Oh, the court it right (the fact that the founders themselves made little-to-no fuss also impleis this), but unfortunately people today make one key mistake. The courts can rule on Constitutionality, but the Constitution is not enforced through the courts. That is, they are not sole or suficient. Any branch of governemnt can and ought to do so.
Is it not dangerous to say that the Supreme Court has this ultimate power simply because they say that they do? Where is the check on the Supreme Court?
In a compact between several soveriegn states who create a national government, who should decide what powers are given to each segment? The parties to the compact, or the creation of that compact that has a built-in interest in expanding its own power?
I certainly don’t have an answer as the founders didn’t provide an enforcement mechanism. But I do know that having the Supreme Court as the guardians of the constitution have seen a massive expansion of the federal government far beyond anything imagined by the Constitution. It has created a system where some rights that aren’t even mentioned, like abortion, are given a holy place at the top, while rights that are spelled out in black and white, like bearing arms, are given short shift.
I tend to take Jefferson’s view, not of nullification necessarily, but having the states, who are parties to the compact, given more say as to what powers they ceded to the national government.
If states are allowed to decide what powers they ceded to the national government, then we’re back to the Articles of Confederation. The whole point of a national compact, rather than a confederation or alliance, is that the parties are bound regardless of what they later decide, and decisions about the content of the compact are made by a third party. Like a contract.
At most the relevant inquiry is what the states intended in 1789 and with subsequent amendments, but today’s state governments are in no better position to make that historical inquiry than the Supreme Court. And the states are interested actors while the Supreme Court is not (or at least less so).
Why are the members of Congress, all of whom come from the states, not in your consideration agents doing precisely that? While I understand that they do see themselves as officers of the federal government and not of state governments, the suggestion that they do not represent state interests seems untenable without more explanation. My representatives and senators are elected by the citizens of Illinois just as much as my governor and state legislators. Why are the determinations of Governor Quinn and Representative Jakobsson any more an expression of Illinois’s political sensibilities than those of Senator Durbin or Congresswoman Schakowsky?
Although I’m not the question directee, one major issue here is not that they represent states, but that they do it badly. This is one major reason why I think we shoudl go back to having State legislatures select national Senators.
Well, everyone (save a handful who are from the District itself) comes from one state or another. All nine justices come from the states, but that doesn’t mean that they are partial to states rights.
When you are a member of a part of the national government, it is only natural for you to gravitate towards taking more power for yourself.
Now, you may say that states would gravitate towards taking more power for themselves, and that is true, but they had it all to begin with. The national government is the creation of the states and they should hold the final say as to what power was ceded.
I don’t disagree that bureaucratic politics (and in particular, the motive to advantage the interests of one’s own bureaucracy) plays a role in federal lawmaking and that consequently, some legislation works to aggrandize the federal government rather than strictly serve the public interest.
But this alone doesn’t sway me to the position of federal retrenchment. As you note, there is no reason to suspect that state governments are any less susceptible to bureaucratic politics than the federal government. In light of that, I’m not sure why you say the states ought to have “the final say as to what power was ceded.” Why wouldn’t the states be self-serving with respect to that determination? The federal government is not subaltern to the states. As Richard Parker notes, the view that the federal government operates at the sufferance of the states was pretty soundly rejected when the Union adopted the Constitution to replace the Articles of Confederation.
Moreover, and not unimportantly, the retrenchment view has not often won at the ballot box. While I recognize that our system is counter-majoritarian with respect to individual rights; we are still a democracy when it comes to the political questions of the appropriate size and scope of the federal government under its enumerated powers, including the Commerce Clause and the Necessary and Proper Clause.
I strongly agree with this.
Freedom of religion? Why should the opinions of a bunch of long-dead WASPs about the relationships between Christian sects prevent us from exposing actual scams that hide behind the “religion” banner?
Right to bear arms? I think we’re demonstrably better off with (regulated & licensed) private gun ownership, but trying to construe that from a document designed to ensure community policing & security in an age that knew not professional police forces requires a level of fuzzy thinking that will not serve well in other subjects.
The vote being restricted to landowners? What, you say we don’t do that now? It comes from the same theorists! If the Bill of Rights is sacred, why isn’t that?
Think about it.
I’ve only skimmed part of the thread. The responses seem to hinge on a conservatism that tries to avoid dangerous reform.
Well & good. But by that logic, the Founding Fathers were wrongity wrong wrong. They should have maintained constitutional monarchy within the Empire, as Burke would have preferred. Why do we enshrine their experimentation as inviolate when they threw off their very fundamentals?
Of course, I disagree. While I believe that our Constitution ceded far more power to the national government because of the weaknesses of the Articles of Confederation, it certainly did not put the states to a subserviant role of said government, except in the sole matters that it was granted power and excluded to the states (10th).
I disagree also with any interpretation of the interstate commerce clause, or the necessary and proper clause which turns this understanding 180 degrees out of whack.
I agree with (the attribution escapes me at the moment) the guy who said that in our relations with others, we should speak as one, in our internal matters, the states should be in charge.
Gun control, abortion, gay marriage, speed limits, drinking age, seat belts, murder, rape, arson, littering, and mattress tag tearing should be state matters. Raising an army, printing money, protecting borders, making sure that there are no duties between states, issuing passports, pursuing interstate criminals, and kicking ass for 9/11 are national matters.
Under the Articles of Confederation, the national government could not even issue a tax. That is a far cry from what we have now, and I believe that it is a straw man against the argument that the feds should not have the control that they have.
Be careful what you wish for. The road you are advocating will lead to MORE intrusion of religion into the public sphere, not less. You’ll get creationism taught in schools, too. That is what most Americans want.
Besides, no one is advocating that the constitution should not be amendable, which is what your 2nd to last paragraph implies.
The human condition has probably changed less in the last 5,000 years than medical science has in the last 50.
The founders built in the ability to fix things that they probably knew deep down were wrong like slavery and women’s suffrage, and for the most part they were just ridicously brilliant people. I wouldn’t trust the spineless bickering turds who runs things today to do what they did, which is why I prefer to honor what they did whenever practical and sensible-- erring on the safe side.
Asking a political-minded US citizen why they would care what [the founders] think of their government isn’t like asking what Ford would think of your car. It’s like asking a Christian why they would care what Jesus thinks.
I’m a politically-minded US citizen and no, I don’t equate the ff to any gods.
Nor should you, in my opinion.
Just a point for thought, here. Using this line of reasoning, no constitution nor amendment passed before 1920 has legitimacy. At no point prior to that could it be said that a majority consented, via the vote, to be governed by the Constitution. We quietly overlook this fact when discussing the ratification. Does the fact that only a small percentage of citizens of the newly formed United States agreed to the constitution impact the perception of its legitimacy? I think it’s a valid point.
On the subject of the founding fathers one thing that always leapt out at me, especially concerning using the Federalist Papers and other that-era writings is that it only shows you what the noisiest and more forceful of the founding fathers thought. In essence, those people who, in our time, would be the most radicalized and dogmatic are the ones most looked to because they left behind a body of evidence for their perception and interpretation of the constitution. But what about the players in the discussion who were the quiet thinkers? Or the ones who argued in private over drinks? Does anyone know what Cesar Rodney thought of it? Or Burton Gwinnett? Or Oliver Wolcott?
The fact is that the ones we’re most likely to turn to for guidance are, possibly, the Sean Hannitys and Al Frankens of their day. They were persons with firm political opinions, somewhat radicalized, who could capture the attention of the media (or purchase their own and run their opinions that way!) and make their case to the wider world. It’s a case of that who ‘the best lack all conviction while the worst are filled with passionate intensity’.
Hell, does ANYONE doubt that Tom Paine was a wild-eyed radical and a potential bomb thrower? Yet we look to his ‘Common Sense’ for guidance and inspiration!
Maybe it’s the Jew in me but I’d rather be guided by people who say ‘well, a little of this and a little of that’ rather than ‘it’s this way, forever’.
Hell, Hamilton at one point BEGGED for an interpretable constitution by arguing against a Bill of Rights because all rights that were necessary could be found in the original document.
I think it’s a hugely important point. Someone can get in my face and accuse me of not agreeing with the founding fathers unlike my ancestors, but my sex never got the chance to agree or disagree. A bunch of radical white men got together and passed laws, and now a bunch of conservative white men point to those radicals and say, “See? We’re just agreeing with what the majority of white men said.”
Then you would be surprised to learn that the ratification of the Constitution was an especially democratic vote. In many ratifying states, women were allowed to vote, as well as non-property-holders including freemen. I’m not sure we have enough evidence to indicate that a majority was allowed to vote, but it was probably pretty close and much more democratic than the normal legislature voting that was allowed at the time.
The point stands, of course, for everything other than the Constitution. But suffrage isn’t so simple. The idea was that men represented their wives. This was, of course, an imperfect representation, which is why we got rid of it. But it was a form of representation nonetheless. So if a law can have legitimacy because your Congress passes it even if the majority of Americans oppose it, it might stand to reason that a statute passed on male representational voting might also be legitimate. I’m not sure how powerful that argument is; I’m just putting it out there for consideration.
Absolutely. Jefferson was an extremist. Story, less so. But you write one damn declaration of independence…
I’ll be the first to say that my knowledge of the ratification isn’t all it could be. Can you hook me up with some reading matter on who was and wasn’t allowed to vote?
Probably the best source is a book, Akhil Amar’s Reading the Constitution. That’s where I’m getting my info and much of it is on google books.
I’ll see if I can dig up some linkable articles or link you to the relevant pages in RtC.
I need to correct one mistake though in my previous paragraph (always double-check your sources!). I wrote that women were allowed to vote in “many ratifying states,” which I misremembered. I can only confirm New Jersey, though I think there was at least one more.
Still, I wasn’t aware that any states allowed it, so I’m pleased to learn it. Thanks.