Res Gestae Presidentum Trump

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Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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85 Responses

  1. Avatar Jaybird says:

    34 is actually pretty interesting.
    35 sucks. Probably unnecessary too.Report

    • Avatar Road Scholar in reply to Jaybird says:

      I agree that #34 is interesting given that the Constitution doesn’t actually give SCOTUS the power to invalidate laws.Report

      • Avatar Brandon Berg in reply to Road Scholar says:

        It gives them the power to decide all cases arising under the Constitution and federal law. When the Supreme Court declares a law unconstitutional, what they’re actually doing is ruling in a particular way in the case before them, and also issuing instructions to the lower courts to rule the same way in all similar cases. The executive branch can still try to enforce the law, but they’ll get sued, and the lower courts will probably rule against them. The lower courts don’t have to rule as instructed by Supreme Court precedent, but if they don’t, the decision will likely be appealed and overturned by the Supreme Court.

        Is there any reasonable interpretation of Article III that doesn’t give the Supreme Court the power to effectively veto laws without rendering it totally impotent?Report

        • Avatar Road Scholar in reply to Brandon Berg says:

          I agree that that’s the effect. It just doesn’t explicitly say the Supreme Court can strike down laws. Essentially, what it amounts to is the judicial equivalent of jury nullification.Report

        • Avatar Road Scholar in reply to Brandon Berg says:

          It should be noted though that Section 2 states:

          …In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

          So it would seem that Congress could actually tell SCOTUS that they can’t rule on a particular issue.Report

          • Avatar Brandon Berg in reply to Road Scholar says:

            Note that that paragraph simply specifies the circumstances under which the Supreme Court has original vs. appellate jurisdiction. I suspect that the meaning of this sentence is that Congress has the power to specify additional circumstances under which the Supreme Court has original jurisdiction. If Congress could just pass a law that says the courts can’t rule on certain issues, that would totally neuter the courts.Report

            • Avatar DavidTC in reply to Brandon Berg says:

              Yeah, that’s how I’m reading it, also.

              People often seem to misread that, but if you read the entire paragraph, it’s clear it’s saying that the Supreme Court has original jurisdiction over a list of things that can’t be changed (International stuff, basically.), plus anything else Congress assigns them. And for everything else they have appellate jurisdiction. The ‘except’ just lets Congress put anything it wants under original jurisdiction.

              And, yes, I think you’re right about ‘All courts can rule on laws’. It’s hard to see how you have a court system that cannot.

              Despite Andrew Jackson’s nonsensical boast about how the courts cannot enforce the law…the courts are the authority over the Federal Marshals. The courts do, indeed, have ‘troops’. (And the courts can swear in additional marshals if the executive tries to pull the ‘official’ ones.)

              So let’s try to walk though this. Let’s assume that #34 passes, (Just that one.) and Congress and the President pass a law banning, I dunno, newspapers.

              So that goes to the courts, and of course immediately loses in the very first court…erm, actually wait. #34 has a pretty big hole in it. As long as the Supreme Court doesn’t hear the case, as long as a lower court shot it down, the *Supreme Court* is not the one who deemed it contrary to the Constitution, and thus nothing gets triggered. But let’s pretend that the writers of the law banning newspaper noticed that, and they, in that law, used Section 2 to put all challenges to that law under the original jurisdiction of the Supreme Court, ha.

              So it starts at the Supreme Court, and the court rules against it…and that ruling, as always, *includes remedies*, right. And at that moment, the 34th triggers.

              *It triggers after the court has already ruled*. And there are no appeals for the Supreme Court, unless they want there to be. So regardless of what happens after that point, *that specific* case appears to have been decided and other branches of government have to go along with it.

              So, anyway, at that point, the Court writes a letter to the other branches saying ‘This law was unconstitutional’, and both other branches go…what, exactly? ‘No it’s not?’

              And those ‘opinions…control further interpretation and application of the questioned act’.

              Huh?

              What exactly does that mean?

              The *interpretation* of the act isn’t really the issue there. The executive interpreted the ‘Ban All Newspapers’ act as…banning newspapers and started doing that.

              If the executive and legislative want to, instead, claim it’s trying to ban tainted seafood, okay, sure, that means the law *is* constitutional…but a) it’s extremely confusing to retcon laws into other laws, b) rather stupid as they could just pass *that* law instead, and c) what the hell is the point of all this?

              Same thing with application. The executive is applying the law in a specific way. This amendment would appear, oddly, to give Congress and the executive the joint ability to *change the application of the law*…which I must point out the executive *already has*, by itself!

              The problem is that the court found *a specific application of the law* unconstitutional. There is nothing in this amendment that appears to demand the courts *deny reality* and assert a specific application is constitutional…what the amendment appears to do is to make all *interpretation* and *application* of the law up for majority vote!!

              I’m not quite sure what branch of government this is stomping on, but it’s not the judiciary. It allows the judiciary and the legislature to screw with how to apply a law that is traditionally the prerogative of the executive, and it also allows the judiciary and the executive to override the clear intent of Congress. Hell, it allows any two branches of the government to rewrite any law they want…and the Supreme Court *still has a constitutionality check* at the end of that! It’s literally the opposite of what it seems to be trying to do.

              Hilariously, in an abusive system, the Supreme Court might take to finding laws unconstitutional just so it can team up with one of the other branch to screw around with the laws. And this setup is so open ended it can entirely rewrite laws to say other things. (In the same way that the Senate rewrites budget bills to be entirely different bills.)

              Supreme Court: We’re finding this traffic law some random dude petitioned us about to be unconstitutional. And now, under the 34th, we are writing a joint opinion with [the president/Congress] that the law should, from now on, be interpreted as the existing traffic law *plus* this other law we want passed but [Congress has refused to pass/the president has refused to sign].Report

  2. Avatar Jaybird says:

    Okay, going through these, the main test I give them is whether I can find 13 states that will oppose, tooth and nail, any given Amendment.

    So let me write down some states to consider:

    1 California
    2 Oregon
    3 Warshington
    4 Hawaii
    5 New Mexico
    6 New York
    7 Illinois
    8 Vermont
    9 Maine
    10 Delaware
    11 Rhode Island
    12 New Jersey
    13 Massachusetts
    14 Maryland
    15 MMMMMMMaybe Virginia
    16 MMMMMMMaybe Colorado

    Okay. That’s 16.

    So let’s look at the Amendments.

    28 is privacy. We might be able to get that past 10 of these states under Obama, never under Trump. Never ever. Shot down.

    29 is abortion. Never ever.

    30 is SSM. Again, pah. Never ever.

    31 is on my personal wishlist. But it’s never going to happen.

    32 is… hrm. Maybe. They might dig this because it gives *THEM* more power. They may oppose it because it gives other states more power too… but, man. Wrestling power from the feds? Maybe. Maybe this one is possible. Let’s put this one down as “okay, they could get this one past.”

    33 is one that might happen. I shudder to think that it might, but it might. I could see state governments getting behind this one. I’m left hissing “DON’T GIVE THEM ANY IDEAS”. This is also an “okay, they could get this one past.”

    34 is one that I think is interesting. Hell, I might even think we should do that now. As such, I’m too close to pick 13 states that might vote against it. Wrestling power from the druids and giving it to the states, even if only by way of the representatives/senators? Yeah. I think it could get past.

    35 never would. The problem with 35 is that the president might be able to wield enough power to effectively have this anyway. It’d never pass, but it doesn’t need to.

    36 wouldn’t happen because of 13 of those states up above. You could definitely get 25 states on board with it, though. Just not 38.

    37 Might get through. Maybe. Depends on whether it comes via constitutional convention or via legislatures. I don’t know. It’s right on the cusp.

    38 is just like 37. Constitutional Convention might get it through. Via the state governments? Nope.

    39 is like 35. He’s already got this power.

    40? You know, if we had an emperor, we wouldn’t need term limits at all.

    All that to say: Meryl Streep is going to have to work a lot harder to get these Amendments through. Maybe she could make a music video and sing a song with Lena Dunham?Report

    • Avatar Road Scholar in reply to Jaybird says:

      I’ve never quite understood the libertarian fetish for repealing the seventeenth.Report

      • Avatar Jaybird in reply to Road Scholar says:

        I cannot speak for the fetishes of others but I can only speak to my own.

        It’s that the idea is that the most statesmenlike people most capable of being statesmen in their own states will be the ones kicked up to Warshinton DC. Once there, they will fight tooth and claw for their own states first and country second. If senators start getting too willing to sell out their own states in service of more national concerns, they’re going to find themselves not sent up for another term by the home legislature and replaced by someone who puts the home state first and the country second.

        Now, this isn’t foolproof. The home legislature *IS* directly elected by The People.

        But this is something that will slow things down and the point of the senate is to slow things down. Not stop them entirely, mind. But slow them down.

        It makes them very different from congressional representatives.

        Under the 17th Amendment, Senators are just SuperRepresentatives who also have a filibuster.Report

        • Avatar Burt Likko in reply to Jaybird says:

          Slowing things down is not the point of this repeal. Quite the opposite.Report

          • Avatar Don Zeko in reply to Burt Likko says:

            Repealing the 17th looks very different when read together with the amendment about redistricting (not that I support it in isolation, either).Report

          • Avatar Jaybird in reply to Burt Likko says:

            The problem with “speed it up, speed it up, speed it up…. NOW FREEZE” is that nobody ever does that last part and things take off in weird directions never intended or even contemplated.

            Part of the problem with repealing the 17th is that there’s a lot of little hidden consequences intended by the framers that would be unintended consequences for the Trumpkins. And part of those unintended consequences would be an exponential increase in not only the number of bribes needed to hand out but the *TYPE*.Report

        • Avatar J_A in reply to Jaybird says:

          all this sounds excellent….in theory

          in practice, state legislatures would select senators that are willing to fight not for their states, but for their electors. and their electors are the legislature, and the the people that finance the legislators campaigns. (*)

          State legislatures are probably the least transparent (and possibly the most corrupt) governmental entities in the USA. The idea that state legislators would look for the most able citizen of the state (of their own party) irrespective of what the guy that made him legislator wants passed in Washington is hard to swallow.

          The reason the XVII passed is because Senators were not responding to states (**), but to back room special interests

          (*) And given how expensive is to elect a senator versus how cheap is to elect state legislators, its likely that its cheaper to buy a whole legislature than it is to buy one senator. A boon for campaign financiers

          (**) It’s also another instance of Libertarian’s/GOP’s “we know better than the voters”. The people from the state are deemed to be too stupid to be trusted to chose a person that would put the state’s interests ahead, or to replace their senator if he goes native and deviates from his commitments to the state. Hence only “the best, most qualified, most statesmanlike, in other word, us” are allowed a vote. This is also called “respecting the voters” in other contexts. Because nothing spells liberty like blocking (stupid, ignorant,”other”) people the vote.Report

          • Avatar Jaybird in reply to J_A says:

            State legislatures are probably the least transparent (and possibly the most corrupt) governmental entities in the USA.

            Yes, but:
            Since they’re all like that, more sand would be poured into the gears than the amount poured by the current system.Report

            • Avatar Don Zeko in reply to Jaybird says:

              What’s the basis for assuming that corruption dumps sand in the gears?Report

              • Avatar Jaybird in reply to Don Zeko says:

                The corruption doesn’t dump the sand. It’s the inability of the corrupt to make deals when it comes to the distribution of positional goods that does.Report

              • Avatar Jesse Ewiak in reply to Jaybird says:

                Yes, @jaybird, when I think of non-corrupt institutions, I think of the GIlded Age pre-17th Amendment Senate.

                I’d rather people who want to repeal the 17th be honest – you think Senator voted via the 17th amendment would be far less like to vote for thing that would expand government.Report

              • Avatar Jaybird in reply to Jesse Ewiak says:

                Jesse, I’m not arguing that the institution wouldn’t be corrupt.

                I’m arguing that it would be corrupt in a different way than the House is corrupt and that different kind of corruption would change dynamics in the favor of “the people”.

                If you think I’m arguing that we should do this because it’d be “pure” or something like that, you’re not understanding my argument.

                I’d rather people who want to repeal the 17th be honest – you think Senator voted via the 17th amendment would be far less like to vote for thing that would expand government.

                I think that they’d be less likely to vote for things in general. As I said earlier: But this is something that will slow things down and the point of the senate is to slow things down. Not stop them entirely, mind. But slow them down.Report

              • Avatar Jesse Ewiak in reply to Jaybird says:

                I guess that’s why I’m an elitist liberal who hates the working class and you’re a high minded libertarian who wants to bring the freedom and liberty of corporate sponsored Senators.

                Because you look at the world, @jaybird, and see a world where things are getting done far too quickly. I see a world where things take far too long to change.

                After all, in this perfect world you’ve dreamt up, the Patriot Act is still going to pass 99-1. They’ll just also remove all rights to unionize right after.Report

              • Avatar Jaybird in reply to Jesse Ewiak says:

                Jesse, I stopped being a libertarian two years ago.

                see a world where things are getting done far too quickly

                Quickly enough to cause the democrats to lose 1000 seats nationally and also get a President Trump?

                Yeah, I do see that.

                They’ll just also remove all rights to unionize right after.

                Oh, I’m sure that they’d have kept Police Unions, Jesse.

                And, quite honestly, I’m sure that Unions would have remained legal. They just wouldn’t have kept the protections. Probably would have fired the union guys and hired undocumented pre-citizens who were willing to work for a lot less than the union people.Report

              • Avatar Gaelen in reply to Jaybird says:

                Why would the corrupt be unable to make deals?

                It seems to me that if the Senator from Exxon Mobile was concerned with advancing his special interest he would be very sympathetic to cutting deals with the Senator from Disney that benefited them both.Report

              • Avatar Jaybird in reply to Gaelen says:

                Sure, the Senator from Exxon Mobile would be able to cut a deal with the Senator from Disney… but then he’d have to cut deals with Senators from Visa, Senators from Ford/GM, and Senators from Hostess and then Senators from… well, down the line.

                The interests would be distributed and different from partisan interests.

                Not better in the moral sense, mind. Just different and the fact that they’d be different is what would slow things down and it’s the slowing things down that would be better.Report

              • Avatar Jesse Ewiak in reply to Jaybird says:

                Yes, if only we were just passing S-CHIP now! What a great world! I mean, maybe Social Security could’ve not passed until 1973 or so and a whole generation of the elderly could’ve lived in abject poverty. Good times!Report

              • Avatar Brent F in reply to Jaybird says:

                I don’t think it would work that way. A coterie of bandits typically find common ground to loot the general welfare to their own benefit.

                Intransient and committed ideologues (or those who think its good for their careers to look like one on TV) block each other as a matter of course.Report

        • Avatar North in reply to Jaybird says:

          I can, when I squint, see the argument for tinkering with the seventeenth. Maybe buying an entire state legislature would be more difficult than buying a US State Senator? Then again state legislators are pretty cheap and enjoy much less scrutiny than national politicians.

          That said I don’t see it being popular enough to pass. The arguments in favor of repealing the 17th are complicated; the arguments in favor of preserving it are simple.Report

          • Avatar Michael Cain in reply to North says:

            Real-life experience in the 1900-1910 period demonstrate that you usually don’t have to buy the entire state legislature, just a few key votes, and that those come cheap. The whole initiative, referendum, and recall movement that swept the western states in that period was a result of how cheaply you could buy them.Report

          • Avatar Jaybird in reply to North says:

            I agree with the argument that it’s not popular enough to pass (and reasons to keep it far simpler to reasons to go back to what we were like without it).

            I just am one of the nutballs that thinks that we’d have been better off without the 17th in the first place.Report

          • Avatar DavidTC in reply to North says:

            Then again state legislators are pretty cheap and enjoy much less scrutiny than national politicians.

            State legislators enjoy *absolutely* no scrutiny in any form whatsoever except when they pass unpopular laws that people care about. Barring that, they get none. Zero. People often cannot even name theirs. They voted for the Republican or Democrat, but might not even remember who even won in their district, or what district that is.

            It takes something like North Carolina’s HB-2 to have people paying the *slightest* bit of attention to their individual state legislator, maybe. Hypothetically. Probably not, but maybe.

            And as we’re talking about appointing Senators instead of passing laws…nope. No scrutiny at all.

            This is the reason that state governments are the most corrupt. Everyone pays attention to the Federal government, and local government is too close to the people, at least in most places. People actually show up at town meetings and stuff like that.

            But state governments, and large city governments, hit exactly the sweet spot of the media not really paying attention to them (Not as state newpapers collapse in this national news world.), but yet being so big and distant that the governed population has very little idea what’s going on. And, thus, all sorts of open corruption.Report

        • Avatar Road Scholar in reply to Jaybird says:

          Okay, so first, I’m curious how you were apparently able to type out, “It’s that the idea is that the most statesmenlike people most capable of being statesmen in their own states will be the ones kicked up to Warshinton DC,” without spraying your keyboard with whatever beverage you may be enjoying, thus rendering it incapable of accepting further input.

          But what I find truly puzzling is why you believe a Senator chosen directly by the people of a state would be less accountable to the interests of those same people than one chosen more indirectly through their state legislators.

          And I’m particularly fascinated by the cognitive dissonance of libertarians, who will on one day deny the existence of such things as “the will of the people,” or “societal obligations,” or “public interest” on the basis that “society” or “the public” are wholly fictional and abstract concepts incapable of having such things and then on the next day breezily asserting that states have interests and rights over against the Federal government.Report

          • Avatar Jaybird in reply to Road Scholar says:

            One at a time:

            As for your first question, I had a little curl in my lip when I typed any word involving “statesman”.

            Like Billy Idol.

            But what I find truly puzzling is why you believe a Senator chosen directly by the people of a state would be less accountable to the interests of those same people than one chosen more indirectly through their state legislators.

            Because of the additional layer of insulation.

            Instead of voting for senators, you’d vote for people who voted for senators. Perhaps even multiple people who voted for senators.

            Additionally, let’s say that there was a truly horrid senator from another state. You wanted to get rid of Senator Blowhard III. Instead of putting together “TOSS OUT SENATOR BLOWHARD III!” campaigns, you’d have to put together “Toss Out Backwater Thinks She’s A Bigshot!” campaigns for the 7 most vulnerable local politicians.

            It’s not impossible, but it adds an additional layer of insulation.

            cognitive dissonance of libertarians

            I’m not a libertarian anymore.

            But if I were to try to square that circle for you, it’d be to argue that the system was intended to work with something like Representatives being the ones most closely tied to their home districts and Senators being the ones most closely tied to the political machinery of their states.

            Representatives were the voice of the people. Senators were supposed to be the voice of the machine.Report

            • Avatar Road Scholar in reply to Jaybird says:

              Because of the additional layer of insulation.

              From what exactly? Their constituents?

              Representatives were the voice of the people. Senators were supposed to be the voice of the machine.

              Yes, I know that. I took Civics class in high school too. My question is how, from a libertarian perspective, is that a superior state of affairs? And how are you conceptualizing the machine as having interests and holding values, particularly so as to apparently be of superior importance over against the interests and values of the citizens that machine purports to serve?Report

              • Avatar Jaybird in reply to Road Scholar says:

                Yes, from their constituents.

                To what extent are the things that make for a good legislator orthogonal to the things that make for a good campaigner? Well, senators, under this theory, wouldn’t *HAVE* to be good campaigners.

                Under the current system, they have to be SuperRepresentatives.

                My question is how, from a libertarian perspective, is that a superior state of affairs? And how are you conceptualizing the machine as having interests and holding values, particularly so as to apparently be of superior importance over against the interests and values of the citizens that machine purports to serve?

                Well, my perspective is not libertarian, but I’ll try to answer: In slowing things down, it means that the state does less. All other things being equal, doing less is better than doing more because, from a libertarian perspective, the government is more likely to do harm than good.

                “superior importance”

                Well there was a point in our nation’s history where “democracy” was not seen as a good in and of itself. There was this idea that “the people” were not necessarily enlightened and would be willing to curtail such things as liberty if they could trade it away for security or whatnot. The idea was that “the machine” would care about things in the Constitution and use its knowledge of the constitution to temper and blunt the excesses of the mob (the manifestation of the worst aspects of democracy).

                This caring about stuff like the stuff in the Bill of Rights was seen as having superior importance to the will of the people in the cases where the will of the people was to be unenlightened (something that the founders knew that the people was likely to be).

                It would be the job of the representatives to catch fire when the people caught fire and the job of the senate to wait and see if this was merely a flash in the pan.Report

              • Avatar DensityDuck in reply to Jaybird says:

                “The idea was that “the machine” would care about things in the Constitution and use its knowledge of the constitution to temper and blunt the excesses of the mob (the manifestation of the worst aspects of democracy).”

                Think of it like tenure for professors. The Senators, not being subject to the whim and caprice of know-nothing constituents, would be able to make unpopular decisions like “pass the ACA”.Report

              • Avatar LeeEsq in reply to DensityDuck says:

                It didn’t work that way though. What happened was that the Senators tended to represent various special interests and veto popular legislation like the British House of Lords before the People’s Budget crisis.

                This is how the majority of Americans saw the Senate before the 17th Amendment was passed. They did not see it as a bunch of wise statesmen doing the right thing because the Senate never worked that way.Report

              • Avatar Morat20 in reply to LeeEsq says:

                Shorter conversation:

                “Let’s repeal the 17th Amendment, it’ll do X!””
                “We got the 17th Amendment because before that, we had the OPPOSITE of X!”
                “IT”LL WORK THIS TIME!”Report

              • Avatar LeeEsq in reply to Morat20 says:

                That seems to be the theory, “this times it will work as intended despite all evidence to the contrary.” And they see themselves as rational.Report

              • Avatar Jaybird in reply to LeeEsq says:

                And, how do the majority of Americans see the senate now?

                I’m not trying to solve the problem of corruption.

                I’m thinking that the problem of corruption can be leveraged differently in the two houses rather than by relying on the same kind of corrupt in both.Report

              • Avatar LeeEsq in reply to Jaybird says:

                People do not approve of Congress but they tend to keep electing their Senators and Representatives to Congress. If they paid attention to the Republican obstructionist strategy and vote against it than they might approve of Congress more.Report

        • Avatar Road Scholar in reply to Jaybird says:

          But this is something that will slow things down and the point of the senate is to slow things down. Not stop them entirely, mind. But slow them down.

          The “slowing down” function of the Senate is accomplished by the six-year terms and only having a third of the body up for grabs in each cycle, thus making it less responsive to shifts in public sentiment.Report

      • Avatar Saul Degraw in reply to Road Scholar says:

        @road-scholar

        You can still have Democratic senators in states where the legislature is gerrymandered to the right. See Michigan and New Hampshire.Report

        • Avatar Jesse Ewiak in reply to Saul Degraw says:

          Hey, c’mon, @saul-degraw, don’t impugn libertarians by implying that they might favor a policy because it’ll make a chamber already titled against the Democrats even further harder for Democrats to control.

          As we all know, all libertarians are purely only interested in freedom and liberty are above such petty things as politics. Thus, they can rightly judge all of us evil partisans.Report

        • Avatar Road Scholar in reply to Saul Degraw says:

          Exactly. Repeal of the seventeenth, assuming no dramatic leftward shift in the state legislatures, would grant the Republicans, over the course of a couple election cycles, a 2/3 to 3/4 majority in the Senate. This despite the fact that, as evidenced by the last few presidential elections, Democrats are actually in the majority nationally.

          And some people still worry about the tyranny of the majority…Report

          • Avatar Jaybird in reply to Road Scholar says:

            Well, one thing that I’d wonder is whether partisanship would work the same way here.

            It wouldn’t be Red vs. Blue, I wouldn’t think. It’d be Interests vs. Interests and maybe Region vs. Region.

            Now, if I thought it’d just be Republicans nominating Republicans and Democrats nominating Democrats, hell. Why not save a step and just have the election.

            But I think that partisanship would be secondary here.

            Which would be another reason to support it.

            But if you don’t see that possibility, I can totally see why you wouldn’t like it.Report

      • Avatar LeeEsq in reply to Road Scholar says:

        The pre-17th Amendment Senate like the Electoral College was one of the institutions that did not work out as intended. The Senators tended to end up representing various vested interests rather than the states themselves. By the end of the 19th century, they were generally seen as Senator for big corporations, trusts in the lingo of the time, rather than the states.Report

    • Avatar Michael Cain in reply to Jaybird says:

      I would have included Nevada on the list, since the Dems gained control of both chambers in the state legislature there, and added Connecticut to the maybes. I would be quite surprised if Connecticut approved the abortion or religion amendments here.Report

      • Avatar Jaybird in reply to Michael Cain says:

        In addition to that, I realize that I ought have also included Minnesota.

        No matter. I still reach the same conclusions about the amendments. I can see the three I mentioned making it through and two more if we went by way of the states calling a convention rather than going through the respectable channels.Report

  3. Avatar Kolohe says:

    The only thing that concerns me is the lack of a sunset provision on ratification. Any of them could bounce around for a century or two and then get passed out of the blue.Report

    • Avatar Road Scholar in reply to Kolohe says:

      Apparently that’s a feature, or not, of the measure passed by Congress. There’s a small handful of Amendments that are technically still pending ratification, none of which are likely to ever pass.Report

      • Avatar Kolohe in reply to Road Scholar says:

        Don’t most of actual real world proposed amendments since the early 20th century have sunset provisions? The 18 year old voting age didn’t (per wikipedia) but also it went from Congressional proposal to ratification in under 5(!) months. (March 10 in first chamber, July 1 ratification by enough states). ERA and the District of Columbia voting for Congress amendment did have a ratification time window, though.Report

        • Avatar Burt Likko in reply to Kolohe says:

          My vision of how this comes about politically is outlined in the Presidential cover letter. Using war hysteria and distraction to slide these through tightly-disciplined and mostly-unmonitored state legislatures.Report

          • Avatar Burt Likko in reply to Burt Likko says:

            Another point, after I dealt with a distraction: sunset provisions are a way an offering sponsor of the amendment can assure other legislators who are vacillating on whether there really is popular support for the idea, and thus get them to change a “nay” vote to a “yea.”

            Here, I don’t see the sponsors feeling a need or a desire to compromise with anyone.Report

          • Avatar Gaelen in reply to Burt Likko says:

            When I saw the title and sub head I thought you were going to go with Congress declaring an actual state of war and Trump appropriating the vast executive power which flows from that.Report

    • Avatar Michael Cain in reply to Kolohe says:

      The timing of this would be… interesting. Lots of state legislatures have finished their sessions by July, certainly enough that the Amendments wouldn’t be ratified until some of those meet again. Some can call themselves into special session, some can’t. Absent those special sessions, the Amendments become the election issue in November in those states.Report

      • Perhaps, in writing this bit of dystopia, I should have set it after those elections. OTOH, If war hysteria were sufficiently high, it might be effective to throw this in the mix and allow the President’s party to use the ROAR Amendments as wedge issues to brand the opposition party as unpatriotic for opposing them.Report

        • I, for one, would like to think that there are enough states (and people!) who would ask, “I understand proposing restrictions on due process, or speech, in a time of war. But what the f*ck does removing ‘one man, one vote’ as a guiding principle have to do with it?”

          J_A rightly points out regularly that there are large cultural similarities across different regions of the US. But it seems likely to me if #32 passes, there would be significant numbers of states where urban and minority voters would be pushed into a small number of high-population districts so that a larger number of low-population districts dominated by the “right sorts of people” would run things. History suggests that such states would be clustered in particular regions. I assert that some sorts of differences are magnified in the political classes, that this would be an important one, and that a single country where one man, one vote is the principle in some areas, but not in others, cannot stand for long.Report

  4. Avatar Oscar Gordan says:

    That is some scary groundwork you are laying.Report

  5. Avatar North says:

    That’s certainly chilling. I am comforted in the knowledge that not even the modern GOP would be idiotic enough to try and run most of these up the flagpole.Report

  6. Avatar Joe Sal says:

    Interesting work Burt.Report

  7. Based on probable intent, #31 and #32 may need additional language — or there needs to be another Amendment added to the list — that says that “the Legislature” as used in the Constitution cannot be interpreted to mean anything other than the body of elected representatives. Otherwise you still have the initiative states, where Arizona v. Arizona says a popular vote satisfies the Constitutional requirement that something be done by the state legislature. States could take it upon themselves to implement popular election of their Senators. “Nondelegable” in #32 comes close, but a requirement that the district lines drawn by an independent commission pass a popular vote to become official would seem to be sufficient.Report

  8. Avatar Peter Moore says:

    What on earth is the attraction of 34? Unless I’m misunderstanding the proposal, once passed, this would allow an aligned Congress and President to interpret out of existence *anything* in the constitution.

    And how would 37 work? I thought ‘person’ was to whom all civil rights are granted. So you are saying that any outside visitor to this country has no rights? That all your rights disappear once you commit any felony? Forever?.

    And there may be a bootstrap problem with 37 as well. If Section 1 intends that a natural born citizen must be born to *natural* born citizen parents, then no one who can’t trace both sides of their direct lineage to someone living in the US at the time of signing of the constitution can be a natural citizen.Report

      • Avatar Burt Likko in reply to Don Zeko says:

        Exactly. These effects that @peter-moore identifies a=would be considered features, not bugs.

        Although I do think that XXXVII would set the determiniitive date of parental citizenship as of the date the amendment was adopted, not 1776 or 1787 or 1868.Report

    • Avatar dragonfrog in reply to Peter Moore says:

      As I read it, 37 allows a (very narrow and rocky) passage to from mere to “natural-born” citizenship.

      That is:
      – The parents of a “natural born citizen” need only be “citizens” not convicted of a felony, not themselves “natural born” .
      – If the parents include one non-citizen or former felon, the child is a mere “citizen” but not “natural born”
      – The child is then not a “person” under the constitution, has no constitutionally protected rights, but could vote as long as their state doesn’t decide to take away that ability.
      – If the child can avoid felony convictions long enough to have a child with a fellow citizen, “natural born” or otherwise, their offspring would be “natural born” again.Report

  9. Avatar dragonfrog says:

    I suspect a good number of these are not really necessary.

    Plenty of authoritarian states have constitutional prohibitions against lots of the stuff they do – which they deliberately keep around so they can say “of course we don’t do that – look at this provision of our constitution”

    It’s kind of like, when delegations of Canadians went to observe various elections and reported back that it was all clean. They monitored polling stations, made sure voters weren’t being intimidated, poll boxes weren’t being tampered with.

    Mostly this just demonstrates that they don’t understand how the big boys tamper elections. Ballot box stuffing is penny-ante stuff. All the individual volunteers at polling stations are allowed to do their work and communicate their local counts to the election authority without interference. The president meanwhile has told the electoral authority what results he wants announced, and that’s what they announce.Report

  10. Avatar Peter Moore says:

    Don Zeko,

    I realize Burt’s intent was description of dystopia, not advocacy. I’m reacting to Jaybird’s and Road Scholar’s comments that 34 is ‘interesting’. I appreciate that ‘interesting’ can cover a lot of ground, but I just was concerned if anyone here would seriously consider this in any way except as devilish advocacy.Report

    • Avatar Jaybird in reply to Peter Moore says:

      Well, at the end of the day, the question has to do with the Supreme Court’s Infallibility In Theory.

      Right now, we’ve got an Infallible Supreme Court. It’s a ceremonial infallibility, of course, rather than an engineering infallibility, but if the Supreme Court puts out a boneheaded decision that is “holy crap is that decision wrong or what?”, it’s one that sticks around forever *OR* until there’s a new case that covers similar ground that makes it all the way to the Supreme Court a second time and they can infallibly reverse their previous infallible decision.

      To cherry-pick an easy and obvious example, Buck v. Bell is still on the books. It still stands.

      What 34 does is that it allows for there to be a way for a Supreme Court decision to be overturned *IF* there is sufficient opposition to it. This opposition needs to take the form of both The President and The Legislative Branch saying that the Supreme Court done screwed up and going out of their way to go through the override process.

      Now the question is whether it’s more likely for the Executive and Legislative to override something awful like my cherry-picked example or more likely for the Executive and Legislative to override something wonderful like Roe v. Wade or Obergefell or something.

      How do we feel about the Supreme Court’s infallibility?

      I think that the ability to effectively “veto” a Supreme Court decision is something that might actually be a good idea, in theory.

      I find myself wondering if maybe we should put something in there about it requiring a certain reponse for a 5-4 decision and a different response for a unanimous decision… but then I remember that Buck v. Bell was decided 8-0. So I don’t know that that would necessarily help or hinder anything.Report

      • Avatar Jesse Ewiak in reply to Jaybird says:

        Yeah, giving Donald Trump and the modern Republican Party a blank check to rewrite the Constitution – sounds like a great idea.

        Even better, because in your perfect world, it’d be Senators chosen by easily bought off state legislators from gerrymandered districts who have no accountability to the people who’d be rewriting the Constitution.

        But yet, liberals are the elitists.

        Give me a Supreme Court that’s appointed by a President to do one job over a President looking to get reelected and a bunch of unrepresentative Senator’s who have too much power because previous lawmakers randomly drew some lines to gain an electoral advantage in 1877.Report

      • Avatar Road Scholar in reply to Jaybird says:

        Jaybird,

        I believe it was Souter who wrote something to the effect that the virtue of the Supreme Court lay not in infallibility but in finality. Basically that questions needed to be settled authoritatively and that’s what they do.Report

        • Avatar Jaybird in reply to Road Scholar says:

          Well he would say that sort of thing, wouldn’t he?

          I’m open to arguments about how this amendment would lead to monstrous outcomes… but I think that it would also open up the possibility of an argument that this would create a system of checks and balances where no one branch was supreme over any of the other branches.

          It depends on your opinion of the infallability of the Supreme Court.Report

          • Avatar Road Scholar in reply to Jaybird says:

            Your use of the word “infallibility” is a strawman. I’m not aware of anyone claiming that the SCOTUS is infallible, certainly not me. And neither is Souter.

            But this Amendment would allow the Congressional Republicans and Trump to do pretty much whatever the fuck they want free of any judicial restraint. I find your apparent support for this outcome curious given your emphasis elsewhere in this discussion on the merits of “slowing things down.”Report

            • Avatar Jaybird in reply to Road Scholar says:

              There is a quote (that I thought was more famous than it obviously is) from Robert H. Jackson:

              “We are not final because we are infallible, but we are infallible only because we are final.”

              But this Amendment would allow the Congressional Republicans and Trump to do pretty much whatever the (heck) they want free of any judicial restraint.

              Let’s read it again:

              In the event that any of the President, the Congress, or the Supreme Court shall deem any act of the government of the United States to be contrary to this Constitution, they shall transmit to one another their opinions regarding the questioned act. Any two concurring opinions from any branch of the government shall thereafter control further interpretation and application of the questioned act.

              Seems to me that this could be used to shut down stuff like Drone Strikes. It also seems like a way to automatically cause a review of a law that has been passed. (Where, now, the law has to make its way through the snake of the legal system.)

              This would allow for bad decisions to be reverse where, now, there is not a way to reverse a bad decision.

              This would add veto points.

              Now I can see why someone who thinks that the Trumpublicans will have a permanent majority would find that terrifying, I think that Trump is likely to be a two term president replaced by another backlash.

              And I think that, come 2026, you’ll wish that there were a way to overcome Trump’s Supreme Court.Report

              • Avatar Road Scholar in reply to Jaybird says:

                That’s the line I was thinking of. Apparently Souter was quoting Jackson. (I caught it on an NPR interview with Souter.)

                It also seems like a way to automatically cause a review of a law that has been passed. (Where, now, the law has to make its way through the snake of the legal system.)

                I can agree here.

                This would allow for bad decisions to be reverse where, now, there is not a way to reverse a bad decision.

                But this would also allow for good decisions to be reversed. And of course, there is already a way for bad decisions to be reversed. It’s just a PITA.

                I think that Trump is likely to be a two term president replaced by another backlash.

                My money’s on a single term.

                And I think that, come 2026, you’ll wish that there were a way to overcome Trump’s Supreme Court.

                I’m already wishing that. But I’m approaching this from a more general standpoint, like from behind Rawls’ veil, and considering whether this proposal would be good or bad long-term. Apparently that’s confusing people because Peter Moore thinks I support it and you think I’m against it, where in reality I genuinely just find it an interesting topic of discussion.Report

              • Avatar Jaybird in reply to Road Scholar says:

                But this would also allow for good decisions to be reversed. And of course, there is already a way for bad decisions to be reversed. It’s just a PITA.

                True enough. I guess the question is what number of decisions in any given year are good, what number are bad, and what number of the good ones are unanimous (vs. 5-4) and what number of the bad ones are unanimous (vs. 5-4) and which of these are most likely to be reversed by a tag-team of the Legislative and Executive.

                And I have no idea what those numbers are.

                And that’s without even getting into whether the Executive/Legislative is more likely to overturn objectively good decisions or objectively bad ones.

                But you’d think that there’d be a veto point *SOMEWHERE* for everybody in a checks and balances system, right?Report

    • Avatar Road Scholar in reply to Peter Moore says:

      I find it interesting in a couple of ways. First, I’m not quite sure I see the point of it from their POV. McConnell’s gambit vis-a-vis the Merrick nomination paid off so they get to install another Scalia type as well as likely replace Ginsburg and/or Kennedy. So they’re looking forward to a very friendly SCOTUS in any case for the foreseeable future.

      Conversely, their Senate majority is weak and their hold on the Presidency is as much a matter of good fortune as anything. This could very easily bite them in the hindquarters down the road.

      From a purely theoretical standpoint it should be noted that the power of SCOTUS to strike down laws passed by Congress and signed by the President is nowhere to be found in the Constitution. It’s a power they granted to themselves early on that everyone just goes along with. I’m not saying that they shouldn’t have that power, just that it’s interesting how and why they have it.Report

  11. Avatar Mike Dwyer says:

    Not going to get into the whole piece, although the quality of the writing is superb Burt. I will say in the opening letter you nail his voice perfectly, especially this:

    “As you know, I’m such a big fan of our Constitution. There is no one who loves our Constitution more.”

    I’m thinking about making that the signature on my emails.Report

  12. Avatar Fish says:

    Good stuff, Burt. I think I’ll go home and have a drink now!Report

  13. Avatar Zac Black says:

    You know, we read this and see speculative fiction. But the GOP is a single state legislature away from being able to pass Constitutional amendments. I wouldn’t put any of the stuff in here past them.Report

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