It is Supposed to be Hard
South Bend Seven helped me think through the more general point I was trying to get at in this post. I am simply sick of the incessant whining from this administration that it's too hard to get legislation through Congress and that difficulty justifies the Administration to start unilaterally exercising legislative powers via executive decree and the stretching of numerous regulatory authorities.
But here is the deal - its supposed to be hard to add new laws and, particularly, to expand the power of the government. Hard, but not impossible. Even when something is ruled unconstitutional, there is a mechanism to amend the Constitution. In fact, we have actually done it 27 times. But nowadays we don't even want to bother. We have Presidents of both parties that just invent new executive powers and who put pressure on the Courts to agree to broader and broader Federal powers.
I am not sure we will ever have another Constitutional Amendment in my lifetime. Already at 41 years since the last one (not counting the odd 27th amendment) this is the longest span in history without an Amendment being passed. We just can't be bothered to do things the right way. Don't believe me? Does anyone believe that if the income tax was invented today, anyone would bother with its Constitutional issues and decide an amendment is necessary. Or even more telling, in 1917 we honestly believed a Constitutional Amendment was needed for the federal government to regulate and ban alcoholic beverages. If that's true, where is the amendment that is required to ban marijuana, cocaine, or heroin? We dond't bother with one, because by the time we regulated these substances we had pretty much abandoned the concept (written into the document in several places and reiterated in the 9th and 10th amendment) that the Constitution conferred enumerated powers. Because that just made it too dang hard for politicians to exercise more and more power over us.
me:
Wait, I thought we had stopped bothering with that constitution thing way back under Bush I. My point being: I don't think that this congress and this administration are particular douches and that we'll just need to vote Romney into office to make everything better. They are all jackals drunk on power, and it'll take a third candidate to make things right. Write in Ron Paul!
April 18, 2012, 11:18 pmbob sykes:
Well, the first wound to the Constitution might have been the Louisianna Purchase. If not that, then Marshall's usurpation of the power to judge the constitutionality of laws. Certainly, the Progressive move to transfer legislative power to unelected bureaucrats in the latter Nineteenth Century counts.
The fact is that the regime ruling this country is lawless and illegitimate. Eventually the gloves will come off, and overt oppression will be openly exercised.
No system of government is permanent. Each is eventually perverted into something else.
April 19, 2012, 4:13 amNormD:
The problem is with the Courts.
Listened to a speech by Scalia where he asked, why did we pass the 19th amendment giving women the right to vote? Today the Court would simply find an implicit right buried in the Equal Protection Clause
Peter Schiff asked why we banned and unbanned alcohol using amendments - today Congress would simply use its Commerce Clause power.
And how in the hell did we get to a situation where Congress and the President can delegate the power to make law (called regulations) to unelected bureaucrats? Its deeply frightening that Congress and the President could enact a law telling some agency or other to "do good stuff" and the agency, on its own, can create regulations, that have the force of law, to enact this vague directive.
Lastly there is a huge problem in that "laws" can cover many diverse unrelated subjects. Why does a "highway" bill have a clause regarding passports? Why does Dodd-Frank contain a clause regarding "conflict minerals".
To me, taking military action without declaring war is the least troubling. Even Jefferson had the US Navy attack the Barbary
April 19, 2012, 5:05 amPirates without a Declaration of War. In many situations a Declaration of War is simply not feasible. How does one declare war on a terrorist group? How would we declare war if we suffered a missile attack on Washington? That said, the President should always seek Congress's permission for anything that lasts longer than some short period. Libertarians always seem to think that the President is limited to defensive actions before a Declaration of War, but this is militarily unrealistic. In the period after Pearl Harbor but before the formal DofW should US forces have been able to attack the Japanese? Lets say the US carriers off Hawaii detected the retiring Japanese fleet, would an attack been illegal?
Hunt Johnsen:
There's an argument to be made that we went off the rails when the Articles of Confederation were superseded by the Constitution. The Whiskey Rebellion marked the beginning of the end.
April 19, 2012, 7:29 amMatt:
NormD,
I agree with most of what you said about use of the military without a declaration of war. However, I disagree with you on one small point. Personally I think the president should have the authority to go to a full bore offence with no time limit without a declaration of war from Congress in one case. Specifically, in the case where another soverign nation declares war on the US the president should have full authority to prosecute that war without a retaliatory declaration by congress.
April 19, 2012, 8:29 amIGotBupkis, Legally Defined Cyberbully in All 57 States:
>>> They are all jackals drunk on power, and it’ll take a third candidate to make things right. Write in Ron Paul!
A closet pro-Obama supporter, I see. Or did you just do lots of drugs and it fried your brain so much that wasting your vote in a protest in an election that actually matters is unimportant?
>>> I don’t think that this congress and this administration are particular douches
Ah, I C. So it was brain fried on drugs, then?
>>> and that we’ll just need to vote Romney into office to make everything better.
Very few people imagine that Romney will make things BETTER. We figure he's not going to make it WORSE. A rather significant distinction when you consider the aging justices on the SCotUS are the conservative ones. President Downgrade, given a second term, could easily wind up nominating 2-3 ultraliberal idiots like Kagan in place of the conservative justices.... and managing to pack the SCotUS as Roosevelt only dreamed of -- for 25-30 years.
Yes, that will be The End for America.
Romney vs. Obama isn't just a minor party difference. It's a looming catastrophe, and anyone with a brain should recognize this even IF you dislike Romney intensely. Because you should HATE Obama -- not the man, but the PotUS. He is anathema to everything this country stands for.
April 19, 2012, 1:01 pmIGotBupkis, Legally Defined Cyberbully in All 57 States:
>>> And how in the hell did we get to a situation where Congress and the President can delegate the power to make law (called regulations) to unelected bureaucrats? Its deeply frightening that Congress and the President could enact a law telling some agency or other to “do good stuff” and the agency, on its own, can create regulations, that have the force of law, to enact this vague directive.
I concur fully. There's nothing in the Constitution or its related documents which suggests Congress has any right to delegate its lawmaking powers. THIS, more than almost anything else, has been the driving force been governmental encroachment.
April 19, 2012, 1:09 pmIGotBupkis, Legally Defined Cyberbully in All 57 States:
DOH.
April 19, 2012, 1:10 pmhas been the driving force behind governmental encroachment
me:
*Cough*. Really? Same views on healthcare, war, taxation and government spending, the economy, civil and human rights. Not to mention duplicitous liars willing to kick the constitution any day. The idea that deciding for one or the other would be advantageous is missing the question: how do we get out of this nightmare? And to be specific: Given the track record of both, I expect both of them to be completely incapable of picking any judge fit for duty in the supreme court. They'd be in fine company, but what I want if change for the better not more of the same outrages.
April 19, 2012, 4:02 pmDoctorT:
me: "Wait, I thought we had stopped bothering with that constitution thing way back under Bush...."
Most of the damage to our Constitution was done long before either Bush became president.
Constitutional violations began almost before the ink dried. George Washington's administration implemented the unconstitutional excise tax on whiskey. 'Minor' constitutional violations occured with almost every subsequent administration until Lincoln. He shredded much of the Constitution. Violations returned to their usual pace until FDR tried to pulp most of the Constitution. The Supreme Court blocked about half of his attempts, but it made up for that by ruling that the 'interstate commerce clause' gave Congress the authority to control almost every aspect of life. Congress had its own parchment shredding episodes when it repeatedly allowed the President and Executive Branch to amass powers such as inventing new regulations and fighting wars against other nations (not just pirates or terrorists) that went far beyond constitutional limits.
The sad reality is that the general public of the USA did not and does not want a weak federal government founded on libertarian principles. The general public wants its national government to be a powerful parent, nanny, and god. The few of us who have no need for bureaucratic parents, nannies, and gods are just shit out of luck.
April 19, 2012, 6:03 pmNoumenon:
An old comment from Steve Sailer's blog:
"Basically the only sections of the Constitution that are still obeyed are the 'numerical' parts that give terms of employment and details of elections. President shall be 35 years old, Senators serve 6 years, etc. Everything else is either ignored or flagrantly violated.
"A second proof of this: all the amendments since 1920 have been of the 'terms of employment' sections. This tells us the other parts have been completely superseded by the Collected Opinions of Black-Robed Saboteurs, so that amendments aren't worth the bother.
April 20, 2012, 5:21 am