Hear Ye, Hear Ye! The Constitutional Convention of the LoOG is Now In Session!

Tod Kelly

Tod is a writer from the Pacific Northwest. He is also serves as Executive Producer and host of both the 7 Deadly Sins Show at Portland's historic Mission Theatre and 7DS: Pants On Fire! at the White Eagle Hotel & Saloon. He is  a regular inactive for Marie Claire International and the Daily Beast, and is currently writing a book on the sudden rise of exorcisms in the United States. Follow him on Twitter.

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601 Responses

  1. Jaybird says:

    The presumption of sovreignty must always defer to the smaller when there is a conflict between two levels of government. Between the individual and the City, between the City and the State, between the State and the Federal Government. The greater *MUST* prove, beyond a reasonable doubt, that its interest supercedes the interest of the smaller when there is conflict.

    (The wording isn’t perfect, of course, but it strikes me as vaguely perfectible.)Report

    • Tod Kelly in reply to Jaybird says:

      Would this include civil rights issues?Report

      • Jaybird in reply to Tod Kelly says:

        It seems to me that a state that passes a law that says “certain individuals must sit in the back of the bus” have violated this amendment. (And if it’s not clear that it would, we can clear up the language.)

        (You know how it requires someone of lawyer intelligence or higher to explain how a law that censors a movie that contains only political speech on the basis that it contains political speech doesn’t *REALLY* violate the First Amendment? I’d be happy with an Amendment that requires equal intelligence or higher to explain how, no, states could totally run rampant over cities or cities over individuals without violating this amendment.)Report

        • Tod Kelly in reply to Jaybird says:

          JB – Then let me try it the other way.  If a man owns property upstream of a town and opens a slaughterhouse, is he allowed to pollute the water in order to save money on animal waste disposal?  Would his individual rights as a person supersede the city, state or Fed if they wished to force him to stop?Report

          • Roger in reply to Tod Kelly says:


            I like this one!Report

          • Jaybird in reply to Tod Kelly says:

            No, not at all. It’s just that the presumption of sovreignty would go to the slaughterhouse owner until the city/state/feds demonstrated that they should have jurisdiction over what’s going on.

            (I find it difficult to believe, for example, that a jury of individuals would think that the guy deciding to “pollute the water in order to save money on animal waste disposal” would be no big deal.)Report

            • Tod Kelly in reply to Jaybird says:

              I’m going to be very dim, here, and ask you spell out your amendment to me in better detail.  RIght now, what I hear you saying is “Individual rights beat out city rights every time, except when they shouldn’t.”  I know you well enough to know that this isn’t what you mean, so I am guessing I am missing something.


              • Jaybird in reply to Tod Kelly says:

                I said “presumption of sovreignty”.

                It’s like “presumption of innocence”.

                We have a presumption of innocence in our court cases.

                People are still found guilty. *ALL* the time.Report

              • James Hanley in reply to Jaybird says:


                I think I have an instinctive feel for your proposal, but I think what we all need is some specification of what, specifically, is the type of claim that successfully rebuts this presumption of sovereignty.Report

              • Jaybird in reply to James Hanley says:

                Perhaps demonstrated in a court of law.

                An automatic hearing before the court whether a law is constitutional the moment it is passed… but it also has to make it past a jury. (And a jury of appropriate-level folks… wouldn’t have individuals necessarily at a federal level law passing legislation that would affect the states. A random sampling of governors would suffice.)

                We could bundle these things so that many happen at once, of course.Report

              • Mike in reply to Jaybird says:

                Bad idea.

                Courts deal with cases and controversies that come about from the application of law.  Until the law is actually applied, you usually have no idea what aspect of it could run counter to the constitution or common sense.

                Plus, it would require an army of courts.  Considering the volume of laws (and would you consider administrative regulations laws to be reviewed?)  it would take years to get a constitutional ruling on some innocuous law instead of some sort of prioritization.Report

      • Matty in reply to Tod Kelly says:

        It might be unworkable but you could declare the individual as the smallest unit of government in such a system. Obviously to do that you need some version of the ‘interests’ of the individual that isn’t whatever that individual feels like otherwise the whole idea of law breaks down.

        So you could say

        Individual rights (predefined by constitution)>local government>state government>federal government.Report

    • Stillwater in reply to Jaybird says:

      When is the ‘beyond a reasonable doubt’ standard met?Report

      • Jaybird in reply to Stillwater says:

        Why not a trial? For a city vs. individual, a jury of individuals, for a city vs. state, a jury of mayors, for a state vs. federal, a jury of governors.Report

        • Jesse Ewiak in reply to Jaybird says:

          In other words, a nicely stacked deck. Why not six mayors and six individuals in your first example?Report

          • Jaybird in reply to Jesse Ewiak says:

            Because the presumption of sovreignty would be for the smaller individual over the greater.Report

            • Jesse Ewiak in reply to Jaybird says:

              So, if somebody wants to dump toxic waste into the river, the local or state government can’t stop them and instead, an individual person has to show they’re being injured by that and spend thousands in court?Report

              • Jaybird in reply to Jesse Ewiak says:

                What happens when someone shoots someone now?

                There is a trial and a presumption of innocence.


                The presumption of innocence is one that protects individual rights.

                The presumption of sovreignty is one that will do similar but, I submit, it won’t prevent such things as “legally going after someone who harms someone else (by dumping in a river)”.

                Hell, if anything, it’d make it easier for individuals to tackle such things as corporations dumping Hexavalent Chromium… why? Because of the presumption of sovreignty will always defer to the smaller.

                Would something like that make you feel better? “government or other incorporated entities”?Report

    • BSK in reply to Jaybird says:

      What are the “interests” of a government?  Aren’t a government’s interests an aggregation of the intersts of its constituents?  For instance, suppose federal law allowed for gay marriage but an individual stated sought to bar it, on the grounds that the federal government had no “interests” in marriage within that state.  If I was a gay resident of that state seeking to marry, this amendment would seem to leave me without recourse, meaning my interests are NOT the interests of the federal government.

      Or am I missing something in how we use the word “interests”?Report

    • Jesse Ewiak in reply to Jaybird says:

      …and at that point, we’re really not a United States of America anymore. We’re more like a loosely confederated body of cities, townships, counties, and unincorporated areas.Report

    • DensityDuck in reply to Jaybird says:

      Congratulations, you made it impossible to declare murder illegal.

      “But nobody thinks that murder should be legal!”  Welp.  How does a governing body prove beyond a reasonable doubt that murder should be illegal?  And how do we avoid that reasoning being extended to other things?  “Drugs cause significant problems for society, and the cost of mitigating those problems extend beyond what the individual who caused them could reasonably be expected to cover.  Therefore the interest of society in avoiding excessive costs supercedes the interest of individual persons to do lines of coke off a hooker’s chest.”Report

      • Jaybird in reply to DensityDuck says:

        I think that we could easily demonstrate that murder could be made illegal. We could, for example, pass a law.

        What would be *LESS* likely is that police officers acting under umbrella of the state not be charged with murder for shooting a handcuffed guy lying on the ground.

        As for the rest of your post, Annie Wittenmyer, maybe you should start a political movement to make drugs illegal. I imagine that it’ll work really, really well.Report

        • DensityDuck in reply to Jaybird says:

          “We could, for example, pass a law.”

          Laws are in conflict with my own interests.  And the state *MUST* prove, beyond a reasonable doubt, that its interest supercedes the interest of the individual when there is conflict.

          And my point is not that you couldn’t make a case that there ought to be a law against murder.  My point is that you can make the same case against anything else you might want to be illegal.Report

          • Jaybird in reply to DensityDuck says:

            Like alcohol? Like exchanging sex for money? Like selling lemonade from a sidewalk stand?

            I believe that the state could prove, beyond a reasonable doubt, that a law against murder should be passed.

            I don’t know that the state could prove, beyond a reasonable doubt, that a law against playing poker in your buddy’s basement should be passed. (True story: Friend’s father had the cops raid a nickle/dime/quarter poker game when he lived in Georgia.)Report

            • DensityDuck in reply to Jaybird says:

              Easy.  Gambling is an activity with significant potential dangers due to its inherent exploitation of human frailty.  It should be subject to heavy regulation and close oversight so that people don’t get hurt beyond what is reasonable.  As such, unlicensed gambling represents both a general hazard to society, and a betrayal of the inherent promise of regulation (i.e. that unregulated activity will be stopped to prevent illegal activity from unfairly outcompeting legitimate business operators.)Report

    • Jaybird in reply to Jaybird says:

      And I’ve been spelling it wrong. Sovereignty.


    • Michael Cain in reply to Jaybird says:

      Subject to some budget sanity.  A school district that demonstrably obtains 60% of its budget from outside the district should give up a good deal of “local control.”  A county whose roads are largely paid for by taxpayers outside the county needs to give up some of that sovereignty.Report

      • Jeff in reply to Michael Cain says:

        This brings up the question of minority rights. 

        Person / Entity A is depriving Person B of B’s rights (let’s say an atheist forced to say a prayer).  The trial is held, but the judg and jury are all majority members.  How does Person B get redress?Report

  2. Tim Kowal says:

    Randy Barnett’s “federalism amendment.”


    Kyle Cupp stated in a comment in my post, and I concurred, that perhaps even more important than getting all the “rights” down in a constitution is putting appropriate limitations on government power.  The Founders tried to do that, but we’ve weaseled out of many of the limitations.  (I say that partly in jest — I recognize that many expansions of federal power were necessary and just.  See Lincoln and the Civil War, and Elihu Root’s observations re the second industrial revolution.)Report

    • Roger in reply to Tim Kowal says:


      Love it!Report

    • Tod Kelly in reply to Tim Kowal says:

      I mostly agree with this.  However, it’s hard not to recognize that – historically speaking – the lack of the federal government giving people rights to something often leads to other governments taking away things that we assume to be rights of the minority.  Voting is one that comes to mind.Report

    • Burt Likko in reply to Tim Kowal says:

      This would overrule Heart of Atlanta and Wickard v. Filburn, which of course is what Prof. Barnett intends to happen. As to anti-discrimination law, we should note that at least as of right now, all fifty states have antidiscrimination laws affecting public accomodations, so at least in the short run we need not fear a sudden and massive return to the era of Jim Crow.

      My bigger concern is similar to Prof. Somin’s: how we define an activity that takes place entirely within a state’s boundaries. Is any transaction truly intrastate anymore? For instance, I just took a trip from my home near Los Angeles to Las Vegas. While in Las Vegas, I rented a hotel room, which might seem like an activity taking place entirely within Nevada. My residency in California would seem to have nothing to do with it. But we don’t even need to aggregate to see how non-Nevada economic interests feel an impact based on this. I used a credit card issued by a Federally-chartered bank, incorporated in Delaware and headquartered in North Carolina to pay for the room. The hotel may be a Nevada corporation, but it is principally owned by a Californian, and there are minor investors from around the world who hold stakes in it. The business is operating under the supervision of a Federal bankruptcy court. Now this looks more like an interstate and even potentially an international transaction, because there are direct economic effects around all of these non-Nevada stakeholders felt by the transaction. At what point do these interstate and international effects become significant enough that Federal jurisdiction is legitimately triggered?Report

  3. E.C. Gach says:

    No Citizen of the United States shall ever be deprived of that citizenship, nor the rights conferred upon them by it.Report

    • Tod Kelly in reply to E.C. Gach says:

      So I’ll ask the obvious one here, Ethan.  Does a convicted felon, then, get to retain his 2nd amendment rights?Report

    • Burt Likko in reply to E.C. Gach says:

      Would you permit a mechanism by which a person could voluntarily renounce citizenship? If so, could that citizen be renounced by, for instance, intentionally participating in an act of war against the United States?Report

      • E.C. Gach in reply to Burt Likko says:

        I’ll retreat to the term “deprived” as implying that the privileges of being a U.S. Citizen can be rejected but individuals, but never forcefully stripped from them.

        Deciding that someone who commits a horrible crime is thereby no longer a citizen, and thereby no longer has certain rights, seems to lead to the black hole our criminal justice system currently finds itself in with respect to “enemy combatants” and citizens on foreign soil.Report

        • Tod Kelly in reply to E.C. Gach says:

          But Ethan, the amendment is that they get to retain all rights, yes?  Which is why I mentioned the 2nd amendment rights.  If you are in jail, I am not so sure that you should be allowed to bear fire arms.  Additionally, if you have certain types of mental illness, I do not think you should be allowed to dear firearms.Report

          • Mad Rocket Scientist in reply to Tod Kelly says:

            Maybe a statement to the effect that the state can suspend the rights of persons who are currently wards of the state.  If you are in prison or a mental hospital, you are a ward of the state.  If you are on Parole, or have been involuntarily committed & released, you are a ward of the state until the state deems you otherwise (parole is done, mental health issue is resolved to the satisfaction of a Dr.).Report

  4. BSK says:

    The Eagles will win a Super Bowl in my lifetime.Report

  5. BSK says:

    Not an ammendment, but I always think of this scence when considering the usefulness of the document itself…

    Simon Wilder: You asked the question, sir, now let me answer it. The beauty of the Constitution is that it can always be changed. The beauty of the Constitution is that it makes no set law other than faith in the wisdom of ordinary people to govern themselves.

    Proffesor Pitkannan: Faith in the wisdom of the people is exactly what makes the Constitution incomplete and crude.

    Simon Wilder: Crude? No, sir. Our “founding parents” were pompous, white, middle-aged farmers, but they were also great men. Because they knew one thing that all great men should know: that they didn’t know everything. Sure, they’d make mistakes, but they made sure to leave a way to correct them. The president is not an “elected king,” no matter how many bombs he can drop. Because the “crude” Constitution doesn’t trust him. He’s just a bum, okay Mr. Pitkannan? He’s just a bum. Report

  6. BlaiseP says:

    I’d repeal the 12th Amendment and make the presidency a direct majority election.Report

    • E.C. Gach in reply to BlaiseP says:

      I support this amendment.Report

    • Yeah, this seems like a good idea. It’s also small enough potatoes that I could see it really happening at some point.Report

    • Katherine in reply to BlaiseP says:

      Yep, I’m endorsing this one.  Simple and sensible.Report

    • Michael Cain in reply to BlaiseP says:

      As soon as the federal government deeds over the 40% my state’s area that they hold, with the declared intent of never transferring it to either the state or private ownership.  We can negotiate lease rates on the military bases.  As a gesture of good faith, the feds can retain the national parks so long as they’re willing to take care of them.  I am unwilling to take the chance that a majority of voters, living hundreds or thousands of miles away from here in states with insignificant federal land holdings, get to choose the chief executive that helps set much of the detail of the land-use policy.Report

      • BlaiseP in reply to Michael Cain says:

        Sounds like a great idea.  At the same time, I’d ensure those states put as much into the Federal coffers as they take out.


        • Michael Cain in reply to BlaiseP says:

          Subject to some sanity checks, yes.

          We’re talking mostly about the 11 states from the Rocky Mountains to the Pacific Coast; I’m willing to consider Alaska and Hawaii as truly special cases, being isolated from the rest of us as they are (although some of the arguments in the next paragraph apply to them as well).  The most recent data I’ve seen is the Tax Foundation’s numbers for 2005.  Using their “deficit neutral federal expenditures” figure, five of the 11 states are already net donors: California, Colorado, Nevada, Oregon and Washington.  There are various ways you can weight the numbers in order to do aggregates; on a population-weighted basis, the 11-state region is overall a heavy net “donor”, getting back only about 90 cents per dollar of federal taxes paid.

          I would argue that there are certain categories of spending (and where there are dedicated taxes, revenues) that should be disregarded in the calculation for the purpose we’re discussing here.

          • New Mexico, for example, has several Indian reservations, four military bases (included the very large White Sands missile range), and a large national lab (Sandia). Relative to the state’s population, these bring large amounts of federal money in for purposes that the state can’t be expected to fund on its own (eg, New Mexico shouldn’t fund the entire national nuclear warhead design effort).
          • Arizona has a large population of retirees that bring in Social Security, Medicare and Medicaid dollars (almost 50 percent of Medicaid spending nationally is now for dual-eligibles).  There’s nothing that Arizona can do to keep the retirees from moving there and bringing their federal dollars with them.
          • Road damage on the interstate highway system is done primarily by heavy trucks; Wyoming receives a disproportionate share (per capita) of federal highway funds; but if you look at the traffic on I-80, the vast majority of the damage is being done by trucks carrying cargo between points far to the east and west of Wyoming itself; that is, the bulk of the benefit from I-80 goes to other states, so it makes some sense that those other states should pay to maintain the road.
          • In several western states, where oil, gas and coal is produced on federal lands, the states receive “federal” dollars in place of the taxes that eastern states levy on private landowners.  Eastern states get to choose how high or low to set those taxes; the federal government decides how much it will share with the western states.


    • Tod Kelly in reply to BlaiseP says:

      I’m not sure that I’m against it, but what do people that want the electoral college reversed believe will happen if it does?  Do not the parties just change strategies?  I am having a hard time seeing where any real difference happens.Report

      • BlaiseP in reply to Tod Kelly says:

        We’ve had fifteen elections result in a president with less than 50% of the vote.

        Rural states receive representation in the Electoral College far out of proportion to their numbers.   Furthermore, the fact that the winner takes all in each state distorts the process even more.

        Can anyone point to a reason to hang onto the Electoral College?Report

        • Tod Kelly in reply to BlaiseP says:

          None other than it’s what we’re already doing, and I am dubious that reversing it has the effect its opponents hope it will have.Report

          • BlaiseP in reply to Tod Kelly says:

            The Electoral College is the most undemocratic sort of bunkum I can think of at the present moment.  You are free to entertain your doubts.   The math is on my side.   The Senate already gives the little states enough of a leg up on the process.   About a third of the states should be made to re-enroll in the union, I’d put North and South Dakota together, there aren’t enough people in either state to form up a church choir between them but they get four goddamn senators.   That’s a gracious plenty.   Same goes for those barren wildernesses like Wyoming.  Washington DC has a higher population than Wyoming and gets no senators.


        • Jaybird in reply to BlaiseP says:

          “Can anyone point to a reason to hang onto the Electoral College?”

          It makes a 52%-48% election feel like a landslide?Report

          • mark boggs in reply to Jaybird says:

            At first I was tempted to agree with you.  By having the winner take all in electoral votes by state, you really can have a 52-48 vote that seems like a landslide.  But we seem to be so divided between red/blue that it seems the winner is never really legitimate to the loser, regardless of popular vote.Report

            • Simon K in reply to mark boggs says:

              Yes, but the winner feels legitimate to the winning side. If the fact they only won by 4% of the votes cast (and 20% of those eligible did not vote) were more obvious to them, maybe it would bring about a little humility?Report

      • Jaybird in reply to Tod Kelly says:

        Whenever they say something like “the electoral college gives disproportionate power to rural areas”, they are pretty much telling you.

        They want the rural areas to have proportionate power to the urban ones.Report

    • Burt Likko in reply to BlaiseP says:

      What about a plurality? In a case like 1992 or 1996, no candidate had a majority. Or would you have a runoff election?Report

  7. DensityDuck says:

    I’d go with the original Sixteenth Amendment passed by the House in 1789:

    The powers delegated by the Constitution to the government of the United States, shall be exercised as therein appropriated, so that the Legislative shall never exercise the powers vested in the Executive or Judicial; nor the Executive the powers vested in the Legislative or Judicial; nor the Judicial the powers vested in the Legislative or Executive.Report

    • Tod Kelly in reply to DensityDuck says:

      This sounds like the kind of amendment that a supporter would find so clear as to make sure there were never a question of power jurisdiction again, but would lead to endless court battles each application of power.

      Which, for the purposes of this exercise is good.  But aside from that, I think if you had passed this 100 years ago we’d be where we are now anyway.Report

      • DensityDuck in reply to Tod Kelly says:

        We would not have had the massive expansion of an unelected Federal regulatory bureaucracy that holds literal life-and-death powers over US citizens, though.  If everything that affects the citizens must be a law voted on by Congress, then we can at least get rid of the people who made rules we don’t like.  Who can we threaten to vote out of office to influence, say, the FDA’s position on experimental cancer medications?Report

  8. Steve S. says:

    Section 1. Article Two of the United States Constitution is hereby repealed.

    Section 2.  [rather lengthy as it would reconstitute executive functions into Article One]Report

    • Endorsed, more or less.Report

    • Tod Kelly in reply to Steve S. says:

      So… you’re saying do away with the executive branch, yes?  How does s**t get done if there is no one managing the machine?Report

      • Nob Akimoto in reply to Tod Kelly says:

        As they do in every single parliamentary democracy in the world?Report

        • James Hanley in reply to Nob Akimoto says:

          Yep, that’s how I took this one.

          For what it’s worth, I’m pretty sure a clear majority of American political scientists prefer a parliamentary system.  I used to be very opposed to such a system, and in favor of the U.S. system of separation of powers.  But it’s become clear to me that separation of powers has failed its main purpose, to set the institutions against each other so as to constrain each one, and the executive branch has  become far too powerful and dangerous.  So I have–very very reluctantly and uncomfortably–gravitated toward preferring a parliamentary system.

          But I think we’ll get an amendment protecting a women’s right to abortion on demand at any point in the pregnancy before we’ll change the fundamental separation of powers structure.Report

  9. Jesse Ewiak says:

    A couple of big ones I’m split on. It’s either..

    1) Reform the Senate to either destroy it or make it a majoritarian institution where 16% of the country can’t block the wishes of the other 84%.

    2) Public financing of elections

    3) Some form of FDR’s Economic Bill of RightsReport

    • Chris in reply to Jesse Ewiak says:

      I was about to say get rid of the Senate or reform it significantly, but you bet me to it. I was also about to say a living wage and right to health care amendment, too, but your 3 beats me to that. Short of getting rid of the whole damn thing (yeah, I don’t like our Constitution), that’s the direction I’d go in, but like I said, you beat me to it.Report

    • Tod Kelly in reply to Jesse Ewiak says:

      Jesse & Chris, I’m curious.  Why would you get rid of the Senate?  In what way does it impede the best governance of the country?  (I have never heard this voiced before.)

      Also, in what way does the Senate represent only 16% of the country?  Who are they, and who are the other 84%?  This one really confuses me.Report

      • Will Truman in reply to Tod Kelly says:

        The argument is that 16% of the population lives in enough smallpop states that they can block legislation. The main argument against the Senate is the comparative representation of a citizen of Wyoming versus one of California. This strikes a lot of people as undemocratic.

        Personally, I would vociferously oppose getting rid of the senate*. I’d be open to redrafting our senate to be more like Germany’s, but enough people want to get rid of it altogether that I would oppose any attempt at opening that can of worms.

        * – Of course, living in a smallpop state, I benefit from the senate. However, my views didn’t change when I relocated to a largerpop state.Report

        • Tod Kelly in reply to Will Truman says:

          I get it.  I would absolutely not want to get rid of the Senate, which I think often acts as the calmer, bigger picture body of Congress.  Whenever you hear of some crackpot bill that a new majority of on of the houses has passed, it’s always from the House – and is always quashed by the Senate.

          I’ve come to think of that as kind of their main job.Report

        • Jesse Ewiak in reply to Will Truman says:

          What Will said. Well, the first paragraph anyway. My personal preferences for reforming the Senate, going from most likely to least likely is the following.

          1) Eliminate the filibuster and make the Senate a majoritarian institution.

          2) Add ‘bonus’ Senate seats for each state per 2.5 or 5 million people in a state with a population over say, 10 million.

          3) Reform the Senate voting to make it more like Austraila – ie. There’s 3 or 4 Senate seats up at one time.

          4) Get rid of the thing or make it as important as the upper house in most of Europe.Report

          • For what it’s worth, I do agree on the Filibuster (for most things).Report

            • Pub Editor in reply to Will Truman says:

              Agreed on the filibuster. Either abolish it altogether, or formalize it for certain things (like judges), with spelled out procedures for how and when it can be used.  As it is, it is too easy and cost-free for a minority of senators to invoke simply the threat of filibuster; that does impede proper functioning of Congress.Report

              • Brandon Berg in reply to Pub Editor says:

                The filibuster effectively requires a 60% supermajority to pass legislation. Given the quality of the average new piece of legislation, this is a good thing. Only thing I’d change is up the cloture requirement to 2/3.Report

        • James Hanley in reply to Will Truman says:

          What Will said.Report

      • Pub Editor in reply to Tod Kelly says:

        Tod, the idea is that the twenty-five least populous states (Wyoming, Vermont, North Dakota…through Kentucky, I think) have only ~16% of the U.S. population, but those states control 50% of the seats in the Senate.  So, if the Senators from those states banded together, they could defeat a bill even if it was supported by senators representing the other 25 states.

        Basically, it’s a complaint that Wyoming (pop. 568.000) and Vermont (pop. 626,000) each have the same number of senators, and therefore the same voting power, as California (pop. 38 million) and Texas (pop. 26 million).

        On a more general level, the U.S. Senate is often where ideas from the House go to die of neglect. Many populist-minded folks (not a derisive term) see the Senate as frustrating the will of the more popularly representative House, much like the House of Lords inhibited the House of Commons in the UK in the 19th Century.  In the UK, they gradually disempowered the Lords, so that the Commons basically controls the government.

        Mind, I personally do not want to abolish the U.S. Senate, but this is my understanding of this line of reasoning.Report

        • Jesse Ewiak in reply to Pub Editor says:

          Actually, it’s 40%, not 50%. You’re correct on the rest. I can at least understand a Senate with a majority passing things without having a “majority” of the population. My problem is when 40 Senator’s, overwhelmingly from low population states block things that just aren’t popular among the Senate, but among the populace.

          I don’t deny the Senate has stopped bad things from happening. But, on the balance, looking at the history of the Senate, it’s been a place where progressive ideas go to die. The sad truth is that most of the big change in this country from the pre-New Deal todays happened when the DNC had massive supermajorities over a period of about eight years (1933-37 ; 1965-67 ; 09-11).


          • Tod Kelly in reply to Jesse Ewiak says:

            Yeah, I think I’m not convinced that’s a bad thing.

            The thought of us going, for example, from a package of [SSM, funding for safety nets for the poor, PBS, far-reaching affirmative action requirements] to [all SSM outlawed, scrapping federal funding of any safety nets, dismantling PBS, killing all affirmative action laws and regulations], back and forth every two years, feels really, really bad for the governing of a nation.

            I’m willing to trade good ideas taking much, much longer to pass in exchange for not having to deal with constant red-meat baiting laws by the majority coupled with overall legislative instability.Report

            • Jesse Ewiak in reply to Tod Kelly says:

              The problem is, when you look at countries where the Parliament is the end all and be all, they don’t swing back ‘n’ forth. When Maggie Thatcher got into office in 1979, she didn’t try to abolish the NHS. When the Social Democrats get back into office in Germany, they probably won’t change much of the changes in welfare that Merkel has pushed through.

              Now, I will admit, the Republican Party is more insane than most parties that can into power in the modern world, but if you get into office and try to shift things a bunch, you’ll quickly lose your next election.

              I’ll also note the Senate, outside of civil rights, was a majoritarian institution from the post-WWII era to basically the early 90’s. LBJ never worried about getting 60 votes for Medicare. He worried about 50.Report

            • Tom Van Dyke in reply to Tod Kelly says:

              The Senate is where bad ideas go to die–per Mr. Madison’s design [Federalist 63 & 64].

              The Obamacare controversy is largely due to its being slipped [pushed, jammed, forced] trough with the slimmest of majorities and virtually zero support from one of the parties.

              There have been few controversies like it, beceuase there have been so few major changes pushes through with zero consensus.  The GOP of 1940-60s threatened to undo the New Deal, but even when it held Congress in the 50s, never really got there.  So too, most of LBJ’s Great Society survives as well. There is on the whole an American consensus for them.


              • Jesse Ewiak in reply to Tom Van Dyke says:

                Are we really back to this myth that Medicare, Social Security, Civil Rights, and other laws weren’t massively divisive at the time?Report

              • Tom Van Dyke in reply to Jesse Ewiak says:

                Poke through the votes and get back to us on that, Jesse. IIRC, they passed comfortably, but pls do disabuse if not so.Report

              • Jesse Ewiak in reply to Tom Van Dyke says:

                Just because something pass comfortably didn’t mean it wasn’t controversial. Otherwise, Ronald Reagan wouldn’t have recorded an album against Medicare for example. In forty years, another version of TVD will be talking to another version of me how, “there was an American consensus on Social Security, Medicare, the ACA, but this newest law to subsidize brainboxes goes too far and was pushed through and with zero support of one of the major parties.”

                Also, most of the Republican’s who voted for Medicare and Civil Rights couldn’t win a Republican primary today.Report

              • Tom Van Dyke in reply to Jesse Ewiak says:

                So you’re stipulating that unlike Obamacare, those programs passed comfortably, Jesse?  Good.  That was my point.  What yours is exactly, I do not know.

                BHO’s one-man Unitary Executive war on Khaddafi was “controversial,” I suppose, but then again, that amounted to not much.


              • Jesse Ewiak in reply to Jesse Ewiak says:

                Considering modern conservatives now consider a vote for cloture support for something for the purpose of political ads, the ACA passed with more support in the Senate than Medicare originally did.Report

              • Tom Van Dyke in reply to Jesse Ewiak says:

                Mr. Ewiak, in 1965, Medicare passed the House 313-115 and the Senate 68-11.  This is why I weary of these challenges.  You could have looked this up yourself, you could have got back to me and acknowledged that my recollection was correct.

                Instead, I do all the work, and you go your merry way after wasting our time, impugning my accuracy, and obscuring my point, which holds.  That’s not right, man.



              • Oh good, showy protestations of victimization. I missed that.Report

              • Jaybird in reply to Jesse Ewiak says:

                After we get done pointing and laughing at Tom Van Dyke, can we compare how Obamacare was passed to how Johnsoncare was passed?

                Or has that moment passed as well?Report

              • Sure we can compare, but Obamacare was passed by a large majority (in the Senate), legally. Why the hell are we belaboring this? It’s a legitimate law passed legitimately. I am just so fucking tired of having this debate. It’s stupid.Report

              • Jesse Ewiak in reply to Jesse Ewiak says:

                I admit, I goofed and confused the actual vote with a “headcount” I read about LBJ having before the vote. My apologies for that part.

                Regardless, despite the vote, the reason why Medicare, the New Deal, and such wasn’t repealed  wasn’t because they were popular at passage, but because the were popular once they were implemented. A Republican Congress and President in 1936 could’ve easily strangled the New Deal in it’s infancy. If Bob Taft had won the Presidency and presided over the modern GOP, he could’ve easily reversed large chunks of the New Deal.

                However I will ask, how many of those Republicans could win an election in the GOP today? Yes, if you’re party is full of moderates and liberals, a bill can be bipartisan. But, when it’s only full of conservatives, things will be polarized.Report

              • Jaybird in reply to Jesse Ewiak says:

                I thought that the PPACA was originally a budget bill that was completely rewritten and then sent “back” to the House in its rewritten form.

                Is that significantly different from what happened?

                If it’s not, is it significantly different from how Johnsoncare was passed?

                If it *IS* significantly different from how Johnsoncare was passed, are we allowed to talk about what its significant difference represents?Report

              • Jesse Ewiak in reply to Jesse Ewiak says:

                The Senate rewrote a House bill, but it still passed 60-39. It then went to the House that passed it 219-212. Basically, what happened is that instead of ping-ponging a bill multiple times over months, they found a way to do in a shorter way that the governing majorities of both Houses agreed too. I have no doubt LBJ would’ve done the same thing under the same political circumstances.Report

              • Jaybird in reply to Jesse Ewiak says:

                Imagine, just for a second, the authorization for kinectic action in Iraq passing the same way.

                Just pretend.

                Are you saying that you wouldn’t say that that was a little fishy, just a little?Report

              • Jesse Ewiak in reply to Jesse Ewiak says:

                Nope. Literally dozens of laws are passed this way every year. The ACA is just the biggest.Report

              • Sigh.

                A) That is not what happened. The Senate passed the bill 60-39 on December 24, 2009. Then the Democrats lost the Senate seat in Massachusetts, so they no longer had the votes to pass a bill reconciling the House and Senate versions. There was some talk about “deem and pass”, but that didn’t happen. Instead, there was some horse trading with the anti-abortion part of the Democratic caucus in the House, and they agreed to support it. It passed the House 219-212 on March 21, 2010, was signed by Obama, and became the law of the land. Nothing that happened was in any way legally shady, even if you think “deem and pass” would have been.

                B) You are allowed to talk about any damn fool thing you want to talk about. But pretending that a bill that passed the House and Senate, then required a little bit of creativity to get turned into a law because 59% wasn’t a real majority in the Senate, was actually “rammed” down anyone’s throat, or that it was some grave miscarriage of democracy, is sheer dumb ideological fishwittery. And it’s incredibly boring and tiresome. Just because Tom is the only right-wing blowhard who spews talking points doesn’t mean he should get more consideration than the more-common liberal blowhards who pop up here and there.Report

              • Tom Van Dyke in reply to Jesse Ewiak says:

                JB, the facts are not of interest here.  Bringing them up is stupid, I concede, not for the reasons given, but because it’s a waste of time.Report

              • Jaybird in reply to Jesse Ewiak says:

                “The Senate passed the bill 60-39 on December 24, 2009”

                What bill was that? I was sure that it was a rewritten bill (and rewritten from an *ENTIRELY* different bill). Is that not the case?

                The Wikipedia says that the bill was introduced in the House as “Service Members Home Ownership Tax Act of 2009”, is that not accurate?

                Is that not fishy?Report

              • Also, honestly, at this point, if we started a war that way, I might just be glad it didn’t involve the president unilaterally declaring the war or Congress voting for it 90-10. If only you could get 40% opposition to a war !Report

              • Jaybird in reply to Jesse Ewiak says:

                On the upside, you could argue that the PPACA originally passed the house 416-0!

                And if someone disagreed with how you were framing that, you could call them stupid.Report

              • Jesse Ewiak in reply to Jesse Ewiak says:

                Nope. Refer to Ryan’s post. This happens many times when Congress has come to an agreement on a bill after the House passes their first version, but since it’s a bill that involves taxes, it has to “start” in the House. So, the Senate find a ‘tax’ bill already passed by the House, amends the new bill into it, and sends it back to the House for repassage. Just because you don’t know of it doesn’t make it shady.Report

              • Jay: It’s a bit of a dodge because the Senate isn’t allowed to introduce revenue bills. Traditionally, the Senate takes an existing revenue bill, passes an amendment that changes the text, and then goes from there.

                You aren’t wrong if you think this kind of skirts around the spirit of the Constitution, but from what I understand it’s a fairly common practice. PPACA, as Jesse says, gets more attention because it’s controversial in general, but it’s one among a ton of things that work this way. It remains the case that the bill *was* passed by both Houses.Report

              • Jaybird in reply to Jesse Ewiak says:

                “after the House passes their first version”

                So your argument is that the first version of the PPACA was the Service Members Home Ownership Tax Act of 2009?

                And you don’t see how anybody could call that fishy?Report

              • Jaybird in reply to Jesse Ewiak says:

                “It remains the case that the bill *was* passed by both Houses.”

                I’m not arguing that it wasn’t.

                I would, however, argue that it passed in a significantly different way than Johnsoncare passed and that those who see how it passed as “fishy” are standing on firmer ground rather than stupider.Report

              • Jesse Ewiak in reply to Jesse Ewiak says:

                No, as Ryan said, the first version was what passed the House. Another different version passed the Senate. Instead of going through a reconciliation process that the GOP had publicly claimed they were going to try to wreck through procedural muck, the DNC used a procedure of their own that had been used by both parties multiple times in the past.

                Of course, getting back to the point this thread, if the Senate was a majoritarian institution without a filibuster, there would’ve been no “shadiness” at all. 🙂Report

              • Is your claim that their argument is that it’s “fishy” because it’s a revenue bill that was introduced in the Senate? Is that the entirety of the “fishy” position?

                Maybe that’s not stupid, but it’s not exactly penetrating analysis either.

                EDIT: Notice the face of my avatar. That’s the face that argument makes me make.Report

              • Jesse Ewiak in reply to Jesse Ewiak says:

                Also, Jaybird, Johnson would’ve been perfectly happy doing the same thing in the same situation. So, as TVD said, Johnson didn’t pass Medicare because there was “consensus.” Johnson passed Medicare because he thought it was right and he had 50+ votes.

                As been noted, this is a procedure done multiple times with multiple bills, large and small.Report

              • Stillwater in reply to Jesse Ewiak says:

                That’s not the end of it! JB will find new and better arguments for why that whole thing was ‘fishy’. And why our government ought to be Dismantled, even tho it’s too broken to even do that to itsownself, but if it could there’d be hell to pay no doubt!Report

              • Jaybird in reply to Jesse Ewiak says:

                To be perfectly honest, I don’t think I have to.

                If the premise is that Obamacare is significantly different from Johnsoncare in how it was passed, I think we’ve established that. Good enough for me.

                It even finally gets fully implemented over the next couple of years. After that happens, we can discuss whether the reasons we needed to pass it came to fruition and whether the things its supporters said it would prevent were actually prevented.Report

              • Is a 60-vote majority really that slim? We could disqualify most presidents from holding their office if we insisted on 60% majorities.

                Your claim is basically nonsense in service of ideology.Report

              • Stillwater in reply to Tom Van Dyke says:

                The Obamacare controversy is largely due to its being slipped [pushed, jammed, forced] trough with the slimmest of majorities and virtually zero support from one of the parties.

                I think this confuses support for a policy (the GOP did in the 90’s) with partisan opposition for purely political reasons (the GOP of the oughts). Tom, the more you talk about this stuff, the more you confirm the idea that the GOP and conservatism generally is defined by opposition to libruls.Report

              • Tom Van Dyke in reply to Stillwater says:

                Mr. Still, the theoretical support by some GOPers in the ’90s for some things resembling some facets of Obamacare is a thin argument, although it’s becoming a staple of these disputations.  But it was never drafted, never voted upon.  It is ether.

                I certainly won’t argue that opposition to the other party’s ideas and and conduct isn’t part of the game, as you note—although you seem to attribute the phenomenon to the GOP rather than to the nature of politics, and so, I object.  Why, just today, a poll reveals the majority of liberal Democrats approve of Gitmo and drones now that a Democrat is president.

                The poll shows that 53 percent of self-identified liberal Democrats — and 67 percent of moderate or conservative Democrats — support keeping Guantanamo Bay open, even though it emerged as a symbol of the post-Sept. 11 national security policies of George W. Bush, which many liberals bitterly opposed.

                Repulsive liberal hypocrisy extends far beyond the issue of Guantanamo. 


                I was going to write this one up, but I’m not really into the hypocrisy gotcha game.  It’s the nature of the partisan beast, and a tu quoque would be entirely proper here: I would expect a Republican equivalent wouldn’t be hard to find.

                BTW—the quote above is from Glenn Greenwald, not me.  Would I have written “repulsive liberal hypocrisy,” well, it would not be worth the bother, things being what they are.  I’ll leave it to him; he’s allowed.


              • How is Greenwald allowed to say stuff like “repulsive progressive hypocrisy”? He’s not a progressive himself, but a civil libertarian. And he’s clearly shown repeatedly that he doesn’t give a damn about anything other than his pious pronouncements of purity and greatness.Report

              • Jaybird in reply to Nob Akimoto says:

                Hate speech! We need to excise certain phrases from his work to make them acceptable for public consumption!

                (Unless I misunderstand what you mean when you ask How is Greenwald allowed to say stuff like “repulsive progressive hypocrisy”? Am I allowed to think that Ted Haggard is a hypocrite for smoking meth and having sex with a gay prostitute despite my atheist libertarian leanings?)Report

              • TVD said he was “allowed”. The implication being that Greenwald can say mean things about liberals because he is one. Nob was pushing back against that.Report

              • Tom Van Dyke in reply to Nob Akimoto says:

                Mr. Stillwater, surely you’re not saying there are no repulsive progressive hypocrites, who were all on about Bush shredding the Constitution but have now dummied up now that Obama has done the same, if not surpassed him.

                And you’re going to have to substantiate your “GOP supported Obamacare before it was Obamacare” quite a bit more than you have.  It remains ether.

                You also must account for the Dems presumably opposing Obamacare back when it was GOPCare.  ;-PReport

              • Stillwater in reply to Nob Akimoto says:

                Tom, this might get nuanced so I hope I don’t lose you. But here’s the lay of the land. One side (the Democrats) puts forward a proposal – Hillary care in the 90s, Romney-care in the oughts. The other side (the GOP) responds to this by putting forward counter proposals – Romney care in the 90s and Ryan Care in the oughts. But interestingly, the roles are never reverse!

                The facts are that the GOP hasn’t put forward a proposal when they have the power to enact it, whether it’s eliminating Medicare (the Ryan Plan), or introducing Romney Care (which they could have done in the oughts), or any other significant reform to health care or future liabilities. But the Democrats have! They’ve actively pursued health care reforms on the social access side of things, on the insurance accountability side, on the Medicare funding side. And even when the Democrats propose a policy that the GOP endorsed only a few years prior, the GOP rejects – OPPOSES! – that plan. And what they offer is garbage in return.

                If you don’t see that, then I’ll have to revise my view of your objectivity about politics. But the fact that you can’t see that the GOP is defined by opposing Democrats more than they’re defined by positive policy proposal makes me seriously question your honesty as an interlocutor.


              • Tom Van Dyke in reply to Nob Akimoto says:

                You’re changing the subject, Mr. Still, and cannot show the GOP bill that was tantamount to Obamacare, because there isn’t one.    I will not question your honesty, as you have threatened mine here, but neither do I wish to continue this under your sword of Damocles.

                Actually, what I attempted here by dragging in the Greenwald thing, was to offer a tu quoque rather than a “Dems are worse” argument.  But even such an accommodation isn’t acceptable to you.

                Obamacare was shoved down the American people’s throats, achieving narrow passage via pushing the limits of legislative legality.  In 2012, it remains a split decision among the electorate.

                It has always been my argument that such major steps should enjoy consensus, not brute majoritarianism, and a principled argument to the contrary is not on offer.Report

              • Stillwater in reply to Nob Akimoto says:

                consensus, not brute majoritarianism,

                The Senate had a 60-40 split in favor of something at least as liberal as final Act. After Kennedy, it was 59-41. The House was wildly supportive of something even more liberal.

                I wonder what you mean by ‘consensus here’? Is it popular vote? That seems like something you would otherwise object to Tom.Report

              • Tom Van Dyke in reply to Nob Akimoto says:

                Show me the 1990s GOP version of Obamacare.  It doesn’t exist: it’s a half-truth Obamaoid talking point meme fantasy.

                You’re explicitly ignoring the election of Scott Brown by the people of Massachusetts, a late attempt to stop Obamacare, and ignoring the circus that surrounded its squeaking through the House with only that Asian fellow from the GOP’s vote.  [He lost the next election to the Dem.]

                Ignoring that the Senate bill that was passed was never designed to be the final bill.  Ignoring the 2010 elections, ignoring the polls in 2012 that give Obamacare a 50-50 at best.

                I’m trying to discuss the facts of the actual issue at hand, Mr. Still, and taking great pains to not fold it into a meta-narrative of your party sucks worse than mine.  That shit leads nowhere.  And we have arrived at your preferred destination.



              • Stillwater in reply to Nob Akimoto says:

                Tom, one way to express the facts is to say that on final vote, it was close. Another way to present the facts is to say that the final vote was close because huge sections of the House Dem caucus rejected the ‘cadillac tax’ and some other provisions of the bill they thought weren’t liberal enough.

                So yeah. You can say you’re talking about the facts. But you should also concede you’re doing so without a great level of specificity.Report

              • James Hanley in reply to Nob Akimoto says:

                the election of Scott Brown by the people of Massachusetts, a late attempt to stop Obamacare,

                That’s one of the boldest lines of horseshit ever written by anyone on these here pages.  Nice revisionist history there, sir.   “The people” of Massachusetts were not attempting to stop Obamacare.  The liberals of Massachusetts were attempting to support Obamacare, the conservatives of Massachusetts were attempting to stop it, and the middle-of-the-roaders were looking at the worst political campaign in history by Brown’s opponent and saying, “he seems all right, and a lot less boneheaded than her.”Report

              • Stillwater in reply to Nob Akimoto says:

                You also didn’t answer the ‘consensus’ question, Tom. Which is part of the reason people think you aren’t the most honest of interlocutors.Report

              • Tom Van Dyke in reply to Nob Akimoto says:

                Mr. Still, we’re finished here.  I will not question your honesty, nor have you impugn mine.  I have stated my case and facts, and if you believe you’ve stated one, then there is no point in us continuing what is becoming increasingly unpleasant.

                I stand by my original 2 core assertions:

                The Senate is where bad ideas go to die–per Mr. Madison’s design [Federalist 63 & 64].


                The Obamacare controversy is largely due to its being slipped [pushed, jammed, forced] trough with the slimmest of majorities and virtually zero support from one of the parties.

                There have been few controversies like it, beceuase there have been so few major changes pushes through with zero consensus. Report

              • What about Medicare Modernization Act that was passed on a 54-44 vote in the US Senate and a really weird 220 margin vote in the House?

                Is that a “rammed down the throat of Congress” bill, too, Ward?Report

              • Stillwater in reply to Nob Akimoto says:

                Don’t be like that Tom. I just asked you a simple question: if majority House support and 59 Senators doesn’t constitute consensus, then what does? It seems like a fair enough issue to pursue, since that was the sole criterion by which you challenged the legitimacy of the PPACA.

                Just answer the question bro!Report

              • Stillwater in reply to Nob Akimoto says:

                Heh. Well it is sorta funny. And if I’m understanding you correctly here, the debating tactic which strikes me as so transparent – but my opponents of a certain stripe apparently remain unaware of – is that arguments which proceed along one line miraculously change to another line when the previous line no longer leads anywhere. It’s as if they really don’t have a specific argument against that view, but rather a general sentiment that the view must be wrong.

                It’s a wonder to behold!Report

              • Tom Van Dyke in reply to Nob Akimoto says:

                Good.  You two play with each other and leave the adults alone.Report

              • James Hanley in reply to Nob Akimoto says:

                Mr. “I’m going to take my ball and go home” wants to pretend he’s the adult?  How cute is that?Report

              • Stillwater in reply to Tom Van Dyke says:

                Tom, what’s the point of that quoted link? To show that liberal’s also don’t support ‘liberal’ policy? But if liberals don’t support it, then who does? Or maybe the better question to ask is, why does anyone think that liberals support the closure of Gitmo when the polls clearly show that they don’t, as your ‘evidence’ seems to demonstrate?

                The only way to make sense of it, I think, is to suppose that this is all part of the ‘liberal media’ conspiracy which drives political issues. If not that, then the argument you’re making is entirely incoherent.

                There’s a fact of the matter here, Tom. Conservatives embraced Romney-Obama care in the 90s because it opposed the liberal view of single payer. And they now reject it because Romney-Obama-care is supported by liberals. The evidence is that conservatives don’t have an alternative plan other than the Ryan Plan which effectively eliminates Medicare (and gives the wealthiest Americans a substantital tax break along the way!) leaving seniors at mercy of the private sector which couldn’t meet their needs to begin with.Report

              • Tom Van Dyke in reply to Tom Van Dyke says:

                Mr. Still, you want to ignore all other factors and box me into answering yr loaded question?

                Mr. Akimoto attempts a similar technique with Medicare Part D, as if the Dems would have voted nay on that half-a-loaf and preferred no Rx $$ for seniors instead.

                That’s sophistry, gentlemen, and is no attempt toward pursuing the truth of these matters.

                To Messrs. Stillwater and Bonneville, I spent quite a lot of effort in making my case and linking the particulars of it—only to have them completely ignored.  Yes, I have been victimized: robbed of my time and good faith.  But that’s my fault, not yours.


              • James Hanley in reply to Tom Van Dyke says:

                That’s sophistry,


              • Tod Kelly in reply to Tom Van Dyke says:

                Tom, I get your point, but I’d also remind that much of the current HCR is taken from the GOP.  The strategy with Obama, since his election, has been to oppose anything – even a tax reduction – just for the sake of opposing it.

                Which in itself says nothing of what the long term effects of HRC will be, good or bad, but to be fair, they were also opposing him telling kids they should stay in school.Report

              • Tom Van Dyke in reply to Tod Kelly says:

                Tod, the Dems cut the GOP out of the process.  That they “forced” passage is accurate. Recall also the Stupak business and BHO’s “executive order” substituted for what should actually be in the legislation.


                And if you don’t recall Pelosi’s pathetic “We Have to Pass the Bill So That You Can Find Out What Is In It”


                then all is epistemologically lost down the memory hole.



                updated 1/4/2010 4:35:02 PM ET

                WASHINGTON — House and Senate Democrats intend to bypass traditional procedures when they negotiate a final compromise on health care legislation, officials said Monday, a move that will exclude Republican lawmakers and reduce their ability to delay or force politically troubling votes in both houses.

                The unofficial timetable calls for final passage of the measure to remake the nation’s healthcare system by the time President Barack Obama delivers his State of the Union address, probably in early February.

                Democratic aides said the final compromise talks would essentially be a three-way negotiation involving top Democrats in the House and Senate and the White House, a structure that gives unusual latitude to Senate Majority Leader Harry Reid of Nevada and Speaker Nancy Pelosi of California.


              • Stillwater in reply to Tom Van Dyke says:

                Tom, I hate to harp on this, but what you present is just plain wrong. Factually wrong. But my biggest gripe is that you misuse the word ‘epsitemology’ to you’re own advantage. Propaganda isn’t epistomology. False beliefs aren’t accounted for it either. Epistemology is the study of what we know, not what we believe. Psychology and social science is more accurately the domain you’re referring to, since you’re talking about how people – like yourself 🙂 – hold false beliefs.Report

              • wardsmith in reply to Stillwater says:

                @Still, Tom posted links that backup his claim. You merely refuted it with no links. Now perhaps if you would put up or shut up? Or are you learning from Kim?

                The Rebublicans, when they had the numbers enacted Medicare Part D. They received holy hell for it, losing their majority and getting lambasted by the left as well as by the AARP. The fact that it came in on time and under budget has escaped a lot of “epistemological” notice. 😉Report

              • Tom Van Dyke in reply to Stillwater says:

                Mr. Stillwater, epistemology in this case is how you know what you know, because you are not in possession of the facts, nor do you offer them, only paraphrases and revisions of them. The trouble with our liberal friends is not that they are ignorant, but that they know so much that isn’t so.

                Obamacare was shoved down our throats by the slimmest of possible margins and by pressing the legislative process to its extreme allowable limits.  It remains a 50-50 deal at best in the eyes of the American public, and I do not think we should invoke major changes by majoritarianism.

                That’s my case, I’ve backed it up with the facts, and any disagreement can only be read as support for majoritarianism, because that’s what this is.  Consensus is nowhere in sight.



              • Stillwater in reply to Stillwater says:

                Well, to both Tom and Ward, all I can say is what I wrote in a previous guest post: if there are no facts that we can agree on, then we have to look at the theories by which we determine the facts. To me, both of you seem incapable of seeing facts for what they are. Likewise, I’m sure, you feel the same way about me and my views. So facts are dismissed, as is TVD’s wont since for him, it’s all about coherence of theory.

                But I’ll say this, just to set the record straight. The Dems invited the GOP to play along in shaping the ACA legislation every step of the way. Amendments were read and argued, some were included. Hell, the legilsation was written by one of the most conservative Democratic Senators in the caucus!

                That you think it was written without GOP inclusion is either the GOP’s fault or your own misconception of the facts. And the assertion it was forced down the American people throats is no more nor less true of any other bill that has majority support in the House and 59 Senators supporting it.Report

              • Stillwater in reply to Stillwater says:

                epistemology in this case is how you know what you know

                See, I think this supports my contention that you don’t know what the word means. How people form their beliefs is the domain of psychology, or social science, or religious studies, or cultural anthropology, or public relations research. How people justify their beliefs, and determine whether their beliefs are true or not is the domain of epistemology.

                Just holding a belief doesn’t constitute a failure – on way or the other! – of epistemology.Report

              • wardsmith in reply to Stillwater says:

                Still I didn’t see your previous post that I remember and my memory isn’t too terribly weak. Perhaps if you graced us with a link to /that/ and hopefully within that OP you’ve got further links to buttress your position. Otherwise even to an impartial observer or a debate judge, this one comes down squarely in Tom’s corner. I guess I know what you think you know, the only epistemology remaining is how you /justify/ it. A link or three would be a good start. That’s all I said and you haven’t come clean yet.  [citation needed]Report

              • Stillwater in reply to Stillwater says:

                Ward, it was the called Arguing Racism. It’s beyond the main page at this point. Please read it!

                But to the point at hand, simply citing one piece of evidence isn’t decisive wrt a situation which we all witnessed and lived through. What you’re suggesting here is akin to refuting someone’s belief that the civil war didn’t happen unless they can cite evidence that it did. Some stuff is just part of our basic knowledge and understanding of reality.

                So, to take it back to my guest post, the thesis was that some evidence which strikes people as obvious evidence of X is denied by their opponents on the grounds that interpreting evidence as being evidence X is question begging. My argument in the post is that that move – refuting prima facie evidence because of a theory – is itself question begging, since according to the theory (read the post!) there is no evidence which could sustain the initially proposed belief.

                I think this is a similar situation. Tom wants to use a single piece of evidence to counter what we all lived through, what we all experienced non-partisanly. His argument only make sense given a partisan theory. But that begs the question.Report

              • James Hanley in reply to Tom Van Dyke says:

                the Dems cut the GOP out of the process.

                As a simple observation, that’s true enough.

                As a criticism, it’s the very peak of hypocrisy.Report

              • Jesse Ewiak in reply to James Hanley says:

                Not exactly true, though. I mean, Republicans may have forgotten about it, but I remember Max Baucus playing footsie with Charles Grassley and other Republican’s for a couple of months to try to convince them to do anything.

                Also, a decent chunk of Republican ideas were included in the final bill. Obviously, some of these are ‘duh’ ideas that would’ve been in the bill regardless, but it’s not like this was a bill written by Nancy Pelosi and Ted Kennedy’s Ghost. 🙂Report

              • wardsmith in reply to Tom Van Dyke says:

                Ok Still, read your post which as you can see I never commented on (I doubt I even saw it). Regardless of the merits of /that/ argument you still didn’t provide any evidence. Perhaps you don’t know how to insert a link on this site? Therefore my take on your “debate” style is that you want to be taken as an authority on your own merits, ipse dixit.

                Only the most partisan of ideologues could deny the shenanigans that went on during the Obamacare legislation. The very fact that it was “passed” through cloture rather than the method that has been used for 225 years prior should have caused some eyebrows to raise. The cloture vote was 60-40 in the Senate along party lines. Debate was stifled. The further “passage” by the Congress via a “procedural” vote likewise was engineered to stifle dissent, amendments or debate. The Democrats had the numbers and the Democrats shoved it down America’s throat. Regardless of the merits, the outcome of the 2010 election showed America’s distaste for having something shoved down its throat. You can call that reaching across party lines all you want, but the facts on the ground and in evidence speak for themselves. I’d hate for you to join the Kimmie camp of ipse dixit ditziness.Report

              • Patrick Cahalan in reply to wardsmith says:

                The Democrats had the numbers and the Democrats shoved it down America’s throat.

                More or less.

                Regardless of the merits, the outcome of the 2010 election showed America’s distaste for having something shoved down its throat.

                This doesn’t follow, though.  Congressional swing during a President’s term isn’t exactly unprecedented.  And I really, really doubt you can make this statement with any sort of reasonable surety.

                Remember, I don’t like PPACA either.  But I just don’t think there’s sufficient reasonable evidence to say that the midterm election of 2010 was driven even in a large part by public displeasure with PPACA.

                The Democrats lost 68 house seats and 6 senate seats, the averages are 30 and 4.  Reagan, Eisenhower, Hoover… they all lost more than 4 Senate seats in a midterm.

                Midterm elections historically draw less voting activity than Presidential elections, and midterm elections also trend higher in those states with gubernatorial elections than those that don’t.  Of the 36 states that elected a governor in 2010, most went R.

                I’d have to dig into congressional races in all those states, and compare returns to those states without gubernatorial races, and try to correct for a bunch of other confounding factors before I’d even come close to a reasonable guess as to the ultimate causes of the 2010 election returns.Report

              • wardsmith in reply to wardsmith says:

                Patrick, make sure you include data like this in your analysis. Democrat losses were wide and deep, across every state line (AND in every state legislature including traditional blue states). Repudiation comes to mind, there are other words, historic, shellacked, devastating, YMMV.Report

              • Jeff in reply to Tom Van Dyke says:

                “the Dems cut the GOP out of the process.”

                If you’re trying to show your good intentions, YR DOIN IT RONG.Report

              • Tod Kelly in reply to Tom Van Dyke says:

                Tom, I see where you’re getting at here, but it does seem that you pick up the story well after months and months of attempted negotiations.

                Is going ahead after so many failed attempts at negotiation when they had the majority all along railroading?  Well, I suppose it’s an “I say potato” kind of thing.Report

              • Tom Van Dyke in reply to Tod Kelly says:

                They railroaded their own, like Bart Stupak, as well, Tod.  Then there was the Cornhusker Kickback, where they bought off Ben Nelson.  We don’t remember this stuff, we flushed it down the memory hole.


                There are many other irregularities to this abomination of a bill, as WSmith chronicles—and far more important is Pelosi’s “pass it to find out what’s in it.” than this minor point of the GOP being shut out.  [Which itself was precedent-breaking, but is minimized here.  It was a waste of time linking substantively to it.]

                We’re not really interested in discussing the matter, just trying to make it disappear by picking out the most minor of points and ignoring the elephants in the room.  We still don’t know what’s in the damn bill.  The Obama administration rolls out a new wrinkle every day.Report

          • James Hanley in reply to Jesse Ewiak says:

            on the balance, looking at the history of the Senate, it’s been a place where progressive ideas go to die

            I’m not persuaded that, “it blocks my preferred policies” is really a strong argument.  Once you generalize it to the other side, you’ll see why.Report

            • Jesse Ewiak in reply to James Hanley says:

              Why not? The original Senate was created because the small states were going to get run over by the big states preferred policies. It wasn’t any great philosophical debate, it was nitty ‘n’ gritty power politics.Report

              • James Hanley in reply to Jesse Ewiak says:


                It wasn’t about ensuring that “my side wins,” it was about ensuring that “my side at least has a fair shot at winning.”

                The difference, though subtle, is crucial.  This goes back to a complaint I made recently on another thread about the basic hypocritical approach in politics and political debate, an effort to either rig the rules in such a way that they favor my side or to declare that my side doesn’t have to follow the same rules as the other side.

                I say everyone plays by the same rules, and the rules are designed to not make things easier for one side than the other.

                But then, I care a lot more about process than I do about particular policy goals.  And I think people who care more about particular policy goals than they do about process don’t realize what a dangerous game they play.  As legal scholar Alex Bickel wrote, “the highest morality is almost always the morality of process.” (Note the “almost” in there–it’s not an absolute.)

                I think a person can legitimately argue against the current structure and rules of the Senate without much difficulty.  But your grounds, that it’s making your side’s policies difficult, isn’t one of those legitimate arguments.Report

              • Jesse Ewiak in reply to James Hanley says:

                I fail to see a system where the majority of the population might actually have a majority of the policy determining power is less fair than the current Senate.

                Everybody will play by the same rules. Get to a majority and pass your agenda, assuming it’s Constitutional and all that.

                Right now, the Majority whether it’s liberal, conservative, or moderate actually can’t pass it’s preferred policy. Right now, the game is “rigged” in favor of the small population states.

                As Ryan said, democracy doesn’t mean I won’t always win. But, it will mean the majority of the populace will win without an opportunity for a small sliver of the country blocking them.


              • DensityDuck in reply to Jesse Ewiak says:

                “I fail to see a system where the majority of the population might actually have a majority of the policy determining power is less fair than the current Senate.”

                Proposition 8 was passed by majority vote.Report

              • Jesse Ewiak in reply to DensityDuck says:

                It’s a good thing I noted the Constitutional part then. If somehow Rick Santorum won a majority in the Senate and House as he became POTUS, I firmly believe that he’d be able to privatize Social Security, gut Medicare, and eliminate the income tax if he wanted too.

                However, if he wanted to ban abortion, he’d have to get the OK from the Supreme’s after passing said law.Report

              • James Hanley in reply to DensityDuck says:

                Proposition 8 was passed by majority vote.

                It’s a good thing I noted the Constitutional part then

                Well, that remains to be seen now, doesn’t it?  I mean, in my very anti-government power view of the Constitution same-sex marriage is a protected right,  but the Constitution doesn’t exactly make that clear and it takes a bit of fancy interpretatin’ to make the case.  The unavoidable real world truth is that it’s not at all certain that Prop 8 is unconstitutional, no matter how desperately I want it to be.Report

              • Tod Kelly in reply to DensityDuck says:

                I think this is true, James.  I suspect that over time existing law will bend in that direction, but perhaps better to simply ratify an amendment and be done with it.Report

              • James Hanley in reply to Jesse Ewiak says:

                I fail to see a system where the majority of the population might actually have a majority of the policy determining power is less fair than the current Senate.

                Have you read Federalist 10?  Madison’s whole “tyranny of the majority” bit?

                I wouldn’t want to give the minority power to pass legislation, but I’m not too bothered by giving them power to block  legislation.


              • …unfortunately they also take grand standing to new extremes that they impede things like ratification of treaties for the sake of scoring cheap political points.Report

              • Stillwater in reply to James Hanley says:

                I wouldn’t want to give the minority power to pass legislation, but I’m not too bothered by giving them power to block legislation.

                But if entrenched institutional behavior already favors the minority, then it amounts to the same thing, no?Report

              • James Hanley in reply to James Hanley says:


                Yes, but there are no perfect systems.  So we have to decide if that cost is greater or less than the cost of majority tyranny.

                Reasonable people can disagree on that, of course.  (Although super-reasonable people always agree with me.)Report

              • I think there’s a substantial difference, too, between “preventing majority tyrrany” and the current “60 votes to end a filibuster and 1 vote to put a hold on executive appointments” nonsense.Report

              • To clarify.

                In general I don’t think the current composition of the Senate is such a bad thing if it’s ONLY function was to serve as a veto point.

                Given that it’s capable of actually introducing and amending legislation, the heavy unevenness in proportion of representation becomes a substantially larger problem.Report

              • James Hanley in reply to James Hanley says:


                if entrenched institutional behavior already favors the minority, then it amounts to the same thing, no?

                I don’t think so.  I come from a Burkean perspective–a system that favors the preservation of the legal status quo, while necessarily imperfect, is safer than a system that favors legal innovation.  The system should–obviously, I think–not be so rigid that problems of the status quo can’t be overcome, but it should be–less obviously–rigid enough that the status quo isn’t changed on the whim of a slight majority that perceives a problem in the status quo.  (Perceive is purposely chosen here, because it allows for both the possibility that the problem is real and the possibility that it isn’t, without implying judgement that either one or the other is necessarily the case.)

                The assumption here, in line with Burke, is that when something is perceived as a problem only by a part of the population, we should be very cautious about making changes, but when someone is a real for sure undeniable problem we’re likely to have large portions of the population, cutting across diverse groups, agreeing that it’s a problem.  And when there’s that kind of broad-based support, change will be achievable.

                Now, where specifically we draw that line is a very fair point of debate.  But I’m staying out of the question of whether it should stay at 60 senators, or change to 55, or increase to 65.  All I’ll say is that I’m very comfortable with it being greater than 51.Report

              • Tod Kelly in reply to Jesse Ewiak says:

                “Why not? The original Senate was created because the small states were going to get run over by the big states preferred policies. It wasn’t any great philosophical debate, it was nitty ‘n’ gritty power politics.”

                Yes, but in that case, each side got a power block to off set the other.  In order for something to pass, it had to be something that would be advantageous for small and big states alike.  In fact, it’s still that way, and this seems like a good thing.Report

              • Nob Akimoto in reply to Tod Kelly says:

                Of course now the disparities in populations between states is MUCH bigger…As in 100 fold. Rather than the 5-10 fold in 1783.Report

              • Which is to say… I think the Senate’s lack of proportionality is a lot worse now than it was in 1790’s census, and is bound to get worse as demographic trends favor high population states like California, Texas and New York over low population ones like Wyoming or Alaska.Report

              • Tod Kelly in reply to Nob Akimoto says:

                Yes, but I’m not getting where it’s a bad thing.  If, for example, I live in a city that has a 5% black population, I’m not sure  that moving to a system where the 95% can just push s**t onto the minority.  That our system works like that on an individual level is, I believe, I good thing.

                And I think the same thing goes for the states.

                We’re kind of all in this together.  I don’t know that having small pop states have to take toxic waste, greater taxes and fed regulation, and fewer services (which I believe is what happens if there’s no mechanism to protect against such things, humans being humans) is such a good thing.Report

            • Eh, I’m unconcerned. Democracy means I don’t always win. It’s still better than what we have.Report

    • I’ll endorse #1. The Senate is a spectacularly awful institution.Report

    • Max L in reply to Jesse Ewiak says:

      Besides the ending the filibuster (which is just a Senate tradition, anyway), proportional representation in that body would fix a lot of troubles.  Currently, each state having 2 Senators is mostly  a legacy of slave state issues in the early days of the republic, right?

      The amendment could state that each Senator would represent a district of x population such that there were always 100 Senators.  Districts would be determined by the supreme court.  In fact, here is a sample map.Report

      • James Hanley in reply to Max L says:

        each state having 2 Senators is mostly  a legacy of slave state issues in the early days of the republic, right?

        Actually, no.  It was a slave state (Virginia) that proposed proportional representation in both chambers of a bicameral legislature (Madison’s Virginia Plan) and small states, including non-slave states like Delaware, that screamed bloody murder, until the convention almost collapsed.  So in came Connecticut to say, “look, we’re agreed on a bicameral legislature, let’s give one to the big boys and one to the small states.”  Drawing from the 1790 census, 9 states had less than 50% of the population, collectively.  They were NY, MD, SC, CT, NJ, NH, GA, RI, DE.  So it’s a list that includes both northern and southern states, but is northern heavy, and in fact the bottom 6 include only one southern state.Report

        • BSK in reply to James Hanley says:

          “… let’s give one to the big boys and one to the small states…”  Only they gave one to the PEOPLE and one to the small states.  If populations shifted, then the power in one shifted, while the power in the other did not.Report

        • Max L in reply to James Hanley says:

          right, but after the convention states were added in free/slave pairs that exacerbated the problem until the Civil War. Either way, the small state/big state representation issue was used as a workaround exploit to avoid war for 60 years of expansion.Report

    • BSK in reply to Jesse Ewiak says:

      The problem with the Senate is that the two houses were originally conceived to be equal bodies and the two house system was designed to balance the goals of proportional representation and equal representation between the states.  Because of term structures (6 vs 2) and other factors, the Senate has become the more powerful body, as it was never intended.  Ideally, there would be a way to better balance the two houses of Congress and prevent small-pop states from having the sway they do now, as described elsewhere in this thread.

      The Senate also skews the weight of small-pop states in the Presidential election, since they triple the impact of certain states while adding much less proportional weight to larger states.  This could be addressed without any actual reforms to the Senate, instead focusing on the electoral college itself (which I am generally in favor of).Report

    • DensityDuck in reply to Jesse Ewiak says:

      “Reform the Senate to either destroy it or make it a majoritarian institution where 16% of the country can’t block the wishes of the other 84%.”

      What would you think about, instead, returning to the original concept of the Senate as being not subject to popular election?

      You’re right that small-population states can wield more power per capita in the Senate than large ones, but wasn’t that supposed to be mitigated by the remove placed between Senators and the populace?  Being less directly linked (and having a longer term of service), Senators would be therefore less subject to populist pressure.Report

      • Max L in reply to DensityDuck says:

        Small state dominance is not the same thing as populist pressure. At all.  But, fair enough – the real problem with the Senate, and with an antique Presidential republic, isn’t so much that some regions are over-represented.  Its that all of the systems checks and balances rely on a tremendous amount of cooperation between branches, parties, regions, states etc…  It is also, as has become very apparent in the last few years, a very simple trick to institute parliamentary style party discipline into institutions that have no way of coping with that and grind the whole creaking mess to a full stop.


        • DensityDuck in reply to Max L says:

          You’re really cute with the periods.  For emphasis.

          “Small state dominance is not the same thing as populist pressure.”

          You misunderstand.  As usual.  Not surprising.  At all.

          The point is that with direct popular election, everything a lawmaker does is specifically done with an eye towards the opinion of their constituency.  If a Senator is no longer beholden to that constituency for re-election, then they have the freedom to make unpopular decisions, such as approving Robert Bork.Report

    • Pub Editor in reply to Jesse Ewiak says:

      Currently, each state having 2 Senators is mostly  a legacy of slave state issues in the early days of the republic, right?

      I don’t think that’s right.  I believe it is a legacy of the small northeastern states, in 1787, wanting to protect themselves from domination by Virginia and New York.  According to James Madison’s notes, the Virginia Plan called for proportional representation, and the New Jersey Plan called for a unicameral legislature with equal representation by state (i.e. each state gets one representative/one vote).

      Also, as I understand it, in 1787, some people thought (incorrectly, as it turned out) that population trends would favor the South (e.g., settlement of Kentucky and Tennessee proceded faster than settlement of Ohio and Michigan before 1800); so, again, the New Jerseys and Connecticuts of the new republic wanted some insurance.

      (If someone is aware of stats or narrative to the contrary, I’m all ears.)

      The three-fifths clause was most definitely a legacy of the southern slave states–as was the 1808 clause; and the Compromise of 1820 did seek to maintain the balance of power in the Senate between slave states and free states, but the actions of Congress in 1820  do not necessarily speak to the objectives of the Framers of 1787.Report

      • James Hanley in reply to Pub Editor says:

        as I understand it, in 1787, some people thought (incorrectly, as it turned out) that population trends would favor the South

        They were only wrong on the time frame! 😉Report

  10. Sam says:

    No state that receives more in federal support than it sends in taxation may refuse, fight again, or object to federal regulations.Report

    • Sam in reply to Sam says:

      Note, I haven’t put an ounce of thought into this, except in that it is annoying to hear states whine about the federal government who take more in benefits than they pay in taxation.Report

      • Tod Kelly in reply to Sam says:

        I agree with the sentiment behind this amendment, but oppose that actual amendment.  While that kind of politicking is irritating, my worry is that in the long run smaller and poorer states would cede control of regulations that affected them to larger, richer states – and I could see many bad things coming out of such a system.Report

    • DensityDuck in reply to Sam says:

      In your vision, would States be permitted to refuse Federal support if they so chose? 

      For example, could Arizona declare that it did not want Federal involvement in enforcing border security and immigration policy?

      If the Federal government argues that these things are its responsibility, then aren’t Federal activites toward those ends considered “federal support”?  And Arizona would be required to accept it, by Federal decree, and unless it paid more in taxes than the Feds spent deporting people then Arizona would not be allowed to “refuse, fight again[sic], or object”. 

      It’s Catch-22 all over again.  “It’s illegal for you to refuse our help.  Because you did not refuse our help you can’t complain about what we do.”Report

      • Jesse Ewiak in reply to DensityDuck says:

        All or nothing. You want any federal money, you have to accept federal regulation. You don’t to pick which part of the federal law you’re going to follow like it’s the salad bar.Report

        • And if you’re personally on welfare, or work for the federal government, what right do you have to complain about government attempts to regulate your behavior?Report

          • Jesse Ewiak in reply to Will Truman says:

            Individuals have a right to privacy and such. The State of Arizona or Michigan doesn’t.Report

            • Brandon Berg in reply to Jesse Ewiak says:

              Or instead of fabricating an elaborate justification for this, you could just come out and say that it’s about suppressing opposition to your preferred policies.Report

            • Arizona and Michigan have a right to electoral representation. And the citizens thereof a right to freedom of speech and the right to elected representation (even if we got rid of the Senate!). That includes the freedom to loudly dislike and disapprove of regulations.

              Now, if we’re talking about modifying those rights for Arizona and Michigan, then surely we can talk about modifying the Right to Privacy.

              (And, of course, this doesn’t even get into the fact that any right to privacy is limited and our personal behavior is regulated all the time.)Report

              • Jesse Ewiak in reply to Will Truman says:

                They can disapprove of regulations. They can vote for representatives who will reverse those regulations. But, Sam’s point is they can’t via their state government work against those regulations, via either the state legislature or the courts.Report

              • So they cannot use their access to the courts?

                Their ability to try to override federal legislation via state legislation is… limited. Medical marijuana, for instance, exists only at the pleasure of the federal government.Report

        • DensityDuck in reply to Jesse Ewiak says:

          “You want any federal money, you have to accept federal regulation.”

          The USAF Strategic Command has a whole-country mission.  Therefore, unless a state managed to somehow get itself exempted from USAF protection, it is literally not at all possible for a state to not benefit from federal expenditures.

          Although let’s set aside national-defense questions and ask: are you suggesting that, were Arizona to refuse any Federal money, it would be allowed to write its own laws regarding border security and illegal immigration?  I can certainly see some people being attracted by this idea!Report

          • Jesse Ewiak in reply to DensityDuck says:

            Sure. I’ll even exempt land owned by the federal government and the defense infrastructure from these requirements. Of course, when 30% to 40% of their state budget no longer exists and things people take for granted no longer exists, let’s see how long even states like Arizona, Alabama, or Montana keep those politicians in office.Report

            • DensityDuck in reply to Jesse Ewiak says:

              So, just to confirm:  You would revoke the Supremacy Clause as regards for states which do not accept Federal aid (suggested definition:  “Has a line-item in revenues for Federal Government contribution”).Report

            • And Indian Reservations (that’s a biggie in Arizona). What about Interstates that allow people to drive from Illinois to Washington? What about federal law enforcement? Lease Mineral Rights (wherein 100% of minerals found on public lands goes to DC, which doesn’t count as taxes, but the portion of that money that goes back *does* count as “grants”).

              Start taking these things out, and a lot of states currently “in the red” are “in the black.” A lot of their money is going to national projects, and a lot of the money being spent within those states is being spent on national projects.

              I get it, though. Idahoans are simply the wrong kind of poor. So it’s natural to want to tell them to STFU and know their g’damn place.

              And, of course, a lot of Idahoans aren’t poor. A number of them will put more than their share into the system. But they need to sit down and shut up, too, because their neighbors are poor. Bums.Report

              • Jesse Ewiak in reply to Will Truman says:

                I’ll throw in Indian Reservations too. As for the rest, that responsibility can be given to the states when they opt-our and the Governor of Arizona can deal with it when the Governor of New Mexico and Governor of Texas is pissed off at them.

                As for the bottom part, the people of Idaho aren’t the wrong kind of poor. But, I do think it might be good for some of the people who are so pissed off about the federal government to lose some of that federal government and see how much they really like it. I know it’ll hurt people in the short term, but it’d be a good in the long term.Report

              • Tod Kelly in reply to Jesse Ewiak says:

                “But, I do think it might be good for some of the people who are so pissed off about the federal government to lose some of that federal government and see how much they really like it. I know it’ll hurt people in the short term, but it’d be a good in the long term.”

                In that case, should we have the armed forces only protect those states that are conservative and hawkish?Report

              • Jesse Ewiak in reply to Tod Kelly says:

                That’s assuming the only purpose the DOD can only be put to use to in offensive wars. Even us liberal commie socialists recognize there’s a point to a military. On the other hand, legislature in states that basically want to ignore federal laws pertaining to the EPA or ICE are a whole ‘nother matter.Report

              • DensityDuck in reply to Jesse Ewiak says:

                Also, if teenagers want to complain about curfews then they can just move out of the damn house and get a real damn job and see how THEY like paying for everything.Report

              • Jesse Ewiak in reply to DensityDuck says:

                Yeah, I would compare a certain chunk of conservatives as pissed-off teenagers who don’t understand the world.Report

              • Yes, because it’s very important that Idahoans know their place.

                Like those people who work for the government or collect welfare of some sort and think that cannabis should be legal and Plan-B should be available OTC. Spoiled teenagers, as you say.Report

              • Jesse Ewiak in reply to Will Truman says:

                Not Idahoans. Just Idahoans who think their life would be so much better without the specter of the federal government in their life. I want to give them the opportunity to try it and see how they truly like it.

                As for your comparison, it just doesn’t make any sense. People who truly want the federal government to be much smaller have every right to try to get 50 Senators, 218 Representatives, and the White House.

                Just as even government workers have the right to elect representatives who will make cannabis and Plan B available to all. The difference is of course, those government workers don’t want to force feed the rest of the country Plan B or pot. Unlike the small government people, who want to take federal regulations from even those who support them.Report

              • DensityDuck in reply to Jesse Ewiak says:

                I think I’m confused as to how someone who wants fewer government regulations and less government intrusion into life could be said to be “force feeding” or “taking” anything.Report

              • Stillwater in reply to Jesse Ewiak says:

                Maybe because arguing for ‘less government intrusion’ can often preserve practices that actually limit the expression of rights and liberties. Ie. if the cultural norm is to ban blacks from your establishment, less government intrusion means sustaining the idea that people can ban blacks from your establishment.

                Less government intrusion doesn’t automatically lead to greater justice. Right?Report

              • DensityDuck in reply to Jesse Ewiak says:

                “states rights is dogwhistle racism”

                Thread over, cut here.Report

        • DensityDuck in reply to Jesse Ewiak says:


          “You want any federal money, you have to accept federal regulation.”

          National defense has a whole-country mission.  Unless you’re suggesting that there’s a realistic way for a state to opt out of being protected by, say, the US Strategic Command’s nuclear deterrent force, then there is no possible way in which a state cannot benefit from federal expenditures–that is to say, “get federal money”.

          Second:  So, what are your thoughts on my suggested Arizona scenario?  “Okay, we don’t take any money.  In return we handle border security and immigration enforcement as we see fit.”  Does that work for you?  (If so, there are some people who would find this proposal extremely attractive!)Report

    • Brandon Berg in reply to Sam says:

      Maybe we could do this on an individual level, too.Report

      • Incidentally, if South Carolina wants to complain about the federal government while at the same time getting more in federal aid than they send back in taxation, and they decide they’d rather go on their own for awhile, sure, we can try that. But the federal government also gets to take back everything that it has put in South Carolina. Tear up the roads. Fill in the dredged ports. Take away the student loans. Demand immediate payment on the mortgages. Everything. I want to see how heroic and rugged these states really are.Report

        • Jesse Ewiak in reply to Sam Wilkinson says:

          See, I’m the moderate here guys. 🙂Report

          • I want to see rugged individualists BE rugged individualists, rather than just talking the talk. And I want to see politicians actually run on their own bullshit, rather than decrying Washington at every turn before turning around to beg whenever everybody isn’t looking. Southern states are run by politicians who decry welfare and yet require it to survive. I want somebody like Jim DeMint to own that.Report

            • Jesse Ewiak in reply to Sam Wilkinson says:

              But according to Will, we just hate Idahoans and other poor people who aren’t the “right’ poor people.Report

            • DensityDuck in reply to Sam Wilkinson says:

              “I want to see rugged individualists BE rugged individualists, rather than just talking the talk.”

              And if they were permitted to be, then they would be.  Oops, they just rescinded Affirmative Action.  Then they legalized pot.  And they kicked out everyone who didn’t have a green card.Report

              • Jesse Ewiak in reply to DensityDuck says:

                Oops, your interstates have potholes. Oops, your poor have no Medicaid. Oops, your elderly have no Medicare. Oops, the EPA isn’t telling the local plant not to dump shit in the river. Oops, you have to fire 50% of your teachers due to no education funding.Report

              • DensityDuck in reply to Jesse Ewiak says:

                No Federal Highway Trust Fund contribution to maintenance?  So the state keeps the federal fuel taxes and spends those on its own roads.  Considering that’s where most highway-maintenance funding comes from, they’ll do fine.  (They’ll probably do better, in fact, because they’ll only be required to pay for their own highways, rather than having their money go to maintain highways elsewhere in the country that don’t benefit them.)  Unless you’re suggesting that the state should keep paying full Federal taxes but not get any benefits, in which case, remember how this country got started?

                No Federal payments to Medicare?  Medicare isn’t a state-level contribution.  Why would this proposal require individual citizens to give up Medicare?  (As an alternative proposal, see above re: not paying taxes to support something you don’t get.)

                The EPA isn’t telling the local plant not to dump shit in the river?  What stops the state handling that itself?  Why can’t states pass their own environmental-control laws?

                Teachers getting fired? You forgot to tell me about cops and firemen and doctors getting fired too.  In fact, you’re increasingly just copypasting from the Tea Party “well why don’t you just PRIVATIZE EVERYTHING” argument.Report

              • Jesse Ewiak in reply to DensityDuck says:

                As for highways, just like the gas tax would’ve been continued to be taken just like it would’ve been taken if the states hadn’t increased their drinking age to 21, the gas tax would’ve been continued to be collected in those states.

                Look in your state budget. There’s plenty of money coming from the federal government into state’s Medicaid/Medicare system, education system, and so on. Elderly people would still be able to get Medicare, but if there’s no funding in those state’s systems from Medicare or Medicaid, good luck to those hospitals within that state getting payment.

                As for the rest, again, look at your state’s budgets. Plenty of transfers coming in from the federal government. Pell Grants, Teach for America grants, the COPS Act, stimulus funds to buy a firetruck, etc, etc. So yes, doctors, nurses, firefighters, and police officers would lose their job unless the states wanted to raise their own taxes.Report

              • DensityDuck in reply to Jesse Ewiak says:

                So you missed the part where I said “Unless you’re suggesting that the state should keep paying full Federal taxes but not get any benefits, in which case, remember how this country got started?”Report

              • James Hanley in reply to Jesse Ewiak says:


                If that’s the state’s choice, fish ’em.  I don’t want to live in Louisiana, but if others do, it’s no skin off my nose.Report

    • Jaybird in reply to Sam says:

      “All states that take in more Federal dollars than they send in must submit to drug testing.”Report

      • And they can’t spend federal funds on candy.Report

      • Jesse Ewiak in reply to Jaybird says:

        Hey, I’ll make a compromise. If people accepting welfare has to take a drug test, so does every employee of every company that gets any kind of grant, subsidy, tax break, or tax credit from the government.Report

        • Jaybird in reply to Jesse Ewiak says:

          Every single job that I have worked that gets any kind of grant, subsidy, tax break, or tax credit from the government has bragged about having “A Drug-Free Workplace” and has made me sign a form saying that they can make me pee in a cup and terminate me if I refuse.

          I think that all of them, excepting one, actually *MADE* me pee in the cup. The exception only made me sign the form.Report

        • Jaybird in reply to Jesse Ewiak says:

          Hell, when I applied to Blockbuster when I was 20, *THEY* made me take a goddamn *HAIR TEST*.

          (Note: I oppose drug testing on the general principle when it comes to a “Right to Privacy” but I understand that companies that operate heavy machinery may want to have a drug-free workplace and I can understand why they’d want a guy who runs a machine press to be drug-free. I do think that Congressmen/Senators should be drug-tested, though.)Report

    • Michael Cain in reply to Sam says:

      Money spent on military bases doesn’t count.  Money spent on national parks doesn’t count.  Money spent on Social Security recipients, or on Medicare recipients, who are allowed to move wherever they damned well please, doesn’t count (take out the dedicated taxes on the revenue side of the calculations as well).  Money spent on Indian reservations whose tribes were forcibly relocated at some time in the past doesn’t count.  Money spent on national laboratories doesn’t count, including the money spent cleaning up the messes that the nuclear labs have made in the past.  Money spent on federal agency expenses where the agency has elected to concentrate its employees in national or regional headquarters doesn’t count.

      There are certainly cases, particularly in small-population states, where the donor vs recipient status is determined by large federal expenditures that are done for the good of the entire country.Report

  11. balthan says:

    Declare that food, water, shelter, education, and heath care (both preventive and treatment) are basic human rights.  Give Congress the power to ensure that all American citizens are able to receive adequate minimums of each, and of sufficient quality.Report

    • DensityDuck in reply to balthan says:

      Also, cell phones and cars, because communication and mobility are basic human rights too.Report

      • Jesse Ewiak in reply to DensityDuck says:

        Not cars, but I can go for free mass transit supported by taxation. As for Internet, I see no reason why there shouldn’t be a publicly-owned Internet option to offer municipal Wi-Fi.Report

        • DensityDuck in reply to Jesse Ewiak says:

          There’s a difference between thinking municipal Wi-Fi is a good idea, and thinking that Wi-Fi is a basic human right that the government ought to provide for free.Report

          • Jesse Ewiak in reply to DensityDuck says:

            The right to a minimum wage would’ve been considered extreme a few decades before it passed as well. The world changes. We heavily subsidized low-cost access to electricity for rural Americans during the New Deal, why not the same for broadband?Report

    • Pub Editor in reply to balthan says:

      OK, you’ve given Congress power to act one these positive rights, but do individuals have any power to seek judicial enforcement of their rights?

      My understanding is that in some constitutions (like South Africa) that include lists of positive rights, those provisions are not enforceable through judicial action (in the U.S., we would say that they are nonjusticiable questions). So, you may have a constitutional right to health care, but you cannot get a court to order a government-run hospital to provide a particular procedure. So, in those cases, the recitation of positive rights is aspirational, but not justiciable.

      In some countries, like Germany, courts do have the power to compel governmental bodies to provide things (like housing) covered by recitations of positive rights.

      And in some U.S. states, there are clauses in state constitutions providing that education is a basic right; and state supreme courts have interpreted those clauses to empower judges to review education policy to see if the state is meeting its minimal obligation.Report

    • Roger in reply to balthan says:

      Hate it. This in effects enslaves us. Someone has to produce the food and so forth. Might as well throw in a right to pyramids.Report

      • Tod Kelly in reply to Roger says:

        I don’t like this amendment either, but there might be a few steps in between saying OK to food stamps and pushing giant boulders across the dessert while being whipped.Report

      • balthan in reply to Roger says:

        Except for the fact the government does this already, to varying degrees.

        Food stamps, EPA regulating municple water, Section 8 housing, federal standards for education, and Medicare/Medicaid are examples. 

        The amendment would make the programs explicitly Constitutional and hopefully end the constant battles over whether or not these programs should even exist and hopefully allow Congress to actually work on improving the programs and reducing inefficiencies and misuse.Report

    • Tod Kelly in reply to balthan says:

      I think this bit is where the future headaches come from:

      “Give Congress the power to ensure that all American citizens are able to receive adequate minimums of each, and of sufficient quality”Report

  12. Pub Editor says:

    I would amend Article II to allow multi-member districts for the House, similar to the case for the lower house in the Republic of Ireland. (Specifically, I think this would affect sections 2 and 4 of Article II.)

    (My reading of Article II indicates that Congress could, through legislation, allow or require the states to have multi-member districts, but Congress has not done so, choosing in stead to require the state legislatures to draw single-member districts.)

    Multi-member districts, with congress-critters elected on a STV or proportional vote basis, would give third parties more of a chance, I think.  That is not a goal in itself, to me, but this would be useful mainly for breaking the hold of the two-party establishment, which tends to reinforce itself, and allows each party to ignore elements within its own coalition.Report

  13. Pub Editor says:

    Also, at some point we might think about amending Article II, section 3, clause 6 so that the Vice President does not preside over his own impeachment trial. Just a thought.Report

  14. Max L says:

    I think Bernie Sanders is on the right track with this one.

    I don’t think I’d want any amendments until congress was actually representing citizens instead of large donors.  Here is an excerpt, full text at the link above:

    “The rights protected by the Constitution of the United States are the rights of natural persons and do not extend to for-profit corporations or to promote business interests under the laws of any state, the United States, or any foreign state.

    Such corporate and other private entities shall be prohibited from making contributions or expenditures in any election of any candidate for public office or the vote upon any ballot measure submitted to the people.

    Congress and the States shall have the power to regulate and set limits on all election contributions and expenditures, including a candidate’s own spending, and to authorize the establishment of political committees to receive, spend, and publicly disclose the sources of those contributions and expenditures.”Report

  15. Tod Kelly says:

    I’ll throw in:

    I’d like to amend Article II Section 2 with some language that allows the President to use the armed forces for combat purposes when (a) Congress declares war, or (b) when the nation or its interests are in immediate peril.  However, once combat is initiated due to (b), the President has 14 days to get Congress to approve continued action.  If at the end of the 14 days he has not gotten Congressional approval, the President must cease those combat operations.

    This is not well thought out and obviously imperfect, but would allow for the President to initiate immediate defense without having hands tied, but still be forced to get a majority of Congress to approve any prolonged combat-related military action.Report

    • That sounds reasonable to me.Report

    • Pub Editor in reply to Tod Kelly says:

      This is not well thought out and obviously imperfect

      You could accomplish your basic goals by adapting the text of the 1973 War Powers Act and importing that into the Constitution.Report

      • James Hanley in reply to Pub Editor says:

        The problem is that you’ll need an actual enforcement mechanism. I suggest waterboarding for presidents who don’t obey.Report

        • Tod Kelly in reply to James Hanley says:

          How about he cedes control of the military until such time as the trips are withdrawn?Report

          • James Hanley in reply to Tod Kelly says:

            I don’t know.  Obviously we’d have to decide who s/he cedes authority to, but that’s a minor detail.  Let’s assume for a moment that it goes outside the executive branch, to really remove it from the president’s authority, say to the Speaker of the House.  I guess the real question is what happens if the prez refuses to comply?  Do we just hope that the top generals follow the Constitution?  Are we inadvertently setting the grounds for a de facto coup if the generals refuse to follow the orders of the Speaker?

            I think this is a case where the ultimate enforcement mechanism is a culture of adherence to the rules.  The U.S. military is pretty good at being non-political, as far as that goes, but would this put them in a dangerous position of temptation?

            Don’t get me wrong, I like the idea of the president ceding control.  It’s just one of those “if it actually works” type likes.Report

  16. Pierre Corneille says:

    My amendment would change how the senate works.  I would have only a suspensory veto on legislation, and yet could disallow any executive order and can remove executive officers (except the president and vp) by a no-confidence vote (instead of the more cumbersome impeachment).  Here’s a link to how I would word it:





  17. BSK says:

    “Congratulations, you made it impossible to declare murder illegal.

    “But nobody thinks that murder should be legal!”  Welp.  How does a governing body prove beyond a reasonable doubt that murder should be illegal?  And how do we avoid that reasoning being extended to other things?  “Drugs cause significant problems for society, and the cost of mitigating those problems extend beyond what the individual who caused them could reasonably be expected to cover.  Therefore the interest of society in avoiding excessive costs supercedes the interest of individual persons to do lines of coke off a hooker’s chest.””

    The right to do lines of coke off a hooker’s chest.  Or ass.Report

  18. trizzlor says:

    I would enforce “taxpayer standing”, so that any citizen could sue the government for acting in an unconstitutional manner regardless of injury or redress. My attempt to wish for more wishes.Report

  19. kenB says:

    I propose removing “of the United States” from the preamble, so that the text will then exactly match the Schoolhouse Rock song.Report

  20. I’ll bite on judges.

    Term limits for Supreme Court justices. I’ve seen this somewhere and I can’t remember where, but each judge gets 18 years, fixed so that someone is being appointed every two years. Emeritus judges would be allowed to fill vacancies created by recusal, death, or early retirement to ensure that the Court always has 9 members sitting for each case.

    I would like to couple this with an amendment that requires a simple up-or-down vote for Senate confirmation as well, but if not we can just put that in the text of this one.Report

    • I think I like both of these, provided that the requirement of up or down votes on confirmations applied across the board to all positions, and most importantly to all judges of any level.Report

    • Mine! This was my idea! Well, probaby not just mine. This is what I get for coming late to the game.

      The up-or-down vote term (a very good idea) could be written in easily:

      Section 2. The Senate shall vote to confirm any nominee to the judiciary within three months of the President having submitted the nomination for the Senate’s advice and consent. In the event that the Senate fails to vote to confirm or reject the appointment within this period of time, the appointment shall be deemed rejected.


      • Michael Drew in reply to Burt Likko says:

        Deemed rejected?  Are you sure this would actually promote votes?  Wouldn’t it promote inaction by Senators until such time as there was a crisis of lack of jedges on the bench?  And wouldn’t it simply amount to something like the status quo, with the president simply having to renominate judges at three-month intervals, rather than simply let their nominations linger unaddressed?  After all, merely because a nominee has been deemed rejected does not amount to the kind of political rebuke that an active vote to reject a nominee issues to the president that serves as a message of “Don’t send him back, or anyone like him.”  if it just became a matter of routine that nominees were deemed rejected, I doubt that presidents would see failures to confirm their nominees as instructions not to send them back.

        if you want to shake up the confirmation process and get Senators to engage with it, make the default confirmation.  Then you’ll see judges get up-or-down votes.Report

      • Nob Akimoto in reply to Burt Likko says:

        Doesn’t this just encourage putting holds and filibusters on nominees? See: Current Senate?Report

        • James Hanley in reply to Nob Akimoto says:

          I’m with Michael and Nob here.  Burt’s amendment is perfectly written except that the word “rejected” and replaced with “confirmed.”

          If the Senate wants to reject a president’s nominee, they should have to take an affirmative action to do so, not just kill the nomination through failure to act.

          This would make it similar to the president’s actions vis a vis a law.  If he wants to kill it, he has to take an affirmative action and veto it.  If he refuses to act, it becomes law.Report

  21. Morat20 says:

    Probably because it’s gotten so out of hand, but I’d modify the recess appointment clause. The wording would take a bit of thought, but effectively I’d like to see something that takes into account modern realities.

    Basically trade off the length of recess appointments with a change that failure of the Senate to vote by simple majority — a nominee within a reasonable (ie: varying by appointment length) time period is an automatic confirmation for all save lifetime appointments (and even then make it a effective multi-year temporary appointment).

    The President could not make recess appointments save in cases where Congress truly could not come to session due to the death or incapacity of a quorum. On the other hand, the Senate couldn’t bottle up nominees forever — which they’d do without the recess appointment power hanging over their head.

    I suppose I could still see cases where 51 Senators decided they’d just never cast a “yes” vote for anyone the president appointed, even if it was Jesus himself, but that seems a lot more public and unpopular than quitely not voting on dozens — or hundreds — of nominees.Report

  22. Another one that interests me:

    I’d amend Article III to create a sub-Supreme Court or panel that reviews all legislation. Any legislation it chooses (by majority vote) will be immediately sent to the Supreme Court, which can grant or deny cert as it sees fit using the traditional procedure.Report

  23. I would explicitly add sex and sexual orientation to the 14th Amendment.Report

  24. BSK says:

    As crazy as it may seem, I’d like to see longer terms for most elected officials.  With the way elections are run nowadays, politicians begin their next campaign the moment the results from the previous election are official.  Not only does this distract from their primary role and responsibilities, but it also limits their perspective to a very narrow time frame.  Let the elected officials go to work and have campaign season take up less than 25% of their time in office (in terms of the calendar).  I would also like to see a resign-to-run law when seeking a higher office.  How much time has Paul sent away from Congree during the Campaign?Report

  25. Patrick Cahalan says:

    I’d start over, myself.

    But, if I couldn’t do that, I’d do something like the following:

    The legislative branch shall be prohibited from engaging in legislative activity without written record.  Any actions by any Senator or Congressperson relating to legislative action shall be recorded and endorsed by said member of Congress and included in the Congressional record, including all votes, suggestions for amendment, activities in committee, or meetings pertaining to the crafting or passage of any legislation submitted before Congress.

    Any legislator found in violation of this Article, or convicted of any felony statute, shall be expelled from service in the Legislative branch of the federal government and may not again be admitted, nor shall they serve in the Executive nor Judicial branches, nor shall they receive any remaining outstanding payments, pensions, or benefits by the federal government that they may be otherwise entitled to under any existing or future legislation.

    Enforcement of this Article shall be the under the authority of the judicial branch, in consultation with the assembled governors of the States of the Union.Report

    • How are you defining legislative activity?  Does this mean, for example, they must recuse themselves from dinner conversations that turn to current events?Report

      • Jesse Ewiak in reply to Tod Kelly says:

        Yeah, this would sort of be impossible. Even in Sweden, Denmark, or other “transparent” nations, I’m sure members of Parliament talk to each other off the record about bills.Report

      • Patrick Cahalan in reply to Tod Kelly says:

        They don’t have to recuse themselves from anything.

        If they think it’s pertinent to affecting their legislative activities, they record it.  if they don’t, they don’t.

        If someone else records them saying and doing a lot of things that they didn’t report, that someone can submit those recordings to the enforcement entity and a suitable investigation can take place.

        I’m pretty sure that the judiciary and the assembled governors can hammer out details that are acceptable to everybody and represent a reasonable baseline.  I mean, it’s not like our entire criminal investigation process is encoded in the Constitution, either.  Implementation details are left to the entities entrusted with the enforcement authority: the judiciary and the governors. (edited to add) The judiciary to provide a federal-level check, and the governors to provide context. (/edited).

        Sure, you can get a lot of gray area where people can quibble about this or that, but the vast, vast majority of legislative sausage-making is pretty straightforward and obvious and currently done behind closed committee doors or by voice vote.Report

        • DensityDuck in reply to Patrick Cahalan says:

          Combine this with dogwhistling accusations, where anything can be “interepreted as a political statement”, and you create a system where Congress members are required to have a tape recorder running 24/7.Report

          • Patrick Cahalan in reply to DensityDuck says:

            You know that thing that you say I do?  You’re doing it now.

            Even if it came to that (and I doubt it would, or that this is a necessary level of oversight), I’m not so certain that having Congress members run a tape 24/7 is a terrible imposition for the 600 people that control trillions of dollars in decision-making.Report

            • DensityDuck in reply to Patrick Cahalan says:

              “I’m not so certain that having Congress members run a tape 24/7 is a terrible imposition for the 600 people that control trillions of dollars in decision-making.”

              Sounds good to me!Report

  26. Will Truman says:

    The first order of business would be DC retrocession and moving the nation’s capitol to Nebraska.

    The second would be one where I actually (gasp) agree with Bonneville: Supreme Court term limits. I’m not sure if I would get rid of the filibuster on Supreme Court nominations (it is perhaps the only place I would keep it). I particularly like the idea of emeritus justices, though I do worry that it is a system that will be gamed (demanding recusals because the most recent emeritus is one more sympathetic to the cause).

    I might delve into the Senate, modifying but not replacing it.Report

    • Tod Kelly in reply to Will Truman says:

      Why have them move to Nebraska?  Is it to create a self-imposed term limit?Report

      • Patrick Cahalan in reply to Tod Kelly says:

        I see what you did there.Report

      • Will Truman in reply to Tod Kelly says:

        You joke, but…

        Seriously, I think in a nation as large as ours that we shouldn’t have a capital on one end of the country. The east coast doesn’t need the capital (if they vacated, it would not take long at all for industry to move on). It’s squooshed in when we have lots of land to go around in middle-America.

        And yeah, it would be helpful if the capital were a place that people couldn’t *wait* to get away from. Either temporarily, back to their districts, or permanently!


        • Jesse Ewiak in reply to Will Truman says:

          It may be far away from most of the land of the country, but being in Nebraska would be much farther away from most of the actual populace of the country than putting it in DC. Within a few hundreds of miles of DC, there’s literally a good solid chunk of the population. Within a few hundred miles of Nebraska, there’s about 3% of the population.

          Also, if you don’t think any random place in Nebraska wouldn’t be built up within a few decades of your move, I have some wonderful oceanfront property in Nebraska to sell you.Report

          • The current capital is real close to a lot of people, but really far from a lot of other people. The population center in the US is in Missouri. I’d rather equally far from everybody than really close to some and four time-zones away from others.

            Of course Nebraska would be built up, at least somewhat. But it doesn’t mean that people would want to stay there. Bismarck and Pierre would be specs on a map if there weren’t a capitals there, but the population still heavily resides in Fargo and Sioux Falls. Brazil put the capital in a specific place precisely to move people, but from what I understand it didn’t really work. Brasilia is still big, but it’s no Rio (I talked to a Brazilian about this. There was actually the hope that by putting the capital there it would move more people around, but it didn’t (and the politicos still go back to Rio as quick as they can).

            Really, though, I can go either way. Either we get a new urban hub in the Heartland, or we have legislators going home at every opportunity. It’s a win either way, as far as I am concerned.Report

          • James Hanley in reply to Jesse Ewiak says:


            How about L.A., then?Report

            • Jesse Ewiak in reply to James Hanley says:

              Well, it’s a slightly better idea, I realize I’m weird that I like the idea that while our capital is it’s own city, it’s within close range to the urban core of the nation. Because seriously, we’re probably a few decades away from Boston-NY-Washington-Baltimore-Philadelphia being one massive urban core.

              I ‘get’ the reasons for wanting the capital away from the rest of the nation, I just don’t agree the positives outweigh the negatives of an isolated capital.

              Plus, it’s unamerican to have our capital where there’s no football team. 😛Report

    • I think we agree a lot more than you let on!Report

      • So, Operation: Nebraska. Are you in?!Report

        • James Hanley in reply to Will Truman says:

          How about Denver?  Or Kansas City? Still keeps it central, but reduces infrastructure development costs.Report

          • Jesse Ewiak in reply to James Hanley says:

            I’ll be the ass and say why not New York? The rest of the world has does pretty well putting it’s capital in it’s largest cities. It makes as much sense to me as throwing it in a random Midwestern/Mountain West city to me. 🙂Report

            • James Hanley in reply to Jesse Ewiak says:

              You can plump for NY, sure.  But the “why not” question was answered in the original proposal.Report

            • Three reasons why not New York:

              1) Geographic imbalance.

              2) New York City already has a metric ton of people and some of the most expensive real estate in the country.

              3) I’ve lived in states where the capital is the largest city and states where it is not. I prefer where it is not. Representation gets too capital-centric when the population center *and* the capital are Boise, or SLC. Other places become something of an afterthought. Better is when the capital is Helena or Pierre. It deconcentrates power, separating cultural power and political power. I consider that a benefit.Report

          • Kansas City an interesting proposal. What would be perfect would be a city like Detroit with excess infrastructure, but Detroit is not ideally located.

            I’m partial to the idea of starting from scratch than trying to hobble on to a new city. Not actually from scratch, but a comparatively small city with room to grow. But I’m not opposed to Kansas City. Denver is a bit too far west.


            • James Hanley in reply to Will Truman says:

              Not Detroit–too close to me.

              I’m worried about starting from scratch because I’m afraid we’d pull a Brasilia.  Not about people not actually moving there, but that we’d build a top-down city from scratch that would be designed by architects with a grand vision and that would be fundamentally anti-human.

              Assure me we won’t do that, and I’ve no real opposition to starting anew.

              How about a new town in western Iowa, between Sioux City and Council Bluffs?  Then the region can become liberal and we can get rid of Steve King.  Or how about Council Bluffs itself?  That’d be a sparkling good name for a capital.Report

              • In a novel idea I’ve been throwing around where half of the country (mostly the eastern half) ends up under water, the capital of the Western States of America is Grand Junction. I chose it because it was near-central and a place to start from that was safer than safe from the water, but I thought it a great name for a capital. Not as good as Council Bluffs, though.

                How is Brasillia “anti-human”?Report

              • James Hanley in reply to Will Truman says:

                Brasilia was not built on a human scale. It was a city designed to certain architectural ideals, not to what humans are actually comfortable living in.

                James Scott has a good chapter on it in his book Seeing Like a State. As he describes it, the vision for Basilia was to be precisely the counter to the image of Brazil, an ultra-modernist vision of a city.  For example the main square is “of such a scale as to dwarf even a military parade. In comparison, Tiananmen Square and the Red Square are positively cozy and intimate.”

                It’s the general lack of coziness and intimacy, the desire to make a city perfectly rational–everything straight and square, no natural curves in roads, etc.–make it the opposite of what humans naturally develop on their own.Report

              • I don’t know, the Romans did central city planning rather well. Their city architecture tends to favor straight lines rather than curving roads for example, but it worked for their way of life. A topographical history of Constantinople is an interesting one in this case because as time goes on, public spaces get reduced and roads become less organized, particularly once the Ottomans moved in.

                I do think Brasilia is probably the wrong model for the US, but I also think the aesthetics that went into Brasilia wouldn’t necessarily be replicated by an American attempt at a new “city from scratch.” For one, the concept of urban modernity that was in vogue during the Brasilia planning era isn’t the one that’s fashionable now. I’d imagine something more akin to a high density, but highly livable urban space that’d take into things like walkability.

                Urban planners in the US are very talented. They may not be up to the level of say Denmark’s, but if you gave them a blank slate, they’d probably make a very comfortable, organic and functional city that would be a great model for the rest of the country.Report

              • James Hanley in reply to Nob Akimoto says:

                the concept of urban modernity that was in vogue during the Brasilia planning era isn’t the one that’s fashionable now

                True, thank God.Report

              • Dubai and the UAE have done a lot of building from scratch, haven’t they? How’d they do?

                So has China, of course.Report

              • The UAE is not a model that’s sustainable on any level, including their own.

                As for China’s building from scratch….2008 Sichuan earthquake anyone?Report

              • I realize that things fell apart out there for a number of reasons. I didn’t realize the urban planning was one of them. Unsustainable how?

                I mentioned China, but when I think about their projects, not much good comes to mind (and not because of the architecture).Report

              • The big urban projects in the UAE basically rely on the huge amounts of oil money that sloshes around the region to fund it. They’re trying really hard to use that money to turn these new megacities into actual functioning megapolises, but they don’t really have the population numbers to make this work if/when the oil money dries up.Report

              • Okay, I get the overdevelopment part. But since we’re talking about a limited-development case here (one city, our Nebraskan capital), how would their overall design work in that context?

                Or was the problem that they built abodes that were too expensive figuring that everybody was going to get rich and be able to afford it? I could see us making *that* mistake. MarketUrbanism has done some interesting tweeting on this in the Northeast (“low income housing” with a minimum income level of $100k). And, of course, that appears to be a part of the problem with China.Report

              • James Hanley in reply to Nob Akimoto says:

                Re: UAE.

                I haven’t been to Abu Dhabi, but I’ve heard it’s very beautiful.  The question I have is whether it’s “showpiece” beautiful or “homey” beautiful?

                Dubai’s stucture is essentially built along an urban freeway.  That made it easy for them to add a monorail system (the metro), since they only need a couple of lines, the main one of which follows along that freeway. The metro is one of the things they’ve done right, but the long stretched out city-centered-on-a-freeway-style approach (a classic Le Corbusier touch), just sucks balls. It means it’s not a walkable and actually liveable area.

                The older part of Dubai that was built before they started serious urban planning–Bur Dubai–is walkable; it has the feeling of, say, downtown Chicago just outside the loop. And the yet older part, Deira, is the classic old city maze of narrow winding streets, and is barely driveable but is tremendously walkable.

                The tourists go to the new parts of Dubai (and only hit the old parts for the traditional souks/markets).  The people who live in Duabi (the ones that aren’t wealthy or temporary guest workers) live in Bur Dubai and Deira.

                Re: Unsustainability.  There’s controversy about that, but most outside observers tend to agree with Nob.  Dubai had fantastic growth but was building at a rate that would have required even faster growth to fill up all the supply of office and living space that was being created (and of course in the last few years they’ve grown more slowly, not more quickly).  Their energy demands are massive and growing because they’re going with the old “tallest buildings in the world prove how great we are model,” so they are making quarter-mile tall buildings coated in glass–in a desert–that will require massive amounts of energy for air conditioning.  And in general the developed world is moving away from skyscrapers because, as one article I read put it, “it doesn’t make sense to pump water 1/4 into the air to flush a toilet.”  Dubai doesn’t have land constraints, so the vertical approach isn’t necessary, and they would be much more energy efficient if they were building lower, with less total exterior area of buildings exposed to the sun.

                But here’s where I’m not quite persuaded it’s unsustainable.  Dubai knows it’s running out of oil, soon, and their building and economic development model is based on creating a city that’s large enough to be self-sustaining in the absence of oil revenue.  If they overshoot on building and have a surplus for a while, that’s not the worst thing in the world.  They’re striving, and succeeding, in becoming a major center for business headquarters of all types–they want diversity (and they’re one of the few developing states smart enough to attract foreign investment by allowing outright ownership of property by foreigners).  And they are a few hours flight away from something like 10 million millionaires–for them they want to be a playground.

                The sustainability problems their model creates? If they’re successful they’ll be able to afford to solve them.  But if they don’t make this move and slip into an economic backwater when the oil runs out, they’ll wish they had risked sustainability problems.

                That’s my two cents, anyway.Report

              • James Hanley in reply to Nob Akimoto says:

                A new capital in Nebraska probably wouldn’t have China/UAE problems.  I was mostly worried about Le Corbusier-style designing.  But as was noted above, that’s not so much in style now, at least in the U.S.  Instead, we’d probably get some really cutesy new urbanism model–a bit too sweet and fake charmy, but far from the worst that could be done.Report

              • I just wanted to say, this is a really interesting conversation.Report

              • An interesting example I think is the “Odaiba” development in Tokyo..

                I mean in the end it worked out, but it was a costly boondoggle.

                As for the unsustainability, my biggest point about Dubai or Abu Dabi are the gigantic skyscrapers in a region of the world where even making something habitable is an extraordinary energy demand, and using something like those large buildings is utterly pointless.

                They also have extreme amounts of floor space for a small fraction of what it costs to build. Now granted, given the problems James describes, it’s actually a reasonable use of their resources relative to what else they could be doing with it. I just don’t see it panning out in the long run.Report

              • mark boggs in reply to James Hanley says:

                I fear western Iowa has more than one Steve King in it.  But if you redistricted to get Iowa City in King’s district, he’d probably lose.Report

            • I think building a new city from scratch is probably desirable in that you get all the nice shiney infrastructure that would be needed to make a world class capital….and I mean, why not?

              Let’s experiment with neat things like light rail, monorail, urban air planning, walkable streets….Make legislators live in a modern city so they know the benefits and they can return to their constituents to talk up the benefits of this program or another.Report

    • Pub Editor in reply to Will Truman says:

      I believe Josiah Tucker proposed, circa 1770, moving the British capital from London to York, for similar reasons. You can see how successful he was.Report

    • Thinking on the capital…

      I’d do something like what you’re talking about, but take it a step further.

      Move the seat of legislative power, but keep the executive where it is now. (An Edo/Kyoto situation!)

      Separate them geographically so that you can’t just have lobbyists moving from one branch to the other handing out goodies. Make them work a little.Report

    • Patrick Cahalan in reply to Will Truman says:

      They should move the seat of government every 10 years to the metropolitan area (metropolitan area defined as > 200,000 population with N square miles for some N I can’t figure at the moment) that has the highest rate of poverty.

      I know, now we’ll quibble about what’s “poverty”.Report

    • Tod Kelly in reply to Will Truman says:

      Will- what would you do with all of the DC buildings and landmarks, such as Lincoln memorial or the congressional building?  Would you move them, rebuild them, or just sell them to be malls, and have everyone work in a cheap business park?Report

  27. Kyle Cupp says:

    As I philosophically support the idea of public funding of healthcare, but understand there are some alleged constitutional issues, I’d favor a constitutional amendment explicitly giving the federal government the authority to fund and run a healthcare system, single-payer or otherwise.Report

  28. BSK says:

    I propose that the title of this post be amended to properly represent its constituents.  We are the LoOG, not the LOoG.Report

  29. Nob Akimoto says:

    An amendment repealing the government’s power to grant letters of marque and reprisal and of further prohibiting government contracting out the use of violence to private entities.Report

  30. Nob Akimoto says:

    Given that the above is somewhat of a minor issue…

    I’d actually put in a requirement that post-census redistricting of Congressional districts be done by non-partisan committees rather than a state’s legislature and drawn in accordance with the Bill of Rights, particularly the 14th amendment.Report

    • James Hanley in reply to Nob Akimoto says:

      This. Very much this.  The Iowa model is good.Report

      • Jesse Ewiak in reply to James Hanley says:

        Eh, the Iowa model works before Iowa’s a square state with only really big city. There are ways  to make redistricting more nonpartisan, but Iowa isn’t a one size fits all solution.Report

        • Pub Editor in reply to Jesse Ewiak says:

          Arizona has a variation on the Iowa model. But the key point is to take it out of the hands of state legislators who are basically drawing districts for themselves and their congressional buddies (often former colleagues in the state legislature).

          So, yeah, I could get behind this.Report

        • Pub Editor in reply to Jesse Ewiak says:

          Of course, multi-member districts also reduce the opportunities and effectiveness of gerrymandering, in part because multi-member districts => fewer districts to draw. Note: reduce, not eliminate. Just saying.Report

        • James Hanley in reply to Jesse Ewiak says:


          Do you actually know what the Iowa model is?Report

          • Jesse Ewiak in reply to James Hanley says:

            Yup. It’s a nonpartisan comission that isn’t allow to consider political criteria at all. Which sounds nice.

            From what I’ve read, the problem with the Iowa model is that basically, Iowa’s a square state that’s relatively balanced politically, lacks major urban centers, has lots and lots of counties, and not enough minorities to trigger the VRA.

            Like I said, I think there’s ways to make the model less partisan and less gerrymandered, but even if you make it less partisan, for instance, you’d have people in Houston complaining if there’s 2 people on the commission from Dallas and only 1 from Houston.


            • James Hanley in reply to Jesse Ewiak says:

              OK, good.

              I think the Iowa model would work elsewhere as well.  But to say it’s a good model should not be taken as suggesting it’s the only model.

              On a side note: Most of the students in a class I teach for an Iowa CC aren’t familiar with their own state’s model.Report

              • Jesse Ewiak in reply to James Hanley says:

                We’re writing in a reasonably intelligent political site comments section. We’re both political dorks to a certain degree. So, I’m not insulting your students here, but I’d hope you’d give me more credit than them. 🙂Report

              • James Hanley in reply to Jesse Ewiak says:


                I have to admit that I honestly don’t know how widespread familiarity with the Iowa model is, even on a site like this.  Please forgive my doubt, and accept my respect that were familiar with it.

                Hell, I only learned about it a couple of years ago.  You may have known about it long before me!Report

              • This doesn’t surprise me overmuch. Districting is something of a wonkish topic even for political scientists. It’s certainly not as sexy as the presidency.Report

              • James Hanley in reply to James Hanley says:


                Beyond non-partisan redistricting, what the goal really should be is to maximize, to the extent possible, competitive districts.

                Since that’s not always possible, multi-member districts are worthy of consideration, too.  It’s actually my preferred solution.  For small states it would require increasing the size of the House, but it’s too small now anyway–we no longer have proper proportional representation.Report

              • Part of me thinks that rather than distinct districts, states should just have a block of house reps and folks can vote for parties rather than candidates with a proportional representation in the House and direct candidate votes for Senate…boy that would screw things up (possibly in a good way)

                It would also test Duverger’s Law and we’d see if the US in fact would have a multiparty system afterwards.Report

              • James Hanley in reply to Nob Akimoto says:

                I think Duverger’s law would come through pretty good.  In relatively homogeneous states like ND, we might not find more than a token third party, but in a more diverse state we’d find some real divergence.  It would probably take some time, as we’d have lots of cultural history and tradition to overcome.

                Another relevant rule is Arend Lijphart’s m+1 rule, a suggestion that the maximum number of meaningful political parties is the number of delegates per district +1.Report

              • Stillwater in reply to James Hanley says:

                I teach for an Iowa CC

                Online? That’s the future of academia, no? It’s one (only one!) of the reasons I’m not an academic now. Good on ya James. How do you like the experience of ‘off-site’ instruction?Report

              • James Hanley in reply to Stillwater says:

                Mixed feelings.  Some classes–I do Am Gov and Pub Admin–work just fine online, for good students.  Bad students are badly served by online ed.  Some topics just won’t work in an on-line setup.  Basically, the easier something is to learn on your own–anybody could learn introductory public administration on their own, if they just put in the effort–the more suitable it is for online.

                And while there’s lots of upfront course-building effort, once you get it perfected it’s plug and play without much work involved for the paycheck.  I usually get emails primarily when there’s something not working well in the course module or when students are having life issues that are causing them to fall behind.  My course module is so perfected now* that I’ve only had one email so far this term.  That’s actually not good because it’s too easy for me to stop paying attention and half forget about the course.

                *Not as in I think it’s a perfect set up, but as in it functions without errors.Report

              • Mary in reply to James Hanley says:

                “Some classes… work just fine online, for good students.  Bad students are badly served by online ed.”

                Agreed. 1,000 x agreed.Report

              • James Hanley in reply to Mary says:

                Have you taught online, or been a student online?  I’d be interested in hearing your experience, whichever it is.Report

              • Mary in reply to Mary says:

                Student. I completed my undergraduate degree last year. I have taken approximately 15 classes online. They worked well for me, but you are right; online classes do not work well for “bad” students. There is a great deal of reading and writing. If a student has a learning disability, they will not be served well by online education. If a student is not dedicated, driven, organized and/or great at managing their time and developing a pace that works well for them, they will not be served well by this alternative education opportunity.

                At this point in time, I would rather eat dirt than take another course online. Although the classes were convienant, I missed out on a lot by not ever meeting my instructor or classmates. A lot is sacraficed when people do not gather and discuss the topic being studied. I feel like the online experience strengthens the feelings of distance and intimidation that some students experience when attempting to learn about something they are not competant or confident in.Report

              • Will Truman in reply to Mary says:

                I took one online class in college, and another video course. I think you’re right about motivation. That being said, it’s a potentially low-cost solution in an industry that needs it. Of course, very few have actually delivered on the low cost (I get the impression that they’re real profit-centers even at non-profit u’s).

                Anyhow, I wrote on this a while back.Report

              • Mary in reply to Mary says:

                “a potentially low-cost solution in an industry that needs it. Of course, very few have actually delivered on the low cost”

                Tell that to my student loans. There really is little to no upside of online courses unless they start making them more afforable.Report

              • James Hanley in reply to Mary says:

                Yeah, not low-cost for students.  It’s about convenience.  Lots of my students are Iowa, Iowa State, and Northern Iowa students picking up an extra course.  Lots of others are working folks who can’t take time out to go to college the regular way.  They’re the good students.  Others are just out of high school or just starting college after a few years out of high school–most of them don’t do well.

                They are good profit centers for the schools, though.  You can pack in a lot more students without having to expend so much on infrastructure.  The marginal cost per student is very very low.Report

              • Mary in reply to Mary says:

                “The marginal cost per student is very very low.”

                When education becomes more about money than what the students are learning and how they are retaining and applying what they learn, I get a little nervous about our country’s future.Report

              • Will Truman in reply to Mary says:

                The WGU experiment looks rather promising, to me. The problem, to date, is that it’s primarily being tried by either (a) for-profit institutions or (b) non-profit institutions that need the profit center and have a vested interest in college not becoming cheaper. WGU seems to break that mold. I’m hoping more come around the bend.Report

    • Katherine in reply to Nob Akimoto says:


    • Tod Kelly in reply to Nob Akimoto says:

      I like this one a lot.  I’d be interested in seeing how you got a working bipartisan committee to work on this.Report

  31. James Hanley says:

    This isn’t really my very first mostest important one, but the federalism amendment and constraints on the executive have already been mentioned (the best method for that is to ditch the office and go parliamentary; e.g., what Steve S. is, I think, suggesting), and any suggestions that more strongly secure our negative liberties will probably win my support.  So here goes, my anti-rent-seeking amendment.

    Congress shall make no law or allocate any money, nor shall the executive branch make any regulation, the purpose or primary effect of which will be to promote the interests of any identifiable economic interest over that of any other identifiable economic interest.  This shall not be construed to deny Congress the authority to pass regulatory laws of general applicability, or of the executive branch to promulgate regulations giving effect to those laws.


    • Stillwater in reply to James Hanley says:

      James, I like it!!

      But does ‘identifiable economic interest’ include class divisions?Report

      • James Hanley in reply to Stillwater says:


        I’m inclined to think not, but I’d listen to arguments either way, and to suggestions for revising it to clarify that very question (whichever way we decide to go on it).  That is, I’m not looking to end welfare programs or Social Security. The amendment is actually more modest than that.Report

        • This seems to me to make programs like ARPA-E or DARPA illegal. Am I misreading it?Report

          • James Hanley in reply to Nob Akimoto says:


            If the primary purpose or effect of DARPA is to enrich particular corporations, then it should be killed.  However, as much as enriching particular corporations is an effect of DARPA, I don’t think it would take a particularly skilled attorney to persuade the Supreme Court that the primary purpose and effect of DARPA is about national security.

            Just as hiring Joe’s Cleaners to provide janitorial service on the National Mall would enrich Joe, but not be the primary purpose or effect of the action.

            And let’s be sure these questions are in the legislative history, so the Supremes will understand what we do and don’t intend!Report

            • Well the wording is “purpose or primary effect”. Which leads me to think that any program that’s targetted with the intention of creating tax incentives to grow a particular sector of the economy would be considered verboten under this amendment. I’m happy to be convinced otherwise, and I’d imagine a skilled attorney WOULD be able to argue otherwise.Report

              • James Hanley in reply to Nob Akimoto says:

                any program that’s targetted with the intention of creating tax incentives to grow a particular sector of the economy would be considered verboten under this amendment.

                Yes, it would.  That’s a good part of the purpose of the initiative, because growing particular sectors is nearly always either a code for, or results in, growing particular favored businesses that just suck off the public teat.

                But DARPA survives. It’s got a primary purpose separate from benefiting an economic sector or business.

                ARPA-E?  Maybe.  I think it depends on whether judges are persuaded that its defenders are right about its real purpose or persuaded by its critics about its real purpose.  What the amendment might do is force the government to take greater steps to ensure that ARPA-E is fulfilling its real purpose, and not paying off political supporters or supporting jobs in Congressman Smith’s district (e.g., the second engine for the Joint Strike Fighter, to have been built in John Boehner’s district).

                I won’t pretend that there wouldn’t be tough cases (and that’s why we have the courts), and in return I hope others will admit that tough cases isn’t a knock against an amendment.  Which isn’t to say it’s not appropriate to point out which cases are likely to be tough–it’s useful, both for clarification and to help people decide whether they would approve the amendment or not.Report

              • I guess I’m a bit more sympathetic to strategic growth models and developmental economics than you are, so I find the concept of outlawing it a bit less useful than not.

                It’s an interesting amendment. I’d have to chew on it a bit to think it through.Report

              • James Hanley in reply to Nob Akimoto says:


                Do you think that’s a consequence of our national backgrounds? (Me American, you Japanese)Report

              • Think that’s likely. Might also be a consequence of our relative areas of expertise.Report

            • DensityDuck in reply to James Hanley says:

              “[H]iring Joe’s Cleaners to provide janitorial service on the National Mall would enrich Joe, but not be the primary purpose or effect of the action.”

              Er, enriching Joe would most certainly be a primary effect of that action, unless you’re suggesting that any Federal contractor would be required to operate at a loss, which is an intriguing notion but probably wouldn’t be very popular.

              Alternatively, maybe what you’re suggesting is that there would no longer be any such thing as a privately-contracted government services.  Anyone who does anything for the government must be a civil servant.  Again, interesting–you’ll nationalize every industry in the country!Report

              • Seems to me that if Joe is good at his job, the primary effect of that action would be having a cleaner National Mall. Unless he’s really gouging the Treasury.Report

              • DensityDuck in reply to Ryan Bonneville says:

                If that’s the case, then the proposed amendment is almost meaningless, because it’s always going to be possible to argue that the “primary effect” of an action is the performance of a service.

                Note that the amendment is written in terms of competition–“promote economic interests of one over another”.  So the Bridge To Nowhere is still legal under this amendment.  About the only thing it would disallow would be eminent-domain takings, which are something that the Constitution explicitly permits–and if you want to prevent that happening then that’s what you should write the amendment to do.Report

              • James Hanley in reply to DensityDuck says:


                I really think your criticisms are way off target.

                So the Bridge To Nowhere is still legal under this amendment.

                Of course. Ideally we would be able to always distinguish between useful and pointless infrastructure, but that’s not a reality.  Infrastructure has to be allowed, and so some pure pork barrel projects will get through, because one man’s pork barrel is another man’s crucially necessary infrastructure project that will protect the public from floods, terrorists, etc. etc.

                The idea that eminent domain would be banned is, to be blunt, idiotic.  The primary purpose and effect of eminent domain–as originally understood–is for the purpose of public projects.  The person whose property is taken almost never considers themselves enriched.  To the extent this amendment would be interpreted as preventing Kelo type eminent domain actions, then halla-fishing-lula.  The owners of the Texas Rangers got the state to condemn land around what became Texas Stadium, then give it to them cheap so they could enrich themselves–that is one of the things we’re trying to prevent.  Stopping the state from taking my house for a public school?  No, not at all.

                And this amendment would ban Obama’s tire tariffs, Bush’s steel tariffs, the ethanol subsidies that enrich ADM (well, if  the Court saw through the fake anti-pollution argument–but I don’t expect the amendment will stop everything, just stop more than is stopped now).Report

              • Stillwater in reply to James Hanley says:

                Ideally we would be able to always distinguish between useful and pointless infrastructure, but that’s not a reality.

                This was brought up in Jason’s post about procedural v substantive justice. It’s impossible to write legislation which excludes all the way someone might interpret or manipulate it to their own advantage.

                I view which DD explicitly endorsed in that thread!Report

              • James Hanley in reply to DensityDuck says:


                If that’s the likely interpretation of my amendment, then it needs to be revised for clarity.  It’s absolutely not intended to end government contracting.  It’s designed to end government spending whose primary intent is rent-seeking.  If there is competitive bidding for trash services on the National Mall, and Joe wins by whatever fair set of rules is set up (e.g., it’s not somehow a rigged bid), then the primary purpose is not to enrich Joe, and the primary effect is a clean mall.  Joe’s enrichment is of little moment–in fact we don’t actually care whether Joe makes money or not.  If he underbids and loses his shirt, that’s his problem, and of no concern to us.  If he fails to fulfill his contract due to having underbid, then his contract is canceled and its up for bids again.

                So perhaps my specific words in the amendment could use some tightening, but I don’t think it’s hard to make clear why such contracting out isn’t forbidden.Report

              • DensityDuck in reply to James Hanley says:

                “It’s designed to end government spending whose primary intent is rent-seeking.”

                Isn’t that already within the GAO’s charter?Report

              • James Hanley in reply to DensityDuck says:

                Uh, the GAO can point out that something is rent-seeking, but that’s not at all binding on Congress.  I want to tie their hands so tight they atrophy from blood loss and fall off.


        • Stillwater in reply to James Hanley says:

          Good. I think the phrasing could accommodate this: a uniquely (or individually) identifiable economic interest. Or some such. You know how lawyers like to play with words.Report

    • b-psycho in reply to James Hanley says:

      Well, it’d definitely reveal just how much of government consists of rent-seeking by the difficulty in complying with it (all of it, I’d argue)…Report

      • James Hanley in reply to b-psycho says:


        No, not all of government consists of rent-seeking.  But yes, lots of it does, and hopefully we’d successfully eliminate large portions of that.  And the parts that don’t consist of rent-seeking do attract it, and hopefully we’d get rid of large portions of that, too, and run those portions without so much waste.Report

    • Tod Kelly in reply to James Hanley says:

      James, this seems like a good intentioned amendment that would make all government and legislation impossible.  Having one part of a community have interests supersede others is pretty much part and parcel of civil society.  When my mom was retired, she didn’t drive at all, but we still built and repaired roads of those that did.Report

      • James Hanley in reply to Tod Kelly says:

        Tod, but other drivers weren’t going to object if your mom did drive, thinking she was stealing their special benefits.  Hence the caveat about generally applicable laws and regulations.  My intent was for that phrase to cover everything from “you can’t steal anyone’s TV (even though that benefits the TV owner to the disadvantage of the TV stealer) to “yes, Congress can fund a septic system for Hoboken, NJ to protect the water quality in New York Harbor.”Report

        • Tod Kelly in reply to James Hanley says:

          I think the point I was trying to make is that you can make an argument with almost any proposed law or law on the books that it favors one group over another.  Were this in place now, for example, I have a nightmarish vision of what the GOP would be doing with it.Report

    • DensityDuck in reply to James Hanley says:

      I think maybe what I’d like to see is a specific example of:

      *The kind of event you target with this proposed amendment.

      *How the current regulatory and legal regime did not prevent this event.

      *How the proposed amendment would be applicable to this event.Report

      • James Hanley in reply to DensityDuck says:


        Almost everything corporate lobbyists are pushing would fall under this.  But here’s a specific example.

        1. Barack Obama imposed tariffs on imported Chinese tires, to protect American tire manufacturers who didn’t like the competition.

        2. The current regulatory and legal regime didn’t prevent this because the Constitution specifically gives Congress the authority to create tariffs, an authority they’ve delegated in certain cases (like this one) to the president.  (That is, they’ve authorized retaliatory tariffs, and leave it up to the president to determine when they’re appropriate.)

        3. The proposed amendment would prohibit this tariff because there is no generally applicable purpose to them; both their primary purpose and primary effect is to promote the interests of an identifiable economic interest–low-cost tire manufacturers–against the interests of the general public (i.e, American consumers).Report

        • DensityDuck in reply to James Hanley says:

          If that’s the argument, then this proposed amendment could therefore make any regulation illegal, unless that regulation were shared across the entire planet.  Because regulations imposed on domestic businesses but not foreign ones would result in the promotion of an identifiable economic interest (anyone who does business anywhere in the world) against the interests of another identifiable economic interest (anyone who only manufactures products or does business in the USA)Report

  32. greginak says:

    How about giving more explicit privacy protection to personal information like health ( I’m thinking mostly about DNA) and credit records. Nobody should have access to any of my credit records ( or even derived credit scores) without my explicit permission. Nobody should be able to access the info in my DNA without my explicit permission nor should there be any repercussions for withholding that info. The info in our DNA will only become more valuable to insurance companies over time but it is intimately ours and nobody should poke their nose in my DNA unless i want their nose there. There is all sorts of data on us out there and that will only become more prevalent, however we should have more control over that.Report

  33. Jaybird says:

    Oh, the other one would be that “all laws must sunset after X years”.

    Pass them again, if you still want them. If you can’t pass them, we shouldn’t have them.Report

    • DensityDuck in reply to Jaybird says:

      I’m in favor of that.Report

    • Tod Kelly in reply to Jaybird says:

      Yeah, because having to have the number of issues we piss about grow exponentially every six years would be awesome.Report

      • Jaybird in reply to Tod Kelly says:

        At least we’d find out what our representatives consider important.Report

      • Burt Likko in reply to Tod Kelly says:

        Actually, it would. It would keep people on their toes more about what the government actually does. We’d have more frequent and meaningful national discussions about things like drug control policy, military appropriations, and privacy.

        So I think I’m at least moderately in favor of this.Report

        • Tod Kelly in reply to Burt Likko says:

          I am not so sure.  I think our current relationship with governing exists because we want it to be so.  When I think of this being acted on in real life, I don’t see people thoughtfully reconsidering the effectiveness and/or unintended consequences of a law passed 6 years ago.  I see two political parties digging through the laws to find red meat calls to their base, until that is all that congress does.Report

    • Katherine in reply to Jaybird says:

      So you basically want to make the country ungovernable.  Well, you’re a few steps from an anarchist, Jb, guess that makes sense.Report

      • Jaybird in reply to Katherine says:

        Golly, it’s not like I said that X should equal 3 years.

        I don’t like the idea of laws passed by dead people for dead people and having them apply to people who weren’t even born when they were signed.Report

        • Patrick Cahalan in reply to Jaybird says:

          “Each law enacted by Congress shall include a sunset provision, and this sunset provision shall be less than 50 years, and 50 years shall be the limit.  49 years is asking for it… 51 is right out.”Report

        • Jesse Ewiak in reply to Jaybird says:

          Except if 2/3 of the states  and the legislature passed it at some point. Then it’s as solid as the Ten Commandments. 🙂Report

          • Jaybird in reply to Jesse Ewiak says:

            A constitutional amendment *WOULD* not sunset, very true.

            How many laws currently on the books couldn’t get past (I thought it was 75%) that many states and the legislature?

            If it couldn’t… what’s the problem with making the legislature vote on it again in X years? Are we afraid that we’d lose the “murder” statute? The “pouring stuff into rivers” statute? The CRA? Johnsoncare?Report

        • Katherine in reply to Jaybird says:

          Why not, if they’re perfectly reasonable laws?  Why should the legislatures have to spend their time re-passing the Voting Rights Act, the Civil Rights, Medicare, Medicaid, Social Security, health care reform, environmental regulation etc. instead of dealing with issues of current importance?

          And you’ve got to consider how Congress actually functions.  Assuming nobody (or VERY few people) want to vote against a re-passing of the Civil Rights Act, that basically allows Congresspeople to add an unlimited number of irrelevant amendments to it favouring their craziest pet causes or pork for their district.  It would be analogous to the way the big military appropriation bills work now (nobody’s willing to vote to defund the troops, so now you don’t have habeus corpus rights), except scaled up.Report

    • balthan in reply to Jaybird says:

      I was considering suggsting this myself, combined with a single-subject rule to avoid any attempts at “this bill reauthorizes every existing bill” omnibus packages.Report

  34. Ryan says:

    Section I: The Sixteenth and Seventeenth Amendments to the Constitution are hereby repealed.

    Section II: Where there is more than one Representative in a single State, that State shall be divided into districts, one district for each Representative. Said districts shall be drawn such that the number of citizens in each district in a single State shall not differ by more than 1%. Such districts shall have no more than five sides. The borders of such districts shall be straight except where they touch a State border.

    Section III: The Rules of neither chamber of Congress shall require any bill, measure, or procedure to carry more than a majority to pass or advance unless otherwise provided for in the Constitution.Report

    • James Hanley in reply to Ryan says:

      Section II is hereby vetoed.Report

    • Katherine in reply to Ryan says:

      Another one who wants to make the US ungovernable (re: 16th Amendment).  Without an income tax you couldn’t afford national defence if it was the only thing the US government did, much less be able to have a civil service, Social Security, Medicare, education, any kinds of public welfare and anti-poverty programs…Report

  35. Underwriterguy says:

    Repeal the income tax. Then, and only then, can we find a better tax system. As long as the income tax lives, any new schemes are add-on’s.Report

  36. wardsmith says:

    This hit my inbox just today. Since it specifically addresses a proposed constitutional amendment I thought I’d post it here. Sorry if someone already mentioned it, before I left on my 3 hr errand there were already an unreadable 170 posts, now it seems they are double that.

    When a company falls on difficult times, one of the things that seems to happen is they reduce their staff and workers.

    The remaining workers must find ways to continue to do a good job or risk that their job would be eliminated as well.

    Wall street and the media normally congratulate the CEO for making this type of “tough decision”, and the board of directors gives upper corporate management big bonuses..

    Our government should not be immune from similar risks.


    Reduce the House of Representatives from the current 435 members to 218 members.
    Reduce Senate members from 100 to 50 (one per State). Then, reduce their remaining staff by 25%.

    Accomplish this over the next 8 years (two steps/two elections) and of course this would require some redistricting.

    Some Yearly Monetary Gains Include:

    $44,108,400 for elimination of base pay for congress. (267 members X $165,200 pay/member/ yr.)

    $437,100,000 for elimination of their staff. (Estimate $1.3 Million in staff per each member of the House, and $3 Million in staff per each member of the Senate every year)

    $108,350,000 for the reduction in remaining staff by 25%.

    $7,500,000,000reduction in pork barrel earmarks each year. (Those members whose jobs are gone. Current estimates for total government pork earmarks are at $15 Billion/yr).

    The remaining representatives would need to work smarter and improve efficiencies.. It might even be in their best interests to work together for the good of our country!

    We may also expect that smaller committees might lead to a more efficient resolution of issues as well. It might even be easier to keep track of what your representative is doing.

    Congress has more tools available to do their jobs than it had back in 1911 when the current number of representatives was established. (Telephone, computers, cell phones to name a few)

    Congress does not hesitate to head home for extended weekends, holidays and recesses, when what the nation needs is a real fix for economic problems. Also, we had 3 senators who were not doing their jobs for the 18+ months (on the campaign trail) and still they all accepted full pay. Minnesota survived very well with only one senator for the first half of this year. These facts alone support a reduction in senators and congress.

    Summary of opportunity:

    $44,108,400 reduction of congress members.

    $282,100,000 for elimination of the reduced house member staff.

    $150,000,000 for elimination of reduced senate member staff.

    $70,850,000 for 25% reduction of staff for remaining house members.

    $37,500,000 for 25% reduction of staff for remaining senate members.

    $7,500,000,000 reduction in pork added to bills by the reduction of congress members.

    $8,084,558,400 per year, estimated total savings. (That’s 8-BILLION just to start!)

    Corporate America does these types of cuts all the time.
    There’s even a name for it.



    • Nob Akimoto in reply to wardsmith says:

      …and any corporation that proposed an $8 billion “savings” out of an operating budget of $1.3 trillion would be laughed out of the board room.

      Nevermind the dubious math, and the general ignorance about the importance of staffers. Do we really want congress critters even MORE ignorant of the things they handle and even MORE susceptible to lobbying?Report

      • wardsmith in reply to Nob Akimoto says:

        Nob, where’d you get the operating budget number?

        I think the email chain letter is clearly indicative of the overall low esteem congresscritters are held in by this country’s citizens. IIRC the last approval rating was sub 10%, ie > 90% disapproval. Yeah, found it, my memory ain’t so bad after all. Accounting for the 9% McCain said, “We’re down to paid staffers and blood relatives”. So there you have it, lower congressional staff and their approval rating should go lower too. Can’t do much about the relatives though…Report

        • Nob Akimoto in reply to wardsmith says:

          I was ballparking on discretionary spending.

          The main problem is that reducing staff size won’t make Congress work any better. If anything it’ll make Congresscritters sound stupider and less informed than they do now.

          In many respects they already have too much to do with too little resources and intelligence. The intellectual load required to be shouldered to adequately run a country the size of the US is immense. 535 members is simply not enough for that, and 535 members with their staffs aren’t either.

          It’s this weakness that lobbyists exploit, by providing expertise and data. They package talking points and push things toward members of Congress that are heavily slanted to one side or another.

          Your chain-mail sounds nice on the surface, but the reality of it would basically make Congress more beholden to special interests and less likely to function well than not.Report

    • James Hanley in reply to wardsmith says:

      This proposal is great if we just see Congress as a “them” totally separate from “us” and want to further reinforce that perception as a reality.

      If we actually care about representation of the public in Congress and want to encourage more of that, then this amendment works in precisely the wrong direction.

      And just for some international comparison, from Miller-McCune.com:

      But if the U.S. House were to add seats, how many should it have? Arend Lijphart, an emeritus professor of political science at the University of California, San Diego, and a comparative scholar of democratic institutions, has argued for 650 seats.

      That figure is based on the so-called “cube root law” of Rein Taagepera, who figured out that taking the cube root of a nation’s population provided a remarkably good predictor of the size of that nation’s lower house. By that logic, the U.S. was an outlier on the low side, with a House of 435 instead of the 669 that would now be expected given the U.S. population of 300 million. (Lijphart made his 650-seat recommendation in 1998, when the U.S. population was at 275 million.)

      “When one looks at democracies around the world,” Lijphart said, “there is a tendency for larger countries to have larger legislatures and smaller countries to have smaller legislatures. But we have a lower house with 435 members, which is less than both the British House of Commons and the German Bundestag, and Germany has 80 million people and Britain has 60 million people.” (The Bundestag has 613 members; the House of Commons has 646 members and is slated to grow to 650 by the next election.)


      • Jesse Ewiak in reply to James Hanley says:

        What Hanley said. It’s nice demagoguery to want to house Congress in an unheated flophouse full of rats, but it you want an even mildly working modern government, people need staff.Report

        • wardsmith in reply to Jesse Ewiak says:

          I admit I haven’t gone through the email with a fine toothed comb, but a quick read indicated that the savings was from RIF (reduction in force) and obviously if you don’t have the congress critter you don’t have their staff. A question a business person would ask is what staff is necessary to support their function? If what you want are 10’s of thousands more pages of laws that the supposed law-makers haven’t even read, well perhaps there’s a place for staff, but what should they do, read the law out loud to their benefactor? Or do we just admit these “laws” are already written by lobbyists? If so, what is the staff for, deniability when their boss gets caught with her hand in the cookie jar?Report

          • Nob Akimoto in reply to wardsmith says:

            It’s kind of interesting that the basic function of a congressional staffer, a member of the congressional research service, and a lobbyist’s intern/staffer is the same. It’s to distill complex topics, read through lots of stuff including bills and present a one page memo on it to the principal. This is a lot harder than it sounds, and in fact there’s an entire course dedicated to teaching this art in policy schools.Report

            • James Hanley in reply to Nob Akimoto says:

              And let’s not forget constituent service.  Cut staffs too much to please the folks back home, then the folks back home lose their constituent service, then the folks back home complain some more.  And I’d wager that their “solution” would be more cuts.Report

              • Yeah. Constituent service is one of those underreported areas and one of those things that even modern congressional offices aren’t doing particularly well….

                Heard a lot of complaints about this for example about Jim Webb.Report

        • James Hanley in reply to Jesse Ewiak says:

          Oh, I may think we need more representatives, but I’d still house them all in the rat-infested flophouse.  I’d compromise with a 1950s stye dormitory, 3 to a room, roommates drawn by lot.  😉Report

      • I do support a larger rather than smaller house. Imagine how many we could put in a brand new congressional building in Nebraska!


  37. North says:

    Change “in God we Trust” on the money to “In Tod we Trust”.

    And, in the interest of being bipartisan, have Washington be sporting Tom’s sunglasses in his 1 dollar bill portrait.Report

    • Tod Kelly in reply to North says:

      Wins the thread, even if it does kind of suck up to the moderator.  (Which, by the way, we approve of here.)Report

      • Kolohe in reply to Tod Kelly says:

        Just that the need for a federal district that Congress has sole authority over has long since passed.  (if it was really there to begin with).  So a formalization of DC home rule (and then they could go statehood, retrocession, territory or whatever)

        A related thought, but one I don’t know how to capture in words, is to figure out how to mandate a dispersal of the federal bureaucracy among the 50 states (and territories and possessions).  The Pentagon is already in Virginia (barely); we should move some of the the other cabinet agencies headquarters outside the DC metro area, in this age of instant visual communication and rather rapid transportation.Report

  38. Kolohe says:

    The Power of the Congress to exercise exclusive Legislation in all Cases whatsoever in the  District created by Section 1 Article 8 is hereby repealed.Report

  39. Michael Cain says:

    The federal government shall be prohibited from owning or leasing more than 5% of the area of any individual state.  Current excess holdings are transferred to those individual states.


    • Patrick Cahalan in reply to Michael Cain says:

      Why does the current generation of the population of the Western states deserve such a massive freebie?


      • Because they’re the same people that are currently paying the price for having large parts of their state “owned” by an entity that they can’t tax or otherwise regulate, said owner having a long and continuing history of being a poor neighbor.Report

        • Patrick Cahalan in reply to Michael Cain says:

          This analogy doesn’t work for me.

          How are they paying this “price”?  What, exactly, is this “price”?

          How is it “their” state?  Were they present at its incorporation into the Union?  You can’t possess a state.  It’s not *yours*.

          If the land in question is federal land, it belongs to the Union… just like state parks belong to the state.  If we’re going to give up ownership of that federal land, you have to give everybody in the nation their share.  You wouldn’t be too keen on your state government suddenly deciding that it was going to give a large swath of state park land to a particular municipality, gratis, just because that municipality was the one in the middle of the state park, would you?Report

          • BSK in reply to Patrick Cahalan says:

            And my hunch is that the national parks cost more to operate than they bring in in revenue.  I could be wrong, of course, but if I had to guess, that’d be my guess.  It is probably more likely that the states are getting a net positive by having all this federal land since out-of-state visitors still drive on state roads, frequent state businesses, etc, etc, etc.  And they don’t have to maintain the parks.Report

            • Tod Kelly in reply to BSK says:

              I might be wrong, but I suspect the point of this amendment is to allow states to sell off the land.Report

              • BSK in reply to Tod Kelly says:


                Well, if you want to sell the land, sell the land.  But I agree that I don’t know why the states deserve this, especially if they have been mooching off the federal land, as I suspect.Report

              • Tod Kelly in reply to BSK says:

                My understanding is that it has nothing to do with deserving or not deserving, but rather that overall people in this country don’t want to sell of federal land.  But there are a lot of lower population states where the majority would love that if it meant lower taxes (and perhaps more jobs in industries like timber, mining, etc.) for a while.Report

              • Michael Cain in reply to BSK says:

                Actually, most of the land would probably be retained for a long time.  Select pieces where there’s a direct commercial application would be sold.  States would be able to set their own severance taxes on extraction, rather than being forced to take whatever the feds deign to share.  Most of the states want wilderness areas, but also want control of the designation process.  The states generally have a greater interest in working out swaps with private land owners in order to consolidate holdings.  Some saner land designation decisions would be made — eg, trimming a wilderness area somewhat in order to provide access to other land that can be used productively.

                As to mooching — the states with large federal land holdings are today, collectively, a large “donor” block in terms of federal taxes paid and federal expenditures received (I’ve put some numbers up here somewhere).  Some of the “recipient” states are such due to federal dollars spent in large quantities relative to the state population on national goals; eg, Sandia’s spending is large relative to New Mexico, but it’s unreasonable to ask New Mexico to fund the country’s nuclear warhead design efforts.  If the states had controlled the land from far enough back, they might have received more federal dollars, for example by charging very substantial lease rates on areas that the Army was going to permanently ruin by using them for a target range, leaving tens or hundreds of thousands of unexploded live munitions in the ground.  Or where they were going to set off a few dozen underground nuclear explosions.Report

              • wardsmith in reply to Michael Cain says:

                Yes Michael, I remember that discussion. Can’t find the link on LoOG but here was my original link that talked about federal ownership percentages.Report

            • Patrick Cahalan in reply to BSK says:

              And my hunch is that the national parks cost more to operate than they bring in in revenue.

              Given that the federal government is very bad at charging appropriate amounts for access to natural resources on federal lands, I think you’re very much correct.

              I sympathize with Mr. Cain’s underlying principle that the federal government is not doing a good job of resource allocation vis-a-vis federal lands.  There’s actual Nobel work on this (I think I may have mentioned that a time or ten).  I agree that ought to be corrected, and I can see a lot of ways to align that better.

              But just ceding large tracks of land (particularly in a giant lump) to another entity is going to produce an enormous amount of bad outcome.Report

              • greginak in reply to Patrick Cahalan says:

                I think the NPS  looks at “appropriate” charges as making some money to keep the parks going to also needing to be low enough for everybody to afford. They aren’t trying to run the parks off of user fees since that would price some people out visiting. NPS properties are meant to be affordable to everyone. There are, of course, other Fed agencies that manage Fed lands. I think the Forest Service takes the same tack at least for rec use.Report

              • BSK in reply to greginak says:


                I’m not criticizing the way the parks are run, ony commenting that an argument that the states are harmed by national parks isn’t particularly sound.Report

              • Yeah, and I’ll cheerfully admit that some of it is just whining.  For many of the nasty things that have happened in the West within my lifetime (eg, all kinds of truly nasty nuclear things), I have too often been told by Easterners, “Well, it’s important and you guys just have to suck it up and take one for the team.”  I do have a tendency to ask, “When will it be New Jersey’s or Illinois’s turn to just suck it up and take one for the team?”  I think they’ve been getting a free pass for an awfully long time.Report

              • Kim in reply to Michael Cain says:

                Ya mean like the fracking they got going on here, that’s dumping benzene?

                Or you mean like Saxton, PA, where all the kids died?

                Or Quehana, which is still a “do not live” zone, fifty years after the nuclear contamination?

                Do you really need me to go on? PA has been taking things for the team for AGES.

                Free pass ain’t where you think it is, kiddo. (oddly aware that I’m probably talking to someone older than me)Report

              • Michael Cain in reply to Kim says:

                Fracking – all of it done by private companies, none that I am aware of on federal land, all of it subject to regulation that PA has simply not done.  If any of the companies operating in PA or NY had done the same things in Texas, they would — literally — be out of business.  Compare to the West where much of the production is on federal lands where the state isn’t even afforded a voice in the regulation.

                Saxton – private companies again, less than 20 excess cases of cancer, possibly from the reactor and possibly not — apparent clusters of excess cases arise from purely statistical variation on a regular basis around the world. Compared to hundreds of open-air nuclear tests in Nevada and thousands of cancer cases across multiple western states that the federal government has finally acknowledged, plus thousands more that are the “wrong kind” of cancers and the feds simply ignore?

                Quehana – private companies, operating with the approval of the state government.  Compare to Hanford in Washington state, operated by the federal government with no appeal, now acknowledges major releases into the open air and ground water, and still containing two-thirds of all US nuclear waste.  Much of that stored in facilities that are recognized to be woefully inadequate.

                Show me even one case of the federal government taking actions on federal land that is beyond any control of the state government, on anything approaching the scale that has been routine in the West, and I’ll acknowledge “taking one for the team”.  With respect to nuclear, the Savannah River Site in South Carolina is the only one that I’m aware of that matches what has been done multiple times to the West.Report

              • Trumwill in reply to Michael Cain says:

                Boy, and I thought I was hard core on this subject (I left a comment about Arizona on your blog, dunno if you saw).

                A couple things worthy of mention here. States where mineral exploration on federal lands occur do tend to get a lot of money out of the deal due to the Minerals Leasing Act.

                Here’s the thing, though. 100% of the money made off mineral exploitation goes to the federal government. None of that money is counted on the tax side of the ledger as best as I can tell (why should it, it’s not a tax!). The government then kicks 50% of that money back to the state. That 50% does count on the expenditure side of the ledger.

                You can see this if you look at Wyoming, which is the most extreme case. Federal spending in Wyoming is actually quite low except in one area: Grants. Then, look at the grants, and you will see an extraordinary amount of that money is from the Mineral Lease Act. Take that out, and change nothing else, and Wyoming is a donor state.

                This money is made by making the Wyoming air as dirty as Los Angeles’. But as far as the map is concerned, and the people who cite the map, it’s a freebie. Welfare for an ungratefully Republican state.Report

              • This for Will, the software appears to not allow nesting beyond a certain level.

                I saw the comment — thank you.  I’ve gotten a lot more hard core over the last 2-3 years as I’ve dug deeper into energy resources and policy.  While there are a number of detailed studies like this one that demonstrate the possibilities for a low-carbon grid in the West, you don’t see the same kinds of things done in detail for the East because it’s not possible (IMO).  About 20% of the power generation in the states of the Eastern Interconnect is from a large fleet of aging nuclear reactors; another 20-25% of their generation is from western coal (with 25-30% from eastern coal); and a bit under 20% from natural gas, mostly obtained from the Gulf Coast or Rocky Mountain States.  Call it two-thirds of their generation from sources that will have to be retired starting in 20 years or sooner (the old nukes) or coal they import from the West or natural gas that gets moved long distances.  And the total generation from each of those three sources is bigger than the total power generation in the Western Interconnect states.

                Starting in 20-25 years, I expect those non-western states to be faced with the need to practice quite painful austerity measures to keep their lights on.  Even though the states in the Western Interconnect already use significantly less electricity per capita than the non-western states, the non-west will have the votes to insist that (a) the West have the same austerity measures imposed and (b) the West ship their now “surplus” supplies of electricity east via big HVDC across the (steadily depopulating) Great Plains.

                I know I’m paranoid, but living here where the Great Plains meet the Rockies, I have this vision of the tanks rolling west, coming to enforce the edicts.  When I finish retiring, I think one of my hobbies will be to foment (yet another) western independence movement.Report

          • From the beginning, federal policy was that it would not hold land beyond minimal amounts needed for specific purposes.  At one point, all of what is now Illinois (to choose an example) was federal land; all but a small fraction was given to the state to dispose of, or to individuals.  When western states (using western to mean the ones with the big federal land holdings) were admitted to the Union, it was with an implicit understanding that that federal land policy would continue.  But about 1900, the federal government (clearly dominated at the time by non-western states) changed that policy and retained ownership of the land.  The policy was codified in 1976, in a bill that was opposed by all of the states that were affected by it.

            There have been many cases of “price” over the years.  A fairly recent one: Clinton designated a large section of land in Utah as a national monument.  No consideration was given to the fact that that designation entirely blocked planned development of areas of non-federal land, by blocking the only route on which rail or roadways to the non-federal land could be constructed.  Utah was given 24 hours notice of the change in land status, with no opportunity to even ask, “But what about access to our land?”  The initial development, already planned, was mining on land that had been set aside to generate revenue for Utah’s public schools; the people of the state must pay higher taxes because they can’t mine and sell that coal.

            Re the state park.  The more local the decision, the less I worry about it.  The state decision makers are much more likely to represent people who have made use of the state park than members of Congress are to represent people who have visited, say, the Pole Creek wilderness area in Idaho.  It’s easy for folks who are never going to set foot in Idaho to say, “Oh, let’s set aside a million acres as untouchable.” (No, Pole Creek isn’t that big; but there are areas that have been set aside that are.)  Why they should have the authority to make that decision is a more difficult question, at least IMO.

            Granted, the Supreme Court has held that the federal government can decide to retain its land holdings.  Of course, only 12 of the 50 states are significantly affected by that; the land in the other 38 had either never been federally held (ie, the original 13), or had already been given away.  The way I see it is, the people of Illinois today benefit from the freebies given to the people who lived there 150 years ago (the state would be poorer if the federal government had set aside a million acres as a tall-grass prairie wilderness area); the people in Utah don’t get the same benefit.  If nothing is done, 100 years from now the people of Illinois will still be receiving the benefit and the people of Utah won’t.  If the situation is rectified, in 100 years Illinois and Utah will both be in the position of reaping the benefit of something that happened in the distant past.

            Let me ask a different question.  The federal government retained huge areas in the West and then mismanaged the forests by using a total-fire-suppression policy.  The West now has tens of millions of acres of grossly overgrown forest (before, 60-70 stems per acre; now, on the order of 1000 stems per acre, plus huge built-up fuel supplies on the ground) where fire used to be a harmless and necessary part of the ecology that will now be totally destroyed when (not if) a big fire occurs.  The feds say, “Well, yeah, it’s going to be a fishing disaster, but mitigation is too expensive.  Sorry.”  When those fires occur, they will spread to state and private land.  When those fires occur, they will totally screw up some of the watersheds for decades.  Shouldn’t the landowner be responsible for fixing their mistakes?Report

            • Tod Kelly in reply to Michael Cain says:

              What does it mean for a forest to be “overgrown?”  In what way did the federal government make forests go from 60 stems per acre to 1000 stems per acre?  Does federal ownership mean that land grows items at an almost 2000% increased rate than would be have been before people arrived?  How?

              Not challenging, just not understanding.Report

              • Kim in reply to Tod Kelly says:

                Total. Fire. Suppression.

                Forest fires start regularly, but if they burn quickly, they don’t kill mature trees.

                If you STOP forest fires (as the feds did), for a long time, then a lot more tinder and kindling builds up, the fire moves slower (more to burn), and it can completely destroy the infrastructure.

                And yeah, the feds ought to be liable for the losses from forest fires because of their stupidity/incompetence.Report

              • Michael Cain in reply to Kim says:

                Exactly.  The natural ecology is regular ground fires every few years.  The fires burn off the small accumulations of dead underbrush, the downed limbs and occasional windfall tree, and many of the small treelings, but they don’t harm the mature trees.  The natural ecology over enormous areas was an open forest, with smallish groves of mature trees separated by pasture-like areas.

                Because of fire suppression, the treelings didn’t get killed and the underbrush didn’t burn off.  So you’ve got a huge amount of fuel laying on the ground, and instead of 60-70 mature trees per acre, 1000 miserable little stunted things.  When a fire does start, it burns hot enough and high enough to spread into the tops of the trees — and a crown fire is a truly devastating event.  The ground fused into something approximating glass in places; everything burns off, so that every time it rains, there is enormous erosion as dirt, ashes, charcoal get swept into streams and rivers.  A relatively small fire (about 100,000 acres, big fires can run several times that) in the Pike National Forest in Colorado burned across an area that had been largely fire-free (due to policy) for about 80 years.  The area drains into Denver’s reservoirs, and the city will spend millions of dollars per year for decades trying to keep the resulting mess out of their water supply.Report

              • Kim in reply to Michael Cain says:

                Millions per year? hahaha. yinz make me laugh. CSO’s Every single time it rains around here. Sewage go everywhere. Then the dogs and kids play in the sewage.

                You think they do anything about this?

                Be glad that Colorado got something people notice.

                Be glad that your life expectancy doesn’t vary dramatically by altitude.

                Certain Corporations kill people — on average.Report

              • Michael Cain in reply to Kim says:

                Is this something that can be pinned on the federal government?  I’ve decided that my hobby when I finish retiring will be to foment a western secession movement, so I’m on the lookout for anything I can use to convince people they’d be better off in a separate Western US.Report

              • Tod Kelly in reply to Michael Cain says:

                So, if this is the case why wouldn’t having the feds stop fire suppression be the fix?  Why would you give the land to the States, when presumably they might just do the exact same thing?Report

              • Kim in reply to Tod Kelly says:

                cause the land’s a right royal mess.

                Not that I’d give it to the states in a million years, mind. But they shoudl at least be able to get damages/aid fromt he feds.Report

              • Michael Cain in reply to Tod Kelly says:

                I’m inclined to ask the question from the opposite direction.

                One of the arguments for the feds retaining the land was that the states couldn’t afford the total fire suppression program and the feds could — ie, the feds could/would take better care of the land.  The now-emerging federal policy seems to be total suppression in forests close to developed areas and let the rest of it burn to the ground in devastating crown fires. The burned areas may, in 60-80 years, begin to resemble the original ecology. Forests grow slowly in the semi-arid West.

                Based on the region’s overall net donor status in terms of federal taxes/expenditures (discussed elsewhere), the states could presumably afford to implement that same policy if they could keep a part of the “donation”.  Hence the reverse question: if the feds aren’t going to provide better care than the states would, why not transfer the land?

                When I’m feeling particularly obnoxious about the subject, I point out that if the federal government had simply turned the land over to the states 100 or so years ago, this particular problem wouldn’t exist because the western states would not have been able to afford the (quite expensive) misguided policy :^)Report

              • James Hanley in reply to Tod Kelly says:

                Michael, I’m going to argue with you a bit.  Not about the problem of fire suppression, on which I agree with you and Kim 100%, but about whether the states would have done anything different.

                Total fire suppression was an idea that came out of Gifford Pinchot’s conservation approach (which drew heavily on early 20th century concepts of scientific management).  To him, fires caused waste by burning lumber before it could be harvested.  This approach was all the rage back then, and it came to be heavily supported by rent-seeking timber companies and those who rented fire suppression equipment to the feds.

                State governments haven’t proven themselves more resistant to rent-seeking firms than the federal government, so I doubt we’d be in a very different situation today if that land had all been state land for the past 100+ years.Report

              • Michael Cain in reply to Tod Kelly says:

                James, I’m not saying that the states wouldn’t have wanted to do it, I’m only saying that most of them wouldn’t have been able to afford it.  Maybe California.  Maybe select areas in other states.  But certainly not on the scale of the federal government’s every fire, everywhere.Report

              • Patrick Cahalan in reply to Tod Kelly says:

                Michael and Kim are pretty much spot-on.

                There’s also some evidence (or was, the last time I read up on the subject, which is dated) to indicate that the lack of natural fires contributed to the bark beetle spread in the Western states.Report

              • wardsmith in reply to Patrick Cahalan says:

                Not to mention that it takes fire to germinate a redwood forest. Fire suppression was killing off the giant trees’ next generation.Report

              • wardsmith in reply to Jaybird says:

                ROLA reference?Report

              • Jaybird in reply to Jaybird says:

                Indeed. I find that the phrase echoes in my ears when I think about experts.Report

              • Yes.  Warmer winters are generally regarded as the primary cause, but crowding due to fire suppression is a contributor.  Bark beetles will only travel quite short distances from one tree to another.

                Wikipedia has a nice picture (well, an illustrative picture) of beetle kill at work in Colorado.  Colorado, Wyoming and Montana are approaching two million acres each that look like this.Report

              • Tod Kelly in reply to Michael Cain says:

                MC, I’m curious about his.  At this point, can we switch back, or have we conditioned forests at this point to require suppression?

                In either case it’s a little depressing.Report

            • Patrick Cahalan in reply to Michael Cain says:

              Shouldn’t the landowner be responsible for fixing their mistakes

              Oh, absolutely, 100%.  No argument.  I’d be all about supporting any number of corrective activities to ensure that this takes place.

              If nothing is done, 100 years from now the people of Illinois will still be receiving the benefit and the people of Utah won’t.  If the situation is rectified, in 100 years Illinois and Utah will both be in the position of reaping the benefit of something that happened in the distant past.

              If Illinois received an unjust benefit, giving that unjust benefit to some other state doesn’t exactly correct the problem, it just gives someone else the same unjust benefit.

              There’s also the consideration that “the rules”, such as they are, were one way in 1800 for a set of reasons and they’re a different way now for a different set of reasons and it’s wicked difficult to make a justice argument in there that actually aligns with true justice.

              One could as easily say, “Hey, the U.S. violated its treaties with a number of Native American tribes and as thus the only real ‘just’ solution is to give them back the land as it stands right now.”  While the harm done to the original inhabitants was huge and irreparable, they’re dead and gone.  Their descendants are still here, and still carry some of that harm, but it is not the same harm that was done to their ancestors.  While those who benefited from the harm did so unjustly, they’re dead and gone, too… and many of their descendants five times removed have put their own labor into the land for 100 years and thus the actual value of that land is now not the same value that it was to their ancestors.

              Blanket assessments of justice in this problem space are probably not going to be very compelling.

              The state decision makers are much more likely to represent people who have made use of the state park than members of Congress are to represent people who have visited, say, the Pole Creek wilderness area in Idaho.

              Generally, this is indeed the case.  Local management of “the commons” does have notable exception scenarios, though.

              This isn’t a reason to avoid the issue.  I’m not going to reject land distribution on principle, mind you.  I think there’s a lot of compelling interests involved here.  But doing this via an amendment wherein, say, the population of Alaska suddenly inherits rights to the immense amount of federal land there is introducing a huge bucket of advantage.

              Typically, you put a huge bucket of advantage out in the open, and nefarious actors flock to it like candy and make off with most of it.Report

  40. Michael Drew says:

    This is probably unworkable, and to a great many of the readers here likely highly undesirable, but I kind of think an interpretation amendment to the constitution, addressing some of the methodological disputes that have arisen in the judiciary and legal academy about how to interpret clauses of the constitution, is coming to be called for.  I don’t know if it could be done via a general statement, or if specific clauses would have to be addressed, but I am starting to think that our legal regime is sitting on a more unstable semantic and theoretical foundation than I ever thought.

    It is certainly the case that there will inevitably be conflicts among ideas about how to interpret law, and that one could say this problem is inherent to law, and not resolvable via the addition of more legal language to active law.  But I have the impression (and it’s no more than that the unsettled I actually do think that some of this indeterminacy could be addressed via additional clarifying language, or general instructions as to interpretive method, perhaps added to Article III, or just as a separate amendment (or several), since part of the interpretive problem we face is simply the antiquity of the laws and clauses we need to apply to today’s nation.

    I wouldn’t want to prejudge what substance these clarifications would have.  I realize that a particular part f the legal academy would insist that there is only on correct form that such an amendment or series of clarifying additions could take, but in fact if this were to be done as matter of amendment, arguments as to what clauses were originally meant to do would not the prescriptive weight they do when the discussion is merely one of interpretation under current language. Part of my purpose here would be to bring the public’s evolved preferences as to limitations on government more to bear on these problems, so I would want a process of public to determine what these clarifications would dictate.  Clearly, much would be at stake for various stakeholders in such a process, but I think that it would be a generally safe enough assumption that everyone had enough to lose that we could assume good-faith bargaining would be what guides the process.  (Or, since this is pie-in-the-sky in any case, I could simply say that I’d be for this if I could assume good-faith bargaining as a general approach by stakeholders).  You might think the judiciary would be in strong opposition to this as a grab against what they see as their basic institutional bailiwick, but I actually am not sure that at this point they have not come to experience the interpretive bite that they have taken (and the indeterminacy it has created in the law) as more than they actually want to chew.

    Perhaps this would amount to a new convention, but the idea would be not to remake the structure, but to clarify the details its outlines, resolve conflicts and indeterminacies, and update the constitution so that its text better reflects what the public’s understandings of its major clauses have come to be over time.Report

    • DensityDuck in reply to Michael Drew says:

      We could make mens rea be a Constitutional requirement in regulatory enforcement resulting in levy of fines, imprisonment, or the ordering of immediate cessation of activities.

      (In other words, it’s now a Constitutional right to have the cops let you apply for a permit rather than just shutting down your kid’s lemonade stand.)Report

      • Patrick Cahalan in reply to DensityDuck says:

        I’m so attracted to this idea that I’m immediately suspicious that there’s a giant problem with it that I’m not noticing.

        I’ve long been of the mind that licensing ought not to represent a burden to the licensee beyond proof of competency.  So if the state wants to require you to have a license to be a barber, they’re within their rights perhaps to do so but they can’t erect any barrier other than a measurable test (which they can’t charge you to take).

        So you don’t have to go to Certified Barber School or perform an apprenticeship or any of that (at least, you may but the state itself cannot require you to do so)… you show up at the licensing board, you take the exam, and if you pass they are required to give you the paper.

        Same with getting a driver’s license.  They can make you show up to the DMV and they can make whatever hoops they want for you to jump through (provided everyone has to jump through the same hoops) but they can’t charge you for the license.Report

        • The advantage I see to charging someone is that it puts the financial burden of oversight on the people or industry that need oversight.

          For example, if we agree that the government has a role in making sure that a river is not overfished (to ensure future production), why shouldn’t the commercial salmon fishing companies – the ones that created the situation where it was decided oversight was needed – pitch in more $ for that oversight than other industries?Report

          • Patrick Cahalan in reply to Tod Kelly says:

            Because this immediately makes it so that the only people who can enter the salmon fishery business are the ones that can pay the vig.

            And maybe Joe, who would change the salmon fishery industry entirely if somebody gave him a shot at trying his own ideas, can’t afford the $50K license to get into the business.

            I understand the chargeback model.  I’m a fan of it for certain types of things.  And there is nothing wrong, conceptually, with saying, “This sort of license testing procedure costs the state X, so we will levy at tax at the specific industry on their profits to pay for this licensing procedure” -> then you get that alignment, but you don’t get a barrier to entry.  Joe can get a license, and join the industry, and if he’s successful he’ll wind up paying a share of that tax and if he’s not, the other members of his industry will be paying that tax.

            Yes, this means that the “subsidy”, such as it is, is still being paid.  There’s not much you can do about that: the subsidy falls on somebody, be it the individual, the industry, or the taxpayer.

            But the license is supposed to protect the commons from the industry, really.  So the industry will pay the piper.

            Note that this puts a big incentive on the industry *NOT* to attempt regulatory capture for the purpose of keeping competitors out of the industry: because *THEY* then have to pay to maintain the barrier to entry.  Neat, huh?Report

            • I very much like the spirit of this, especially the part about removing barriers.  However, having multiple separate tax codes for each individual industry seems… complicated.Report

              • Patrick Cahalan in reply to Tod Kelly says:

                I agree this is a drawback (and it’s also the reason why it’s not currently done this way).

                This really isn’t insurmountable, though.  You get a industry-specific license, it comes with a tax code.  You fill out your tax form, you put in all your tax codes, the system figures out the tax for you.  Computers are actually good for this sort of thing.

                Granted, the IT industry (particularly as it intersects the public sector) needs to not suck quite so much.


          • Patrick Cahalan in reply to Tod Kelly says:

            So it’s perfectly legit to, say, add a $0.005 tax to gas to pay for operating the DMV: everyone who drives pays for the regulatory agency that monitors who gets to drive.  Everyone can’t keep poor people out of driving by raising the cost to get a driver’s license.  If everyone wants faster service at the DMV, they have to agree to hike the gas tax.Report

        • DensityDuck in reply to Patrick Cahalan says:

          “I’m so attracted to this idea that I’m immediately suspicious that there’s a giant problem with it that I’m not noticing.”

          Easy:  Sir, I had no idea that sanding lead paint and junking asbestos insulation could cause severe contamination in the jobsite and the surrounding area.  I just figured that I didn’t need to pay for a hazmat-certified demolition contractor when I could just get five guys from out in front of Home Depot to do it for me.  You certainly can’t claim that I should be subject to fines for negilgence!”

          The guilty party can always claim that they Just Didn’t Know It Was Wrong, and then it’s up to the regulators to decide whether it’s worth pursuing the matter further, in court.Report

          • Patrick Cahalan in reply to DensityDuck says:

            I’m not so sure that this is an necessary consequence.

            I grant that it would probably be an immediate consequence, because of the way our courts and regulatory structure are set up, currently.Report

        • Michael Drew in reply to Patrick Cahalan says:

          Bar exam too.Report

          • Patrick Cahalan in reply to Michael Drew says:

            If I was reading Duck right the first time, in such a case as someone practicing law without a license, if they were caught, they’d be given the opportunity to take the bar, and if they pass they’re fine… and if they don’t, you can still nail them for practicing law without being qualified.

            Amendment says the officials have to give you the opportunity to get the license, not that they have to give it to you just ’cause you ask.

            Professional certifications (MD would be another example) would be certifications that you have basic competency.  Instead of “practicing (blah) without a license”, the criminal statute would be “practicing (blah) while misrepresenting competency”.

            I’m thinking about how this would intersect with Good Sam laws.Report

            • Patrick:

              So, let me just walk you through how this might work in practice.

              A man decides he is qualified to practice medicine, even though he is not.  He prescribes medications without understanding what he is doing, and out of his first 100 customers (because at this point they’re not really patients, right?), three die because of his incompetence.

              The State steps in and tells him he must now take a test.  If he crams and passes, he has no fine or penalty, nor does the State forbid him from continuing his practice.  If he fails the test, the State declares that he never should have practiced medicine, and now can no longer do so – and the three dead customers are viewed, from a legal perspective, as merely a “trigger” to allow the State to test competence.

              Now, the three families may choose to sue (let’s say that 2 of the 3 dead customers were bread winners for the family).  But since no insurance company would ever cover someone that had never been trained in medicine for malpractice insurance, there aren’t really enough assets available to compensate them, and so they receive very little -if any – compensation.  The man files bankruptcy, and goes on to find another job.   In fact, he may just decide to become a lawyer, or a pharmacist – without seeing the need to train for either.  He will face no jail time, because under the new Constitution, he did nothing illegal.

              Am I missing something here, or is this really what you and Duck are arguing for?

              Sometimes I think people have a tendency to view pendulums that swing to far in one direction as proof positive that they should be swung as far as possible in the other direction.  You might, as E.D. has done in the past, look at barbers and say “there is no need for the State to license them; that it does so is clearly overreach.”  But to then go all the extra steps to say that there is really no need for any job or industry to have proof of competence is taking that conclusion to a pretty far extreme.

              I think it’s good to remember that in those industries such as medicine, banking, insurance, or any other that rely on fiduciary tenets, oversight and licensing did not magically occur in  vacuum.  That oversight and licensing came about because there was a very strong need.


              • BSK in reply to Tod Kelly says:

                I think PC was saying that, if the test was failed, you’d still be subject to the penalties for practicing without a license. There would still be criminal charges, either under a law specific to practicing without a license or another law. Basically, once you have failed to demonstrate comptency, you receive noneod the protections a competent person has. A doctor doesn’t go to jail for dealing drugs. Someone who is not a doctor does.Report

              • Tod Kelly in reply to BSK says:

                OK, that is different.  So, then, under this amendment you are allowed to practice medicine on people – even if you have no idea what you are doing – until such time as you finally kill someone and then fail a subsequent test?

                I get that this scenario allows for future punishment in a way my first understanding does not, but it still seems like a terrible idea.Report

              • BSK in reply to Tod Kelly says:

                Well, there ought to be a trigger before you fish up. Or fish up so severely as to kill someone. Perhaps random audits of anyone in the industry, though this still leaves open the possibility of people doing it on the sly. Realistically, though, how often are doctors checked on by the state absent a complaint?

                Of course, the truly libertarian response would say you get what you pay for… Caveat emptor. I never found this convincing.Report

              • Tod Kelly in reply to BSK says:

                “Of course, the truly libertarian response would say you get what you pay for… Caveat emptor. I never found this convincing.”

                Yes, this is part of why I am not a libertarian.

                “Well, there ought to be a trigger before you fish up. Or fish up so severely as to kill someone. Perhaps random audits of anyone in the industry,”

                If you agree enough that the State has enough of an interest to prevent people from practicing medicine if they have no idea what they’re doing after they have started a practice, why do they not have enough interest to test that prior to the practice opening?Report

              • BSK in reply to BSK says:

                Likewise to your first point, among other things (though I lean libertarian on a great many number of issues, but I digress).

                To the second point, I don’t know that we must preclude the state from intervening in advance.  I think it can be a both/and approach.  If you are so inclined to seek a license in advance, and the protections a license grants, so be it.  But if the licensing process is arduous and drawn out, as it so often is, then people can begin practicing and seek the license later, or not at all, but leave themselves without the protections a license might offer and open to random audits from the government.

                I don’t know that I fully agree with the amendment as proposed… I was just jumping into the conversation halfway through.  Overall, I agree with amending the process by which people receive licenses from the state.

                An interesting example is how teacher certification is handled when people move between states.  Some states offer full reciprocity with other states, meaning if you are licensed in a particular state, you can immediately gain licensure in another cooperating state.  Some states, like NY, have specific requirements that preclude them from offering such reciprocity.  Instead, they allow for provisional licenses, which gives the applicant a window during which they can teach but by the end of which they must meet the state’s criteria (usually a series of tests).  In NY, I believe it is 2 years.  I don’t know how other industries do it, but it is nice to know that people can move between states and not necessarily put their career on hold while they wait for the process to play out, which can take a great deal of time.*

                * None of this is meant to recognize the teacher licensing program of NY or any other state as sufficiently adequate to actually adjudicate which applicants are fit to teach.  But that is another conversation for another day.  In fact… (scroll down)Report

              • Sam M in reply to BSK says:

                Might be a lot easier of we had more gradations in healthcare. I see no reason someone couldn’t get a very quick education in, say, checking kids’ ears for infections and offering just that service, or someone couldn’t be qualified to clean teeth but not do complex dental surgery.Report

              • Tod Kelly in reply to BSK says:

                That’s not a bad idea, Sam.Report

              • Patrick Cahalan in reply to Tod Kelly says:

                But would that happen?

                Realistically, would anyone *ever* go a doctor that wasn’t licensed, or a lawyer who hadn’t passed the bar?  I submit no, unless they were falsely advertising that they’d done so.

                Just like, if I sling out a shingle in front of my house that says, “I can fix your car, $100”, I’m probably not going to get any takers.  If I sling out a shingle that says, “Out of work ASE certified master technician”, maybe.

                For most of the stuff that Erik talks about, people probably won’t care.  I don’t think most people care if the local kid lemonade stand was set up in accordance with all the local health department rules.  But for anything important, I’m pretty sure people are going to go with someone who carries the paper.

                I’d say, in fact, that I’m so sure of that… that I don’t expect the cases of people *using* someone without the paper would be really measurable at all.  About the only time I could see it happening is Cousin Vinnie hasn’t passed the bar yet but I know he’s gone to law school and done all the things he should have done except take the test, and the other alternatives available to me are all worse.

                I don’t see that this is substantively more dangerous than what we have now, really, in terms of exception scenarios.

                In California, the Good Sam law covers you, but only to the extent of your training.  If you take Adult CPR/First Aid, for example, and someone has a heart attack and you try to give them CPR and crack a rib and pierce their lung and they die, you’re protected (assuming you were performing the procedure as you ought).  But you’re not protected if you give someone a tracheotomy.

                Now, if you’re stuck in a situation where your choice is give someone a tracheotomy or they die, and you try, and muck it up, you might get allowance if you can show that they were going to die anyway, but the burden of proof is on you at that point, more  or less.

                (Burt can correct me if I’m misrepresenting Good Sam law in CA, but that’s my understanding of it).Report

              • They do go to people who aren’t doctors: Mid-level providers. If they were given more latitude, people would probably be find just going to see a nurse with a shingle. Or some guy who says that he totally knows how to fix everything.

                Aren’t you the one who was saying in the other thread that people don’t often do what’s best for them?Report

              • BSK in reply to Patrick Cahalan says:

                When is the last time you checked a doctor’s license?Report

              • I absolutely believe it would happen.  I am sure there are some people today, for example, that want to see CVs and read letters of recommendation before hiring an attorney to draft up letter of incorporation, or a contract, or a will, or represent them in court.  But I think that there are also a fair amount that look for the ad in the yellow pages that grabs their interest and promises a low price.Report

              • Tod Kelly in reply to Tod Kelly says:

                In fact, I think the prevalence of things like holistic medicine suggest that people will pay to hear what they want to hear, rather than an expert opinion.

                In fact, in my industry, people that cater to the opposite end of the spectrum than my firm does often use people’s distrust of “so-called experts” as a selling tool.  They will sell themselves as not having risk management credentials, or certain kinds of high falluntin’ education.  And there are a fair amount of people that buy into that.  Hell, look at the GOP primaries.  How many candidates have been trying to pretend they don’t really have experience and expertise in the job they seek in order that more people will be inclined to vote for them?Report

              • BSK in reply to Tod Kelly says:

                I work in independent schools. We are not required to hace certificaion. And people pay boatloads to come to our school. With a free one full of credentialed teachers down the road.Report

              • Tod Kelly in reply to Tod Kelly says:

                I think that if I could change anything in regards to all of this, it is that we would take a better look at what industries we licensed and why.  And, as I said a couple of months before in a post about my own industry’s licensing, I wished we took more seriously ensuring minimum levels of knowledge and competence those professions we should license.

                However, the thought of having any of it part of the framework document like the Constitution still seems like a bad idea.  You use the Constitution to say that you can;t fire someone for being black; you don’t use it to double down in the OSHA regulation that lights witches should be X number of inches off above the floor in an office building. Licensing in general feels like it fits more into the OSHA category than the civil rights category.Report

              • BSK in reply to Tod Kelly says:


                Check my post at the very bottom. It sort of gets at that. Overall, licesning and regs need serious attention.Report

              • Patrick Cahalan in reply to Tod Kelly says:

                In fact, I think the prevalence of things like holistic medicine suggest that people will pay to hear what they want to hear, rather than an expert opinion.

                Well, one can just as easily say, “See, we have woomeisters, and people go to the woomeisters anyway, so what good is the licensing process?”

                I’m just playing devil’s advocate, here.  My biggest beef with licensing is that the cost to get the license is borne by the licensee, like I brought up on that other thread.Report

  41. Michael Drew says:


    This fragment

    But I have the impression (and it’s no more than that the unsettled 

    was an abortive thought.

    The idea was, while a certain amount of interpretive indeterminacy is unavoidable and desirable, I wonder whether we are at something of a critical moment in interpretive legal battles where we are losing the idea of determined law altogether as the momentum of the polarization and factionalism of our politics strains all of our political institutions and informal conventions.Report

  42. James K says:

    What a great idea Tod.

    I would propose a sort of “grand bargain” amendment whereby some aspects of the 20th Century expansion fo governmen are preserved, but the concept of the Federal government as one of enumerated powers is restored:

    In Article 1, Section 8 is amended as follows:

    Commerce shall be taken to mean only transactions between 2 or more persons where goods or services are exchanged voluntarily for consideration.

    Commerce shall only be deemed to be between the several states if the persons involved in a transaction are not within the same state during that transaction.  Similarly commerce shall only be deemed to be with foreign nations if the persons involved in a transaction are not within the same nation during that transaction.

    The phrase “and general welfare” in clause one is hereby repealed.

    Congress shall have the power to levy taxes or impose regulations to mitigate or prevent damage to the environment, where such damage crosses state line or national boundaries.

    Congress shall have the power to provide funds to those who are indigent or who cannot provide for themselves those things deemed by the people to be essential for an adequate standard of living.

    Congress shall have the power to provide and maintain an Army and Air ForceReport

    • James Hanley in reply to James K says:

      The phrase “and general welfare” in clause one is hereby repealed.

      Tell Americans that’s the clause that allows black people in American cities to buy color TVs and Cadillacs and you have a real shot at passing it.Report