up with probably cause on the spot and search away.” The person being searched can refuse to consent and challenge the findings (if any) in court.
I feel like I’m missing something (or lots of somethings here).
“This escalates to the Feds at some point, right?”
No. i don’t think so.
Someone buying cannabis in CA and bringing it back to a state that outlawed it is a state problem. Yes, the feds can regulate (note “regulate” as opposed to “ban”) interstate commerce, but I don’t see where any formal commerce has taken place in your example.
I am no lawyer by any measure – yes yes, I know, that is painfully obvious – however, I am an economist by education and employment. Maybe my education provided me with an unbalanced slant on things constitutional, but in my course of study we looked at the economic reasoning behind the founders’ design and regulating interstate commerce was for the purpose of ensuring sufficient uniformity in economic transactions such that the nation could enjoy unimpeded trade between the various regions. The feds role was to be one of facilitator of trade.
That is decidely different from the role of uniformity of moral issues across states.
Also, if you don’t like the Constitution or feel that as originally written it is no longer applicable to modern issues, you don’t get to simply ignore it or pervert it. Rather, you must hold a convention and amend it.
I love the Constitution, and feel that it is applicable. I just think that it’s subject to interpretation to make it a viable foundation for modern law. So quit trying to own it just because you disagree with the concept of judicial review.
I would really enjoy being the sole authority as to what the Constitution means, but since that’s not going to happen, the system we have is next best. Obviously, government works best when good people are running it. We all have a responsibility to elect good people. There is no possible way, in any governmental system, to get away from the fact that people, ultimately, run it.
And yes, if AZ is so worried about some CA grass (get back Jo Jo) then it is incumbant on AZ to establish check points at its own cost and to adhere to the federal constitutional law concerning search ans seizure; which shouldn’t be too hard to do given how that law has been bludgeoned to death as of late.
As I keep emphasizing, people have run to the federal skirt hems out of fear of various boogey men and/or laziness and in doing so have empowered the federal beast way beyond what was ever intended. Warrants are not needed for much of anything these days. You can be wiretapped, searched, have your property siezed and be killed all without warrant or due process and all that is needed for justification on the govt’s part is that, in the opinion of their officers/agents you might be or be associated with some class of boogeyman. And pot smokers are boogeymen.
“We all have a responsibility to elect good people. There is no possible way, in any governmental system, to get away from the fact that people, ultimately, run it”
Easier said than done and the framers knew that power corrupts; which is why we have a Constitution.
OK, sapient. Then explain to me by what interprative logic cannabis is illegal. Explain to me the logic behind warrantless wiretaps. Explain to me how a POTUS gets to summarily execute suspected US citizens.
Because that is where we have ended up with your preferred process of law making.
OK, sapient. Then explain to me by what interprative logic cannabis is illegal. Explain to me the logic behind warrantless wiretaps. Explain to me how a POTUS gets to summarily execute suspected US citizens.
Not sapient here, but I don’t think there needs to be interpretive logic by which cannabis is illegal, rather interpretive logic by which the federal government (that is congress) can make it illegal. (And that’s a separate question from whether it should.)
On the other two, I’d say those practices are prohibited, so we agree.
I’m not really sure I understand how russell’s appeal for evidence works in retrospect when he seems to want to exclude the best evidence available.
You seem to be working through the modern norm–if the general assumption is that the Constitution doesn’t currently allow something, we should *try to get the assumption changed*. That norm leads to lengthy discussions about what the current assumption is.
They were working through a completely different norm–if the general assumption is that the Constitution doesn’t currently allow something, *we should amend the Constitution*.
That norm doesn’t lead to even short discussions about what the current assumption is. They just accept that the assumption is there, and move to amend it.
We’re pretty clearly in Holmes’ “listen for the dog that didn’t bark” kind of scenario.
The Temperance Leagues were a powerful political force, tightly allied with the law and order movement. Even back in the early 1900s, it was understood that getting legislation passed was amazingly easier than passing a Constitutional amendment. I’m pretty sure we all agree on that.
So, lets look at common understanding as a continuum and examine it at three points: the hard federalist point (absolutely everyone understood an amendment to be necessary), the hotly contested point (everyone understood there to be a strong dispute about whether or not an amendment was necessary), and the hard centralized point (everyone understood that an amendment was clearly not necessary).
Assuming we know nothing about the actual state of the understanding, can we make assumptions about how the debate would play out depending on where it was?
I’m pretty sure we can. If the general understanding was at the hard centralized point, we probably wouldn’t have seen an amendment at all. Amendments, even back then, were hard to pass. Legislation was easier. If it was merely a tactical move (to lock prohibition in once won) we would have seen it play out similarly in the states and at the federal level (amendments in both places). But in actual fact, we typically see legislation, not state constitutional amendments at the state level. We also would be likely to see federal legislation first and the lock in second. If general opinion was close to or at the hard centralized position, we wouldn’t see much debate about the constitutionality of prohibition laws, because their constitutionality would be obvious.
If the general understanding was at or near the hard federalist point, what would we have seen? We would have seen a two pronged-approach. The Temperance leagues would try to pass prohibition legislation in the states as they gained power, and attempts to pass an amendment for a federal rule. This is in fact the strategy actually taken by the Sons of Temperance (call for national amendment and push for local legislation in 1856), Anti-Saloon League (great success 1900-1913 at passing legislation on the local level, then at their conference pivoting to support for a national amendment), and the National Temperance Council (formed for the purpose of passing a national amendment and demands for an amendment submitted to Congress by the Committee of 1000 in 1913).
If the understanding was close to or at the hard federalist position, we wouldn’t expect to see much debate about the constitutionality of a federal prohibition because its unconstitutionality (without amendment) would be obvious.
The only time we would see debate about the constitutionality of Congressional prohibition would be if it were an actually contested issue. In that case I would have expected the prohibition forces to mirror their enormous success at the local level by attempting to pass legislation through Congress and additionally I would expect to see many arguments about the Constitutionality of such legislation, with a third prong being an attempt to pass an amendment to avoid the problem.
Russell, you seem to be asking for evidence of the type which would exist only if the constitutionality of a Congressional Prohibition were a live issue. The evidence of the two major localized Temperance groups (Sons of Temperance and Anti-Saloon League) is that they enormous success at passing local legislation, and when they wanted to go national they immediately pivoted to making an amendment. If an amendment wasn’t widely thought to be necessary why not just continue their highly successful methods? The national organization founded around Temperance (National Temperance Council) was formed around the idea of an amendment. Why not model after the highly successful local temperance leagues and go for legislation?
My answer to that question is that they didn’t do so because it was well understood that they couldn’t.
You seem to want evidence BEYOND their enormous change in tactics which shows that they thought so. But if the hard federalist assumption was in place, what further evidence would you expect?
Why not model after the highly successful local temperance leagues and go for legislation?
While I get your larger point and see the logic in it, this particular question may simply come down to local political dynamics being different and that what states and other localities can do through legistlation under state constitutions without arousing significant and resourced opposition is simply not the same as what can be done the same way very easily at the federal level. The localities where they were successful may well have been the first chosen – low hanging fruit, if you will – based on the lack of local opposition.
(But, as I wrote before, I’m no great student of history in general or the Prohibition Era specifically, so I could be way off here.)
Did I see above that Russell is going to do another post on the “corporations are people” grift?
Start here: http://www.marketwatch.com/story/grantham-wonders-if-marx-was-right-after-all-2012-02-29?siteid=bigcharts&dist=bigcharts
Jeremy Grantham, like Warren Buffet, is one of my favorite capitalists and an amazing mutual fund manager. He was a pioneer in investing in emerging countries.
Now, by claiming that Marx and Engels may have been fairly accurate in their critique of capitalism’s soft spots, he risks being called an anti-American Commie tool by the usual suspects, who probably socialize more of their risks and losses before breakfast that the rest of us put together and are the same ones who call George Soros a Jew hater.
We’re nuts.
Some of Marx’s criticisms of capitalism (especially mid-19th century capitalism in Britain) seem bang-on to me.
His prescriptions, however, not so much. I think he rejected the idea that the owners would compromise. Basically, I think he thought something like the New Deal was impossible (and, in fairness to the man, there has been a faction that has fought tooth and nail against the ND from the get-go) and, therefore, the whole thing would come crashing down.
Instead of the “pure” capitalism of the 19th century (which wasn’t actually very pure), we ended up with a mixed economy. It’s a bit of a muddled mess, but overall its story is one of success (even if, at present, there are worrisome trends). Marx, I think, made a mistake common amongst economists (sorry, avedis): he made an assumption, and that assumption was wrong.
No problem, Rob. Everyone needs to have a starting point when working up there manifestos.
I think Marx will be proven correct in the long run.
Easier said than done and the framers knew that power corrupts; which is why we have a Constitution.
OK, sapient. Then explain to me by what interprative logic cannabis is illegal. Explain to me the logic behind warrantless wiretaps. Explain to me how a POTUS gets to summarily execute suspected US citizens.
Explain to me, avedis, how the Constitution will enforce itself without people. It is an amazing document; trouble is, it’s a document. It doesn’t have a celestial spirit that comes forth and forces people to do whatever [you or] somebody says it means.
Regarding cannabis, if I were interpreting the Constitution, I would say that growing your own marijuana on one’s own property for one’s own personal use is absolutely untouchable. Once somebody starts selling it for U.S. dollars, especially if touting it as a “remedy,” that person is subject to regulation. But even if there are some issues about which I disagree with the Supreme Court, so what? I benefit from having a stable society that accepts a certain amount of “government” – especially since I can use all of my free time to lobby for whatever type of change I want to have happen.
Regarding warrantless wiretapping, I’m against it (depending on the circumstances). People who agree with me are challenging the law in court. I’m willing to live with the ruling.
Regarding killing a person (American citizen or otherwise) who publicly declares himself allied with an enemy with whom we’re at war (military force having been authorized by Congress), a person who creates a fortress beyond the reach of any functional legal regime, a person who is engaged in soliciting American youth to kill themselves in order to kill a whole lot of other people with them, including other American citizens: sure, I support the government’s right to target those people as enemies. Doesn’t that discussion belong on a different thread? In fact, hasn’t that discussion happened on a different thread?
By the way, I would also have supported a government (or state) action whereby a police officer might have killed that guy who was in the midst of shooting those kids in the Ohio school
Assuming we know nothing about the actual state of the understanding, can we make assumptions about how the debate would play out depending on where it was?
We can, but it seems to me that it would make more sense to try to get more information about the actual state of the understanding.
It’s not like there isn’t a pretty robust historical and legal record for that time.
What you’re saying hangs together, but it’s premised 100% on speculations drawn from your own imagination. As far as I can tell.
What strikes me about that period, from my admittedly limited knowledge of it, is the enormous confidence folks had then that government could, and should, step in and solve social problems. It’s not called the “progressive era” for no reason.
Why an amendment, rather than a law?
Since we’re speculating, I’d say that an amendment presents a stronger bar to reversal. The drys had been working for Prohibition for decades, they were determined to have it, and they were determined to have it stick. They may simply have assumed, correctly as it turns out, that once their preference was enshrined as an amendment, it would be damned hard to change it back.
Much like folks nowadays want an amendment, rather than a law, against gay marriage, or flag-burning, etc etc etc. It just makes it harder to reverse when the political tide turns.
As I say, speculation, but it seems as plausible as your argument, and is consistent with other things we actually *do* know about the time.
Anyway, as always, I appreciate your thoughts. No snark.
That all depends on what you mean by him being proven right.
I think he (like most of us!) better at pointing out flaws than proposing solutions/predicting outcomes.
If I recall correctly, one of the key requirements for Marxist utopia is the removal of scarcity as a concern. That, right there, strikes me as unlikely. Even though we get increasingly productive/efficient, resource constraints remain. Population growth ensures that (and if we reduce population somehow, I think we’d have a different problem given our economic model requires growth).
I remember Asimov imagining societies that basically used robot slaves to do everything and the humans lounged about doing whatever they wanted. It reminded me of Marx. Nice phantasy, I say, but unlikely unless you find the secret of unlimited free energy. In the golden age of SciFi, that was supposed to be nuclear power (FORWARD, OUR BRIGHT ATOMIC FUTURE!), but reality has turned out to be somewhat different.
Given scarcity, humans will do what we’ve always done: fight over who gets what. Hoard stuff. And in that reality, it’s hard to see capitalism being replaced with a superior system. It might evolve some (as it has already), but it’s a bend-not-break situation (so far).
Time will tell.
Given scarcity, humans will do what we’ve always done: fight over who gets what. Hoard stuff. And in that reality, it’s hard to see capitalism being replaced with a superior system.
At the risk of sending the thread totally over the cliff, I’ll observe that both scarcity and human nature have been around for at least 100,000 years. Scarcity likely much longer.
Human society that we would recognize – settlement, agriculture – is about 10,000 years.
Capitalism – depending on how you count, 250 to 500 years.
Far from being the inevitable result of human nature and physical reality, it’s kind of a novelty. Humans have arranged things lots of other ways, for very long times.
Capitalism – depending on how you count, 250 to 500 years.>
Guess that depends on how you define capitalism. Trade, money, etc. – better go to Rome or Greece or Mesapotamia. Been around for a long time.
Itals go away!
This is true, Russell, of course.
And so it’s entirely possible to say “I think capitalism will be replaced by something else/better.” I shouldn’t have said “it’s hard to see capitalism being replaced.” OVERSTATEMENT ALERT.
I mentioned it matters what avedis means, exactly, by Marx being right, because Marx had a specific outcome in mind.
So I amend: capitalism may be replaced (or evolve into something else) – that’s entirely plausible. Indeed, in the long run, it’s likely. I just don’t think the result with look much like what Marx dreamt up.
Trade, money, etc. – better go to Rome or Greece or Mesapotamia. Been around for a long time.
Trade and money != capitalism
Guess that depends on how you define capitalism.
I’d say there’s something we recognize today as the full menu of capitalism. Some of the items on the menu have been around for while and others not so much. (I’ve heard that the Chinese invented pasta, though they probably can’t therefore be credited with inventing Italian cuisine.)
When did the first publicly owned, stock-issuing corporations come about?
Well, if capitalism is defined as stock exchanges, it began in 1602 with the Amsterdam Stock Exchange. But there was a long road between “settlement, agriculture” and stock exchanges. The history of manufacturing, trade, and banking is quite a bit longer than that. Maybe that doesn’t qualify as “capitalism,” but it’s more complicated than hunting, gathering and farming for a small community.
I wasn’t trying to define it, just picking a point about as good as any other where one might say capitalism came into more or less full flower. It was an evolution for sure, so picking a particular birthday is going to be somewhat arbitrary.
“We can, but it seems to me that it would make more sense to try to get more information about the actual state of the understanding.”
Well I think I actually do have a pretty good feel about the actual state of the understanding based on how federalism court cases were being ruled on in initially the New Deal (which is AFTER the prohibition) and based on the fact that Wickard ended up being such a shock (AFTER the prohibition and after the court packing threat). FDR got what he wanted, but I didn’t realize it was even remotely controversial that what he wanted involved A CHANGE in the balance.
So I find the whole discussion confusing. Prohibition is pre-New Deal. I didn’t realize that it was controversial that at a very minimum there were very big changes in the understanding of the Constitution at that time.
“Much like folks nowadays want an amendment, rather than a law, against gay marriage, or flag-burning, etc etc etc. It just makes it harder to reverse when the political tide turns.”
No, I think you’re defining that improperly. People want a flag burning amendment *because they can’t make a law on it*. They already tried to make a law on it, and it passed. The Supreme Court (correctly in my opinion) said that laws against it are unconstitutional. They NOW want a flag burning amendment to overrule that interpretation by explicitly making it an exception to the 1st amendment.
They want an amendment against gay marriage *because the full faith and credit clause probably means that without an amendment a marriage in one state should be honored by all*.
While I disagree with BOTH of those proposed amendments, I respect the fact that they take the Constitution seriously–if it says one thing and they don’t like it, amend it.
So I don’t really buy your alternative explanation.
So I don’t really buy your alternative explanation.
Well, as noted, it was just speculation on my part. And, as you note, my examples from the late 20th C aren’t really good examples to apply to the early 20th C.
The late 19th C, beginning with the Interstate Commerce Act in 1887, through the early 20th C was a pretty active period for federal regulation. So, IMVHO and only IMVHO, it would not be surprising to find that folks at that time were not disturbed by claims that the feds could regulate, or even ban, the manufacture or sale of alcoholic beverages.
Maybe the reaction to FDR’s programs during the New Deal are indicative of attitudes 10 or 15 years earlier. I don’t know.
What I was interested in was some example *contemporary with Prohibition* that would demonstrate the widespread and well understood assumption that the feds had no power to do something like Prohibition, without the amendment.
There are tons of examples *from that period* of the feds regulating anything that couldn’t be nailed down. So, I remain unconvinced.
And, I’m happy to leave it at that.
“And, I’m happy to leave it at that.”
Seems OK to me. I’d add a bit to suggest that the temperance movement, emboldened by their success at the state and local level went for, and succeeded in getting, the whole enchilada because they could count votes (not yet banned by FDR) and figured it would get through the Constitutionally mandated hoops.
Given this is rather recent history, there should be a written record of political back and forth as to the efficacy of or strategizing about going for an Amendment vs. simply a federal “ban” which, as has been pointed out ad nausem, can be accomplished in any of a variety of ways (taxation, licencing, etc.).
Actually, when you delve into it (the religious fervor, the progressive politics),
I feel most here would be quite interested to read more about the political and social events of that time wrt this issue
I believe you’ll see that the politics were a bit more complicated than some of us seem to assert so blithly.
Not just happy, but determined…
When I said that Marx is probably correct in the long run I was referring to his prediction regarding the death capitalism and his reasons for it.
Some of his other ideas, not so much correct. For example the communist utopia that would replace capitalism is outlandishly unrealistic, though a pleasantly amusing thought.
Rather than a marxist progression toward utopia, I predict war and revolution amidst repeated attempts to return to feudalism. Ultimately, strong dictators will win out with varying levels of benevolence; or lack there of. This all in the next hundred years.
People don’t want freedom and they don’t want to get along. They want leaders to blindly follow and idols to worship. This they will receive.
“Not just happy, but determined…”
LOL. Indeed.
“I respect the fact that they take the Constitution seriously.”
Respectfully disagree. This takes a living document, exhalted beyond reasonable reason for many bad reasons in some quarters (just my opinion)…yet somehow still a workable written framework in this modern day, and would turn it into a legislative laundry list of pet peeves.
It does the majesty and genius of the Constitution a great disservice and is an attempt to end run the give and take of day to day politics as disasterous as that interaction ofttimes is.
The ultimate inversion of reality: Actually using Article V is an act of disrespect towards the Constitution it’s part of. Lying about what it means, OTHO, that’s ok.
“Regarding killing a person (American citizen or otherwise) who publicly declares himself allied with an enemy with whom we’re at war (military force having been authorized by Congress), a person who creates a fortress beyond the reach of any functional legal regime, a person who is engaged in soliciting American youth to kill themselves in order to kill a whole lot of other people with them, including other American citizens: sure, I support the government’s right to target those people as enemies.”
BTW, those were the allegations. How do you know they are facts? They need to be proven in court. Unless you think the judiciary system is passe and, as a living breathing document, we can decide to enact laws to circumvent the extensive language in the Constitution dealing with criminal charges, arrests and prosecution.
As a practical matter, the people killed under the living breathing expanded executive orders could have been captured and made to stand trial.
There is also a very terrible very troubling precedent being set. More of that living breathing stuff, I guess.
You shouldn’t get to toss the law of the land aside for expediency’s sake. But if writing such actions off as the result of living breathing makes you feel better, then good for you.
Here’s what I find persuasive about Seb’s and Brett’s points, sort of combined – it’s one thing to try to pass an amendment that contradicts what’s already in the constitution and another thing that puts in something that just isn’t there at all.
In other words, the constitution didn’t say “Congress shall not ban….” I just didn’t say explicity that it could. So it is different than passing amendments that would allow the federal government to ban or do something that it was explicitly prohibited from banning or doing by the constitution.
“So it is different than passing amendments that would allow the federal government to ban or do something that it was explicitly prohibited from banning or doing by the constitution.”
Sorry, but no, not really.
If it’s not in the document then the govt doesn’t get to do it.
If it’s prohibited by the document, then the govt doesn’t get to do it.
It’s the same thing.
Why? Because the document clearly states that it describes what the govt can do; everything that it can do. Therefore, if not described, it can’t do it.
It would have been impossible to document in detail prohibitions against every possible idiotic/evil policy/law that future generations could conceive of.
When there is mention of things that are prohibited to the govt, the purpose is mostly to detail the right way versus common wrong ways.
In either case, if the govt wants to do it and the document doesn’t say they can, then they need an amendment that says they can.
It’s really simple.
Unless you just don’t like it. Then you can become impenetrably obtuse and pretend that it’s highly complex and confusing and living and breathing and morphing and that up is down……..
….in which case we’d have about as evidence against you being against amerika as we had against Awlaki concerning actual involvement in actual terrorism (as opposed to merely writing anti-amerikan opinion pieces) and we will fly a drone up your ass and terminate your argumentation…….except we won’t because the guys in control of the drones think the same way you would in that case and maybe you’d get to begin a lucrative career as a DC wonk.
Things have a funny way of working out.
This is not a warning and I don’t want to come across as the heavy here, but when you toss around words like “impenetrably obtuse” and “pretend”, it’s going where the ice is a bit thin. I didn’t say anything when there was the tag team match on sapient with various claims of him purposefully presenting flawed stats, and that seemed to have passed, but now that it is coming up a second time, I just want to ask _all_ of you to cool it a bit and play nice. Thanks.
No problem LJ. You are right. I will try again, more civily.
The C has clearly stated 17 things that fed govt can and must do (please see Article 1 Section 8). These 17 are very straightforward except the 17th; which just says that govt can make laws as necessary to carry out the first 16 responsibilities. The first 16 responsibilities are not at all ambiguous.
I then refer anyone who is still confused at this point to the Tenth Amendment, which states “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
There is a tricky comma in there. However, I do think that the 10 amend is also unambiguous.
LJ, I understand the point you’re making. I’d simply point out that the possibility of civil discourse depends not only on civility, but also on language. By which I mean, not the type of language that you employ, but that you be willing to use language as language. Not just as noise.
At some point, when somebody is deploying all the po-mo, you have to recognize that they’ve decided to make civil discourse impossible themselves, by refusing to let language function. What do you say then? Seriously?
Do you resign from the field, and let them spike the ball in victory?
Do you just go on arguing, as though they’re letting language function?
No, seriously, what do you do, if you can’t say “purposely obtuse”, or anything else that suggests what they’re actually doing?
po-mo?
po-mo!
Perfect!
Saw that a couple times on this thread and had no idea what it meant. Now I have learned a new urban term that very aptly describes certain subculture-esque set of styles and attitudes that I encounter here and there.
http://www.urbandictionary.com/define.php?term=pomowanker
An entire list of ways to employ the term.
It’s really simple.
Thanks for clearing that up.
Here’s a poser for all of the “it’s simple” crowd. Article I, section 8, the first of the enumerated powers:
Can Congress institute a tax to subsidize health insurance for the population of the United States?
If not, why not?
Clearly the power to tax is there. So, the issue is what is covered by “general welfare of the United States”.
Kindly explain what is and is not covered by the phrase “general welfare”, and lay out precisely why something like health insurance would or would not be included in it.
And if you wish to make claims about what the founders, or any of the hundreds of other folks since the founders who have spoken authoritatively on the topic, obviously did or did not understand that phrase to cover, I’d appreciate a cite.
You don’t like po-mo, I don’t like ventriloquism.
If it’s really simple, this should take you all of three minutes. But take as long as you like.
Thanks.
What do you say then? Seriously?
“Screw it, I got better things to do” usually works for me.
I will try again, more civily.
pomowanker
Excellent baby steps toward a more civil avedis!
“The first 16 responsibilities are not at all ambiguous.”
If they are not in some important respects quite ambiguous, then I take it you find Marbury v. Madison to be a travesty since the unconstitutionality of the Judiciary Act of 1798 should have been apparent to all and…..never passed in the first place?
Ha! “If people won’t agree to stipulate that my interpretation of everything is the only correct one, what choice do I have but to call them stupid?!”
What do “cruel and unusual punishment,” “probable cause” and “unreasonable searches and seizures” mean, Brett? Remember, stick only to the words on the page — no interpretation or adjustment for time period allowed!
BTW Andrew Breitbart just died.
I think it’s perfectly fair to look to other writings of the framers for relevant clues to intended meaning. Not that I have any in mind.
If they’re going to do that, they need to specifically cite them, then. No “everybody knew” nonsense.
Wow, there seems to be some serious missing of the point going on here. What I was trying to get across was that challenges to an amendment that contradicts what is explicitly in the constitution are more likely than challenges to an amendment that adds something that simply isn’t there.
Flag burning is an example. It was at odds with the 1st amendment.
What I wrote supports points Seb (and maybe Brett) were making and undercuts points russell was making.
What I’m suggesting is an explanation for the lack of constitutional challenges to the 18th amendment establishing prohibition, which russell suggests as evidence, at least potentially, that people generally thought the federal government already had the power to institute bans – a point in opposition to Seb’s point that it was understood that the federal government lacked that power, thus necessitating an amendment.
Is that still PoMo?
I mean, does it really require tortured logic to recognize the difference between a carve-out and an add-on? Prohibition (add-on) was a fncking disaster, and how long did it take to reverse it (carve out the add-on)?
BTW Andrew Breitbart just died.
I hear he was a big Monkees fan.
Agreed.
“Can Congress institute a tax to subsidize health insurance for the population of the United States?”
IMO, yes – and I hope it does.
This is one area where the founders realized that over time new serious challenges would face the nation that they had not foreseen and they wanted to provide some leeway for the federal govt to intervene, for the general welfare, where the benefits outweighed the costs and where the free market failed to provide a viable solution.
Of course, the fed does already tax for Medicare and, to some extent, for Medicaid; not to mention the VA.
In a system where healthcare insurance is primarily provided via employment, there is isn’t going to be a viable means for the lederly – who are not employed – to obtain affordable insurance.
If the elderly sought to purchase insurance privately it would be difficult, if not impossible, to find at a price they could afford. Their actuarial risk is simply too high.
That would leave us with an elderly population that either a) dies in the street or b) ends up with hospital bills it cannot pay – which would, in turn, force hospitals to close their doors or stay open and pass the uncompensated costs onto the employers of the younger healthier population, who would, in turn, then be challenged to afford insurance or pass the cost onto consumers of the goods and services the employers produce.
The issue of healtcare for the elderly impacts the entire population of the country. Hence a need to address HCI for the elderly under general welfare.
As more employment goes overseas and domestic employement that remains offers fewer insurance benefits, if any, a similar problem as that involving the elderly begins to appear concerning the younger population.
Thus a federal single payer insurance plan for all citizens makes sense and does, indeed, provide for the general welfare as the founders intended.
Agreed. really simple.
Thanks for this thoughtful reply, avedis.
Just to push back on this, I’d point out that lots of folks have construed the “general welfare” clause to only extend to things specifically allowed by the other enumerated powers.
So, frex, Associate SCOTUS justice Joseph Story, and founder James Madison, adhered to that narrower reading.
In their view (and that of many others) a federal tax to fund health insurance would have been illegitimate, because providing health insurance is not one of the specifically enumerated powers in Article I Section 8.
For reference, a cite, please see the section under “United States”. You can follow links from there for more detail if desired.
So – why is your reading correct, and theirs not?
I’m not making any statement about the substance of what you’re saying here, I’m just asking you why your understanding of the text is correct, and theirs not.
That’s my reading. The reason being, that it’s pointless to list powers, and then add to them a power that makes listing powers redundant. If the general welfare clause is interpreted as granting a power, then all the other clauses are pointless, everything done under them could be done under the general welfare clause.
Rather, what I understand it to be is a restriction on the exercise of the enumerated powers, that they can only be used for the general welfare, and not to benefit narrow constituencies. The federal government is supposed to be taxing the entirel federation, to do things to benefit the entire federation. If the benefit from a particular exercise is limited to a particular region, that region should be doing it, not the central government.
I’d really like to hear from my PoMo-accusers, if it’s not too much trouble.
*tapping foot*
That’s my reading.
Understood.
And, conversely, the broader reading of the general welfare clause was held (unsurprisingly) by Hamilton, as well as early SCOTUS Justice Joseph Story. As a practical matter, it was the basis of much of the actual law and policy of the Federalist administrations, in the earliest years of the nation.
Why is your reading correct, and theirs not?
“Just to push back on this, I’d point out that lots of folks have construed the “general welfare” clause to only extend to things specifically allowed by the other enumerated powers.”
Yeah, I know. The pendulum swings both ways. Some want to read things in that just are there and some want to read things out, that are there.
I agree with Brett’s interpretation of general welfare and, again, I think that under that interpretation healthcare insurance would qualify for the reasons I stated (and a few others I didn’t go into).
BTW, You know I am kidding (mostly) about Po Mo. It just strikes me as humerous. I really had no idea that there was such a word and so many ways to use it as a prefix.
To clarify how I can agree with Brett and still HCI tax as be ok; I don’t think you have a defense, or commerce or much anything else enumerated when you have a sickly population, high mortality, etc. So a healthy population is a pillar strategy; integral to fulfilling the duties enumerated.
ughhhhh, important omission: but only because of market failure in the private sector – markets failing to form.
Some want to read things in that just are there and some want to read things out, that are there.
I think it’s fair to say that anybody approaching the issue in good faith wants to read what’s there. Full stop.
I also think it’s fair to say that includes everybody here.
The question is: what is, and is not there.
And contrary to assertions of yours and Brett’s, that is not always obvious.
It wasn’t obvious in 1798. Hamilton and Madison had dramatically different understandings of what “general welfare” encompassed, and between them they wrote nearly all of the Federalist Papers.
Which are, if not the primary, at the very top of the list of the primary documents in understanding what the founders had in mind when they wrote the Constitution.
It wasn’t obvious then, and it ain’t obvious now.
And with that, I gotta go, I got, not necessarily better, but other things to do.
BTW, You know I am kidding (mostly) about Po Mo.
What about impenetrably obtuse? (I think Brett was pretty serious about PoMo.)
“What about impenetrably obtuse?”
Mostly kidding. I seriously have to go as well.
Russell, I’d rather err on the side of caution.
Until the next thread
Some want to read things in that just are there and some want to read things out, that are there.
Which no doubt explains the tempestuous to almost the point of violence (Burr v. Hamilton aside) political combat that arose the minute Washington took his first oath of office. I mean, crikey, those guy WROTE THE DAMNNED THING.
Wittgenstein would be amused.
I was serious about the po mo.
It’s a matter of intellectual integrity, of the approach Carol was skewering with Humpty Dumpty’s statement about words that, “The question is,” said Humpty Dumpty, “which is to be master that’s all.”
The inescapable core of living constitutionalism is a determination to not let words lead you someplace you don’t want to go. In other words, to not let language function. Faced with a Constitution which genuinely means things they don’t like, (Because it was written by people who didn’t share their values!) living constitutionalists reject the capacity of language to convey meaning, and find ‘ambiguity’ in everything they disagree with.
And in so doing fatally compromise the capacity of language to enable communication. Because we have to accept that sometimes language is communicating things we don’t like, in order for language to function.
You can engage in something which kind of looks like an argument with somebody who’s gone down this road. But in the end, there’s no real argument, because argument means coming to grips with what the other guy is saying, and the living constitutionalist always reserves the right to simply refuse to comprehend any utterance that would lose them the argument. Just like they refuse to comprehend any clause of the Constitution they find disagreeable.
That’s why living constitutionalists don’t see the need for amendments. Words don’t dicatate meanings for them, so there’s no need to change the words.
Now, nobody who we’d acknowledge as sane goes full po mo all the time, because they’d get locked up in a padded cell. Even the worst living constitutionalist gets pissed if they order a Ruben at the deli, and get a tuna sandwich. Not comprehending language isn’t a genuine incapacity. It’s just a tool they pull out when confronted with language expressing meanings they don’t like, where the meaning is important to them.
But I will say, and this is why the world “lie” might genuinely be inappropriate here, that use of this tool can become automatic after a while. People are tricky that way, and understanding something you disagree with really is more difficult than understanding something you find congenial. It requires a certain degree of discipline to accept that somebody has scored a point against your position.
But it’s a discipline that’s as necessary to civil discourse as not throwing the f bomb, and it’s a disciple living constitutionalists reject.
I was serious about the po mo.
Here is what I’m serious about.
If you think that your understanding of what the text means is unaffected by your own personal history and prejudices, acknowledged or unacknowledged, you are a blind man.
Your assumption, and repeated assertion, that anyone whose understanding of *what the text actually says* is different than yours must be either deluded or lying is freaking rude and offensive.
A word about this:
The inescapable core of living constitutionalism is a determination to not let words lead you someplace you don’t want to go.
Not that I consider myself a “living constitutionalist”, but it strikes me that the inescapable core of living constitutionalism is the desire to understand how the principles that motivated the original text are best expressed in the context we currently live in.
Some distance upthread we discussed the issue of constitutional challenges to proposed amendments. In other words, whether anyone had ever argued against a proposed amendment on the basis of it conflicting in some substantive way with the then-existing text.
You found this idea nonsensical. Inherently illogical. The point of the amendment was to change the text, so how could a conflict with the existing text be relevant.
That is not a constitutional question, you claimed, but a policy one.
As if the text contains or implies no guidance or bias in the area of policy. Which is to say, in the area of meaning, or value.
From my point of view, you are arguing for the constitution as, basically, a procedural manual. As long as the proper form is followed, there is no conflict.
Between that understanding of the purpose of the constitution, and that of folks who seek to understand and apply the values it espouses in a modern context, I assure you I find the latter more attractive.
Just my opinion.
It requires a certain degree of discipline to accept that somebody has scored a point against your position.
I agree with this, and I can think of no occasion, in a couple of years of discussing stuff with you here on ObWi, when you have acknowledged any such thing.
Well said, Brett.
And in the spirit of that statement, I am going to say that as much as I do think the feds could tax for healthcare given the general welfare clause, doing so is a bit weasely.
The right way to tax for, or otherwise provide for, healthcare at a national level would be to wtite an ammendment declaring that health and healthcare, being fundemental to a secure and prosperous nation, shall be a right of all citizens and shall be provided by the federal governemnt and taxes shall be raised to pay for the system.
After all, why not?
Brett, I missed your first invocation of ‘po-mo’ because you screwed up your tags. (which is a lesson in itself, in that it is not just the words that solely convey and carry meaning, it is additionally the context, the format, and a whole host of other things.)
And looking back at it, I really have no idea what you mean by ‘po-mo’. I’m assuming that it means ‘post-modernist’, but since that covers philosophy, literature, art, and a whole lot of other stuff, the only thing I can tell is that you think you have scored some telling point with the label ‘po-mo’ and it somehow means not using words they way they are supposed to be used. Which really seems more like Humpty-Dumpty antics in Alice than anything else written on this thread, cause I think it is only you who has that definition of po-mo.
Now, perhaps you were thinking that I was warning you about using po-mo. Actually, here is what I had (and will continue to have) a problem with:
Department of manipulative statistics, sapient, that one is a doozy.link
Exactly. There is more than a hint of disingenuous argument when someone as intelligent and adept as sapient misuses statistics in this manner. link
Basically, if you want to tell someone they don’t understand something, I have no problem with that. However, if you want to accuse them of actually knowing because you ‘know’ they understand, (or, to put it in your words, claim they are using incomprehension as a ‘tool’ to ‘reject’ an idea that they disagree with), we are definitely going to have some problems.
But that’s what Brett does, lj. I’d wager he’s spent in excess of 5,000 words on this thread telling other people what they think and attempting to divine their inner motivations, and about 200 words telling us what he thinks. I don’t know why you’d expect anything different.
And, yes, he clearly has absolutely no understanding of what “postmodernism” means.
By the way, what does “cruel and unusual punishment” mean, Brett?
ah yes, people hurling stones from the backyards of their glass houses.
One of my favorite internet experiences is to come here and be called a misogynist by mind reading pomosexuals.
It’s a matter of intellectual integrity…
This. Coming from a person who waffled, snuffled, and gave Alice lessons in really bad rhetoric to find ANY, verily, ANY way to backhandedly justify birtherism without getting contaminated by the political stench of it all is really quite laughable.
But he does know what I think. Next time I have a question about that, I’ll know where to get an answer…..
Do you really want to start with me, avedis? Because I’m perfectly willing to go, if you want. There’s nothing I like more than watching your rage-o-holic meltdowns. I actually show them to other people who don’t post here, so they can laugh at you.
Anyway, here’s a thought experiment:
Let’s stipulate that the federal laws against marijuana and other drugs, and in fact the whole drug-scheduling and controlled substance regime, is unconstitutional.
Now what?
This is clearly a battle that the states aren’t going to win in court, at least not with the current makeup. It’s not exactly the matchstick to light off a citizen revolution. (I know a lot of guys who still smoke pot. They aren’t what one would call the revolutionary type.) There’s no clamor among states for a Constitutional Convention, and the few who have suggested it have done so on very different grounds (e.g., the PPACA).
So . . . what, exactly?
I couldn’t divine the meaning of pomo either.
I thought it was some kind of modified Creole/Cajun sandwich dipped in self-pity.
By the way, henceforth, “cruel and unusual punishment” will be referred to as “cru-u-pu”.
I admit to being steeped in Lewis Carroll’s “Alice in Wonderland”, and it’s fun to think of OBWI as Wonderland with this host of characters scurrying about between tea breaks when a newbie tumbles into our midst and gets a load of the repartee, but never in a million years would I have cast Brett as Alice.
Off with our heads and your little dog Toto, too!
That’s ok phil. I’m glad that you can hold pomo pot parties and get your jollies of my comments.
A bunch o us rage -o-holic misogynists sit around on the front porch with our hounds and wives at our feet, in our wife beater Ts, drink jack, and laugh at what you pomos have to say.
That’s Amerika. Ain’t it great?
Go ask Brett … when he’s ten feet taauullllllllll….
That’s why living constitutionalists don’t see the need for amendments. Words don’t dicatate meanings for them, so there’s no need to change the words.
I suppose that’s true, by definition, once you’ve defined them that way. (Could question-begging be considered PoMo, I wonder?)
Dude, half of my family comes from the hills of West Virginia. I’m related to more rednecks than you’ve ever met. I drank Jack straight out of the bottle the other night.
Troll harder or don’t troll at all.
Too bad some of these words were not in the Sacred Text. But I’m sure we’d still find a way to fall on each other arguing about their meaning.
This has been an Emanation from the Penumbra.
“There’s nothing I like more than watching your rage-o-holic meltdowns.”
I can’t wait to lmao when he goes full Breitbart. God must have the same tolerance for anti-American goons that I do.
I guess I’ll just ask why we’re supposed to assume that the pre-New Deal commerce clause SCOTUS jurisprudence is supposed to be infallible (or nearly so), and the post-New Deal jurisprudence bupkis? As if “commerce” and “necessary and proper” are easily understood always and everywhere and in all possible states of the world.
As if “commerce” and “necessary and proper” are easily understood always and everywhere and in all possible states of the world.
Hmmm. Maybe the Constitution doesn’t allow the world to change. Maybe change itself is unconstitutional since it doesn’t necessarily correspond with the Framers’ intent. We should forever be locked into 1787.
Hmmmm….maybe it does allow for change with a little something called an amendment. Maybe the framers intended major change to be handled that way? Maybe they even wrote something about in the document itself? Where have I heard that term – amnedment – used recently?
Though I can see where amendments are far less pomolicious than just weaseling around with the interpretation du jour and a finger in the political wind and pretending the Constitution is meaningless and irrelevant.
Though I can see where amendments are far less pomolicious than just weaseling around with the interpretation du jour
Well, since the framers were quite familiar with how the “common law” works (or as you would have it “the interpretation du jour”), I’m pretty sure they were fully comfortable with the concept of judges applying broad, general principles to changing facts, to create a body of jurisprudence.
Let me just say again, “pretending that the Constitution is meaningless and irrelevant” isn’t something that anyone is doing, certainly not I. You’re entitled to your opinion about it, but you don’t own it, and your interpretation of it, is no more sacrosanct than anyone else’s. The people who decide are called “judges.” I think there’s even something about courts in the Constitution. Se Article III.
“So . . . what, exactly?”
That is, in fact, an excellent question. This is not really a problem about the war on drugs. It’s a problem of lawless government. And it doesn’t just open the way to popular policies that happen to be unconstitutional; Look at the 27th amendment: Rendered a dead letter by judicial sophistry right out of the starting gate, and it was quite popular.
It’s a problem of lawless government, and it tells us that any solution to the problems of the war on drugs can’t be predicated on our political class being honest. Any solution to just about any problem facing us can’t be predicated on our political class being honest.
I don’t think we can fix much of anything in this country with a corrupt political class. This is why, much as I think the Constitution is a pretty nifty document, advocate a constitutional convention. Even though I’m fairly confident I won’t like much of what would come out of one.
We need a reset of our constitution, to bring practice and text into agreement. This won’t magically give us an honest political class, but it would at least make one possible. We’ll never have a honest political class so long as the highest law of the land and what’s politically feasible do not intersect.
so then anything goes? If the right judge(s) is willing to interpret it from what is written, then it’s law and it’s right?
I was raised in the church. I was all into it until about age 12 +/-. Then some well meaning person gave me a bible for a birthday present or something. Any how, this particualr bible was interesting because it had a bold red font for the words actually alleged to have been spoken by jesus. Everything else was in regular black font.
I suddenly realized that Jesus didn’t really say all that much. He only expressed a few basic principles. What the church had been teaching me – all the dogma – had little to do with what jesus actually said. In fact, some of what the church taught – and some of it on important points – was in contrast to jesus teachings.
I was dumbfounded at the time. How the church have come up with such a complicated mess? How could they still call themselves christians, when they didn’t even adhere to what christ said?
But that’s what happens.
I say tear the Consitution to pieces and scatter the pieces. We are done with it. Because its words never meant anything due to vagueness, it was only a source of argument and confusion from day one.
Anything you can read in, I can read out and vice versa. What’s the point?
We will just have judges, politicians and lawyers make the laws and run the show as it suits their whim. it will be a better country. The Constitution is a vague outdated meaningless bunch of words with too many weird commas.
If you can’t beat’em, join’em.
Let’s talk about something important now, like is it rape if a hermaphrodite takes a roofie and screws itself, but forgets and how the herm is a conflicted victim of patriarchal society.
Happy now?
BTW, that last was not directed at you brett, rather to the words mean anything we want them to crowd.
Yes, we should probably have a convention. No we won’t. It probably would result in revolution.
Better to just look the other way while we mangle the thing and pretend we’re not.
revolutions are where huge numbers of people die to soothe the feefees of a few idealists.
no thanks.
All of this reminds me of Jefferson ranting about the Federalists.
Until he was elected President. At which point he bought about 1/3 of the continental US from the French, in spite of objections to his doing so, on constitutional grounds.
It was such a deal, how could he say no?
I’m fine with a constitutional reset. Bring it. Just leave your freaking guns at home.
“I guess I’ll just ask why we’re supposed to assume that the pre-New Deal commerce clause SCOTUS jurisprudence is supposed to be infallible (or nearly so), and the post-New Deal jurisprudence bupkis?”
I think there are actually a huge number of reasons to assume that.
First, people closer in time are less likely to miss out on the nuances of their time.
Second, it is going to be more difficult to argue against the generally understood meaning of the words while the generally understanding public is still alive from the first round.
Third, the pre-New Deal reading is the more natural one (note you ask about ‘commerce’ but it is actually INTERSTATE commerce, you’ve so bought into the unnatural reading that you edit out [i suspect subconsciously] the offending word).
Fourth, the modern reading of “interstate commerce” is quite literally “anything”. Now the living constitutionalists will agree that this “anything” can be limited elsewhere by the bill of rights, but it is accurate to suggest that they don’t believe the clause “interstate commerce” itself is any limit at all. I have a problem with that.
“Let me just say again, “pretending that the Constitution is meaningless and irrelevant” isn’t something that anyone is doing, certainly not I. You’re entitled to your opinion about it, but you don’t own it, and your interpretation of it, is no more sacrosanct than anyone else’s.”
Ok, here is my challenge to living constitutionalists. Name 2 non-procedural [so not changing the day of presidential elections or the age of potential presidents] policies that you think are both GOOD and non-Constitutional to the extent that implementing them would require an amendment.
“I’m fine with a constitutional reset. Bring it. Just leave your freaking guns at home.”
Oh no. We are most definitely bringing our guns.
You don’t get to make the rules to this. Don’t even start trying.
There are no rules. Remember?
Name 2 non-procedural [so not changing the day of presidential elections or the age of potential presidents] policies that you think are both GOOD and non-Constitutional to the extent that implementing them would require an amendment.
1. Repeal the 2nd Amendment, so that gun ownership can be closely regulated. (Although I don’t agree with the most recent Supreme Court interpretation, I accept that it is the definitive interpretation, so I would urge repeal.)
2. Add an amendment designed to protect the welfare of animals.
Any other exam questions?
Oh no. We are most definitely bringing our guns.
Then what we will have is not a “conversation”. What we will have is a war.
To be honest, it’s not worth it to me to go to war to maintain a union with folks that I have damned little common ground with in the first place.
Seriously, where’s my upside?
This is why the “federalism” concept is attractive to me. It offers the possibility that I can end conversations like this with the simple suggestion that whoever I’m talking with go back to whatever corner of the world they come from, do whatever the hell they like, and leave me the hell alone.
Instead, we have to have endless, pointless national arguments about stuff we are *never, ever, ever going to agree about*.
What a waste of time and breath.
But long story short, if you come shooting at me, I will damned sure shoot back. That is my promise. I recommend that it not come to that.
Here’s a news flash: many liberals, lefties, and penumbra emanators of all types have guns, too. Many of them are pretty good shooters. They just don’t wave their guns around like big metallic d*cks every time they disagree with somebody else.
Either way, I’m sure you can appreciate that it’s an absolute non-starter to even pretend to engage in “conversation” with folks whose go-to rhetorical device is “then I’m bringing the guns”.
Why should I bother talking with people whose concept of “conversation” is “I will threaten you with death”?
Seriously, f**k that noise.
You want a constitutional reset, I’m fine with that. You want federalism, I’m fine with that.
You want a war, I’m not fine with it, but I’ll give you one if you insist.
If you don’t actually want a war, please STFU about the guns.
People actually have been killed, recently, by dumb-@ss cowboying idiots waving their guns around and claiming they were watering the tree of liberty.
Do you think that’s a good thing?
WTF did it accomplish?
You want to talk, talk.
You want to shoot, shoot.
But you have to pick. You can’t have both.
This isn’t a f**king game.
and leave me the hell alone.
Exactly.
Man, talk about partisans of a losing cause having unrealistic aspirations! You do realize that only six states lack state level versions of the 2nd amendment, some recently added, none repealed in living memory? Soon to be five, once Iowa finishes the amendment they’re working on.
And yet you think repealing the 2nd amendment would be feasible? You’d have an easier time repealing the 1st, there’s a big push on the left to do that right now.
But I do have to give you credit for proposing an amendment, rather than just suggesting reversing Heller once Obama replaces one of the Heller majority, which seems to be the preferred route among gun controllers.
This is why, much as I think the Constitution is a pretty nifty document, advocate a constitutional convention
Again, the states are not exactly clamoring for one, and the ones that are are doing so because of the PPACA and other such silliness. How do you propose to get 2/3 of the states to call for a convention?
Name 2 non-procedural [so not changing the day of presidential elections or the age of potential presidents] policies that you think are both GOOD and non-Constitutional to the extent that implementing them would require an amendment.
I will name one.
We need to make a distinction, at the constitutional level, between natural human persons, and ‘persons’ as a legal construction. Whether corporate or otherwise.
You don’t like the language I normally recommend when I suggest this, and I’m fine with that. I don’t really care how it’s worded, as long as we end up with a way to distinguish between the two that has the weight of the constitution behind it.
My personal opinion is that, without that, we have about another 50 years as a republic in any meaningful sense. At the outside.
Call me Cassandra.
None of that should require a constitutional change, but given the state of the law it does.
But I do have to give you credit for proposing an amendment
Yep, he’s putting his money where his mouth is. Well done sapient.
and leave me the hell alone.
Exactly.
Yeah, this is where I’m at, more and more.
My only concern is that the USA, as a nation, wouldn’t really survive a significant exercise in federalism. We’d end up with about 6 or 8 de-facto regional entities, and over some relative small amount of time de-facto would become de jure.
Which might also be OK. Hard to say in the abstract.
Who said that my amendments would pass, Brett? It seems to be true, as you said, that guns are more and more prevalent.
russell suggests that lots of people on the left have guns. I’ve never wanted one – I have no desire to live in a society that settles matters with guns. I hope it doesn’t become inevitable that having one is necessary. If it does, I don’t believe that “federalism” is going to protect anyone who wants to opt out.
Which might also be OK.
Probably not ok in the sense of stability, both domestically and internationally. There are only five 100,000,000 plus countries in the world: PRC, India, USA, Brazil and Russia. Russia has shrunk and will continue to shrink. India, historically, has experienced shrinkage. One can debate the extent to which India is governed or even governable. The PRC is simply to unwieldy to last and too dependent on food imports. Finally, there is the USA. Our population has more than doubled since WWII. The trend post WWII has been more and more toward centralized gov’t. That trend may be reversing. How a long term reversal coupled with a growing and increasingly heterogeneous population will play out is hard to say. Devolution may be the best of the likely outcomes.
“Again, the states are not exactly clamoring for one,”
We’re currently five states from reaching the number needed to mandate a convention. So I’m not quite sure what you mean by “clamoring”; They have to be noisy about it, besides putting in the request?
I propose an amendment mandating that all righteous rants that I agree with be delivered with an Irish brogue.
The amendment would enshrine the Fairness Doctrine in the Constitution and forever after replace “go f*ck yerself” and “shaddup” in the national discourse.
It’s a little long, but here is the full text of my proposed Amendment. It would be played as an interruption, like the national anthem, precisely two words into any utterance by right-wing jagoffs now befouling the airwaves:
http://www.dailykos.com/story/2012/03/01/1069909/-President-of-Ireland-Must-See-Believe-Me-Please-?via=siderec
I’m consulting with Constitutional scholars on a proposal for an additional Amendment which would replace the aspirin now held between the knees of every conservative wanker in America with a live hand grenade in such a way that if they opened their winsome knees for any reason, the pin would be pulled.
My consultants caution me that mandating such a thing could endanger innocent bystanders, but I’m thinking that risk would pass soon enough as we experienced, say, 20 million explosions around the country immediately after the Amendment was ratified and the grenades strapped in place, but few thereafter.
Then, the rest of us would just have to stay clear of Tim Tebow, who is at low risk of parting his knees, and maybe Ann Coulter, whose two bony knee joints haven’t been seen together in the same county since Eden.
There’s also the risk of chain reactions wherein, say, Rush Limbaugh’s grenade goes kablooey in a motel room, which sets off Irksome Mouthofficson’s wife’s grenade, and then we’d have to deal with cleaning the fine aerosol spray of vaporized conservatives off the slipcovers …. but such are the daily struggles of a Republic, if you can keep it.
“I have no desire to live in a society that settles matters with guns. I hope it doesn’t become inevitable that having one is necessary.”
“Why should I bother talking with people whose concept of “conversation” is “I will threaten you with death”?”
“This isn’t a f**king game.”
For three or four pages worth of comments I have been reasonably talking to people whose ultimate view of the law of the land is a) it’s irrelevant b) it’s language doesn’t mean anything or means whatever we want it to at the time c) it should be torn up and, maybe, re-written.
You don’t like the violence approach? Take a look around the globe and the pages of history. That’s what you get when a country’s system of government is tossed aside and all of the factions come out of the woodwork and start vying to impose their vision on the new order.
BTW, there are a whole bunch of folks with lots of big guns and who know how to use them who took an oath to defend the Constitution and, I can assure you, would be really unhappy with your ideas concerning it. And they would not think it was a game either.
Seriously, you don’t get to call for radical action and then make rules about what radical responses and results are acceptable to you. That seems extremely childish to me; not to mention highly unrealistic.
” ….. people whose ultimate view of the law of the land is a) it’s irrelevant b) it’s language doesn’t mean anything or means whatever we want it to at the time c) it should be torn up and, maybe, re-written.”
With the exception of “maybe, rewritten”, I ask you, who those people?
As far as “means whatever we want it to at the time” let it be known that no one on this thread has written that the Second Amendment, for example, refers to artichokes, Zenith TV sets, or centipedes.
I think the conversation here has been pretty much within the range of Sebastian’s search for balance.
From where I stand, just to the left of Whoopie!, it seems there are many more proposals from the Constitutional purists on the national scene calling for excising several entire amendments from the Constitution, leaving only a Cheshire comma or two, than there are purveyors of a living document requesting excisions.
In fact, some wags on the Right, trying to keep the aspirin firmly gripped between their knees, have proposed getting rid of the words “pursuit of happiness’.
And, avedis, the invoking of various ex-military oath-keepers and their gun-slinging skills against whomever you’re invoking such an image might not transpire quite as you think, considering that you may have a bothersome red laser dot flickering on your forehead your own self aimed by a few of the same oath-keepers when they find out about your Constitutional interpretation regarding the need for universal healthcare administered in some way by the Federal Government, if I’d heard the threatening trash talk from the usual suspects correctly.
In such a case, you can hide with me in McKinneyTexas’ spare bedroom until the coast is clear.
We might be under house arrest, but you takes sanctuary where you can find it.
By the way, I hope your oathkeepers (I’m pretty sure that oath precludes them from taking domestic actions outside the purview of, say, the National Guard, but wet dreams plague all of us) have the cheap guts to at least wave Erick Erickson’s wife’s large-clip combination dildo/AK-47 directly in my face rather than, I don’t know, parking a truck full of fertilizer attached to a remote-controlled fuse outside of my office building and then high-tailing it away like some f*ckwad, disgraces-to-their-uniform oathkeeping cowards gave us a preview of some time back.
Yes, yes, Waco.
Spare us.
For three or four pages worth of comments I have been reasonably talking to people whose ultimate view of the law of the land is a) it’s irrelevant b) it’s language doesn’t mean anything or means whatever we want it to at the time c) it should be torn up and, maybe, re-written.
Well, I guess you haven’t been talking to me then, because I don’t believe any of those things. But if that’s the conversation you’re interested in having with whatever phantom you’re talking to, fine.
a whole bunch of folks with lots of big guns and who know how to use them who took an oath to defend the Constitution and, I can assure you, would be really unhappy with your ideas concerning it.
I’m assuming you’re talking about the military, headed by the civilian President whom I support. I’m not particularly worried about them using their guns against me.
“From where I stand, just to the left of Whoopie!, it seems there are many more proposals from the Constitutional purists on the national scene calling for excising several entire amendments from the Constitution, leaving only a Cheshire comma or two, than there are purveyors of a living document requesting excisions.
Well, duh: Living constitutionalists don’t excise passages they don’t like. They get appoint judges to say they suddenly all along never meant what the living constitutionalists don’t like. That’s the whole point!
“They get (to) appoint judges ….”
Yeah, they do, but which part of constitutional boilerplate do you plan to interpret in such a way that you will prevent that?
And, what’s so sudden about disagreement over the human language in the Constitution?
But wait, you’re not “interpreting”, you’re picking up the Founders intentions on your fillings, because somehow you know precisely the meaning of every word they compromised on in the documents.
You even know what THEY meant by words that didn’t exist in their day, considering the “living” qualities of language and the evolving nature of meaning.
What about a 100-capacity clip, you might ask the Founders if you could be transported into their midst during their deliberations (why deliberation if things are so obvious and literal?)?
They’d all look at you and say, we’ve never heard of such a thing. Quit making stuff up. Except maybe for Sam Adams, who would sidle over to you later and shield his mouth with his hand so some of the other couldn’t hear and ask if you could procure one of them … clips .. did you say .. for him?
It would seem Sebastian’s quest for balance assumes and depends upon interpretation of the words agreed upon 230 years ago.
Otherwise, why have nine judges on the Supreme Court? Vote, schmote. Why not just one Judge to wave away any questions whatsoever with a “Don’t even go there.”?
You. You could signal your decisions with puffs of smoke through the chimney of the Supreme Court Building.
No need for appellate courts either. Appeal what?
One Judge, no attorneys required, and thus pretty much a sizable chunk of the commentariat at OBWI and other blogs worth their weight out of jobs.
We’re currently five states from reaching the number needed to mandate a convention
That’s gonna need a cite.
Also if you could get me those straight-from-the-text definitions of “cruel and unusual punishment” and “unreasonable searches and seizures” and “probable cause” that would be just terrific.
BTW, there are a whole bunch of folks with lots of big guns and who know how to use them who took an oath to defend the Constitution and, I can assure you, would be really unhappy with your ideas concerning it. And they would not think it was a game either.
They also wouldn’t think it’s a game when your side is doing the same. I’m just saying. And, um, that’s not even vaguely far from what you’re doing when you argue that the only “literal”, “original” understanding – excuse me, reading – of the Constitution just so happens to align oh-so-neatly neatly with all your own prejudices and peccadilloes.
(I must admit I’ve found last page or so of this cynically entertaining, what with all the “anti-po-mo” proponents blithely asserting that long-standing, venerable, and quite involved unsettled issues in linguistics and philosophy of language are in fact just recent petulant temper-tantrums by selfish gits who refuse to admit they might be wrong. ‘Cause, ya know, language would become totally unambiguous, always and forever, if all us whiny entitled blighters could just get over ourselves and see what words are written!!!one!!)
Seriously, you don’t get to call for radical action and then make rules about what radical responses and results are acceptable to you.
Seriously, what radical action?
Brett says we need a reset, because the practice has drifted too far from the original intent.
I say, I’m fine with that. I.e., I don’t object.
There is, in fact, provision *in the Constitution itself* for it to be modified as needed. It’s called “Article V”, perhaps you would like to read it.
The only guy here talking about “radical action” is you.
There is a political process, or there is a war. I.e., armed insurrection or civil war. This is not a hypothetical option, and it’s not out of the question. There are lots of folks running around, today, building up their personal arsenals and just waiting for a good enough reason, in their minds, to start shooting their neighbors.
So, you decide which way you want to roll. You want a war, you’ll get a war. You want a political process, leave the guns at home.
I’m not making any rules, the rules are laid out in the Constitution. And I’m not telling you what to do, you can do whatever the hell you want.
I’m just pointing out that what you’re talking about is not a political process, it is civil war.
Not an option I would choose, personally, but that’s just me.
Phil? That some parts of the Constitution rather specifically call for judgment calls, does not make other parts of the Constitution ambiguous. There’s a reason living constitutionalists are always going on about the same few clauses, and originalists are always talking about phrases like “Commerce with foreign Nations, and among the several States, and with the Indian tribes.” It’s because some parts of the Constitution are ambiguous, but not all parts of it.
The problem isn’t that living constitutionalists see ambiguity. Everybody does. It’s that living constitutionalists see nothing BUT ambiguity. If you were ever willing to admit that a clause of the Constitution that stands in your way was actually quite clear, you might be less aggravating.
There are lots of folks running around, today, building up their personal arsenals and just waiting for a good enough reason, in their minds, to start shooting their neighbors.
probably doesn’t hurt that there’s an industry fronted by demagogues telling people that the only way to survive the inevitable coming revolution is to buy their product. stockpile them! buy accessories! tell your friends the revolution is coming! get them to buy our product!
idiots.
That some parts of the Constitution rather specifically call for judgment calls, does not make other parts of the Constitution ambiguous.
No kidding! Now, we’re getting somewhere – that is, to the next question: What makes you, as opposed to someone else, THE authority on what is and is not ambiguous?
It’s that living constitutionalists see nothing BUT ambiguity.
Cite, please. (Along with that Constitutional convention cite when you have time.)
If you were ever willing to admit that a clause of the Constitution that stands in your way was actually quite clear, you might be less aggravating.
Stands in my way of doing what? What exactly have I expressed a desire to do for which the Constitution bars my way and I won’t admit it?
What’s funny is that the only person who has expressed a desire to do anything like the things avedis is complaining about is Brett, who wants a convention. Is avedis going to shoot Brett?
“What makes you, as opposed to someone else, THE authority on what is and is not ambiguous?”
I’m not “the” authority. Neither am I going to abdicate my judgement. I’m calling it as I see it. And what I see is sophistry run rampant.
I’d probably worry I was a crank, if I didn’t have so many people whose lying eyes see the same thing.
Crank? Who said crank?
That must be a hazy penumbra of the literal words written, unmovable in meaning through time, by others in this thread.
The word crank in not in this document, which according to Google and other search providers, will last forever for all to see, never to be amended.
I’m gonna go read about the Commerce Clause and see where the interpretative conflicts are today, as opposed to the late 18th century, regarding commerce with foreign nations and the notion, now the law of the land, that corporations are people and may freely pass back and forth between national borders without regard to citizenship unlike, say, people, or as corporations think of them, as labor and cannon fodder.
Amendments? Here’s a couple:
1. Corporations are not ‘natural persons’ as mentioned above.
2. All U.S. citizens have the inalienable right to vote without conditions.
3. Any law which mandates legislative super-majorities to enable legislation must be passed by the same super-majority % of voters.
4. Add more commas to the 2nd Amendment.
As for originalism, I would agree with Saul Cornell. It is a scam.
Yr. Obdt. Servant,
Crank?
is that a tool
it that a fool
an action perhaps
is it an ill tempered person
or is it a nasty drug
words have meaning…..why, plain as the nose on your face
for if they do not have meaning
all is permitted.
Mitt Romney picks up the endorsement of another murderous, Confederate, traitorous anti-American vermin (the opinion of squirrels, hedgehogs, and wild boar everywhere), the rest of whom will fall in line soon against the former slave in the White House.
http://www.washingtonmonthly.com/political-animal-a/2012_03/helping_romney_win_the_allimpo035807.php
Also, apology not excepted, Rush.
When they start the violence, those two, among many, are mine.
What I find interesting is that Brett interprets the “provide for…the general Wefare” part of the Taxation and Spending Clause in such a way that, while not entirely unreasonable, has no language to support it specifically as the “correct” interpretation. Nowhere does it say anything about it being a limitation on other powers, nor is it necessary to think that it makes all the other powers moot or redundant or the listing of them unnecessary.
It is just as “PoMo” as every other interpretation I’ve heard of language in the Constitution that isn’t entirely clear in its meaning. But he’s an originalist, so it’s okay, I guess.
(…not that I disagree that the Commerce Clause is abused at times.)
I think maybe people misunderstood my question, which is probably my fault.
“Name 2 non-procedural [so not changing the day of presidential elections or the age of potential presidents] policies that you think are both GOOD and non-Constitutional to the extent that implementing them would REQUIRE an amendment.”
and I probably should have added “even under the living constitutionalist concept”.
Most of the things offered seem to just require the change of about one person on the Supreme Court. In those cases, it might be clearer to have an amendment, just to shut people up. But I don’t see anything that from the living constitutional point of view REQUIRES an amendment in order to push it through.
The corporations thing definitely doesn’t require an amendment. The only think that even comes close is maybe sapient’s thing on the 2nd amendment, and even that ONLY because 5 Supreme Court justices recently ratified the long held understanding. It would be one thing if sapient clearly thought that the 2nd amendment gave an individual right, and that to reverse that he needed an amendment. But it looks like sapient believes that they got it wrong.
I’m asking for things where you think the Supreme Court IS RIGHT in their interpretation of the Constitution and you THEREFORE want to change it by amendment.
“Also, while you’re at it, I’d like you to tell me if you’ve stopped beating your wife.”
You can interpret it that way if you want, but it gets to the heart of the distinction between the living constitutionalist/textualist debate. I fully admit that I’ve never been able to understand the the contours of the living constitutionalist understanding. Whenever I try to talk about it from the understanding I have, I get accused of strawmanning. That it is why I’m not assuming the answer, I’m just trying to clarify the question.
Actually, I think I could have been a bit more on point in critiquing your challenge:
“Additionally, no true Scotsman puts sugar in his porridge.”
But I don’t see anything that from the living constitutional point of view REQUIRES an amendment in order to push it through.
See, that would be hard for you to judge, since you do not identify as someone who holds the living constitutional point of view.
Perhaps the ‘living constitutional point of view’ is not what you think it is.
Also:
The corporations thing definitely doesn’t require an amendment.
Fine. Tomorrow, or at least on Monday, I will phone my rep and my senators and tell them I’d like them to introduce a law prohibiting for-profit corporations from participating in the political process in any way.
No money donated to parties, no money donated to PACs, no money donated to 527’s. No lobbying.
How far will such a bill get?
What will the objection to such a bill be?
“See, that would be hard for you to judge, since you do not identify as someone who holds the living constitutional point of view.”
Quite. But I would think that someone who does hold that point of view could try to explain it.
The guns example demonstrates what I’m talking about. Sapient seems to believe that Heller was wrongly decided, and to overrule that decision he would like an amendment. Ok, but he doesn’t think getting what he wants requires an amendment, it just requires getting one more right thinking judge to go his way.
What I’m looking for from a living constitutionalist is an issue in which you believe that a right thinking judge will look at the Constitution, correctly interpret it, and not be able to do what you want policy-wise. That would *require* an amendment. Pretty much the only things I can think of that we could [hopefully] agree on is things like: changing the voting age from 18 to 16 would require an amendment because even a living constitutionalist is going to have trouble convincing people that 18 means 16. But once we get past things like that, I have no understanding of the limits living constitutionalists think they have so I can’t think up a good example.
Actually, just to be clear, can someone confirm that they think an amendment would be necessary to change the voting age, and we wouldn’t just have to appeal to “changing societal understandings about the the relationship between voters and government” or some such.
Isn’t voting age a bit of a special case, in that there is a large amount of administrative recording that goes to support it and it is a discrete event at a particular moment in time? In looking up age of consent in wikipedia, it notes
“While the phrase age of consent typically does not appear in legal statutes”
At the risk of being all po-mo, confusing things that are definable in that way and things that aren’t (such as terms like ‘free exercise’ or ‘speedy’) is a bit of a problem.
At any rate, not being particularly versed in any of this, some googling turned up David Strauss’ recent book on this, and this piece, taken from the intro, says:
Pick up a Supreme Court opinion, in a constitutional case, at random. Look at how the Justices justify the result they reach. Here is a prediction: the text of the Constitution will play, at most, a ceremonial role. Most of the real work will be done by the Court’s analysis of its previous decisions. The opinion may begin with a quotation from the text. “The Fourth Amendment provides . . .,” the opinion might say. Then, having been dutifully acknowledged, the text bows out. The next line is “We”-meaning the Supreme Court-“have interpreted the Amendment to require . . . .” And there follows a detailed, careful account of the Court’s precedents.
Where the precedents leave off, or are unclear or ambiguous, the opinion will make arguments about fairness or good policy: why one result makes more sense than another, why a different ruling would be harmful to some important interest. The original understandings play a role only occasionally, and usually they are makeweights or the Court admits that they are inconclusive. There are exceptions, like Heller, the recent decision about the Second Amendment right to bear arms, where the original understandings take center stage. But cases like that are very rare.
Has anyone read the book? Sounds interesting.
What I’m looking for from a living constitutionalist is an issue in which you believe that a right thinking judge will look at the Constitution, correctly interpret it, and not be able to do what you want policy-wise.
In my opinion, both Golan v. Holder and Hosanna v. EEOC from this session qualify. Both were “rightly” decided from an originalist standpoint, both resulted in crappy outcomes, and both would require amendments to get different results.
Actually, just to be clear, can someone confirm that they think an amendment would be necessary to change the voting age
I think a strong argument can be made that states are free to allow people younger than 18 to vote, since nothing in the Constitution restricts the age for obtaining the franchise, just codifies an age at which it cannot be denied by the states. Voter registration is not a federal function.
Although I don’t know how you could amend the Constitution to get a better result in Hosanna, anyway, short of an amendment that reads, “Guys, we know what a minister is and isn’t, so knock it off with this nonsense.”
Has anyone read the book? Sounds interesting.
I haven’t read the book, and it does sound interesting, but what Strauss describes in this passage is a concept that all law students learn in their first year – that the language of the Constitution, of statutes, and of contracts, for that matter (where the parties are often living and available to testify as to their intent), the body of decisional case law applying to the particular language in question is applicable to interpret it. That’s why, often, “magic words” and legalese are used in private contract – because the language has already been tested in court, and there’s less opportunity for dispute about its meaning going forward.
As I’ve mentioned, the framers of the Constitution were not clueless about the way the common law worked. They understood very well that the language of the Constitution was general, and would be applied case by case in the courts to unanticipated situations. This was the way the law worked then as well as now.
Fine. Tomorrow, or at least on Monday, I will phone my rep and my senators and tell them I’d like them to introduce a law prohibiting for-profit corporations from participating in the political process in any way.
Actually, russell, I do believe that you could make such a change at the state level (speaking of federalism). Although I’m sure that Massachusetts has adopted the Model Corporation Act and has corporation law similar to that in most states, presumably Massachusetts could amend its statutes to require at their formation to specifically exclude the power to donate corporate funds to political campaigns, or indirectly support political causes. It would be difficult to draft so that it would accomplish its purpose, but I think that legally it would work. I’d love to read a discussion of the constitutionality (not feasibility) of doing this.
But once we get past things like that, I have no understanding of the limits living constitutionalists think they have so I can’t think up a good example.
I was going to suggest an amendment abolishing the electoral college, but that struck me as a “procedural thing” that appeared to be excluded in the clear and unambiguous language of your request.
Funny, and English is my native tongue.
What I’m looking for from a living constitutionalist is an issue in which you believe that a right thinking judge will look at the Constitution, correctly interpret it, and not be able to do what you want policy-wise.
All Power To The Soviets.
What I’m looking for from a living constitutionalist is an issue in which you believe that a right thinking judge will look at the Constitution, correctly interpret it, and not be able to do what you want policy-wise.
As noted above, I don’t consider myself a “living constitutionalist”, but I’ll once again suggest an amendment making a clear distinction between natural persons and ‘person’ as a legal construction, with the clear statement that the former hold inalienable rights, and the latter only the rights we grant them by law.
It would, if I understand things correctly, take quite a parade of ‘right thinking’ justices to walk 150 years of SCOTUS findings on the topic.
presumably Massachusetts could amend its statutes to require at their formation to specifically exclude the power to donate corporate funds to political campaigns
I take your point, but they would simply incorporate in a more accommodating jurisdiction.
Is that what you want policy-wise, bobbyp? See, it’s a trick question. (I half kid.) But I think it’s a question that you could put to anyone, just to see where it goes, even a textualist or originalist.
What do you want as policy that you think requires an amendment, and why?
I’d be lying if said I wanted a total ban on firearms outside of law enforcement or the military, but there might be living constitutionalists who would want such a policy and who would think such a thing would require an amendment.
It seems some of our originalist don’t think they would need an amendment to allow any citizen to own nukes, free of government restriction.
But this question somehow applies specifically to “living constitutionalists” (however defined), as opposed to other people.
Hairshirt,
It was a trick answer. As a democratic socialist, I have been trying to think of an answer to Seb’s question wrt industrial and economic democracy, but alas, I am unable to come up with a laundry list of specifics that would fit neatly into the questions constraints. Needless to say, my political vision would most likely require some radical social rearrangements, including possibly changes to The Word.
On a more mundane level I would like to see the Electoral College abolished. In the context of this discussion, an amendment to TheUnambiguousWords would seem to be necessary and does meet Seb’s requirements I should think.
Another is the current GOP craze to disenfranchise people who are unable to “produce your papers, please”. Standard issue Constitutional Analysis would most likely find these egregious trimmings of the franchise to be “Constitutional”, and I am not aware of a serious legal challenge to these abominations on Constitutional grounds. An amendment would seem to be necessary to change the policy.
My question to the originalists would be, “How on god’s green earth can you justify the Scalia reasoning in Heller?” In its own terms, it was a parody of very so called principles he espouses.*
*see also Bush v. Gore
but there might be living constitutionalists who would want such a policy and who would think such a thing would require an amendment.
Such an amendment would merely seal the deal of political victory….not unusual wrt some other notable amendments.
“It seems some of our originalist don’t think they would need an amendment to allow any citizen to own nukes, free of government restriction.”
I think we wouldn’t need such an amendment to allow any citizen to own nukes, free of federal restriction. State restrictions are a separate matter, of course; The federal government is one of enumerated powers, the states, not so much.
But I’ve noticed there’s a tendency on the left to just ignore the possibility that a problem might be handled at the state level.
In this instance, I’d wonder what sort of resources some states might have in dealing with certain isotopes, but whatever.
Once I have a nuke, what army of punks at the state level is going to volunteer to “handle” me?
I think we wouldn’t need such an amendment to allow any citizen to own nukes, free of federal restriction.
So a federal law banning the private, or even state ownership of nukular weapons would be unconstitutional?
State restrictions are a separate matter, of course..
So the individual states could ban the use and possesion of these weapons, despite the “clear and unambiguous” language of the 2nd Amendment? I just want to insure I understand what you are sayin’ here.
But I’ve noticed there’s a tendency on the left to just ignore the possibility that a problem might be handled at the state level.
Well, in this instance, I could see why.
I’m sure in the glibertarian paradise of
yoursome folks’ imagination, if my neighbor set off a nuclear weapon, why, I’d just sue them in court and everything would just be hunky dory.“So the individual states could ban the use and possesion of these weapons, despite the “clear and unambiguous” language of the 2nd Amendment? I just want to insure I understand what you are sayin’ here.”
Are you upset that I’m not actually a frothing at the mouth fanatic on the subject?
The 2nd amendment guarantees the right of the people to keep and bear arms. “Arms” are, as Tench Coxe put it, “Their swords, and every other terrible implement of the soldier” Or, to put it less poetically, weapons of the sort typically carried by infantry.
Unless the government starts issuing backpack nukes to soldiers leaving boot camp, nukes are not “arms”. Unless the government stops issuing select fire rifles to soldiers leaving boot camp, assault rifles ARE “arms”. If the standard infantry of the US government carry it, US citizens have a right to it. That’s the proposition the 2nd amendment stands for.
The idea being that you would be able to constitute a militia comparable to the soldiery in a pinch, out of citizens who already owned and were familiar with all the relevant hardware. THAT is how the right in question furthers a well regulated militia.
Nukes would fall into the category of “armaments”. Weapons of war, such as cannon, which are NOT carried by infantry. As such they are not covered by the 2nd amendment, either in it’s original application to the federal government, or it’s incorporation against the states by the 14th amendment.
They would, however, be covered under the federal government’s general lack of enumerated power to ban private possession of anything at all. Nukes, yo yos, you name it. The federal government lacks the authority to ban ANYTHING, outside of the District of Columbia and such land as it has purchased with the permission of a state, where it rules as though it were a state.
Thus, neither state nor federal government may constitutionally ban anything you might expect to find a soldier of this nation carrying. States may ban other things, contingent on the details of their own constitutions. The federal government is a state for purposes of this analysis, only in D.C. and some military bases.
The recent habit at the federal level of not bothering to get state permission before buying land, of course, has constitutional implications under this analysis.
Is my position clear?
Not quite. If I may clarify?
You hold all private citizens have the right to own swords, pistols, select-fire automatic rifles of all sorts. Got it.
What about M249s, M240s, and their like? M2HBs? All of those are man-portable automatic rifles that every last Soldier in the US Army is trained on in Basic. How about hand grenades? Same deal. M203s? AT-4s? Claymores? Yup, man-portable and universally trained. Are all those guaranteed to citizens, and if not, why not?
How about other more specialized but still standard US infantry tools? Anti-personnel mines? M252 mortars and their equivalents? Stingers and other MANPADS? Are these not “standard” enough to count as “terrible implement[s] of the soldier”, and if not, what is the precise, unambiguous demarcation line, as found in the actual text of the Constitution?
It is funny how self-described originalists read all sorts of things into the text that aren’t there. But it’s okay, because they’re originalists.
It’s just so PoMo.
“But I’ve noticed there’s a tendency on the left to just ignore the possibility that a problem might be handled at the state level.”
This after I just stated that voter registration is a state matter and that I believe there are no Constitutional implications if a state wanted to register 16 year olds to vote.
Your nightmares must be terrifying with all those straw people coming to get you.
Unless the government stops issuing select fire rifles to soldiers leaving boot camp, assault rifles ARE “arms”
So if the Dept. of Defense stopped issuing guns to the troops and limited arms to broadswords, my state could ban guns?
I’m writing my Congressman.
We all know that would never happen, but five gets ya ten that if it did, Brett and his intellectual cohorts would suddenly discover the overwhelming importance of looking to broad international trends and general consensuses, as such actions on the part of Congress and the DoD would amount nothing but a conniving living constitutionalist end-run around the framer’s clear, unambiguous intent.
Are you upset that I’m not actually a frothing at the mouth fanatic on the subject?
All appearances to the contrary, why no, not at all. I just wanted to find out if my suitcase nuke was Constitutional and, since my state has not yet had the wisdom to ban nukular weapons, in all other respects is perfectly legal. The niceties must be respected.
Rest assured, when the black helicopters of doom land in my yard and the federal troops swarm out demanding to quarter company C in my living room yelling, “We got Koresh and you’re next, aka bobbyp”, I will have an appropriate response.
Don’t like it? Call the local zoning board to invoke the penumbras emanating from their unenumerated rights.
Otherwise sue me.
Another amendment for Seb:
Strike Article 5 in its entirety and replace with the following: This Constitution may be amended at any time subject to passage by majority vote in favor of said amendment in the US House of Representatives and subsequently ratified by a majority vote of eligible citizens.
Let the fun begin.
Dear President Obama,
My house is for sale, and I’m willing to let it go for a reasonable price. I write to ask if the federal government is interested in making an offer. I am willing to carry the contract, even though I know you guys can print money at will.
I am given to understand that the government is interested in buying back all land in the US of A in order to facilitate a coup d’etat over unenumerated Constitutional states sovereignty, and do an end run around the US Constitution. I cannot fathom the reason for such a program, but hey, it’s no big deal to me. My state government is populated by bigger crooks and liars than any US Congresscritter. Screw ’em.
Please reply within 48 hours. I have an offer pending from some prince in Saudi Arabia.
Good luck with your re-election effort.
Regards,
bobbyp, your snark would be improved by actually reading the Constitution:
“To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;”
They can buy all the land they want, if they don’t get a legislature’s permission for it, the state retains sovereignty over that territory, and the federal government has no more rights concerning that area than any other ordinary land owner.
If the standard infantry of the US government carry it, US citizens have a right to it. That’s the proposition the 2nd amendment stands for.
This is a reasonable interpretation of the 2nd, but it’s also not actually in the text.
An equally reasonable interpretation would be that the right only extends to folks who actually are participating in a militia. As in, a military organization under the command of and answerable to the state government.
Also not in the text, but no further a logical leap than yours.
And, per envy, I’m curious to know if, in Brett’s perfect world, anyone with an inclination to do so gets to load up on Claymores.
As far as private citizen ownership of nuclear weapons, if you want to be taken seriously at all, maybe you should leave that thought experiment off the table.
And, per envy, I’m curious to know if, in Brett’s perfect world, anyone with an inclination to do so gets to load up on Claymores.
and i demand that all citizens be allowed to carry grenades! as many as they can fit on their belt.
An equally reasonable interpretation would be that the right only extends to folks who actually are participating in a militia. As in, a military organization under the command of and answerable to the state government.
Also not in the text, but no further a logical leap than yours.
Well, I would say that it’s a far more logical leap than Brett’s since the 2nd Amendment actually does mention in the text “a well regulated militia being necessary to a free state”. That phrase seems to be ignored by those reading the text of the Constitution so, so carefully. Justice Scalia’s interpretation rendered the phrase virtually meaningless – a prefatory whim. A common rule of statutory construction is that no word should be rendered meaningless.
I’m not sure what meaning “well regulated militia” has if there’s no connection whatsoever with the right to bear arms and militia service.
I actually considered throwing this into the conversation about a hundred or so comments back, but I immediately saw a whole bunch of holes I could poke into it, including MANPADS, Javelin and the confusingly-named Predator man-portable multipurpose missile. And small mortars. Also, there are man-portable recoilless rifles, the aforementioned grenates, claymore mines, etc. And we’re not even getting into consideration of things that you could carry if you had a powered suit, which are now in their production infancy, if not yet quite what Joe Haldeman had in mind.
the confusingly-named Predator man-portable multipurpose missile
Coming soon to an adult newsstand near you.
Think of the acreage one might need for practice target ranges for all of those cool toys.
The zoning issues alone could start a shooting war.
i hope to retire in The Year Of The Confusingly-named Predator Man-portable Multipurpose Missile .
sapient: Well, I would say that it’s a far more logical leap than Brett’s since the 2nd Amendment actually does mention in the text “a well regulated militia being necessary to a free state”. That phrase seems to be ignored by those reading the text of the Constitution so, so carefully.
That probably depends on what is meant by “militia.” I found Brett’s 3:48pm 3/4/12 comment pretty reasonable. I think envy points out some practical problems (or necessary consequences), though those could be cured by (perhaps) limiting the right to bear arms to those actually issued to infantry as a matter of course, as illustrated (I imagine) in this scene, but I’ll cop to ignorance on that point. Are you “issued” grenades (or claymores) like rifles? Are you even issued rifles these days?
those could be cured by (perhaps) limiting the right to bear arms to those actually issued to infantry as a matter of course,
and then we’d be stuck with an endless debate over what to ‘issue’ infantry because of its effects on what citizens could carry.
gun enthusiasts would start demanding that infantry be issued all kinds of crazy weapons. and then they’d scream that anyone who objects must hate the troops and want them to die defenseless.
% (rimshot)
FWIW, “Predator man-portable multipurpose missile” is a descriptor of my own invention, and was not intentionally humorous.
The unintentional stuff is probably where I get the most laughs.
More Republican hate legislation.
But it’s okay if it’s not happening in your state. Federalism!
If you make everything national, that could be an all US policy someday!
Harder to gerrymander the whole nation.
Grenades aren’t issued in the same way as small arms, as they are, well, explosives. When the one you have is used, it’s gone, while you can repeatedly practice using your assigned rifle. Or your assigned Squad Automatic Weapon. Or your assigned 50-cal. Or your assigned grenade launcher. Or your assigned mortar…
Again, even if you take this “reasonable” route (which, again, is gonna be hard to limit to just assault rifles, as all the above is pretty standard infantry armaments), it’s still going far beyond the text and well into the realm of Framer mind-reading. And if you’re further trying to draw arbitrary lines between rifles and heavier material, it’s going even farther into the wooly wilds of originalist telepathy…
OK then, swords and flintlocks for everyone.
Soldiers’ assigned weapons are stored in an armsroom and are only issued when they are to be used for training or for war. Soldiers are inspected after training to make sure they don’t have bullets (even though they could buy them at Walmart). If the argument is that they can have Soldiers weapons, then they should have Soldier rules.
Soldiers can’t even have concealed carry of personal weapons on post. And have to register their personal weapons, and if in the barracks store them in the arms room where they have to have permission to get them.
That worked out really well at Fort Hood.
“Well, I would say that it’s a far more logical leap than Brett’s since the 2nd Amendment actually does mention in the text “a well regulated militia being necessary to a free state”.”
Seems more logical, once you mentally replace “people” with “militia” in the actual text. You know, “right of the People”? Same phrase that appears in the amendment immediately before and after, and means the people?
I’m not a textualist, I’m an originalist. There are some lines of text in the Constitution which are complete unto themselves, but for most of it you actually do have to do further inquiry, such as reading relevant documents from about the time the amendment was adopted.
The difference between originalists and living constitutionalists, I guess, is that originalists do further inquiry into “what it meant”, while living constitutionalists do further inquiry into “what we think it should mean”.
In this case further inquiry convinced me that the right to keep and bear arms was indeed meant to further a well regulated militia, by providing a body of people suitably armed, and familiar with those arms, from which it could be raised. Notably, from which it could be raised even if the government didn’t want it to be possible to raise one.
It’s like if you thought your local government might eventually be taken over by arsonists, and so wrote into the city charter a right to own pumps and ladder trucks, because a well trained volunteer fire department was necessary to the place not burning down.
Wouldn’t do you any good if you just guaranteed the right of the city fire department, subject to the potential arsonists’ orders, to have that stuff, would it?
It must be remembered of every amendment in the Bill of Rights, that they are not expressions of trust in government. They presume a government that wants to do the wrong thing. And while they may have thought a well regulated militia necessary to the security of a free state, they were not such fools as to be confident the government of a state would want it to remain free…
Withhold benefits of citizenship from non-citizens? Pass the smelling salts!
Here‘s that right-wing rag, The Orlando Sentinel, on the topic:
Racists. Haters.
Notably, from which it could be raised even if the government didn’t want it to be possible to raise one.
Raised by whom?
The Constitution includes several mentions of the militia. The things it says about the militia:
Congress has responsibility to organize, arm, and discipline the militia. The states have the responsibility to appoint officers and conduct training, in line with Congress’ discipline and direction.
Congress has the responsibility to call the militia into action to execute the laws of the union, suppress insurrection, and repel invasion.
When Congress calls the militia into federal service, the POTUS is their commander in chief.
In the 2nd Amendment, having a well regulated militia is explicitly stated as the reason for guaranteeing the right to keep and bear arms to private citizens.
In the 5th Amendment, crimes committed while in active service in the militia are exempted from due process protections.
That is the full scope of what the text of the Constitution *says* about the militia.
I fully agree that the motivations of the folks who wrote the Constitution were that the militia specifically, and arms held by private individuals in general, were seen as an effective balance to federal power, especially federal military power.
Folks at that time were also suspicious of a federal standing army.
I further agree that it was dead normal for anyone who could afford one to own and regularly use a firearm.
What none of this amounts to is a doctrine about potential militias that could be raised, if need be, by entities outside the scope of state authority, or outside of the discipline of Congress.
I’m open to the argument that there is a contextual backstory, that can help us understand what the folks that wrote the constitution had in mind at the time.
I’m not open to the idea that there is some secret hidden meaning that is plainly contrary to what the text actually says.
What none of this amounts to is a doctrine about potential militias that could be raised, if need be, by entities outside the scope of state authority, or outside of the discipline of Congress.
I’m open to the argument that there is a contextual backstory, that can help us understand what the folks that wrote the constitution had in mind at the time.
Here it is: on the frontier, beyond the US border back then and even within the border, the militia was organized and called out locally. No time to send a rider on a 6 day round trip to the capital and homing pigeons were unreliable.
The militia concept was simple: everyone owned a firearm. From that “everyone”, a militia could be raised and organized for the common defense. You can’t raise a militia without an armed citizenry.
That we don’t do that any more doesn’t take away from the fact that the 2d A says what it says. It’s the people’s right to keep and bear. It’s the gov’t’s call whether to organize them into a militia and when to call it out. In a democracy, in theory, the people elect their leaders so, indirectly, the militia is called up by the people.
If the argument is that it’s outmoded, I might agree. If the argument is that the people get the same arsenal as a modern combat infantry brigade, I disagree. If the argument is that, because it’s outmoded, it should be judicially emasculated, I don’t agree with that either.
Withhold benefits of citizenship from non-citizens?
Last I read, there are ever increasing numbers of foreign students in American colleges. But your housekeeper’s kids? No way!
But it’s unreasonable to ask Florida taxpayers — including those struggling to afford higher education for their own families — to shoulder tuition costs for illegal immigrants.
Yeah, see, this is predicated on the idea that illegal immigrants don’t pay taxes, an idea that not only assumes facts not in evidence, but is contradicted by the available evidence.
Also, any children who were born here to illegal immigrants are citizens anyway, and cannot be punished for their parents’ immigration status nor denied the benefits of citizenship on that basis.
I don’t know if it’s hateful, but it’s probably self-defeating – or maybe counterproductive would be a better term. In any case, it’s likely to make things worse for everyone in the long run, as opposed to, um, like, better.
If the argument is that the people get the same arsenal as a modern combat infantry brigade, I disagree. If the argument is that, because it’s outmoded, it should be judicially emasculated, I don’t agree with that either.
I’m not sure what you mean by “judicially emasculated.” I know of no one (myself included) who is hoping to ban all firearms of any type. I recognize that people hunt. I understand that some people want to own a gun in case a threatening intruder comes into their home. Nobody I know wants to take away guns that reasonably serve those purposes, including me, and I’m on the far end of the gun control spectrum. I don’t think it “emasculates” the amendment to remember the context in which it was passed, and to weigh the “right to bear arms” against issues of public safety, just as we do with all of the other rights contained in the Bill of Rights.
If the argument is that, because it’s outmoded, it should be judicially emasculated, I don’t agree with that either.
Neither do I, but I guess it depends on what “judicially emasculated” means. Does court affirmation of registration requirements or restrictions on the ownership of certain weapons qualify in all cases? (I’m guessing you’d say no, McKinney, but that others here would say yes.)
I’ve been of the opinion that, so long as you have reasonable legal access to a reasonable variety of firearms of practical use (and maybe historical interest, but that might be outside 2nd Amendment concerns), you have the right to keep and bear arms.
I developed a sock analogy a while ago. If the people have the right to wear socks, but it turned out that purple socks were somehow problematic, and they were banned, you couldn’t really say that you were thereby denied the right to wear socks, so long as there were lots of other colors of socks readily available.
Now, if the ban was on all colors of socks except magenta, and magenta socks were sufficiently hard to come by, that would be another story.
I don’t think it “emasculates” the amendment to remember the context in which it was passed, and to weigh the “right to bear arms” against issues of public safety, just as we do with all of the other rights contained in the Bill of Rights.
Well, we do that now. You can’t pack a pistol into a bar. You have to be licensed, in Texas, to carry a concealed pistol and no one can carry a sidearm publicly that is out in the open.
Where I part company with Sapient and others is the notion that personal ownership of a non-automatic weapon can be in any way regulated. Ditto the right to transport that weapon to a place where it might be safely and lawfully used, whether a target range or a place to hunt or shoot. The right is empty if you can have a gun at home but can’t take it anywhere without the state’s permission to use it. Apparently it is aggressively regulated in some states. To me, that is unconstitutional.
McTx: Well, we do that now. You can’t pack a pistol into a bar. You have to be licensed, in Texas, to carry a concealed pistol and no one can carry a sidearm publicly that is out in the open.
Where I part company with Sapient and others is the notion that personal ownership of a non-automatic weapon can be in any way regulated.
How do you square these two paragraphs?
From Slarti’s link: Even for Florida residents, the cost of higher education keeps climbing. State universities have been raising their in-state tuitions 15 percent a year, in part to make up for deep cuts in direct state funding. The system is in no position to create a new discount category for illegal immigrants.
Doesn’t the “deep cuts in direct state funding” undercut the argument that FL taxpayers are “shoulder[ing] tuition costs for illegal immigrants” just a bit, not to mention that said illegal immigrants (and their non-college attending parents/relatives) pay FL taxes?
From sapient’s link to the NYTimes: Republican Senator Barry Loudermilk. “Even when illegal immigrants pay out-of-state tuition, that does not fully cover the cost of a higher education,” he added.
Uh, don’t the Georgia public colleges do more than just educate undergrads?
How do you square these two paragraphs?
I can own a gun and not be allowed to carry it to a department store. I can own a bottle of whiskey and not be allowed to bring it to public events or schools.
You can’t pack a pistol into a bar.
You can in Ohio.
How is that not regulation of “personal ownership of a non-automatic weapon?”
Yes, that is true. But it’s also irrelevant. There were lots of foreign students around back when I was in college, but not one of them paid in-state tuition.
No, it’s not. See, nonresidents pay taxes. People who live there and don’t qualify as residents pay taxes. People who only stay there for the school year and are nonresident pay taxes. But the rules are that you don’t get in-state tuition unless you are a legal resident.
Why do you think foreign nationals here under legitimate visas should have to pay higher cost for education than do illegal aliens?
I see what happened – two different issues got conflated. The proposed Georgia law has nothing to do with in-state vs. out-of-state tuition; it would simply bar them from attending at all. In-state vs. out-of-state tuition rates is a separate issue.
See, sapient linked to an article discussing the Georgia law, then you linked to an article about Florida as if it were about the same thing (Here’s that right-wing rag, The Orlando Sentinel, on the topic:), which it isn’t.
Maybe next time RTFA?
People who live there and don’t qualify as residents pay taxes.
Are these the famous snow birds?
Brett: I’m not a textualist, I’m an originalist. There are some lines of text in the Constitution which are complete unto themselves, but for most of it you actually do have to do further inquiry, such as reading relevant documents from about the time the amendment was adopted.
And what of the fact that the majority of the population of the United States at the time of adoption of the Constitution and Bill of Rights had no say in its adoption? How should that weigh into interpreting the text?
That’s a decent suggestion, but it just might be worth considering that a hatey Republican state legislature that lets brown peoples attend its schools legally might be less hatey and racisty and more unwilling to put up with teh illegals.
No, it’s got to be all about hate. Or racism. Or whatevs.
Here it is: on the frontier, beyond the US border back then and even within the border, the militia was organized and called out locally. No time to send a rider on a 6 day round trip to the capital and homing pigeons were unreliable.
“Beyond the US border” would seem to also be beyond the scope of the US Constitution. Certainly if we’re discussing areas not under US control.
And, there are many cases from Way Back When of military action being delayed while the relevant authorities waited for the militia to assemble. So, apparently round trips were involved.
When bands of local guys rose up to “take matters into their own hand” they were generally insurrectionists.
And, when they did, they were generally opposed by the actual militia, which is to say an organized non-professional military force, made up of citizens, under the command and direction of government actors.
You want to own a gun, fine with me. But free ranging bands of armed people, not under the command and control of either state or federal authority, was not what the founders intended by the term ‘militia’.
It’s not hate legislation. It’s predicated on the notion that, if you’re not here legally, the only thing you’re entitled to do while here is travel to the border and exit. Do not pass go. Do not spend 4 years getting a degree first.
Now, I understand that people who don’t like our immigration laws, and place no particular value on the rule of law, object to the idea that being here illegally should cause any inconveniences at all. That doesn’t mean that denying public services to people who aren’t legally supposed to be here in the first place is predicated on hating them.
It’s based on the fact that they’re in the wrong country.
Brett: It’s not hate legislation. It’s predicated on the notion that, if you’re not here legally, the only thing you’re entitled to do while here is travel to the border and exit.
It it’s not hate, the GA and FL bills are certainly picking an interesting target then.
What? People that are visiting contrary to the wishes of the US government?
*headscratch*
Slarti: What? People that are visiting contrary to the wishes of the US government?
It’s the subset that is telling.
I think the issue is that, of all the things to focus on, the state legislatures in question are focused on illegal immigrants going to college. I don’t necessarily think of it as being hateful, but I do think of it as small-minded, petty and backwards in priority.
If people are here illegally and they get deported in accordance with the law, then they won’t be able to go college here. Beyond that, we’re talking political football at the state level, rather than solving actual problems.
Some of these people may eventually become citizens. It will be all the better if they already have a good education when that happens.
But we’d prefer to further marginalize people, mostly the ones in their late teens, because that works out so well, what with the wonderful combination of energy and angst that results in the sort of law and order we seek.
Yes, there’s a sureal aspect to it, like having a discussion about whether the vagrant who broke into your house should sleep on the sofa, or in the guest bedroom. The obvious answer is, “Neither”, but the police refuse to eject him, or let you do it, so there you are, having the sureal discussion.
There’s something crazy going on, but it’s the federal refusal to enforce immigration laws, or permit the states to do anything to further their enforcment. Not that states typically don’t want to offer in-state tuition to people who aren’t even supposed to be in the country.
“vagrant”
You can’t pack a pistol into a bar.
You can in Ohio.
LOL.
On the road from Kent OH to where my in-laws live in Stow, there’s a store that sells booze and ammo. Cracks me up every time I drive by.
There’s something crazy going on, but it’s the federal refusal to enforce immigration laws, or permit the states to do anything to further their enforcment.
Could be, but if you want to make immigration enforcement a state responsibility, you are going to need to amend the constitution.
The illegal subset is the entire set, no?
“vagrant”
Yeah.
What if the “vagrant” has been cleaning and performing repairs on your house, you’ve been paying him (not very much) to do so, and, in turn, he’s been paying rent and buying his own groceries, and you, because there’s no lease involved, tell him he’s not allowed to use the bathroom anymore, even though he leaves it cleaner than he found it every time he uses it?
(See? Like I’ve said, analogies really are fun!)
It’s true, though, russell — as of this year, you can carry a loaded, concealed weapon into bars in Ohio. I’m sure this will have no ill effects whatsoever.

And now there’s a state assemblyman trying to push through a bill that drivers who have loaded handguns in their cars no longer have to tell police about it when stopped.
On another note, something tells me that when you say the word “Hispanic” to Brett his brain spits out
I think that it’s best if, before making claims of this kind, that you not only RTFA but also RTFB. And when you do, tell me how it’s only all about college education.
It’s true, though, russell — as of this year, you can carry a loaded, concealed weapon into bars in Ohio. I’m sure this will have no ill effects whatsoever.
Are there any local restrictions that you know of? I only ask because I’ve been in my fair share of Cleveland dive bars, and the idea that some of the characters I’ve run into are more likely to be packing heat is not comforting.
Grenades aren’t issued in the same way as small arms, as they are, well, explosives. When the one you have is used, it’s gone, while you can repeatedly practice using your assigned rifle.
True for ammunition too, unless you use air powered rifles (the last time I know that those were used by regulars was in the Napoleonic Age). Also there are types of grenades that are the true thing but can be temporarily disabled so they can be (re)used for practice (btw, navies do the same with torpedos because they are so damn expensive that blowing them up in practice is considered waste).
Historically rifle practice did not involve much actual use of even blanks, let alone life ammo. The Prussian army before 1807 did not issue any life cartridges to soldiers in peacetime and it was seen as revolutionary that in 1814 new regulations required 30 life shots per man and year. One should not underestimate how expensive and difficult to acquire gunpowder was. It’s interesting to learn how much the science of chemistry got propelled (pun intended) by states looking for ways to become independent of expensive and unreliable sulphur and sal(t)peter imports. The German Bundeswehr had some embarassing press reports in the 90ies that orders were issued ‘tankers shout “Bumm”, infanterists shout “Peng”‘ in excercises because budget shortfalls had eaten the ammo supplies.
…tell me how it’s only all about college education.
They were focused on college enough to put it in the bill, whether or not there were other methods of exclusion included. If you can quote me using the phrase “only all,” go for it.
It’s true, though, russell — as of this year, you can carry a loaded, concealed weapon into bars in Ohio. I’m sure this will have no ill effects whatsoever.
You can carry a concealed weapon in bars and restaurants in Virginia as well. Of course, it makes us safer. That is, it makes me think twice about frequenting bars. I thought this was entertaining (from the article):
“He was charged with the latter offense — even though he had a permit to carry the gun — because he had been drinking in the deli while in possession of a concealed firearm. The law forbids concealed-gun permit holders to drink alcohol while they are inside bars and restaurants with guns hidden from view. Patrons who legally carry firearms openly into bars and restaurants can drink freely.”
“On another note, something tells me that when you say the word “Hispanic” to Brett his brain spits out.”
You do realize, don’t you, that the voices in your head tell us about what’s going on in YOUR head, not mine?
Yeah, yeah, you’re a fine one to talk, BB, with your constant “liberals think this” and “you think that” and blah blah blah blah blah. I’ll bet you $50 you can’t go 24 hours without claiming to know exactly what’s inside another person’s head. If you can dish it, you can take it.
BTW, I am not the person who leaped to the word “vagrant” whilst trying to build an analogy involving potential college freshmen, so.
Are there any local restrictions that you know of?
As with any other business, bars can post a sign prohibiting firearms on their premises, but otherwise, no. It’s a state law. And concealed carriers are, of course, not supposed to drink if they’re in bars. (wink, wink)
Slarti: The illegal subset is the entire set, no?
Sure, though other than the vague NYTimes reference to “omnibus” there wasn’t much of a clue in the two articles that the bills/laws were about anything other than higher education.
Fortunately, I’m sure SCOTUS will rule that this area of law is entirely pre-empted by federal law on the topic, as it has in many other areas of concern to MNEs and make the GA and FL laws moot.
Mentioned once. Admittedly short bill, but there’s quite a bit of things in there unrelated to higher education. But the higher education bit; it’s stricken; dunno if strikethrus mean anything.
Tell me about the focus, again? Your word. Sure, the focus in the NYT article was on college education, but I’d sure like to hear how you think the focus of the actual bill was on college education.
Maybe I’m missing something; wouldn’t be the first time.
“my fair share of Cleveland dive bars, and the idea that some of the characters I’ve run into are more likely to be packing heat is not comforting.”
LOL
Travelling from point A to B Sunday night I got caught up in a snow storm on I90 and pulled into some sleazy section of Cleveland (are there actually any non-sleazy sections in Clevland? In Ohio for tyhat matter?) for the night. As I was thirsty I wandered out of the motor lodge and into a dive bar. I had a Makarov 9mm in my waiste band under my coat.
But the higher education bit; it’s stricken; dunno if strikethrus mean anything.
The strikeout was under this:
“(d) Verification of lawful presence under this Code section shall not be required:”
which I take to mean that postsecondary eduction was originally exempted from the requirement to produce verification of lawful presence, but that exception was removed by the strikeout.
You have to be sufficiently focused on something to make an exception for it and later decide to remove that exception. The bill isn’t focused on college attendance, but the people writing it (also my words: “state legislatures” rather than “bill”) were when they decided to make the exception and when they decided to remove that exception.
That’s as may be, hsh. I yield to your expertise in the matter.
Interesting that this bill specifically requires adherence to 8 USC 1623; is the thinking here that SCOTUS will elect to strike down that statute because Georgia is actually requiring adherence?
Now we’re back to the larger question of: why bother having rules if they’re not enforced?
It’s my understanding G. Washington took a rather dim view of militias since they usually were ill disciplined and tended to break under fire. Probably a central government prejudice on his part, cf Shay’s Rebellion.
But he was one of the Founders, and we KNOW what he thought.
🙂
“Interesting that this bill specifically requires adherence to 8 USC 1623; is the thinking here that SCOTUS will elect to strike down that statute because Georgia is actually requiring adherence?”
There are two schools of thought concerning the Supremacy clause:
“This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”
One of those schools of thought is that it makes federal policy supreme.
The other is that it makes federal law supreme.
The distinction isn’t very important most of the time, but in this case it’s the very heart of the matter: The state laws the federal government is suing to get overturned are in perfect alignment with federal law, it’s federal policy, not the state laws, which runs 180 degrees to the federal law.
And, of course, which of those words is actually found in the clause? I think it’s “law”, not “policy”.
Snow storm? That was barely even a dusting. It had all melted by Sunday afternoon. East Coasters just don’t know how to drive, is the problem.
Northeast Ohio’s snowfall is down 92% this winter from a year ago. I’ve used my snowblower exactly twice. Good thing there’s no such thing as climate change.
Good thing there is climate change and that it is changing for the better where I live. Nice warm winter with minimal snow, perfect. May the trend continue unabated for the next several decades.
Who’s an east coaster?
oh, and what the hell are those retarded ‘internet cafes’ in Cleveland, at least on the far west side of it, that appear to be actually some kind of dingy low grade, skirt the law, gambling joints with crack head clientel. Low budget man, low budget.
Here I thought I was going to get a cup of coffe and plug in my laptop and check up on a couple of things. Instead some filthy savages attempted to hustle me.
Next time I’m flying right over Ohio.
God bless the people in your life who you imagine think you’re clever. Truly, they bear a burden.
It’s ok if you fly past Ohio. We won’t miss you.
Meant to add: Yeah, wherever you’re from, if you had to pull off the road in a “snowstorm” that resulted in less than half an inch of accumulation, you are Not A Good Driver. Like, at all.
Also, if you were carrying a concealed firearm without an Ohio-issued CCW permit, I’m kinda not really interested in your arguments about federalism and state’s rights any more.
And, when they did, they were generally opposed by the actual militia, which is to say an organized non-professional military force, made up of citizens, under the command and direction of government actors.
You want to own a gun, fine with me. But free ranging bands of armed people, not under the command and control of either state or federal authority, was not what the founders intended by the term ‘militia’.
I could have been clearer. By borders, I meant state borders. For many years, the US owned the Louisiana and Ohio Territories. For years before that, there was ongoing war between settlers and Native American tribes. These continued as whites moved west. Militias were local in nature and were called out locally when an attack took place. Sure, there were instances when a governor would call out the militia, but there was no limit on a local call out. It happened all the time in Texas and it happened at Lexington and Concord. My point was simply that, for 2d A purposes, there could be no militia to call out without an armed citizenry.
I yield to your expertise in the matter.
If you are ever to yield to my expertise, it should only be when I tell you, in my expert opinion, that you should not yield to my expertise.
East Coasters just don’t know how to drive, is the problem.
I resemble that remark. We’ve gotten almost no snow this winter where I live, but last winter we got a total of roughly seven feet. I recall no driving problems. 😉
Slarti: Now we’re back to the larger question of: why bother having rules if they’re not enforced?
Limited resources and shifting priorities?
Brett: The distinction isn’t very important most of the time, but in this case it’s the very heart of the matter: The state laws the federal government is suing to get overturned are in perfect alignment with federal law, it’s federal policy, not the state laws, which runs 180 degrees to the federal law.
Well, what does federal law say? Does it merely say “if you’re in the country illegally you’re subject to deportation (after some sort of process)?” Does it say “you’re barred from obtaining any kind of gov’t service whatsoever?” (which I think would be unconstitutional under SCOTUS precedent) I’m curious (though not enough to look it up myself, at least not right now).
East Coasters just don’t know how to drive, is the problem
You will retract that, sir, or it shall be pistols at dawn.
The limited resources part is why states are trying to crack down. Or maybe it’s just a coincidental expression of xenophobia that just happens to line up with states running short on money.
If you look up the section of US code cited, you can see for yourself. It’s not really very hard to do; even a 50-year-old conservative can do it.
‘My point was simply that, for 2d A purposes, there could be no militia to call out without an armed citizenry.”
A big lotta good it did the Native American tribes.
They was jus trying to protect their wigwams, whatever those were, but I’m pretty sure they had all the signs of, whatchamacallit, private property.
I’m startin to cipher now the origins of that there second amendment we pale faces conjured up — it came from the same place private property did — from the Great father at the top of the sky.
Least that’s what the Native Americans figured out as they got moved farther West: we was just makin sh*t up and it stuck because we had the technology to enforce that sh*t.
Indian: “Why, white brother, do you take our land and steal our horses?”
Calvary Officer: Well, now, uh, umm (now turning to his adjutant with the law degree who carried the important papers laying out the rationalizations and pleading sotto-voiced: What should I tell the Chief here? Adjutant (frantically): Geez, I don’t know, tell him .. tell him it’s our private property, whatever the f*ck that means!) ….
the great White Father has proclaimed this here the property of the United States Government. (that’s going to cause problems later, he thinks to himself)!
Chief: All it it?
Officer: Les jus say you starts walking west, and we’ll let you know when you’re off the property.
Indian Chief (eying the officer straight-faced): I underestimate your cleverness, oh blue-eyed one. But your appeal to natural law has moved me, despite my reservations (that’s a trans-tribal Native American pun, which always went over white people’s heads).
May I interest you in my oldest daughter so that we may stay here until buffalo season is over?
Officer: I don’t think so, Chief, because as it happens my men are manifest destinying your slut daughter as we speak.”
Sorry, my grammar suffers from the “Little Big Man’ syndrome, wherein we white folks are the ones who talks funny.
“You will retract that, sir, or it shall be pistols at dawn.”
No fair shooting a man in his bed.
Slarti: The limited resources part is why states are trying to crack down. Or maybe it’s just a coincidental expression of xenophobia that just happens to line up with states running short on money.
I guess I misunderstood your point re: rules w/o enforcement. I don’t think the states will be saving any money with these omnibus laws.
If you look up the section of US code cited, you can see for yourself. It’s not really very hard to do; even a 50-year-old conservative can do it.
Thanks. I meant federal immigration law generally, but that provision is right on point and clear (thanks Bill!). So, seems I was wrong upthread in certain respects (if I can say that on the internets). My bad.
And I would note that the Count’s allegory at 10:38 pretty much sets forth my general feelings on this issue. The current immigration laws and the general approach from the right and some on the left lack a certain “there but for the grace of God” manner; not to mention wanton cruelty in specific cases/categories.
Not that this sort of thing is limited to illegal immigration or to the right or left, as I’m often amazed at the ability of folks to approve of or at least dismiss any sort of hideousness if it’s applied to someone who, in their view, has “broken the rules.”
Regarding the subject of immigration and in-state college tuition, it occurs to me that while Slart may have a legitimate point, the modern-day (what century is this, anyway?) Republican Party (of which Slart is not by any means a directly-owned subsidiary) has a funky way of bringing the case of what to do about “The Other” to the fore as election season approaches.
In the case of the approaching 2012 Presidential election, this particular subject will jostle the where’s-this-interloper-in-the-White-House-from-agin? paranoia.
Like putting the issue of gay rights on ballots — Rove-style. It gets the 27% hepped up good and proper and down to the polls.
That’s at least the stated reason that they’re doing this: that even higher out-of-state tuition doesn’t cover the actual cost.
Which may be true, or not. I haven’t seen anyone showing the actual numbers.
Oh. Well. Now you’re
forcingshaming me to admit that I misread the article, as Phil pointed out, and also initially misread the bill itself, which is why I was attempting to push on the fact that it was somewhat of an omnibus bill that covered more than just education. But it turned out that was indeed the point of focus, even though “education” wasn’t mentioned much.Slarti: That’s at least the stated reason that they’re doing this: that even higher out-of-state tuition doesn’t cover the actual cost.
Which may be true, or not. I haven’t seen anyone showing the actual numbers.
I think the problem here is that colleges/universities are not solely in the business of educating undergrads, but also engaged in research etc., so dividing the annual operating budget of the University by the # of undergrads, which in my experience is what college administrators tend to do when attempting to show “what a great bargain!” tuition is. It’s like a magazine publisher telling you you got a great bargain on your subscription because the price didn’t cover the cost of producing the magazine, while conveniently ignoring other sources of revenue.
I’m guessing that’s at least part of what’s going on here. I have no evidence for this, of course.
“Not that this sort of thing is limited to illegal immigration or to the right or left, as I’m often amazed at the ability of folks to approve of or at least dismiss any sort of hideousness if it’s applied to someone who, in their view, has “broken the rules.””
It’s not regarded as hideousness to return somebody from Mexico to Mexico. It’s just restoring the status quo ante. It’s like somebody robs a bank, when you take the bag of money away, that’s not a “fine”.
As for “there but for the grace of God”, any American who wants to can put themselves in an illegal immigrant’s shoes, by illegally crossing the border in the other direction. I hear Mexico is a lot harsher on illegal immigrants than we are, though.
Sure, I’ll take a jab at the illegal immigration tar baby.
Here is what strikes me.
Lots of people from Mexico, and Central and South America in general, come here because they can make a better living than they can at home. They frequently endure a non-trivial level of hardship to do so.
Many of them would love to become citizens and live here, if that option were available to them.
Most, by far, of them work while they are here. They work low paying jobs, often more than one, for lots of hours. They are hard-working folks.
Slarti asked, why bother having rules if they’re not being enforced?
I would ask, why have rules that are counterproductive and not enforceable? At least, not enforceable without turning the nation into a hostile armed camp?
Our current immigration laws are biased away from admitting (a) folks from this hemisphere, (b) folks who don’t have wonderful educations and professional resumes, and (c) folks who aren’t related to folks who are already here.
That excludes some millions of folks who very strongly want to come here, who are willing to make large sacrifices to come here, and who have demonstrated a desire and ability to work their freaking behinds off once they arrive.
And, for that matter, for whose labor there is apparently a robust market.
My recommended solution for the illegal immigrant “crisis” is (a) an intelligent path to citizenship for folks who are already here, who have made lives here, and who wish to stay, and (b) relaxed quotas that would let folks who aren’t here but want to come here, to come.
It’s not like they aren’t here already. And it’s not like they aren’t pulling their weight.
The alternative is another few decades of stupid mole whack games.
Until, of course, we manage for bugger-up our own economy sufficiently that it’s not worth it to folks to bother coming here. But that’s a topic for another thread, or perhaps this thread in another 100 posts or so.
Brett: It’s not regarded as hideousness to return somebody from Mexico to Mexico. It’s just restoring the status quo ante.
As with most things, it depends. Is deporting a 16 year old who has lived in the US since he/she was 2 to Pakistan restoring the status quo ante? Or denying a similarly situated 18 year old the ability to attend college in the US? We could, of course, distinguish those cases from the 35 year old Mexican who runs across the border, but that doesn’t seem to be the preferred position of much of anyone (I guess the DREAM Act is a step in this direction).
Also, I forget Brett, how would you characterize your political philosophy?
As for “there but for the grace of God”, any American who wants to can put themselves in an illegal immigrant’s shoes, by illegally crossing the border in the other direction.
So, what did you personally do to earn your U.S. citizenship?
Basically, what Russell said.
Get most of the people here now on the grid (deport some, sure, as we do now). Increase the allowed legal immigration level, and make the process easier. Couple that with better enforcement, focusing on the employer side.
That seems rational to me, and does not require the armed camp approach (we’re doing more than enough of that with the “War on Terror” and “War on Drugs” already).
Vagrants and thieves…
Further, I’m not sure why people seem to have such an attachment to where they happened to have been spit out of their mother’s uterus. Well, that’s not true, I know where the attachment comes from, but the sense of entitlement and “how DARE you come here illegally” is out of proportion to any actual effort exerted, in most cases.