I pit Tenthers

The BBQ Pit
41

I’ve been reading the Balkinization website, and I realized something. I don’t care about originalism or constitutionality, broad construction or strict, because I’m not a judge.

The Constitution most assuredly does not provide for judicial review. But we do it, and then try to use it to knock off laws we don’t like (but which we, through the processes in the Constitution, passed into law). As unconstitutional. Just like judicial review itself?!

It’s surreal.

But if you step back a bit, you notice something:

The courts use judicial review to maintain some kind of constitutional consistency; that’s fine, as they are common-law institutions.

But the legislatures, they’re statute-writing institutions. Different process, different obligations. And they will pass laws they think are good, that they think they have a right to pass, without being explicitly permitted to by some clairvoyant founder. *Just as *the courts will make case law without any permission from the Constitution and call it constitutional law.

And the people, reserved these rights? They delegate authority to legislators to pass laws. The legislators, as corrupt as they are, as gerrymandered-in as they are, are still direct representatives of the people. Even in Congress–more so now with universal suffrage than when the Tenth was ratified.

So we are granting the right to add law to Congress when we vote for them.

The courts, by comparison, are at least a step removed.

So trying to use a court (packed with lifers who never face re-election) to strike down a law passed by the people’s representatives (up for re-election in a few years), because of some amorphous “right reserved to the people”? Ridiculous! Who says the people didn’t ask for it? If you’re unsure, mandate a referendum! But we don’t do that.

But here’s what’s interesting. All the originalist theory is normally specific to courts. It doesn’t stop us from voting on a bill. But Tenthers, knowing that the courts will not strike down laws due to the Tenth Amendment, are trying to stop bills being passed.

And in the process, they deny the people the right to use one of the most important of those rights reserved to them: the right to elect representatives who will pass new laws as needs newly become clear.

42

Tenthers violate the Tenth Amendment. They deny the people the right to use one of the most important of those rights reserved to them: the right to elect representatives who will pass new laws as needs newly become clear.

43

The Constitution exists to put limits on what those “new laws as needs newly become clear” can be.

44

Do you really think you’re clever here?

By this logic, you could elect a guy who could then pass a law that says all left handed people must turn themselves in for execution, otherwise your right to vote would be infringed.

45

I’m not a judge either, but if you’re talking about Constitutional interpretation, you have to talk about it within the framework of Constitutional interpretation. Cards on the table here. I don’t personally think that the the health care law is unconstitutional, and I think that the so called “tenthers” as a rule, have an overly broad interpretation of the 10th Amendment.

That all being said, though, it’s not wrong for the court to look at the constitutionality of the law. Your theory seems to be that “if the law is passed by the legislature, its inherently Constitutional. Only the legislature can decide on the constitutionality of a law (by enacting it).”

And you’re not the only one who holds that view. That’s certainly been argued throughout history, and in some countries, like the UK, that’s generally the common view. British constitutional law has this doctrine of Parliamentary supremacy, and the judiciary tends to be very deferential to Parliamentary law, because, like you said, that’s certainly the more democratic view

But in the US, we haven’t as a general rule, gone that way. We have a written constitution that lays out the powers of the national government and state governments, and the rights that individuals have that we say that the government doesn’t have the right to abridge. Our Constitution sets out a limited government. But that can create a problem, because what happens when a legislature passes a law that seems to grant the government powers that the Constitution says it shouldn’t have? Somebody has to decide if that’s the case, and in this country, that’s the Supreme Court. And the Justices look at the statute, and at the Constitution, and previous court decisions on the subject, and what the legislature has said was their goal in passing the law, and they decide. They decide. And they don’t always agree, of course, because different justices interpret the Constitution differently and the laws differently, and one might say, “In my view, this law doesn’t violate the Constitution” and lay out his or her reasons, and another may say “In my view, this law violates the Constitution” and lay out his or her reasons. But they come to one decision or the other.

And it has to be that way as long as we have a Constitution that says that there are certain things the government is allowed to do and certain things the government is forbidden to do, because somebody needs to safeguard that.

46

Ireland is just as much a country as Finland or Norway. :dubious:

Seriously, though; leaving aside the Danish roots of Norway and Iceland, and all those Fenno-Swedes, and, well, Belgium; European countries typically have some kind of national identity. A language, a cultural heritage, something that makes them them.

In America, that is true of the following: various Indian nations, the Hawai’ians, the Yupik, the Cajuns, the Louisiana Creoles, the Pennsylvania Dutch, some Chicano ethnicities, a few others–but not of most of the states. I’m a Midwestern Yankee. My roots go back to Kentucky, my kin are scattered about Indiana, Ohio, and California, among other places, and I grew up in Missouri. The states are pretty much administrative divisions,* not* ethnocultural or lingustic groups.

Alaska, Hawai’i, and Louisiana could claim some special ethnic identity, but they include lots of people who are not that identity. California? Illinois? Don’t make me laugh.

This argument attempts to use the Tenth Amendment to undermine the whole rest of the Constitution. Did the framers really come up with a national government and then decide to amend it down to a treaty organization at the last minute? Remember, it’s an amendment, not even part of the original design. So the Constitution was not in fact conceived with the limits you imagine for it.

47

Your understanding is seriously the exact opposite of what’s historically correct and even logical.

The constitution is a document that defines and limits the federal government. It’s partly a procedural manual (how to hold elections, how to appoint judges, etc) and partly a limitation on what the federal government can do.

Your logic that it’s an amendment, therefore it isn’t part of the original design - do you suggest the same thing about the rest of the bill of rights? That freedom of speech wasn’t intended from the beginning but just got tacked on? Therefore it must not really have been all that important?

But even that sort of misses the point. The tenth amendment was a concession to the people that were concerned that a bill of rights might be interpreted to mean that those are the only rights that people have, and that federal power could trample over everything else. So they added the ninth and tenth amendments to clarify that - that the federal government wasn’t just restricted to not doing the stuff that didn’t violate the first eight amendments, but it was restricted to not doing anything it wasn’t specifically authorized to do.

The idea that the tenth amendment undermines the rest of the constitution is absurd - it is exactly the opposite of true. The tenth amendment specifies and reiterates the very purpose of the constitution in the first place.

48

Funny, it looks like a constitution. You know, how legislators are apportioned, how impeachment works, that sort of thing.

Bull. You want to interpret the Tenth to invalidate the ability of the people to use their own federal government. You’re advocating for a distributed-power policy, and you can’t convince people to follow this policy on its merits, so you’re trying a tendentious appeal to authority.

(bolding added)
Wow. Way to take a criticism personally. No, what we’re really saying is that we despise the political games that are being played here. This is not some hate crime at root. You look clumsily disingenuous to try to play that card.

Wait, I agree with this. We really should let the 1787 Constitution sit in the history books where it belongs. What was that “you mean you hate people” bit?

49

OK, let’s say you’re right.

So what?

Really, now. Why should I care? I don’t look at politics in 1780-1800 and think, “Hey, that’s the origin of everything I am,” I think, “Yep, that’s what they thought in that historical period.” So if present-day Americans don’t want the same things, why should we be bound by the electorate of 220 years ago?

The present constitution isn’t the original constitution of* anything.* It isn’t divine, it isn’t infallible, and at no point has it ever been perfect.

No state legislature will repeal the Tenth, because it’s supposedly too venerable as part of the Bill of Rights, and because it would look like giving up their power. But neither of those reasons make it good law. In fact, the latter is an argument for the constitution’s federalism being bad law. Many state governments basically breed corrupt legislators for the Washington lobbying machine.

50

"“The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers..” US v. Darby.

If the people who give all this power to the 10th Amendment didn’t do the exact opposite with the 9th Amendment, I’d have a bit more respect for their opinion.

51

All those are good reasons for amending the Constitution, then, to remove it. The authors of the Constitution were well aware they were not writng sacred, holy, and unending truths that would endure without modification through the ages. This is why they included a process for modifying their words when those words no longer represented the principles by which the present electorate wished to be bound.

Well, this is a different problem. SInce you reject the method of modifying the Constitution that is contained within its four corners, what method do you propose we use? I have a little list of changes I’d like to make, while we’re at it – to what forum or tribunal should I appeal?

52

Lighten up, Francis. Sure, there are some small countries that are basket cases, but that’s true of some large countries, too.

The statement I was responding to was that we needed the large economies of scales in order to realize cost savings. And yet there are plenty of European countries with the same or less “economies of scale” as Ohio, and they do quite well.

The notion was put forth that we must, must, MUST do this nationally. You have only shown that there might be a reason for European countries to not integrate their HC systems. You have not shown that in the US we MUST nationalize ours, which is the argument I was responding to.

53

I hope that the word “seperation” appears nowhere in the Constitution.

54

It doesn’t, btw. I just checked.

n.b. “Separation” isn’t in the Constitution either, but who would spell the word that way, I’ll never know.

55

I was envisioning the first draft of the Constitution with a little squiggly green line that nobody noticed under one of the words.

56

Well, Andrew Jackson is credited with opining, “It’s a poor man that can think of only one way to spell a word.”

57

Sheesh. The wealthy get advantageous access, disproportionate representation, and undeserved power. Now they get freedom from proper spelling too?

58

If only we could look to other countries that had UHC and learn from their experience, but alas no other industrialized country has implemented it so we don’t know if it would save money and have better results.

59

He’s credited with the Trail of Tears too.

60

Well, he made up for that with “Black and White” and “We are the World”.