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My State of Tennessee should start the process. A conservative-dominated legislature with a Republican business-background governor are in-place.
A previous allegedly-Republican governor (who was apparently chickified by a dominating wife) loaded the State Government with social programs in order to remain un-celibate. The current State of Tennessee Legislature should eliminate TennCare (Medicaid on steroids) and eschew any involvement with schools. Further, they should eschew participation in any form of welfare of any kind. Further, they should eliminate any State of Tennessee estate taxes and remain income-tax free. All federal dollars with their strings attached will be foregone.
Tennessee, then, will likely lose its population of moochers, gimmees, free-loaders, illegals and others trying to ride in Tennessee’s wagon. What will remain are producers, wagon pullers, liberty-lovers, and contributors to a society of people seeking what used to be known as “The American Dream”. Tennessee will lose the takers and in short order gain many self-sufficient contributors. It’s marketing, folks. Pick a target market and consciously target them. Reposition yourself. Those riding in your wagon will leave for (for them) greener pastures in other states.
Could be that the extreme-west of Tennessee (the Memphis area) will exempt itself from this and remain liberal/progressive/moocher/gimmee/riders. If so, that ten percent of Tennessee should opt to remain part of the United States, while the eastern ninety percent secedes.
There is precedent for the United States being non-contiguous, Hawaii and Alaska for example. A breakaway nation, however, would likely be more-successful were it contiguous and with seaside ports. Might, then, be helpful if, say, South Carolina, Georgia, Florida, Alabama, Louisiana, Mississippi and Texas with possibility that Arkansas, Oklahoma and Kentucky at a minimum would join the party. Others which are possible include Indiana, West Virginia, Missouri, Kansas, Nebraska, North and South Dakota, Utah, Arizona, Idaho, Wyoming, and Montana. All would be contiguous, and would provide Atlantic, and Gulf ports and border with Canada. Non-contiguous might be Alaska. Obviously if these states joined in, their major cities’ and college towns’ populations would exit stage left to relocate to remaining USA progressive havens.
Just a tad more than a century-and-a-half ago a great American opined that a nation divided against itself could not stand. Today, the nation is divided with the national government on one side and America’s productive People on the other. Some 40% of the People know that and 60% don’t. The former are wagon-pullers while the latter are wagon-riders. The overwhelming majority of the national government is comprised of union workers loyal to union bosses and career civil-service-system administrative bureaucrats completely insulated from firing by the POTUS or anyone else. Death or a better offer are the only ways to get rid of them. The six hundred or so others are motivated by (a) re-election or re-appointment, (b) increasing personal wealth, (c) satisfying the addictive craving to spend other people’s money, and (d) wallowing in power and prestige. Somewhere in that six-hundred-ish group are four or five individuals not having a Pinocchio moment vis-a-vis their oath of office.
The judiciary is smart and self-serving. Thus, they know themselves to be beholden to the civil-service and union people. We the People have no shot at undoing what the national government has become. Nothing remains to be done except to leave.
Many good people — ceteris paribus, albeit chronologically-gifted — , I fear, would be left behind by a secession movement. Having been unconstitutionally forced to pay into and participate in Social Security and Medicare their whole adulthood, their opportunity to be self-sufficient in their later years is toast. It could well be that very few people over age fifty would move to or remain in the seceded territory. This problem might be solved or ameliorated by having a new national taxing system in the new nation state.
I would propose that a new version of the Declaration of Independence be written embodying the same principles and predicates, that a new national Constitution be written, using insights into what led to the emasculation of that of the United States, and that it start with no amendments. As, then, to a new national taxing system, I’d propose implementation of what is now HR-25, the FairTax, albeit with a rate of, say 10% to reflect a much-smaller-and-strictly-limited national government. Given that businesses and corporations don’t in reality pay taxes, (Their customers and stockholders do in higher prices and lower dividends) the FairTax‘s having only an inclusive sales tax on new goods and on services and no income or payroll taxes on either individuals or businesses, will result in the new nation being a magnet for manufacturing from both the remaining United States and the rest of the world.
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Written and published from Satellite Beach, Florida overlooking beach and Atlantic Ocean with the sound of waves crashing the shore.
That’s a very interesting proposal, drpete.
While there may be some ways to improve upon the Constitution, I think the problem, ultimately, is that there will always be people who pay lip service to the Constitution even as they do everything they can to undermine it for their own benefit. In other words, we co-exist with a bunch of cheaters (otherwise known as liberals, progressives, leftists and socialists). If you keep losing at poker because the other players cheat, drafting a new set of rules isn’t likely to solve the problem because the cheaters will simply ignore the new rules the same way they ignored the old ones. Each day I move closer and closer to the notion that the only way to deal with cheaters is the way they did it in the old west. I’ll leave the meaning of that to your imagination.
I have — maybe naively — a tad more confidence, CW. This would be a process of self-selection, either the seceded states in a new constitutional republic with a strictly-limited national government and much more federalism and the rule of law, or a progressive/liberal nanny state with rule by self-described administrative experts.
Those who love liberty and the rule of law will move one way and the gimmees, moochers, illegals and wagon riders will move to nanny.
Well don’t get me wrong. There is nothing I would love more than to see such an experiment played out. We could all take bets on how long the nanny states would last.
The following was sent to me offline, and countering my proposal. I offer it for argument’s sake.
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There are, of course, many serious – perhaps fatal – problems brought on by a century of progressive Progressive government on the federal level in this country. Your piece mentions a number of them, though it is, of course, but a partial list.
You also have a history of offering a number of concrete proposals whose purpose is to address those problems; In fact, your “Contract with America,” drafted in 2004 and amended in 2007, was, I thought, a serious though radical outline of what ought to be done to undo the damage done to our way of governing and, therefore, our way of life over the previous century. I was apt to “pick nits” with some of those proposals, but not philosophically opposed to them. Perhaps the fatal flaw in the Contract was that it asked – no, demanded – that we join you in “jumping off a cliff” (rather than sliding down a steep slope). In other words, it suffered from a lack of patience. (We had but 100 days, not – say – five years to do away with our tax code, the IRS, and the 16th Amendment.)
It is now five years later! I can think of not one proposal made in the Contract that has come near to fruition. Logically, it would seem, given the extreme unlikelihood that we will change course anytime soon, you now propose jumping ship. I live but an hour and a half from Fort Sumter; do you need me to fire the first shot?
Wait a second; didn’t we also see the movie?
I must hasten to say that I am not PHILOSOPHICALLY opposed to overthrowing the government – by force, if necessary. Nor am I PHILOSOPHICALLY opposed to seceding, either individually or with fellow members of my community – say South Carolina, for example. (I have been asking, and being derided for doing so, “Who is John Gault?” in response to a number of your “Fat Lady” pronouncements over the past few years.)
But . . . !
We have both agreed that the original Declaration of Independence, in particular, its preamble and its recognition of the idea that all men are created equal and endowed by nature and nature’s god with certain “natural rights.” We have also agreed that the Constitution of the United States is a document which was designed to protect and defend those individual rights from encroachment by others, as well as BY THE GOVERNMENT. We have agreed that, in large measure, a return to fealty to that document, AS WRITTEN and as understood by those who ratified it at the time, would in large measure serve to protect us from the endless, cancerous incursions by the government into our personal lives.
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Therefore, I would consider a proposal by those sovereign states mentioned in your session proposal that would mandate the following as a prerequisite to any agreement not to secede from the Union.
To whit:
RESOLUTION FOR CONGRESS TO CONVENE A CONVENTION TO PROPOSE
AMENDMENTS CONSTITUTING A BILL OF FEDERALISM
Whereas Article I of the Constitution of the United States begins “All legislative powers herein granted shall be vested in a Congress of the United States”; and
Whereas the Congress of the United States has exceeded the legislative powers
granted in the Constitution thereby usurping the powers that are “reserved to the
states respectively, or to the people” as the Tenth Amendment affirms and the rights
“retained by the people” to which the Ninth Amendment refers; and
Whereas the Supreme Court of the United States has ignored or misinterpreted
the meaning of the Constitution by upholding this usurpation;
To restore a proper balance between the powers of Congress and those of the
several States, and to prevent the denial or disparagement of the rights retained by the
people, the legislature of the State of ________ hereby resolves
First, that Congress shall call a convention, consisting of delegates from the several States selected by procedures established by their respective legislatures, for the purpose of proposing the following articles be added as separate amendments to the Constitution of the United States, each of which shall be valid to all intents and purposes as part of the Constitution when separately ratified by the legislatures of three-fourths of the several States; and
Second, that any previous memorial for a convention under Article V of the
Constitution of the United States by this legislature is hereby repealed and without effect; and
Third, that copies of this memorial shall be sent to the secretary of state and presiding officers of both houses of the legislatures of each of the several states in the union, the clerk of the United States house of representatives, the secretary of the
United States senate, and to each member of the ________ congressional delegation; and
Fourth, that this memorial for a convention is conditioned on the memorials
of two-thirds of the legislatures of the several states proposing the exact same language contained in some or all of the following articles, and is to remain in effect unless repealed by resolution of this legislature prior to the memorials of two-thirds of the states being reported to Congress:
. . . continued below
[The Bill of Federalism]
Article [of Amendment 1] — [Restrictions on Tax Powers of Congress]
Section 1. Congress shall make no law laying or collecting taxes upon incomes, gifts,
or estates, or upon aggregate consumption or expenditures; but Congress shall have
power to levy a uniform tax on the sale of goods or services.
Section 2. Any imposition of or increase in a tax, duty, impost or excise shall require
the approval of three-fifths of the House of Representatives and three-fifths of the
Senate, and shall separately be presented to the President of the United States.
Section 3. This article shall be effective five years from the date of its ratification,
at which time the sixteenth Article of amendment is repealed.
The income tax has vastly increased the power and the intrusiveness of the federal government,
far beyond what the framers of the Sixteenth Amendment ever imagined. The first proposed
amendment restores the original taxing power of Congress by denying it the power to enact income estate or gift taxes, or to circumvent this restriction by levying an annual tax on net consumption or expenditures. Lest the prohibition on an aggregate consumption tax raises any doubt, the provision makes clear that Congress retains the power to impose a sales tax that is uniform. Sometimes called a “fair tax,” a national sales tax would be paid by all persons residing in the United States, whether legally or illegally, without the need for intrusive reporting of their activities. As people buy and consume more, they would pay more in taxes, but all their savings and investments would appreciate free of tax. To give Congress ample time to fashion an alternative revenue system — and do away with the IRS — the implementation of this amendment is delayed for five years. Of course, Congress may end the income or estate tax sooner if it so chooses.
Article [of Amendment 2] — [Limits of Commerce Power]
The power of Congress to make all laws which are necessary and proper to regulate commerce among the several states, or with foreign nations, shall not be construed to include the power to regulate or prohibit any activity that is confined within a single state regardless of its effects outside the state, whether it employs instrumentalities therefrom, or whether its regulation or prohibition is part of a comprehensive regulatory scheme; but Congress shall have power to regulate harmful emissions between one state and another, and to define and provide for punishment of offenses constituting acts of war or violent insurrection against the United States.
As Congress has exercised powers beyond those delegated to it by the Constitution, the powers
of states that were reserved by the enumeration of delegated powers have been usurped. The second proposed amendment restores the Commerce Clause to its original meaning, thereby leaving wholly intrastate activities to be prohibited or regulated by the several states, or be left completely free of any regulations as states may choose. And it negates three constructions adopted by the Supreme Court to expand the reach of Congress under the Necessary and Proper Clause—sometimes called the “Sweeping Clause”—of Article I: that Congress has power to regulate wholly interstate activity that either (a) “affects” interstate activity, (b) uses instrumentalities obtained from outside the state, or (c) is part of a comprehensive national regulatory scheme. This amendment makes clear that Congress retains the power to regulate interstate pollution and the power to define and punish acts of war and insurrection against the United States, for example, the possession of weapons of mass destruction. This provision leaves untouched the delegated powers of Congress to regulate wholly intrastate activities to enforce civil rights as expressly authorized by, for example, the Thirteenth, Fourteenth, Fifteenth and Nineteenth Amendments; it only restricts the improper construction of the Commerce and Necessary and Proper Clauses to reach wholly intrastate activity.
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Article [of Amendment 3] — [Unfunded Mandates and Conditions on Spending]
Congress shall not impose upon a State, or political subdivision thereof, any obligation or duty to make expenditures unless such expenditures shall be fully reimbursed by the United States; nor shall Congress place any condition on the expenditure or receipt of appropriated funds requiring a State, or political subdivision thereof, to enact a law or regulation restricting the liberties of its citizens.
The third proposed amendment addresses two sources of persistent federal intrusion into the powers of states. The first is federal laws mandating state action necessitating the expenditure of state funds without reimbursing the states for their expenditures. In this manner, the federal government can take credit for adopting measures without incurring the political cost of increasing taxes or borrowing. The second problem is the use of federal spending to restrict liberty for purposes not delegated to the United States. For example, the 55 mph speed limit was imposed by the states by conditioning the receipt of federal highway funds upon compliance with this mandate. This amendment makes this type of condition on funding unconstitutional.
Article [of Amendment 4] — [No Abuse of the Treaty Power]
No treaty or other international agreement may enlarge the legislative power of
Congress granted by this Constitution, nor govern except by legislation any activity that is confined within the United States.
The framers of the Constitution were profoundly wary of entangling the United States in international legal commitments, so they required two-thirds of the Senate to ratify all treaties, and they assumed that treaties would only reach matters of truly international concern. These principles have been subverted by several misinterpretations of the Constitution. First, the treaty power has been interpreted to reach every imaginable subject, including many subjects of purely local concern. Second, the treaty power has been interpreted as a mechanism to increase the legislative power of Congress, thus creating a doubly perverse incentive: an incentive to enter into new international legal obligations simply to attain increased domestic legislative power. This amendment would correct these errors and restore the original meaning of the Treaty Clause and the Supremacy Clause.
Article [of Amendment 5] — [Freedom of Political Speech and Press]
The freedom of speech and press includes any contribution to political campaigns or to candidates for public office; and shall be construed to extend equally to any medium of communication however scarce.
The fifth proposed amendment makes it clear that the freedom of speech and press now protected by the First Amendment extends equally to all media, including for example radio and television, as well as to financial contributions to political candidates and campaigns.
. . . continued beliow
Article [of Amendment 6] — [Power of States to Check Federal Power]
Upon the identically worded resolutions of the legislatures of three quarters of the states, any law or regulation of the United States, identified with specificity, is thereby rescinded.
At present, the only way for states to contest a federal law or regulation is to seek an amendment to the Constitution by applying for a constitutional convention to propose amendments that must then be ratified by three-quarters of the states. This proposed amendment provides an additional check on federal power by empowering the same number of states to rescind any law or regulation when they concur it is necessary. Such a power provides a targeted method to reverse particular Congressional acts and administrative regulations without the risk of permanently amending the text of the Constitution.
Article [of Amendment 7] — [Term Limits for Congress]
No person who has served as a Senator for more than nine years, or as a Representative for more than eleven years, shall be eligible for election or appointment to the Senate or the House of Representatives respectively, excluding any time served prior to the enactment of this Article.
The seventh proposed amendment establishes congressional term limits by allowing two full terms for Senators and six full terms for Representatives. It phases in these limits by exempting the time already served by incumbents from the calculation of the limits on their terms.
Article [of Amendment 8] — [Balanced Budget Line Item Veto]
Section 1. The budget of the United States shall be deemed unbalanced whenever the total amount of the public debt of the United States at the close of any fiscal year is greater than the total amount of such debt at the close of the preceding fiscal year.
Section 2. Whenever the budget of the United States is unbalanced, the President may, during the next annual session of Congress, separately approve, reduce or disapprove any monetary amounts in any legislation that appropriates or authorizes the appropriation of any money drawn from the Treasury, other than money for the operation of the Congress and judiciary of the United States.
Section 3. Any legislation that the President approves with changes pursuant to the second section of this Article shall become law as modified. The President shall return with objections those portions of the legislation containing reduced or disapproved monetary amounts to the House where such legislation originated, which may then, in the manner prescribed in the seventh section of the first Article of this Constitution, separately reconsider each reduced or disapproved monetary amount.
Section 4. The Congress shall have power to implement this Article by appropriate legislation; and this Article shall take effect on the first day of the next annual session
of Congress following its ratification.
The practice by Congress of aggregating thousands of lines of expenditures into “omnibus” appropriation bills has greatly diminished the veto power that the Constitution reposes in the
President. Because of their reluctance to threaten a government shut down, Presidents are loath to veto such bills. Knowing this, Senators and Representatives can load spending bills with pork, knowing that Congress will never have to give an up or down floor vote to a particular line item and that the threat of a presidential veto is empty. While there is great demand for constitutional requirement of a balanced budget, mechanisms for this that have been devised to date are highly complex, typically contain numerous exceptions and loop-holes, and lack effective means of enforcement. By linking the goal of a balanced budget with a temporary presidential line-item veto, the eighth proposed amendment provides a real incentive for Congress to devise a balance budget; if Congress fails to do so, the President would then have a temporary line item veto power over any appropriation in the budget. For example, should Congress enact a budget with a deficit, the President could veto Congressional earmarks and be held accountable for failing to do so. The amendment also ensures that Congress will retain the same power to override any presidential line item veto as it currently has for a traditional veto. The operation and advantages of this measure over other balance budget amendments is explained in detail here: http://www.cato.org/pubs/pas/pa-487es.html
. . . continued below
Article [of Amendment 9] — [The Rights Retained by the People]
Section 1. All persons are equally free and independent, and have certain natural, inherent and unalienable rights which they retain when forming any government, amongst which are the enjoying, defending and preserving of their life and liberty, acquiring, possessing and protecting real and personal property, making binding contracts of their choosing, and pursuing their happiness and safety.
Section 2. The due process of law shall be construed to provide the opportunity to introduce evidence or otherwise show that a law, regulation or order is an infringement of such rights of any citizen or legal resident of the United States, and the party defending the challenged law, regulation, or order shall have the burden of establishing the basis in law and fact of its conformity with this Constitution.
The existing Ninth Amendment says that “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” Section 1 of this proposal elaborates on the original meaning of “rights . . . retained by the people” with language that is adopted from the wording of amendments proposal to the first Congress by state ratification conventions and by James Madison, and from the very similar wording found in several state Constitutions at the time of the Founding. For example, the constitution of Pennsylvania read: “That all men are born equally free and independent, and have certain natural, inherent and unalienable rights, amongst which are, the enjoying and defending of life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.” Likewise, the Civil Rights Act of 1866 protected the right of any citizen “to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property. . . .” Section 2 corrects the current approach of the Supreme Court that precludes citizens and legal residents from contesting the necessity and propriety of restrictions on their retained rights unless the Court deems the right in question to be “fundamental” and provides all liberties with the same type of protection now accorded the rights of freedom of speech, press, and assembly, and the right to keep and bear arms.
Article [of Amendment 10] — [Neither Foreign Law nor American Judges May Alter the Meaning of Constitution]
The words and phrases of this Constitution shall be interpreted according to their meaning at the time of their enactment, which meaning shall remain the same until changed pursuant to Article V; nor shall such meaning be altered by reference to the law of nations or the laws of other nations.
The tenth proposed amendment ensures that the text of the Constitution remains the supreme law of the land by preventing judges from ignoring or changing the linguistic meaning of the text of the Constitution by “interpretation.” It requires that judges obey the text of the Constitution until it is properly changed by a constitutional amendment. And it confirms that foreign law is relevant to constitutional interpretation only to the extent that it casts light on the original public meaning of the constitutional text. A constitution that is ignored or systematically misinterpreted is a dead constitution. Only if the Constitution is actually followed can it accurately be considered as a “living constitution.”
Had this proposal been advanced several years ago, when first drafted, we might only just now be seeing it ratified. Successful ratification of this proposal would obviate the need for my driving all the way to Charleston to fire on Fort Sumter.
Might not work, but neither would secession.
Full disclosure: The Federalism Amendment is authored by Randy Barnett.
If proposed, perhaps the 30 or so “contiguous states” would vote for it. If adopted, it would be up to the Gimmy States to secede.
So, as one might infer, the above that I posted as comment had been sent to me offline by Cream of Wheat. And I thought it worth others reading, so posted it as “anonymous”.
The Randy Barnett, noted above as author of the Federalism Amendment, is Professor of Constitutional Law at Georgetown, and author of both “Restoring the Lost Constitution” and “The Structure of Liberty”.
I’d also note that the bar for amending is high, such that 38 states must vote in favor, so more maybe than the 30-ish potential seceders.
Excellent! Where do I sign?
Two things I would add:
(1) The 14 amendment shall be construed (or amended) to limit automatic citizenship to children born on American soil whose parents include at least one American citizen.
(2) Congress shall establish a process whereby any president, senator or member of the House of Representatives who fails to abide by his oath to uphold the Constitution shall be held for trial by an impartial jury and if found guilty shall be immediately removed from office and required to forfeit all salaries paid by the U.S. government since the time of his first offense.
No doubt some lawyerly type can word that much better but you get the gist.
To be clear, CW, you’d go for trying to initiate, sell, and pass the Federalism Amendment as opposed to starting out by serially seceding? Just askin’.
From what I read it sounds like the two go together, as the only possible way to get to the Federalism Amendment is to threaten secession (and I don’t believe in making idle threats).
I would suggest that the Federalism Amendments be a pre-requisite – if not a prelude to secession.
I am in philosophical agreement with you, CW, on the prerequisite for citizenship of children of immigrants. I am not sure that a strict construction of the 14th amendment would hold that. (And I’m not sure that it wouldn’t.)
I have been assured by a pretty sharp young attorney that violation of one’s constitutional oath of office is NOT a “high crime or misdemeanor.” I do find that mind-blowing and discouraging.
Hey there Cream of Wheat (interesting handle, btw),
>>”I have been assured by a pretty sharp young attorney that violation of one’s constitutional oath of office is NOT a ‘high crime or misdemeanor.’”
Well since we’re making this up as we go along, why can’t WE make it a high crime or misdemeanor?
The biggest problem we have with the Constitution now, IMO, is that there are no consequences for those who swear to uphold it but who then begin to undermine it the minute their sworn in. I have no doubt that it’s far more complex than I’d like to think it is; however, experience has convinced me that without consequences for misbehavior, the misbehavior will continue.
I didn’t tell Cream of Wheat that a violation of one’s constitutional oath of office is NOT a “high crime or misdemeanor.” I told Cream of Wheat that he should research it and figure that out. My understanding is that the meaning of “high crme of misemeanor” is unsettled, and thus, it is the perfect research project for Cream of Wheat to undertake after a golf outing. “Pretty sharp young attorney” (and I take that to mean a sharp young attorney who is pretty) is busy anyalyzing 35 U.S.C. 102(b).
Thanks for weighing in and clarifying, Sharp Young Attorney who is, indeed, pretty. Y’all come come back’n’ see us, heah?
I see, CW, that you refuse to be “CoW-ed” by anyone. (Sorry.) Again, I am in philosophical agreement with you. I will consult the pretty and sharp young attorney as to why lying under oath is not (or could not be considered) an impeachable offense.
Interesting essay and comments.
The biggest obstacle to any of this is the pragmatic aspect. When you talk about essentially destroying the United States through fragmentation — and for the moment we can ignore the legal obstacles — you’re talking about creating a massive political power void with worldwide ramifications.
This isn’t the 18th or 19th Centuries, in which power realignments were common occurrences. This country is THE international power-player with the nuclear arsenal and economic engine that implies.
How are those elements adressed? Who keeps the military entities and the nukes? The military bases, and their assets, located in the individual states? What happens when our enemies — who won’t distinguish between the newly-created “countries” — see us so fragmented and weakened? What about our national debt, which was incurred by BOTH “countries”? Does the new “country” simply disavow it? What would that mean for the value of the currency of BOTH “countries”? Who keeps the gold at Fort Knox? What about our existing treaties, both trade and military? Why wouldn’t Mexico just “reclaim” vast portions of the Southwest? Who would stop them? Why wouldn’t Russia “reclaim” portions of Alaska? Who would stop them? How would you deal with the people in the “seceding” states that didn’t want to secede? Why wouldn’t China invade Taiwan? Why wouldn’t North Korea invade South Korea? What’s to stop either?
I could go on for pages; the things I named are just the very small tip of the very large iceberg.
Sorry, BrianR, to have taken so long to respond. Obstacles included a golf game, cocktail hour, sunset watching, sleep, and a computer malfunction taking a few hours this morning to correct. One other obstacle is that it is difficult to disagree with what you say.
I grant that the devil is usually in the details and that in responding it will only be to the “small tip of the iceberg.” In writing this piece I was intentionally general and sketchy because a detailed treatise would both bog folks in detail and as well be too lengthy and burdensome.
As to the “power void”, I contend that (a) said is already happening, (b) in the short run losing population and states while retaining national government infrastructure, assets, intel, and military won’t precipitate opportunism by bad guys, and (c) the economic engine that the new confederacy will quickly become will result in a new superpower.
I’d suggest — This is from the hip — that the new confederacy agree to (a) responsibility for half the national debt as of the end of FY 2007 and disavow the rest; (b) negotiate split of U.S. installations and their assets located withing seceded states; and (c) not be a party to any treaties. (Side note: The new confederacy should never be party to trade treaties again since having international tariffs in the Constitution was one of that document’s two flaws along with slavery, both proscribing the individual and unalienable right to liberty.)
If China invades Taiwan or North Korea invades South Korea, I’d say it sucks to be Taiwanese or South Korean, but that the new confederacy’s government’s sole role is to protect and defend the unalienable rights of its citizens, not others’. As to Russia and Mexico, I’d remind that Emperor Hirohito’s defense minister warned of attacking the U.S. mainland because there’d be an armed American behind every tree. In addition, I’d think that the Alaskan, Arizonan and Texan “national Guards” would be called up and supported by same from other seceded states.
When I spoke of Tennessee leading, I talked of target marketing. Those in the seceding states who don’t want to secede will have a choice. Not “hope and change”, but move or change.
Looking back to the iceberg in its entirety, BrianR, I see immense difficulty for liberty lovers. There’s (a) stoicism, (b) the Cream of Wheat/Randy Barnett plan,(c) the thedrpete plan, or (d) the b and then c plan. Maybe you see another?
LOL.
I see that you see what I mean about the pragmatic problems involved. Makes for interesting things to consider, doesn’t it?
I also see from your comment that you’re predicating your thesis on the assumption that the dissolution is going to be one the terms of which both parties are going to agree to, sort of an “amicable divorce” with both parties agreeing to the property settlement and division of assets. I don’t see that at all.
I think any such breakup is going to be violent, by necessity, just like the Civil War ca. 1861 – 1865. The anti-secessionists are going to point to the Constitution, Article 1, Section 9, which prohibits “rebellion”. And they’ll be right. Even if you don’t agree with that interpretation, that’ll be the basis for the Feds to fight any such action on the part of any individual state or states that attempt to actually separate from the rest of the Union, and there’s no way that the existing Federal government is going to simply hand over any of its assets, be they real property (lands, etc.), monetary (Fort Knox gold, etc.), military (nukes, bases, forces), or anything else.
The only historical precedent I can think of when that actually happened was the division of the Roman Empire into Western and Eastern factions, and that sure didn’t work out very well for the original (Western) entity. It actually hastened its actual fall to the Visigoths.
See, that’s the problem with your thesis: it overlooks the human aspect of these things. It’s all very intellectual as an exercise, and a lot of fun, but that pesky human element dooms it, IMO.
Another example of that is your point that those folks in the seceding states would have the option of either moving out or staying in what they’d consider a hostile environment. But that’s NOT their only option. They ALSO have the option of doing the same thing you’re proposing, i.e. refusing to play the game of the secessionists. Why wouldn’t independant counties have the same right to secede from the seceding states? Or are those “rights” not universal? In which case, aren’t you secessionists just as wrong as the Feds from whom you’re seceding? And what’s to keep those loyalists (for lack of a better term) from grabbing their own guns and fighting the state governments that want to secede? After all, they’re fighting for THEIR homes, too. In their minds, why should THEY be forced to move away from home simply to accommodate a bunch of grumps who don’t like the way the government works? They’re perfectly happy with things the way they are.
That’s what I mean by the “human element” aspect. It’s always very messy.
As to the warnings to Russia and Mexico (and, I guess, any other country that wants to take advantage of the situation, of which there’d probably be several), don’t forget that under your new structure, there’d be a WHOLE lot fewer “blades of grass” (which is actually what Hirohito warned about). We’re talking about severely diminished “countries” that would no longer be working in concert.
So, BrianR, I see you rejecting as unfeasible either my choices c or d. I’m hard-pressed to see your choosing a, seem to recall your not thinking much of b, and haven’t heard you on “another”.
I’d move elsewhere, but my wife won’t. Incidentally, I’m curious as to what you think U.S. military personnel would do vis-a-vis a secession movement.
Well, DrP, I’m not even sure there is a feasible “another”. Things can reach a point where they’re basically unfixable, kind of like trying to put toothpaste back in the tube. We may have already passed that point. I think the idea of regaining the kind of limited government we saw back in the pre-FDR days is unrealistic. The restructuring that would be necessary, both politically and economically, isn’t feasible anymore. Unfortunately.
As to the military, I’ll start with my qualifications to answer that question. My Dad was a career Army officer, and I’m a vet myself. So I’m very familiar with the military culture, having spent decades immersed in it.
That having been said, I firmly believe the military would be ordered to quash any such uprising, and that they’d obey the order. There’s historical precedent. The Army’s suppression of the WW1 vets (the Bonus Army) who were protesting their treatment is instructive. The Army used force of arms to dispel the protesters, and those troops were led by MacArthur and Patton. Eisenhower was one of MacArthur’s aides during the event. This was Army units being used forcibly against their own comrades-in-arms. What do you think the response would be to act against an illegal “rebellion”?
Of course the military would comply because they’d have received legal orders, and they wouldn’t be violating their oath to defend the Constitution. Now, just as happened back in 1861, they may *possibly* allow those with conscientious objections to be released or discharged from service, but I think that would be it. Other than that, they’d certainly do as ordered by the properly constituted civilian authority.
Ah, BrianR. You are such a spoil-sport, bring in practical considerations and “the human element.” Of course, dammit, you’re right. I could quibble with you about Article 1, Section 9, which prohibits the suspension of Habeas Corpus except in cases of rebellion . . . , not rebellion, itself.
You make a number of great points, including the idea that counties – let’s say – decide to secede from their state (the West Virginia scenario?). However, you may miss the larger point: those who wish to remain in their seceding home state and NOT secede are not “giving up their homes;” they are just being deprived of the goodies previously given to them. The seceding states would be glad to welcome them to stay and retain their own life, liberty, and property.
However, you paint a devastating set of practical problems in the scenario where we now have TWO “United States.” (It would be fun to negotiate the spoils: “Here, I’ll take Yellowstone, and you can have Death Valley.”) Alas, I think DrPete’s plan is doomed to failure and chaos. If only the individual states were able to regain their sovereignty, subject only a limited number (say 18) of specific powers delegated to a national government operating within a federal system.
Aha! Tuhduh: Randy Barnett to the rescue! Put off secession long enough to marshal support among states considering secession to propose a set of constitutional amendments whose purpose is to mandate the changes those states wish to see made. And the process is wholly within the constitutional power of those states. In those amendments, I see so many of the problems iterated by you, DrPete, and other contributors herein, addressed by Professor Barnett.
These amendments, proposed herein previously and derided as too radical, or as too impossible to accomplish, now serve as a relatively conservative step between where we are and where DrPete proposes we go. Hmm. Let’s think about it, if even just for fun on the way out.
I listed, I think, 22 states on the roster of potential seceders. A constitutional amendment requires 38. How confident, Cream of Wheat, are you of getting that many in this day and time?
There we go, CoW!
That, I think, is the only feasible approach: we actually need to have the national dialogue that attaches to meaningful constitutional amendments, whether individually or through a convention.
First, IMO, that lends the result true authority, both morally and legally. Next, it is, by definition, universally inclusive. No one will have grounds to dispute the outcome — regardless of whether it’s good or bad — and that outcome will be definitive and final.
That, I think, is the only mechanism that allows us to re-examine the course this country’s on, and take whatever steps are properly determined to be appropriate.
We have to accept that we may not like the outcome. But that’s simply the nature of the beast. The Founders certainly gave us enough warnings that this “experiment in democracy” was a risky business. If we fail, we fail, and that’s that on that. There’s no God-given guarantee as to the perpetual success of this country.
BTW, let me add that I actually proposed this solution to our problems at my own blog back in July of last year:
http://theviewfromtheisland.wordpress.com/2012/07/07/a-manifesto-to-save-america/
Modestly entitled “A Manifesto To Save America”, in which I propose four constutional amendments that I believe are essential if this country isn’t going to simply commit national suicide.
thedrpete, in answer to you question, not very. But so far, I am not CoW-ed. Calling for a constitutional convention would require only 33 states (plus WVA). This may be du-able because the issue at stake is States’ Rights, not individual liberty. We are thus pitting federal power against state power. A number of issues addressed in the federalism amendments, including unfunded mandates, etc. To your 22, I would look to add Utah, Colorado, Minnesota, Iowa, Indiana, Ohio, Pennsylvania, NC, Virginia, Florida, and Hawaii. And Nevada.
PSYA (aka P,SYA), you lost me when we started parsing Hong Kong! I will do my research on High Crimes and Misdemeanors.
Am I not correct that PASSING a constitutional amendment would require passage by 38 states?
Enacting an amendment requires ratification by 3/4 of the states. Correct.
You are correct, DrPete. But, hey, first things first! BrianR, I will follow your link. In the meantime, I look forward to your opinion on the particulars of Mr. Barnett’s proposal.
BTW, DrP, HBTU! And I shot your age on Tuesday.
Well, CoW, the Barnett proposal is pretty good, as far as it goes. I think there are a few superfluous aspects, an example being the clause limiting the power of treaties. It’s already established, and affirmed by SCOTUS in their decision in the 1957 case of “Reid v. Covert”, that treaties are powerless if they conflict with the Constitution, and can’t be used to limit, amend or restrict constitutional rights.
I’m also very leery of giving any one man, the President, the power of the line item veto. There’s a reason the power of the pursestrings is endowed on Congress, and I’m not going to second-guess the wisdom of the Founders on that because I believe they were right.
More importantly, though, is that we have to be VERY leery of a Constitutional Convention, because once in session they can do just about anything they want, including re-write the entire Constitution, and the result may be very BAD.
Let’s not forget how we got our current Constitution in the first place. The Articles of Confederation weren’t working very well because states would constantly try to blackmail the federal legislature with threats of secession (kind of like we’re seeing now, if you’re a fan of irony). So a convention was called for the purpose of AMENDING the Articles, and lo and behold! They completely tossed it out the window and came up with something completely new!
There’s absolutely nothing to preclude the same thing from happening again. Now, the result COULD be very good. On the other hand, it COULD be something we’d consider disastrous, too. That’s always the risk when a Constitutional Convention is called into session.
So, I guess I’m left rooting for Randy Barnett’s Federalism Amendments, they being more-comprehensive and extensive than BrianR’s Manifesto, but meanwhile being convinced that the Fat Lady has already sung.
I could leave, but will opt to stay and get hammered.
I agree, DrP, that the Fat Lady has already sung. Hell’s bells, she’s already taking her curtain call…
Here comes Harry Reid, with a bouquet of roses….
My thanks to all who have chimed in here. I love getting enlightened.
BrianR, I have now read your blog referenced above. Very well written and thought out. I very much like your analogy to the tax on NOT drinking tea. The Roberts opinion on ObamaCare illustrates that point and the more important one you address in your “Tax Legitimacy Amendment” where you say, “No tax shall be imposed whose purpose is to influence the behavior of citizens, either individually or as a group; nor shall taxes be imposed as a penalty.” (I cringed at the justification for the penalty – oops, I mean tax – on smoking, not to mention drinking, and other “luxury” taxes; pardon my sin-tax!) I therefore strongly support your 4th amendment.
I also share you view that the “progressive” income tax is not only illegitimate, but doomed to failure. I do, however, prefer the idea of a consumption tax, including the provision in the “Fair Tax” that pre-bates to ALL taxpayers the identical amount based on the tax rate of income up to the poverty level. While containing a small element of “progressiveness.” That element is literally voluntary on the part of those who choose to spend more than absolutely necessary on basic necessities. The Fair Tax amendment also eliminates ALL other federal taxes, thus addressing a myriad of abuses on the part of the federal government, not the least is the aforementioned set of taxes designed to influence personal behavior.
One downside to the alterative to your flat income tax is that we lose the basis for limiting the right to vote to taxpayers, since now anyone in the US – citizen, legal alien, or, um, undocumented non-worker – would pay taxes (and have to exist on paper in order to receive the “pre-bate.”)
I have wrestled with the idea of “the right to vote” for some time without coming up with a satisfactory solution. Owning property may be too restrictive. (I rented for years before buying real estate.) Certainly, being a legal resident in a defined political sub-division (itself a part of larger political subdivisions) should be a prerequisite. Legal residence would imply either ownership or paying an owner in order to be a legal resident. Being homeless in a particular flophouse would not qualify.
Thanks for the kind words, CoW. I appreciate that.
Yes, that “right to vote” issue. That’s why I decided to make it a right predicated on one’s paying of taxes. If you pay taxes, you have skin in the game of fiscal prudency. That’s also why I made paying of taxes mandatory for all, with no exceptions. If we allow any class of people to exist that doesn’t have a tax obligation, we have by definition created a dependancy class, and simply recreated the same condition we have now. So either we have universal suffrage linked to universal tax obligations, or we create an exception for certain people who then ALSO have to be excepted from suffrage.
We can’t let people have their cake and (literally) eat it, too.
BrianR, I am also, at least tentatively, supportive of the idea that in order to vote, a citizen (yes, one must be a citizen) should demonstrate to his/her community sufficient intelligence to make distinctions between candidates and political ideas. One ought to have at least a rudimentary understanding of the difference between the libertarian versus the progressive versus the conservative philosophies, between liberty and socialism, if not the difference between Leninism and Fascism, between the understanding of liberty as god-given or natural, as opposed as granted by the monarch. Or granted by the state. Hey, we administer citizenship tests to those wishing to become US citizens. Perhaps we could (greatly) improve those and have anyone wishing to vote take such a test. (That would allow us to repeal as unnecessary the 15th, 19th, and 26th amendments. (And maybe the24th!)
None of this would be as much fun if it weren’t for our friendly DISagreements. I am personally in disagreement with you (though open to debate) concerning Judicial Accountability. As I understand it, judges are appointed to a lifetime term precisely in order to be confidently independent of political opinion and influence. I consider this a good thing. For judges to be subject to re-confirmation by the Senate (and, I presume, re-appointment by the President) encourages political pressure to play a role in judicial decisions, when, in fact, those decisions ought be STRICTLY on the judge’s opinion of what the constitution say, what is the law of the land. When a judge fails to do that, he may be guilty of “high crimes or misdemeanors” and, thus impeachable. Mr. Barnett’s 10th amendment may serve in part as a basis for determining when that may be the case.
I agree 100% on tests for qualification to vote. Why do we allow stupid and/or uneducated people to determine policy?
Again, these are all conditions that didn’t exist in the early days of the Republic. People had to meet all kinds of qualifications to be eligible to vote.
As to the judges: rendering bad decisions isn’t a justification for impeachment, particularly at the SCOTUS level. And frankly, that’s a good thing, because IMO THAT would make the process more politicized than it already is.
But it’s one thing to insulate the judiciary from politicization; it’s quite another to have a judiciary that’s so impervious to the consequences of their decisions that we’ve created a Mandarin Class that feels perfectly free to intrude in any subject and impose, through imperial fiat, their political views on the entire body politic, making up new “rights” along the way as we saw in Roe v. Wade.
A number of Mr. Barnett’s other amendments aim specifically at limiting federal power, in some cases by empowering states. Among those (including Articles 2,3,4), the 6th is particularly interesting. Were it adopted, it would make the process we are talking about much more feasible in the future. As I suggested earlier to DrPete, though I don’t hold out a great deal of optimism for its ratification, I believe the secret of success may lie in the fact that the power of the several states is significantly enhanced, a prospect even some liberal states may find attractive.
He addresses the financial and fiscal mess in several other amendments, including, in addition to the first, Articles 2, 3, and 8. (This may be the best-designed “line-item-veto” draft I have seen so far.) Think of the business boost we would experience were we to eliminate the taxes on business, not to mention the cost to business of figuring out thetax code (and how to avoid it)!
Although I am leery of term limits for judges, I am strongly in favor of term limits for elected officials. Barnett’s Article 7 seems reasonable to me.
Finally, I believe (as do most others contributing in this space) that the 9th Amendment to the US Constitution is the cornerstone of its effort to protect the INHERENT rights of individuals. It, along with Section 1. Of the 14th Amendment, receives explicit restatement in unmistakable and “un-redefinable” terms by Barnett’s 9th amendment. Hurray, hosanna, and amen!
Excellent points, Cream of Wheat. Sunny and 77 here, and surf’s up!
As to the 9th Amendment: though it does protect those inherent rights, it’s also one of the Amendments people abuse. See Roe v. Wade.
As you guys — BrianR and Cream of Wheat — look to reduce, if not eliminate behavioral manipulation vis-a-vis the tax code, I’d suggest the need to eliminate, the Federal Reserve Bank, FDIC, Fannie and Freddy, Sarbanes-Oxley and Dodd-Frank.
Oh, hell yeah, DrP. I think that goes almost without saying. Those are government attempts to control and/or manipulate the markets, and are antithetical to a truly free society with real property rights.
Good points, BrianR. As I remember, the argument in Roe v. Wade revolved around “privacy.” I suppose one could center that argument based on the 9th amendment. Then the question would be, whose life and liberty are we protecting, and how do we “balance” the rights of the mother against those of the child she is carrying. IMO, that is a question that does not fall within the purview of SCOTUS. Though I have my PERSONAL opinion on the ethics of the situation, I have never been able to resolve the PUBLIC POLICY issue. (When is the unborn child due the protection of the government?)
My concern is your anxiety about calling a constitutional convention “at which anything could happen.” Two answers: 1) Mr. Barnett drafted his resolution to say, in part, that this memorial for a convention is conditioned on the memorials . . .” and, 2) that the results of a constitutional convention could render no worse situation that which we now find ourselves in!
Perhaps it is time to take the risk, short of what you see as the impossible scenario of secession.
In the meantime, give up drinking tea and join DrPete and I in cocktail hour. Here’s to Saturday! Here it is 78 degrees and sunny. The lagoon is as calm as glass!
Well, guys, first of all, thanks for the invite. I am, indeed, participating, though in abscencia. I have a frosty vodka marty very near my right hand. Though it does sound like y’all are enjoying much more enjoyable weather than we here in sunny (and chilly!) SoCal.
Yeah, good ole Roe, in which they discerned “rights” which “emanated” from the “penumbra” of earlier decisions. In other words, a decision that sounded more like an astrology reading or astronomy report than a legal decision. No matter how they arrived at it, they invented a whole new “right to privacy”, something that never before existed. If the Founders had wanted to acknowledge some grand “right of privacy”, wouldn’t they have said so in the 4th and 5th Amendments, in which they enumerate the protection against self-incrimination and define the need for warrants to conduct searches? I would think there certainly would have been something there about it. Instead, they limit such issues to a protection against coerced confessions and the need for warrants to search certain enumerated things, i.e. a home, papers, person, and effects. There is no grand “right of privacy”. What does that even mean? If someone commits a murder “in private”, it’s no one’s business?
Which, in a way, is exactly what happens in the case of an abortion, when you think about it.
Anyway, I digress. I could write an entire essay about that… and in fact, I have! LOL
As to the constitutional convention: I agree that we really couldn’t be too much worse off. I was simply pointing out the reality of what COULD occur. But hell, we’re swirling the bottom of the terlet already. Pretty hard to think it could get much worse.
And if we didn’t like the outcome, at least THEN if we resorted to revolt we’d be justified, because we could honestly say we tried every other possible recourse.
And I also have to say, that’s the point at which I’d be handing out guns to my family and neighbors and joining in.
Being in EST versus your PST, BrianR, I can guaran-damn-tee you that when you sent your comments, I — and I’m guessing Cream of Wheat — were farther “in abscencia” and for the very-same reason as you. In my blog header see this morning’s sunrise from my balcony.
Very, very pretty.
As the sun rises over the Pacific (Hmmm – it did when we were in Bocas del Toro!), I welcome BrianR back to the sunny southeast. (Poor guy has to suffer the global cooling of California.)
The right to privacy is not a “constitutional right,” BrianR: it is a RETAINED right, a natural right. That right is “recognized” – not GRANTED by the Bill of Rights.
When Robert Bork was asked by Senator Dennis DeConcini about the meaning of the Nineth Amendment, Bork answered, “I do not think you can use the nineth amendment unless you know something of what it means. For example, if you had an amendment that says ‘Congress shall make no’ and then there is an ink blot and you cannot read the rest of it and that is the only copy you have, I do not think the court can make up whatmight be under the ink blot if you cannot read it.”
He deserved to be voted down.
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Including the INHERENT right to privacy.
Lest there be any question, Barnett says in his 9th article, “All persons are equally free and independent, and have certain natural, inherent and unalienable rights which they retain when forming any government, amongst which are the enjoying, defending and preserving of their life and liberty, acquiring, possessing and protecting real and personal property, making binding contracts of their choosing, and pursuing their happiness and safety.”
He goes on to say, “The due process of law shall be construed to provide the opportunity to introduce evidence or otherwise show that a law, regulation or order is an infringement of such rights of any citizen or legal resident of the United States, and the party defending the challenged law, regulation, or order shall have the burden of establishing the basis in law and fact of its conformity with this Constitution.”
Citizens of Great Brittain have rights BECAUSE THEY ARE CITIZENS of Great Brittain. Voltaire thought that the rights of Frenchmen were those recognized by the government. In the United States, the Declaration of Independence stated clearly that all men are . . . endowed by their Creator with certain unalienable Rights,
that among these are Life, Liberty, and the Pursuit of Happiness-That
to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government . . . .
You are so correct that the SCOTUS has been engaged in creating “fundamental” rights, recognized as basic, like those examples in the Bill of Rights, AS IF RIGHTS ARE RIGHTS IF AND WHEN THEY ARE RECOGNIZED OR GRANTED BY THE GOVERNMENT. No wonder the Progressives want to redact the first paragraph of the Declaration or Independence!
BrianR, you have a right to defend yourself, protect your property, and pursue happiness as you see fit (subject only to limits to ensure my rights to the same) not because the government says so, but because you are human.
OK, I will now step down off my perch and go have a bloody. Here’s to Sunday, my friend.
That’s all correct, as far as it goes, but here’s the fly in the ointment. Does that mean anything you do “in private” is a protected action? As I said, abortion is murder being conducted under the umbrella of “privacy”.
Or how about the “right” of the anti-smoking Nazis to breath smoke-free air trumping the right of smokers to light up where and when they want?
Or the new “right” I’m hearing the gun-haters whine about when they mewl about the “right” not to get shot trumping the Second Amendment?
That’s the problem: the current trend to abuse the Ninth Amendment to give some “rights”, enumerated or otherwise, the ability to suppress the rights of others if there’s a conflict.
Smoking: Even if you own a bar, you can’t allow smoking in it because some nimrod who hates smoking might not like it. So screw your right to smoke AND your property rights as the owner to make your own determination.
Guns: The safety “rights” of potential victims invalidates the Second Amendment.
See what I mean?
So IMO Bork had it right. Nowadays the socialists look at that ink blot and make up anything they want, even if it conflicts with other rights, and ESPECIALLY with something they consider politically incorrect. It’s flagrant abuse.
BrianR, IMO, abortion is a private act ONLY if we discount the presence of an “interested third party.” In Roe v. Wade, SCOTUS appears to have decided that there was not. Thus, in their opinion, the only party involved was the woman. Leaving aside for the moment whether or not I agree with that assessment, I don’t believe it is an assessment that the court was competent to make. If, however, it were true that the fetus is either not a third party, or at least an INTERESTED third party, then the courts decision might be a rational one.
IMO, my restaurant is MY personal property. If I wish to permit smoking on my personal property (or serve only men, or serve only white men, or only white men golfers with a handicap over 18, the government should have no right to interfere. You have no a priori right to access to my restaurant. If, on the other hand, you and I are both forced into the same public space – say a bus or a court house – I believe that the appropriate government might regulate smoking in a matter necessary and proper in the protection of others who might suffer real harm.
Freedom, or the right to do whatever you please, is not an unlimited one. The key lies in what has been described as the difference between “liberty” and “license.” Liberty is classically defined as those rights to believe and act as you see fit AS LONG AS YOU DON’T INTERFERE WITH THE SIMILAR RIGHTS OF OTHERS.
Thus, I should have a “god-given” right to go to hell, unimpeded by the morally righteous among us who think that our government should proscribe “immoral” behavior which doesn’t interfere with others’ rights to aim higher.
There are other issues about which we might argue, but for me, liberty (as defined above is, as DrPete headlines, the “sine qua non.”
CoW: “If, however, it were true that the fetus is either not a third party, or at least an INTERESTED third party, then the courts decision might be a rational one.”
Well, how can anyone, with a straight face, make the argument that the unborn fetus isn’t an interested third party? It doesn’t have an interest in its own survival? Really? It doesn’t care or “have an interest in” what happens if, when it’s most of the way down the birth channel, some quack sticks a cannula in its brain pan and vacuums out its brains?
See, this is perfectly illustrative of the problem I’m describing. Some twisted rationale can be dumped out there like a sack of coal, and at least some people are going to nod their heads and stroke their chins and go, “Why… you’ve got a point there!”
Is the defining aspect of “interested party” the ability to vocalize your “interest”? Then how come we can’t “euthenize” severely retarded kids? They can’t vocalize their “interest”, either. What happens when Granny gets severe Alzheimer’s? Under the mantle of “medical privacy” is it okay to put a bullet in her head? After all, she doesn’t care anymore, and certainly can’t vocalize her objection, or even understand what’s happening… just like the fetus.
On the smoking issue, you differentiate between private property and “public spaces”, which is okay as far as it goes, but again you miss my point. The anti-smoking Nazis DON’T make that differentiation, nor do they even confine their zealotry to indoor spaces, where at least there’s some rationality to their position. Out here in Commiefornia, several cities have put smoking bans in effect OUTDOORS. In Calabasas, you’re not even allowed to smoke in public except in “designated areas”. In Calabasas that’s especially ironic as one of the most popular public gathering places is a shopping center directly abutting the busy freeway. Think about that: no ciggie smoke, but all the engine exhaust and brake dust you can possibly handle…
Santa Monica has banned smoking at the 4th Street Promenade, an open-air venue, and in public spaces like parks and beaches.
Common sense has left the building…
You: “Liberty is classically defined as those rights to believe and act as you see fit AS LONG AS YOU DON’T INTERFERE WITH THE SIMILAR RIGHTS OF OTHERS.”
Yes, but as I’ve pointed out, the last part of that phrase is no longer part of the standard. Now it’s “MY right trumps YOUR right, so go suck eggs”.
That, of course, being my entire point. And why I hold that Bork was correct.
It occurs to me, BrianR, and we are yelling past each other when we largely agree. We happen to agree, as a moral matter, about abortion. The only thing left to decide would be at what point a fetus, carried by an American citizen (?) or a woman residing here legally (or illegally?) become subject to the protection of the state. IMO, that was not properly the job of the SCOTUS,
We agree on smoking. (I might take an even dimmer view of government regulation than do you, but I would hold that it is NOT a federal issue unless we are talking about public FEDERAL property.
We completely agree, I hope, that the government ought to be out of the business of its proscription of behavior by others that does not interfere with MY right to pursue life, liberty, and property, or to where black socks with sandals!
That said, here’s to Monday (the first day of the weekend)!
Again, thank you, BriqanR, for engaging with me, and to you, DrPete, for hosting this polylog.
I didn’t get that we were “yelling” at all. Did I miss something?
I understood that we were essentially on the same page. I was trying to point out how people who DON’T look at things through the lens of liberty have that oh, so common propensity to pervert the language and intent of the Constitution to turn it on its head and use it as an instrument of oppression.
First, as to Roe, I believe that SCOTUS’s first error was hearing the case at all. Prior to Roe abortion was a state issue to decide, and I think that it was rightfully so, and should have remained a state issue.
But if they DID decide to take it — as they did — then it was incumbent upon them to make the whole decision, including the point at which “personhood” attaches to unborn fetuses. That’s probably the one point we disagree on. You can’t say killing an unborn human isn’t “murder” when it’s performed as a medical procedure, but that it IS “murder” if someone kills a pregnant woman and can be charged with homicide for the death of the fetus, too — which is currently the case in this country. It either is or it ain’t “murder”, circumstances notwithstanding. Unless we’re saying doctors are somehow allowed to commit murder with no penalty attaching.
Further, by failing to define the point at which personhood attaches, Roe makes partial-birth abortions legally possible; the procedure I described earlier. If that isn’t outright “murder”, I don’t know what is.
BTW, I never said the smoking laws were a federal issue. Obviously, they’re not, as they’re passed at lower levels of government. But the same principles adhere, and the same constitutional issues. Property rights — one of those unenumerated rights — are being violated regardless, and that’s still a violation of constitutional rights even though carried out at the local level. Just as the Fifth Amendment bar to coerced confessions and the Fourth Amendment requirement for search warrants is just as binding on state and local cops as they are on the FBI. Laws don’t have to enacted on the federal level to be unconstitutional.
And laws that prohibit smoking in the great outdoors, where the excuse of “second-hand smoke” is completely laughable and absurd, are an obvious case of governmental excess and overreach. Several times, in both Santa Monica and Calabassas, I’ve lit up right in front of the cops, hoping for a ticket so I could fight the issue in the courts. Nope. Didn’t happen. I guess they’re not really interested in dicking around with those BS laws, either. They just act like I’m not even there. Pretty funny!
I’ve enjoyed this discussion, too. It’s become a rare treat nowadays to be able to have a nuanced discussion about political (among other) issues, especially one in which the parties disagree about something, and not have the other guy start calling me names or telling me to do things to myself which are physically impossible.
LOL
If a living human fetus has an unalienable right to life, and if one or more states passed law making abortion — even without self-defense being involved — legal, why would that not be, and not have been, a federal issue? Is it not the job,, BrianR and Cream of Wheat, — indeed the sole role — of the federal government to collectively protect and defend the unalienable rights of Americans? Would this not have been an “equal protection” question?
DrPete, I haven’t researched it, but I am at a loss to find in the constitution a federal power to legislate against or prosecute murder. The 10th Amendment says that “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.” Thus, laws against murder and prosecution of such offenses are state “police powers.”
The 14th Amendment forbids states from making or enforcing any law “which shall abridge the privileges or immunities of citizens of the United States, nor deprive any person of life liberty, or property, without due process of law, nor deny any persoon within its jurisdiction of the equal protection of the law.”
IMO, neither gives the federal government jurisdiction over murder (an INDIVIDUAL violation of another’s right to life) UNLESS the state fails to protect the rights of its citizens from such offenses (or fails to prosecute the offenders).
I am aware of instances where the government has tried individuals for violating the rights of citizens, either because the state didn’t (IMO: OK) or because it disagreed with a verdict (IMO: not OK – in fact probably specifically forbidden by the 7th Amendment.)
BrianR, I rfind myself in virtually complete agreement with your most recent comment. RATS! (Now, let DrPete have it concerning the federal role in the prosecution of murder.)