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Monday, June 13, 2005

The Conversation Continues

Update: Carl at No Oil For Pacifists weighs in:
My hope lies in a transformation of the left to a party that rejects nihilism, distrust of the Constitutional process, post-modernism, intolerance in the name of tolerance, preferring pointless demonstrations while opposing use of force, averting their eyes to fact, ignorance, dogmatic secularism, prejudice toward the faithful, paternalism, isolationism--and, most crucially, anti-Americanism. What's the timeline for all that?

SC&A think Boomr's seeking a middle ground. Boomr does turn down the rhetoric and avoids demonization. But discriminating against the faithful isn't the middle. Nor are his mooted restrictions on speech and political campaigns. (Dutch blogger Steeph has similar, concrete, but hugely overbroad, ideas.)
Lots of links (as usual at NOFP). Carl closes by saying we simply need to recognize the 10th Amendment. I agree, but how? How?

Pedro at The Quietist comments on Boomr's letter at The Barking Dingo's (see this prior post). Pedro wrote:
I argue for a national referendum, which would give democracy back to US, and an immediate vote on all the things that judges, lobbyists, and politicians argue about but never let us weigh in on -- abortion, death penalty, gay marriage, etc. I firmly believe that once the major wedge issues that judicial atrocities like Roe v. Wade have stolen from the voters and given back to us, a new generation of politicians could be elected. As it stands, the major parties have litmus tests for everyone that basically ensures that nobody with a non-ideologically consistent stand on specific issues will ever be nominated and placed in front of the rest of us for a vote. Politicians have to prove their liberal or conservative credentials to the most rabid of the parties' bases before they'll let us vote on them. If we restore democratic rule to the culture war, can you imagine what a huge burden would be lifted from the nation's shoulders? The wedge issues are tearing the country apart, and they won't let us vote on them, which is the only way to peacefully resolve an issue whose middle ground has been stolen by activists and busybodies.

Let us vote.
In practice, to achieve this we would have to amend the US constitution to allow for national referendums. But the problem I still see is that it nullifies what was to be a fundamental trait of the US - experimental democracy. If we were to hold a national referendum on medical marijuana, it would be binding on the entire nation. Is that necessary? Shouldn't various states be able to try it out and then we could see the results? If such a referendum were held today I would vote no, because that is my best guess - yet shouldn't the Californian population have the right to pick a different path? Trying to federalize issues which need not be federal causes unnecessary controversy.

You and I, if we are honest, should be able to admit that we can't predict the outcome of such experiments. Our best reasoning may be faulty without data. To allow states to debate and regulate such matters may well be the most socially efficient way to handle them.

To date our federalized system has spawned a vast and extremely expensive bureaucracy. In some ways it may be needed, but it is apparent now that it is also failing to address mortally serious matters, such as illegal immigration and financial instability. Posturing has transcended serious debate on the national level; this is politically unhealthy in the extreme. I say restore more of the original limitations in the Constitution; allow the states more scope; let us profit from the ingenuity of the various state populations.

The Federalist Papers:
The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.

The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government.
Madison in # 46:
Were it admitted, however, that the Federal government may feel an equal disposition with the State governments to extend its power beyond the due limits, the latter would still have the advantage in the means of defeating such encroachments. If an act of a particular State, though unfriendly to the national government, be generally popular in that State and should not too grossly violate the oaths of the State officers, it is executed immediately and, of course, by means on the spot and depending on the State alone. The opposition of the federal government, or the interposition of federal officers, would but inflame the zeal of all parties on the side of the State, and the evil could not be prevented or repaired, if at all, without the employment of means which must always be resorted to with reluctance and difficulty.

On the other hand, should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union; the frowns of the executive magistracy of the State; the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any State, difficulties not to be despised; would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter. But ambitious encroachments of the federal government, on the authority of the State governments, would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm. Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole. The same combinations, in short, would result from an apprehension of the federal, as was produced by the dread of a foreign, yoke; and unless the projected innovations should be voluntarily renounced, the same appeal to a trial of force would be made in the one case as was made in the other. But what degree of madness could ever drive the federal government to such an extremity.
At this point I think we know what madness is driving this. It is the madness of power. The framers of the Constitution believed that States would act to check Federal power as Federal power would act to check excesses among the States. That has been true.

What has changed, largely, is that excessive taxation has shifted the balance of power to the Federal branch, and that all sorts of arrogations of power are committed by Congress by the simple expedient of withholding federal funding. The states can not block the taxation, and are therefore dependent upon Congress for return of the money so taken. So if Congress wishes to mandate that the speed limit in a state be 55 miles an hour, it demands that the state pass such a measure or lose substantial federal funds.

Perhaps a national referendum amendment could be introduced, under which the people of the entire country could directly vote on whether a particular Congressional law or Executive measure exceeds the powers granted under the Constitution. The worry over Federal encroachments was such that two amendments in the Bill of Rights (9 and 10) addressed this:
Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X
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.
Of all the Bill of Rights, these are the rights that the federal judiciary has been unable to find in the Constitution. Perhaps the people should amend the Constitution to allow the people to have veto power over a violation of these clauses. It is our constitution, not the judiciary's. Perhaps we the people should return to ourselves a measure of the limitation of powers that was originally such an essential part of it.

No, I'm not saying that government by referendum in general could work. It wouldn't.

I'm saying that we could perhaps amend the constitution so that certain questions could be taken off the federal table if everyone agreed. The federal government will always have a lot to do, and it wastes an awful lot of time with stuff that really doesn't have to be with the feds.

Foreign policy and intrastate commerce clearly are the province of the federal government. They are enumerated powers. However, stuff like whether I grow carrots in my backyard should not be.

Pedro's point is that some really divisive social issues are being fought out at the federal level when it is not necessary, and I think he's right. And originally, they weren't even supposed to be handled at the federal level.
MOM, you're right. Referendums are not part of our political process and would violate the principle of federalism. I think you have the problem right. Federal power has grown out of control, and the principle of powers reserved to the people and the states has almost been lost. I think the only answer short of a revolutionary restructuring, which is both impossible and dangerous, is a re-orienting of the judiciary and Congress. Only the voters can do that, over time, by electing people who will do the right thing.
Pedro, I think that Tom's recommendations should be right, but that that they won't work because the courts are part of this process, and we can't "reorient" away the long trail of decisions which have redefined the Constitution.

And Congressional solutions have proven to be power grabs more than "solutions". By trying to elect people to Congress who have a different view, we are just getting another type of federal power, not less federal power.

Pedro, I'm searching for the most minimal, least determinative way possible to stop the proliferation of these "show" issues that are often used to obscure the real issues at the federal level.

Maybe a referendum amendment that would allow the voters to take a certain issue (like gay marriage) out of the federal province would work. In other words, an amendment that would allow the voters nationally to decide whether a particular field of federal legislation did violate amendment 10.

The reasoning in Gonzales v. Raich could be used to justify any sort of federal overruling of the states, and I mean that very seriously. State banking rules? They could be overruled in a heartbeat (national banks already are pretty much immune to state action).

A state passes a measure to subsidize fuel? That could be adjudged to violate Congress' attempt to legislate a national energy policy. As more and more becomes federalized, the federal government becomes less and less able to deal with its specifically enumerated powers too.
You may well be right that the wingish segments aren't winning. But they do seem to be sucking up all the air.

I'm concerned about matters like our awful federal financing problem, etc. I don't think that in this climate those matters will receive attention at all.

We'll see.
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