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Opening Arguments

The F word

At the New York Times' Room for Debate site, the question is asked, "If the U.S. Constitution were being written today, what would you omit, add or clarify?" The answers from some of the participants are just awful -- do away with the Electoral College, get right of the right to bear arms, allow naturalized citizens to be president. Some are interesting -- clarify what's cruel and unusual. amend the Commerce Clause, rewrite the First Amendment.

The one who gets it most right is Elizabeth Price Foley, law professor at Florida International University College of Law. Don't change the text, she says, just bring back federalism:

To some, the F word is constitutional obscenity. It is relabeled "states' rights" and followed by reference to slavery and the Confederacy. This taps into deep emotions but is utterly wrong.

Federalism isn't about states' rights. It's about individual liberty. The Supreme Court emphasized this in Bond v. United States (2011): "By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake." And lest you think this emanates from the court's right wing, Bond was unanimous.

The powers "reserved to the states" under the 10th Amendment are functionally nonexistent if the Constitution's carefully enumerated powers are infinitely capacious. So while the 10th Amendment doesn't tell us what powers belong to the states, its message is clear: preserving federalism requires vigilant enforcement of limited and enumerated powers.

Power tends to accumulate -- our founders realized that, which is why the Constitution so deliberately tries to diffuse power and put anybody with it in a system of checks and balances. If they could have realized that those safeguards would be worn down over time (and perhaps they should have), they might have included some mechanism to prevent it. So I guess that's what I would change, although I'm not sure what kind of safeguards there could be. The suggestion to amend the Commerce Clause is a start, since liberal interpretations of it have contribubed so much to the expnasion of federal power. And maybe we should look at the "Necessaryand Proper Clause" to make it a little less vague and elastic.


tim zank
Wed, 07/18/2012 - 2:23pm

Heh..Just think about it. It took 2700 pages to determine how your doctor gets paid, can you imagine how long a new constituition would be?

Harl Delos
Wed, 07/18/2012 - 4:12pm

The Patient Protection and Affordable Care is only 906 pages long, and most of the length is due to the highly stylized formatting.

I don't know that the requirement that the president be born in the US is a particularly useful requirement.  Chester A. Arthur was born in Canada to Canadian parents and I'd have to say he was better than average.  On the other hand, if a Congresscritter cannot tell the difference between 906 pages and 2700 pages, he oughta be permanently barred from holding public office.

john b.kalb
Wed, 07/18/2012 - 6:56pm

Harl - As is common - You are wrong.    The act as passed by the House, the Senate, and signed into law by Obama was 2700 pages long  and is published as Public Law 111-148.   What you are listing is a "compilation" - not the law.  If you read the introduction to the document that is posted on the USA.gov site, you will see that it states, "(This) is not an official document and may not be cited as "the law".

This is another case of "obfuscation" by our goverrnment!  You can read in the intro that "It was made available to the public"

Harl Delos
Thu, 07/19/2012 - 11:58am

John, the Thomas site shows seven versions of the law. There were versions full of crap that ran longer, but the final version of the law is the Enrolled Bill, Final as passed by House and Senate.

What I am referring to, John, is the Government Printing Office document.  You'll find it at http://www.gpo.gov/fdsys/pkg/BILLS-111hr3590enr/pdf/BILLS-111hr3590enr.pdf.

No warnings that it's a "compilation" - instead, there is a GPO seal at the head of the document that says "Authenticated US Government Information" seal.  And if you find your way to the GPO site from the link at Thomas, this is the final engrossed version, as passed by House and Senate.

The claims of 2004 pages are based on double-spacing, usoing large print, and really short lines, like a freshman writing a 5 page term paper and managing to use up 3 pages for his name and the title.