”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.”For anyone who has talked to me for periods of longer than five minutes the above statements should come as no surprise. I am not alone in this attitude. If you need confirmation, check out this compilation of congressional approval ratings. Note the massive column of red, and the fact that the highest congress has managed this year is an epic 32%. There is an attitude of defeatism in the populace. After all, the people that would need to enact change to bring government back into check are in fact the very people that would stand to lose in the bargain. How can we, short of armed revolt, convince them?
The new piece I have to offer today is an interesting solution offered by Mark McKinnon, Republican strategist, and Lawrence Lessig, Harvard Professor and avid supporter of Barrack Obama. They recommend we throw the Federal government completely out of the loop. They say we should go nuclear. They say we ought to host a constitutional convention.
Such a convention, as they explain, would be brought about through Article V of the Constitution. Two thirds of the states would have to pass legislation demanding such a convention. If two thirds get together than decide it, it happens. You may have noted the absence of any action needed by the Federal government. That is because there isn’t any. They are put on the sidelines while the state legislators decide how the Constitution ought to be amended in order to put the Federal government back in its place.
I encourage you to read their article for the entirety of their opinion. I, for one, support any measure that would put the power of governing back where the Tenth Amendment says it ought to be: With the States and the People.
4 comments:
I think part of the problem is that the Court is STILL figuring out what the post-Civil War amendments mean. On one hand they are vindicating individual rights against interference by state governments (especially the 2nd Amendment) but on the other hand a moderately conservative Supreme Court is dealing with New Deal and Warren/Burger court precedent and the tension between originalism and stare decisis which is, paradoxically, as conservative a principle as I can imagine.
I'm not going to lie. I had to look up stare decisis on google. :) I hadn't really considered that, but you bring up a good point...How can judges preserve the framer's intent AND precedent, when the former was disregarded by some to create some bad instances of the latter? It puts them in quite the bind.
My hope would be that a convention, or amendment, or whatever mode is deemed best to enact change, would alleviate this pressure on judges by clarifying what is and ought to be constitutional. I'm no lawyer, but I imagine if an amendment to the Constitution were put in place that, for example, expressly curtailed the insterstate commerce clause, then stare decisis might fall away from decisions concerning that, since the rules had changed.
I'm leery of tinkering with the Constitution, because doing so has great potential for lasting damage. Still, the system we are operating under now is beginning to be unsustainable. The way we're headed now isn't working for anyone, be they right, left, or center.
Oh I certainly agree that a constitutional convention would override precedent, though I'm sure a few crusty jurists would do their best to find their way around any amendments (just as a few crusty jurists, and a few more appointed after the end of Reconstruction, helped define down what the Reconstruction Amendments meant). I agree with you, we need to be leery about overuse of amendments. Even if you're not a fan of same-sex marriage, is an amendment expressly denying marriage to homosexuals really the monument we want to leave posterity? And likewise some of the most important developments in constitutional law have grown out of seemingly irrelevant clauses or out of dicta and footnotes in other decisions. For instance, "strict scrutiny" for statutes that are racially discriminatory came out of a footnote in Korematsu, which legitimated WWII internment of the Japanese.
Just for the record, I'm not opposed to same sex marriage...But I gather your point. The only reason to go nuclear ought to be to curtail the power of an overreaching government, to confine it back to the role that was intended. Things like whether you grant same sex marriage ought to be decided by the states (Tenth amendment, again).
Post a Comment