I am loaning my copy of "America..." to my employees, friends and relatives... anyone interested... I read the hit piece "Salon" wrote about it and it made me even more determined since there are so many useful idiots.... The best part of their article... the comments that slammed it...

We've seen "America," OA, and you're right... it should be mandatory viewing for every history student. I was pleasantly surprised in that, as much as I expected (and wanted) a hyper-partisan hit-job on Obama's radical agenda, it was much more subtle, contrasting the positives of our American form of Democracy against those of the rest of the world's "leaders." On second thought, it should be a graduation requirement for ALL students... not because it's nationalistic, which it is, but in an understated sort of way, but because it re-introduces back into polite conversation two concepts that have fallen lately into disrepute: "American Exceptionalism" and "Rugged Individualism," and it does so by example, rather than by dictate.

As Dagny Taggart herself might have said, "America - she is the symbol of our quest to change the world, not quit it."

If would seem unnecessary if we could simply elect people who revere the Constitution, original intent and posses integrity... "With integrity, nothing else matters. Without integrity, nothing else matters." -Winston Churchill However, at this point it may be worth a try. It sure beats bloody revolution.

You are right about our uninformed citizens. If we are to have a chance of repair, we must start with restoring proper education regarding our history. I just got my first viewing of D'Souza's new documentary ("America: Imagine the World Without Her") on DVD last night. I highly recommend it and think we should pass it around "liberally." Yuch... even in that form the word leaves a bad taste...
To the future!

I, too, have doubts, OA... but I can’t let them prevent me from at least giving Article V a try. We cannot let this option go untested in the rush toward a more extreme remedy.

I share your optimism, though, about the "OMG" effect that the movement could have on Congress. I've seen at least one report on Article V that Congress commissioned early last year in March, I believe, asking their research arm to investigate how extensive the state-driven A5 movement was, whether it was legal or not, what the possible impact of the movement could be, and what their role would be should enough states meet the threshold and Congress actually had to call the convention. Just the fact that they asked for a study shows that they are aware of the unrest out here in the hinterlands, and as far as I'm concerned, that's a good thing.

I believe I read somewhere that the 17th amendment came about as a result of Congress bowing to the will of the people, as evidenced at the time by a state-driven Article V push. If I recall correctly, Congress saw the writing on the wall and did an end-run around the states, drafting and passing their own version of the amendment. Not that I think the 17th was anything but a travesty to States’ Rights, but I definitely see it as an example of some much-needed external stimuli, the "encouragement" you were referring to.

Frankly, even if we never get the clarification of that imprecise (but not vague) language that I called for above, language that constitutional lawyers and Supreme Court Justices love so much because it makes it so much easier for them to interpret into this “living document” whatever the hell is politically expedient at the time, just mounting the movement itself is good for the electorate.

As a people, we know so little about our history. I might even go a bit further and say that we really don’t care… which in all actuality just might mean that this experiment in republican federalism has been so successful that we now literally take it for granted. The system has worked almost flawlessly for the better part of the last two and a quarter centuries, requiring very little maintenance. So, like a sound and reliable automobile, there’s been no pressing need for us to retain for ourselves the knowledge of how to tune it up.

My fear is that if we wait much longer, this new generation of low-information citizens, accustomed to instant gratification, will become impatient and frustrated, and will jump at the first chance to buy something new rather than take the time to repair the one we have.

Greetings RimCountry,
A fine bit of commentary. One point: If I thought the government would respect your amendment any more than they respect the rest of the Constitution I would be more enthusiastic. At this point I am not against it, only doubtful it would help. On the other hand there is a growing movement among many for a Constitutional Convention and even if it does not reach that point the very possibility may encourage the government to move in the right direction.
Who is John Galt???
Regards,
O.A.

Good morning, gentlemen... had a late evening out last night... dinner and a show... wife wanted to see that Ben Afleck movie, Gone Girl... I thought it would be a chick flick, just from the name and the cast. Wrong. As close to Hitchcock as I've seen since his departure. If you haven't seen it, be forewarned.

Anyway, slavery and the draft... sorry I didn't see the connection. Probably because I was draft age in 67 during Viet Nam, and as my father was career military and taught history, he assured me that Article 1, Section 8 empowered the government to raise and support an army to provide for the common defense, no matter the number and volume of moral arguments to the contrary. I think it comes back to your point about context, DB. The morality of the draft wasn't really the question, then or now - it was its constitutionality.

And then there's that reference to a well-regulated militia in the 2nd... some have argued that along with certain rights necessarily come responsibilities. This may just be one of them. The anti-federalists and even some of the nationalists were scared to death of a standing army, but they saw the need for a central government with the power to defend a nation... something the individual states had just recently had great difficulty in doing.

And as for enumerated freedoms... what a scary thought! Completely agree with OA that the context of the Articles and certain of the amendments in the Bill of Rights are routinely ignored. I'd much rather narrow the language where a clear need to do so exists and remind the government what the words "Enumerated" and "Commerce" meant when the Framers used them, and the same with "General Welfare." And I'd still like an amendment clarifying that the EPA and the IRS are NOT Congress, and that any regulation from the Executive meant to have the force of law SHALL be confirmed or ratified by Congress, or better yet, by two-thirds of the several state legislatures, since Congress seems to have abdicated its authority in that regard... that's all.

Just those few simple things, and America's state-of-being would default back to the innumerable freedoms derived from our Creator.

I side with the Framers on this... just tighten up their language and there'll be no need for a list.

Yes the enumeration of all freedoms is impossible. The states always think that this leaves their powers unlimited, but that also is to ignore the context.

Hello dbhalling,
I too find the word vague a bit lacking. It does lack specificity in many areas. Thankfully so. To me this is part of the brilliance of the document. It is specific in regards to enumerated powers, yet lacks specificity in all other things with explanation for this made clear and emphasized by virtue of the ninth and tenth amendments. This is the context that must be appreciated fully and is most often ignored to our detriment and loss of liberty. When one approaches the document with full appreciation for the history and fact that it was a document left wide open in regards to liberty and freedoms for the individuals and designed primarily as a limit on government the meaning is clear. The fact that Hamilton argued that no Bill of Rights was needed... that any enumeration would be construed as limits on un-enumerated rights of the individual, while the anti Federalists ( e.g. Jefferson in absentia and Madison et al. pushing for the Bill of Rights) demanded one that included the ninth and tenth amendments means that on general principle they agreed; all things left undocumented were freedoms/liberties left to the states and the people. The Federal government should be barred from intervention in all areas not enumerated. It would be impossible to enumerate all freedoms since they would be limitless. You are right. Full context is essential.
Regards,
O.A.

I am not sure that the Constitution is vague. Read any document while ignoring its context and it will appear to be vague. As an attorney, I often find legal documents that attempt to cover every little contingency and try to overly define their terms are more vague than simpler shorter documents. Even more irritating I deal with patent examiners who purposely ignore the context of the document. For example, arguing that the word aperture used in an optical system patent means any opening at all.


Is the draft voluntary? No it is not. So how can you outlaw "involuntary servitude" and have a draft?

Ah, you jumped in there before I finished my edit, clarifying that the Bill of Rights suffers from the same "vague language' issues as does much of the rest of the original text. And I'm afraid I don't follow your point on the 13th.

How about the 1st, 2nd, 4th, 5th, 9th, 10th and even the 13th, which outlawed involuntary servitude while the North had a draft????

And much of today's gridlock can be traced directly back to the results of the 17th. The time has come, as the Founders predicted it would, to use Article V to "remedy the errors we have observed in the normal course of self-governance."

Actually, if you look closely at the history of amendments, not just the Supreme Court, but all branches of government adhere very closely to them. It's the original text, the Articles, that are routinely ignored.

Modern-day amendments are very hard to ignore (those ratified since the Bill of Rights)... at least for a few decades. An amendment is a bi-partisan political statement made in the here and now, typically the result of an overwhelmingly popular and current national movement or progression, written in clear and concise language. As such, amendments carry with them immediate and severe consequences for any agent of the government acting in violation of it, at least, as noted, for a considerable amount of time.

That cannot be said, however, for the vague and archaic language of the Articles (and, unfortunately, our Bill of Rights). A Convention of States to propose amendments to the Constitution could provide clarification and consequences to the Commerce Clause and the General Welfare Clause, among others, and could reinforce Article 1, Section1 where Congress alone is vested with the power to create law, not countless bureaucrats within the Executive branch... nor the courts, for that matter.

And all of that before they even get to my all time favorite, mandatory term limits for all federal officials! Revolution should be the absolute LAST alternative. The Founders gave us Article V... we should use it.

I'm still not following you on the second. If the Legislative passes and the Executive approves a law into existence, this does not guarantee that the new statute passes Constitutional muster. If it does not, judges have a right and responsibility to strike down such laws. Failure to do so makes them complicit in enforcing unConstitutional laws. If that was what you were saying, we agree. But the Law of the Land in primacy is the Constitution, insofar as it protects and enshrines the natural rights of the people. It is only when legislatures, executives, or judges stray from the Constitution that there is need for a check. It is in this area that I feel our government has strayed significantly because those elected and appointed officials no longer view the Constitution (despite their oaths) as the supreme Law of the Land. Instead, they view their own progressive ideology of multi-culturalism and elitism to trump the "outdated" tenets set forth in the Constitution. This is what I decry.

"And, in any event, what of the situation where a veto is overridden by Congress. Did the framers intend for that to be the end of the matter with no recourse to the courts to overturn the unconstitutional law?"
Yes. The claim that the veto is to fight unconstitutional laws is not mine but something I heard in middle school that may not be true. I don't recall them saying it was supposed to be the *only* way to stop unconstitutional law. I think the idea was the exec branch was supposed to be more limited, limited to keeping the gov't from doing questionable things rather than making the gov't do things.

I think we may be conflating two different phenomena. The first is the original topic of this thread, judicial review. We seem to agree it is a good thing for the courts to strike down unconstitutional laws. The second is the "creation" of laws by the judiciary. You point to the invention of "rights" not expressly mentioned in the Constitution as an example of such "creation." I assume you mean things like the "right to privacy" or the "right to an abortion." Or perhaps you mean the recognition of "rights" created by statutes that are not authorized under the Constitution like the "right" to received a social security payment or medicare benefits. But such recognition is "following the law" in a very real and fundamental sense. My examples above (Taney and the German judges) were meant to focus upon that problem. By "following the law" in those situations peoples' real rights were violated in devastating ways. No credit goes to those judges.

Yes Amendments are another way, but if the Sup. Ct. ignored the constitution, why would they pay attention to an amendment.

Locke and the Declaration of Independence say we have a right of revolution. Unfortunately, most revolutions just trade one bad situation for another. (Animal Farm)

I don't quite follow your point. According to Constitutional separation of powers, the Judicial branch is to act as a check on the Legislative by striking down unConstitutional laws. But it has no power granted to it to create law, that power being reserved to the Legislature. There is a significant difference in my mind in the active creation of law and the active denial of created law and the denial does not necessarily need to constitute a de facto creation of the negative. Mostly what I am concerned about are judges that for ideological purposes invent "rights" without any Constitutional basis whatsoever.

You are right concerning the use of the amendment process. The Thirteenth and Fourteenth Amendments acted to undo the Dred Scott decision (albeit with an intervening unpleasantness).

I agree that it is important to appoint good judges and generations of bad appointments can harm the development and culture of the law indefinitely. Beware, however, of a slavish addiction to the "I follow the law and refuse to create new law" mentality. Justice Taney who wrote the Dred Scott decision and the German judges who enforced the Nuremberg laws felt that way and acted on it.

My problem with the SCOTUS is the arbitrary interpretation. Original intent and the plain language should be the guide. The ninth and tenth amendments reinforce the reading and restrictions, but seem to be ignored. I believe both judges and legislators should defer to this higher authority and stop trying to subvert the language.

Hear, hear!

It really all comes down to the personal mentality of those occupying positions of power. Judges adjudicate the decisions of other judges based on their own morals - or lack of them. If you want to stop the judges from "legislating from the bench", you have to appoint judges who don't believe their role is to create law. To do that, you have to vote for Governors and others who nominate those judges who ALSO don't believe that a judge's role is to write legislation.

Our current government is absolutely rife with those that believe they have the moral responsibility to run others' lives and don't bat an eye about changing the laws to allow them to do that. Until that mentality gets reversed, we will continue to get power-hungry maniacs vying for positions of authority.

My stance on what the SCOTUS says:

Stan Lynde did a great comic strip many years ago called Rick O'Shay. The main character, for me, was Hipshot Percussion, ex-gunfighter. When the town council of Conniption, Montana, decided to ban guns, Hipshot left town. When asked by his friend, Rick, the marshal, why he didn't want to follow the law, Hip said, "Just because it's the law, don't make it right."

http://www.my-west.com/books/tag/hipshot...

yes, I'm convinced that the 3-branch idea is good,
and that we should "pit them against one another"
as the founders appeared to intend. . and I would
put time restrictions on judicial review -- the principle
of timely justice has been lost in the lawyers'
huge desire to fight and charge us for it. -- j