Obama's newest plan for circumventing the constitution.

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Prior to the ratification of the Constitution, there was a debate among America's political elite about this very issue. The Antifederalists opposed having a Constitution, pointing to the ambiguity of phrases like "general welfare" which they believed would be used to justify governmental expanses. The Federalists tried to assure the Antifederalists, arguing that the phrase actually limits state power. In any case, this was settled in 1787. Even if you think the Constitution does not have a permanent meaning, the men who ratified the Constitution thought otherwise. I suppose it could be argued that Madison and company were idiots and liars.

There is a perfectly legal way to replace the current constitution with a new one totally, if necessary. A convention can be called and the Constitution abolished and replaced with a new one. Perhaps if this were done every 30 years or so, we would have less fooling around with our basic legal documents.

ruveyn

Not one of these replies has presented anything like a legal argument.

The constitution doesn't need to include the words, "living," or, "breathing." The very nature of judicial interpretation necessitates that. It is a basic principal of statutory interpretation that statutes speak in the present tense. Every court that considers the meaning of a question that has not been previously resolved undertakes that consideration in that context. The question before the court is, "What does the Constitution mean?" not, "What did the Constitution mean."

Plain language does not exempt a document, either. Indeed, plain language is more likely to be subject to contemporary interpretation. Why have lawyers relied on terms of art for centuries? Because these terms of art had centuries of judicial interpretation to hone their meaning. Plain language is desirable in contractual drafting, to be sure. But statutory drafting requires greater precision because it must speak permanently in the present tense, and govern the behaviour of people who had no role in its creation.

As for Telekon's historical perspective, it tries to skate nicely around the issue. Antifederalists certainly understood that the constitution would be subject to interpretation and raised concerns about imprecision of language. But nowhere did the Federalists constradict the premise. They, too, knew that the Constitution would be subject to interpreation. Their counterargument was not to deny that interpretation would occur, but rather to deny that interpretation would result in an expansion of federal power.

Now, politically, frequent revision of the Constitution might be beneficial, but surely that involves more fooling around with your basic legal documents, not less. Imagine every 30 years the jockeying for power that would take place among the interests seeking to concentrate more power in the statehouses, Congress, the White House or the courthouses.

You have a system that works, and workds admirably well. Part of that system is your lengthy jurisprudence on constitutional interpretation, and the guidance that it gives to government and to legislators. You should be celebrating that, not seeking to eliminate it.

And that is the end. Obama's antics with the Defense Authorization Act are, on their own, a disqualifying offence. Under no circumstances should any American who values their freedom be willing to support him again. Results of the election be damned; nothing a Republican could do would be worse than this. What the hell is the point of voting for a Democrat when he is just as bad as the worst neo-con's wet dream?

Some of the provisions in this bill take jurisdiction away from the civilian courts, meaning there would be serious hurdles to even getting to a Supreme Court judgment on its constitutionality. If you can have the military operating domestically and detaining American citizens indefinitely with no trial, charges, or legal counsel, when will they ever manage to get a lawsuit to court to challenge their unlawful incarceration? If someone is under a warrantless wiretap, they will first have to prove that they are being spied upon in order to have standing to sue. The courts cannot legally say anything about a law until a suit comes in front of them. Well, if you hold people out of the civilian justice system (say through indefinite detention by the military) then no challenge to the law can ever come.

And the courts are getting weaker anyways. The Warren Court is but a distant memory now, and it is doubtful how hard the courts will fight to preserve civil liberties anymore.

I don't take so pesimistic a view.

First let's tackle the issue of standing. Any person can bring a lawsuit seeking a declaration that a particular statute is unconstitutional. A court will then be seized of the question of whether or not they have standing to bring the action. Given the nature of the provisions to be complained of, I suspect that a court would take a large and liberal view on the question of standing, given that a plaintiff can legitimately state, "I have no idea whether or not I am the subject of actions being undertaked under authority of this act." Further, any person who has an interest in the person concerned can bring an action for habeus corpus. It is not required that a person imprisoned bring the action on his own or her own part.

The court of which you take such a dim view was, nonetheless able to rule that it had jurisdiction in Hamdan v. Rumsfeld notwithstanding argument from the government to the contrary. I see no reason to believe that the courts will not have the opportunity to pronounce upon this.

Now the question of what position the court would take is a more difficult one. But your republic has survived this long with the system that was created for it, I am reasonably optimistic that it will survive this, as well.

Must be something terrible in store for us if they see this as necessary. I wonder if they'll inform your family where you are when you disappear.

Completely and utterly false. I have no idea where you got that idea, but it is not true. You can not go to court simply to argue that a law is unconstitutional; you have to prove that you have been personally and directly harmed by it. This is why your regular Joe can't sue about the PPACA, the PATRIOT Act, or anything else that has been claimed to be unconstitutional.


Highly unlikely. They would be seriously breaking with precedent to be so broad in defining who has standing to sue.


Given the recent Justice Department stance that they can lie to anyone who requests information (rather than simply decline to provide the information, as they used to) what is to make them even say where someone is or what has been done with them?

The cold, hard fact is that once Obama signs the NDAA we will have the complete legal framework for Stalinist Gulags. I do not, of course, expect Obama to abuse this power to the extent that Stalin did. But that power should not exist, period.


Survive? Probably. But if the guarantees of our rights and legal protections as American citizens do not remain intact, it is not the same republic. Even if these powers really are only used in rare cases, there will still be some abuses and innocent people will be victimized. Hell, even the use of these powers against the truly guilty and the terrorists would represent a fundamental betrayal of what America is supposed to stand for.

QFT.
Ron Paul as president would probably destroy our economy, or come close to it, but he might start protecting civil liberties (I say 'might' because Obama pays great lip service to civil liberties while trampling all over our rights, so Paul might be just as bad in action).
Anarchy or fascism? Choices, choices...

Only if you have standing. You must allege damage or loss of rights to YOU by enforcement of the law in question. If you are not involved in a case, you have no standing with the courts.

ruveyn

Oh, Paul would never be able to get all of his economic agenda through Congress. It would be amusing watching the Democrats and Republicans having to team up to pass a budget over his veto, though. I do think he would be able to use his executive authority to stop many of the more egregious civil rights violations, and perhaps even close down Gitmo (as Obama promised to do his first day on the job... still holding your breath on that?) and wind down some of our military excesses.

My first choice this cycle was going to be Huntsman, and he was pretty much the only Republican I would have planned to support in the general election. But now the situation is more dire, and if it looks like Paul has a decent chance and some momentum when it comes to the Florida primaries, I'll vote him instead to give better chances of a semi-acceptable GOP candidate. Before I didn't care if Gingrich won the nomination because he would just lose the general election, but that's not really a tolerable outcome after this. Any of Huntsman, Paul, or even Romney are worthy of support over Obama in the general election now.

Don't hold your breath on Romney being some sort've improvement. It's about time that people realize the problem with America post-2001 aren't due to individuals they're due to dysfunctional institutions. One individual vote isn't going to cut it, peaceful collective action and pressure is necessary to set the US on a slightly less horrendous track.

People are talking about this coming year being an 'American Spring.' There was already enough planned for DC in March (freethought events, etc) that I've been considering flying out there to attend some of it (I have relatives, so I can stay fairly inexpensively); it's now looking like it might become one of the biggest public protest years ever.

I don't expect him to be better. I expect him not to be worse, and for the Democrats to grow some balls and start pushing back when he tries to pull the same kind of crap that Obama is getting away with. Maybe they will make some small token effort at preserving whatever scraps of the Constitution are left.


True, and those institutions are highly resilient to any efforts at real reform.


OWS, Tea Party, and any other popular expression of dissatisfaction will never translate to real political power or influence in the system. Our system has way too much inertia for a third party to gain real traction, which means that the Tea Party is simply folded into the GOP and OWS just goes towards helping Democrats. Once the election is over and OWS has helped the Dems beat the GOP at the ballot box, the Democratic party establishment will go back to doing what they were going to do anyways.

There is a hugely widespread belief, among both liberals and conservatives, that the current political establishment does not serve our interests. But without an alternative, we can't do anything about it. Every election we will vote the bums out, but they are only replaced by different bums.

The idea of an "American Spring" where widespread protests really light a fire under the government's ass and force substantive change is a nice fantasy, but I fear it is nothing more than that. The scale of protests needed to bring change is too high. We would need a repeat of the Civil Rights movement, and the problems we have now are not tangible enough to keep such a large movement so heavily invested for so long. Campaign finance law is boring. Blacks being denied an education, or the vote, or being sprayed with firehoses, was enraging. How will a reform movement motivate millions of people to devote years of struggle to this cause?

There were a lot of false starts, failed efforts, and even outright backwards efforts in the early 20th century before essential New Deal reforms were implemented. Likewise, they'll be a lot of confusion before people get pissed off at a stagnant if not double dipping economy to demand radical reforms - which will compel the establishment to implement non-radical but still effective reforms.

The New Deal reforms caused a double dip recession on top of a depression in 1937. What saved the United States was the war brewing in Europe and later on in the pacific. You buddy Obama has been doing "New Deal" and you see how much good that does.

ruveyn