The constitution is, generally, a limit on the powers of the US constitution. For the Feds, if it’s not allowed, it’s forbidden. For the states, if it’s not forbidden, it’s allowed.
The BoR had to be incorporated by the courts, though, before they explicitly applied to the states.
I read the OP and subsequent refinements as wanting to know which parts of the constitution are likely to be changed soon. Or at least have common perception and discussion as needing review.
I could see the direct election of president instead of the electoral college brought up for consideration. Several more mass shootings could evoke a questioning of the 2nd amendment and possible restrictions on the right to bear arms beyond the ones that exist. Personally I’d like to repeal the 16th (income tax) with a subsequent funding replacement by usage and consumption taxes.
It’s widely popular, but you’ll never get enough states to agree to change it. Very unlikely to happen.
People say that every time we have a mass shooting, and nothing ever changes. Again, much too difficult to get traction on.
The Privileges or Immunities Clause of the 14th Amendment is all but toothless.
Thanks John Mace.
from wikipedia
“All constitutional rights are expressly stipulated
and written in a consolidated national constitution, which is the
supreme law of the land, meaning that any other laws which are in
contradiction with it are considered unconstitutional and thus
regarded as invalid.”
As to your point:
" For the Feds, if it’s not allowed, it’s forbidden. For the states, if it’s not forbidden, it’s allowed."
The problem according to my reading is that southern states violated the 15th Amendment for a very long time that required the Voting Rights Act of 1965. Are more such Acts necessary to enforce other constitutional amendments?
Southern states didn’t straight-up violate the 15th Amendment; they found devious ways around it, such a literacy tests, usually administered by biased clerks and including questions such as, “How many bubbles in a bar of soap?” Those who attempted to register and voting rights activists were often the targets of violence by white segregationists.
With all due respect, your questions and issues are kind of all over the place. It’s great you’re interested in learning more about the Constitution, though.
My information regarding any violation of the 15th Amendment was based on the following:
https://wiki2.org/en/Gomillion_v._Lightfoot
Gomillion v. Lightfoot, 364 U.S. 339 (1960), was a United States Supreme Court decision that found an electoral district with boundaries created to disenfranchise blacks violated the Fifteenth Amendment.
Of course they violated the 15th Amendment. They knew what they were doing was exactly that. What was lacking was proof (and the lack of desire to prove) that that’s what they were doing.
Similarly, today many states are violating the Constitution (as interpreted) by outlawing abortions. They know exactly what they are doing.
Thanks Old Guy. Now we’re getting to the heart of things.
Perhaps I shouldn’t have used the slang term “straight up” but the more accurate “outright.” Of COURSE their intention was to violate the 15th Amendment, but they did so by circumventing it. It was a sneaky, slimy business, and you’re correct in saying there was–for a long time, at least–a lack of desire to prove noncompliance. You are incorrect, however, when you say there was no proof that that’s what Southern states were doing. It wasn’t until the Civil Rights Act of 1957 that the US Dept. of Justice had the authority to file lawsuits against Southern states and districts for noncompliance, and they did so, with PROOF. The problem was that these lawsuits were slow and ineffective.
Another problem: since enforcement lay in the hands of state officials, there was no enforcement. One provision of the Voting Rights Act required certain districts where disenfranchisement had been rampant to get permission from the U.S. Attorney General before instituting any changes to voting laws. No law or Constitutional amendment is worth much if it’s not enforced, and the 1965 Voting Rights Act finally created a means of enforcing the 15th Amendment while ensuring states could not continue to circumvent it.
I’m sure you’ll set off an interesting argument on abortion and the Constitution. I’m not sure how that’s the “heart of the matter,” but I’m sure the OP will enlighten us.
Thanks nelliebly.
from wikipedia
A Congressional power of enforcement is included in a number of amendments to the United States Constitution. The language “The Congress shall have power to enforce this article by appropriate legislation” is used, with slight variations, in Amendments XIII, XIV, XV, XIX, XXIII, XXIV, and XXVI. The variations in the pertinent language are as follows: The Thirteenth Amendment leaves out the word “the”, the Fourteenth Amendment states “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” In addition to the amendments above, the Eighteenth Amendment states “The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.”
It looks as though only the following amendments have a congressional power of enforcement
XIII, XIV, XV, XIX, XXIII, XXIV, and XXVI. I’m curious to know why that is.
You are letting the House of Representatives off the hook on this one.
How about the Fourth Amendment right to be secure in our “persons, houses, papers, and effects, against unreasonable searches and seizures”? When the NSA can get away with wholesale dragnet spying on the American public, what does that right actually protect?
Another that has been mentioned is the interstate commerce clause. What the government can’t outright legislate (remember the Constitution had to be amended to outlaw alcohol, but a mere handful of years later we outlawed marijuana and other drugs without an amendment just by reinterpreting “interstate commerce”), they can just use the threat of reduced funding to enforce State compliance (see highway speed limits, drinking ages, and blood alcohol levels).
Are these examples what the OP is talking about? Are there other examples?
The Origination Clause is, for practical purposes, dead.
Technically it holds on by a thread but there does not seem to be any concerted effort to shoot it and put it out of its misery, nor to strengthen it and give it some teeth.
Yes, any bill raising revenue must originate in the House of representatives. But a court ruling has left it essentially meaningless. Now the Senate can take any random bill the House passed (e.g. a bill to rename a post office in Anytown, USA in memory of some local service member who died in combat), and amend that bill by deleting all of the text the House approved and inserting all of the tax language the Senate wants, and then send it back to the House.
I would point out three things:
First, a lot of people simply don’t understand the FISA programs that are authorized by law and carried out by the NSA. They hear about the 215 authority and literally think that the NSA is listening and recording to the contents of everyone’s phone calls. Or, they hear about 702 and assume that the NSA is just poking through all Americans’ emails. So simple misunderstandings of what the NSA is actually doing gets blown up into “wholesale dragnet spying on the American public,” which is a very poor way to state the legitimate privacy concerns that do exist over these controversial programs.
Second, the Fourth Amendment isn’t a prohibition on ALL searches, just unreasonable ones. So the collection on metadata on phone calls isn’t inherently illegal, but under the USA Freedom Act, it is viewed as reasonable as authorized by statute and carried out in a particular new way under prescribed court supervision.
Third, it is abundantly clear that these programs operate in a controversial area, and that Congress and the courts are struggling with how to reconcile the reasonableness of a subset of these searches with the nature of the technology involved, some very legitimate national security issues, and the rights of Americans. But that doesn’t mean that the Fourth Amendment has been gutted because these programs exist: the question is whether the programs are on the right side of the reasonableness requirement.
I disagree. Having been a close observer of congressional budget processes for a while now, I do not think you appreciate that the House doesn’t simply pass tax and appropriation bills willy-nilly and that naughty Senate just amends them and abuses the process, those big meanies!
When the House was in GOP hands and the Senate in Democratic hands, House Leadership moved very carefully in passing any tax bill that could be amended in the Senate, in order to limit possible Senate shenanigans. They did this to preserve the leverage of the House that comes with the origination clause.
Since the House and Senate have been in Republican hands, the House and Senate Republican leaders have coordinated efforts to pass Republican priorities in ways that both respect the origination clause and acknowledge the divisions within congressional Republicans that make it difficult to pass things. What you have seen with the tax bill, for example, was a carefully orchestrated dance in terms of legislative procedure in compliance with the origination clause, not the rules going out the window.
To put it another way, baseball has the rule that four balls equal a walk. When a catcher stands up to catch four pitches far outside the strike zone to make an intentional walk, that isn’t the rules going out the window. Same thing is happening with the origination clause.
Minor piece of trivia: That rule has changed, so the ceremonial pitches no longer need to be thrown.
In one of the many challenges to the PPACA, Sissel v. United States Department of Health & Human Services the constitutionality of the PPACA was challenged on Origination Clause grounds as the text was inserted by the Senate by amendment of an unrelated measure which had previously passed the House. Though there were other issues at stake, the District court ruled that even if the PPACA was a Bill for Raising Revenue that its manner of coming into being by Senate amendment of an unrelated law satisfied the Origination Clause requirement.
The Appeals Court upheld the District Court on other grounds. SCOTUS denied cert.
And with that precedent, the Origination clause is effectively dead.
The amendments without that language do not establish new federal authority (i.e., in need of enforcement). 1-10 and 21 are limitations on the powers of the federal government, for instance. 11 delineates an aspect of the relationship between states and citizens of other states. 12, 17, 20, 22, and 25 address the structure of the federal government (so does 23, but that required congressional enforcement powers because of Congress’ administrative authority over the District of Columbia). 16 and 18 do include express statements of congressional powers.
As is the Guarantee Clause (see Luther v. Borden).
Which part of “upheld the District Court on other grounds” makes you think the Origination Clause is dead? The DC Circuit didn’t have to rule on the origination issue because it found that PPACA was not a revenue bill.