Gimme That Ole Time Constitution
December 6th 2010 18:59
There have been calls lately, from Tea Partiers, ultra Conservatives and that staunch defender of the Constitution, Sarah Palin, to return to the original Constitution, as it was assumed to have been written by James Madison. Even Supreme Court Justice Antonin Scalia proclaims himself an originalist.
The latest uproar is over the apparent loss of the Alaskan senatorial seat by Tea Party backed candidate Joe Miller, who beat out incumbent Republican Senator Lisa Murkowski for the Republican nomination, only to see his and the Tea Party (and Sarah Palin’s) hopes dashed by the apparent victory of Lisa Murkowski running as a write-in candidate. If that wasn’t enough, Linda McMahon, wife of Vince McMahon of WWE fame, and a Tea Party favorite for the Connecticut Senate seat being vacated by Chris Dodd, lost to Democrat Dick Blumenthal, a Vietnam Vet impersonator. This has brought cries from Tea Partiers and Conservatives for repeal of the 17th Amendment to the Constitution: “The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years.” Prior to 1913, and the 17th Amendment, Senators were selected by state legislatures. Thus, whichever party controlled the state legislature would control the selection of the Senators, and they would be beholden to the party and the legislators, not the people.
Would these “originalists,” if they had their way, repeal the Bill of Rights, the first ten amendments to the Constitution. After all, they weren’t part of the original Constitution, having been ratified in 1791 while the Constitution was adopted in 1787. If so, then we would lose freedom of speech, freedom of the press, freedom of assembly, freedom to petition, the right to bear arms, protection against being forced to quarter troops, the right against unreasonable search and seizure, due process, the right against double jeopardy, the right against self-incrimination, eminent domain, trial by jury, the rights of the accused, confrontation clause, speedy trial, public trial, right to a lawyer, civil trial by jury, prohibition of excessive bail, cruel and unusual punishment, rights that are not enumerated in the Constitution shall not be prohibited, and powers not delegated to the Federal government are reserved to the states and/or the people.
What about repealing the 11th amendment: reinforces state’s rights by giving states immunity from suits from entities outside states’ borders. State’s rights advocates, Conservatives and Tea Partiers, wouldn’t want to repeal this, would they?
The 12th amendment provides for electors to elect the President and Vice President. Tea Partiers and Conservatives wouldn’t want to do away with this when they could win the presidency by winning the vote in many sparcely populated states without winning the overall national popular vote.
The 13th amendment abolished slavery and involuntary servitude; Tea Partiers and Conservatives wouldn’t want to do away with this, or would they?
The 14th amendment overrulled the Dred Scott v. Sandford (1857) Supreme Court decision. Its due process clause prevents state and local governments from depriving citizens of life, liberty or property unless certains legal steps are followed. Its equal protection clause insures that states recognize the rights enumerated in the Bill of Rights. Its most controversial words, which have Tea Partiers and Conservatives calling for its repeal are, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” They don’t like the fact that a pregnant illegal immigrant woman can give birth to a child in the United States, and that child automatically becomes a US citizen. This one stands a slight chance of repeal.
The 15th amendment prohibits the denial of voting rights based on race, color, or previous servitude. In other words, Conservatives would love to repeal this amendment, and not because it wasn’t part of the original 1787 Constitution.
The 16th amendment allows the federal government to collect an income tax. You would think all Americans would want this repealed, but not so fast. How would we fund the military? How would Conservative farmers get their subsidies? How would members of Congress fund their salaries (they keep giving themselves raises while the rest of us are suffering through a recession) and health care? Who would pay for the exorbitant military pensions of Conservative desk jockey generals? Where would the money come from for Congressional earmarks and pork?
Repeal of the 17th amendment is what started this discussion, and the 18th amendment, the prohibition of alcohol consumption, was repealed by the 21st amendment.
The 19th amendment gives women the right to vote. Will Sarah Palin and all those screaming female Tea Partiers repeal their voting rights? I seriously doubt it; they will only go so far for originalism (repealing the rights of people based on race and color, for example).
The 20th amendment sets the date when Congressional and Presidential terms start. Nobody really cares except those on the government payroll: newly elected Senators, Representatives and the President.
The 22nd amendment limits the President to two terms. George W. Bush would have repealed this because he felt that he was just starting to get it right in his eighth year, in spite of precipitating the current financial crisis by being inattentive and wasting the preceding seven years. Fortunately, the 22nd amendment, prevented another four Bush years.
The 23rd amendment gives Washington, D.C. representation in the Electoral College, to the chagrin of Conservatives and Tea Partiers.
The 24th amendment eliminated the poll tax, which made it easier for blacks to vote. Conservatives would definitely repeal this amendment, although they would insist that they’re not racists, just originalists.
The 25th amendment defines the succession to the presidency in the case of the death or incapacitation of an incumbent President. Dick Cheney ran the country for seven years, as sort of a shadow president; President Bush wasn’t dead and he didn’t appear to be incapacitated, just incompetent.
The 26th amendment establishes 18 as the national voting age, and the 27th amendment prevents laws affecting the salaries of Representatives and Senators from taking effect until the next session of Congress. Theoretically, all the Representatives and one third of the Senators can’t give themselves raises (if they don’t get re-elected).
Originalists have to remember that the Constitution wasn’t handed to James Madison on Mt. McKinley, chiseled in two stone tablets; it was conceived by humans, and it contains the ambiguities that humans sometimes unintentionally include in the best of documents. One of the jobs of the Supreme Court is to clarify those ambiguities.
The 28th amendment abolishes amendments 1-27; fortunately, it hasn’t been proposed. If it is, it will never come up for a vote or be ratified.
The latest uproar is over the apparent loss of the Alaskan senatorial seat by Tea Party backed candidate Joe Miller, who beat out incumbent Republican Senator Lisa Murkowski for the Republican nomination, only to see his and the Tea Party (and Sarah Palin’s) hopes dashed by the apparent victory of Lisa Murkowski running as a write-in candidate. If that wasn’t enough, Linda McMahon, wife of Vince McMahon of WWE fame, and a Tea Party favorite for the Connecticut Senate seat being vacated by Chris Dodd, lost to Democrat Dick Blumenthal, a Vietnam Vet impersonator. This has brought cries from Tea Partiers and Conservatives for repeal of the 17th Amendment to the Constitution: “The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years.” Prior to 1913, and the 17th Amendment, Senators were selected by state legislatures. Thus, whichever party controlled the state legislature would control the selection of the Senators, and they would be beholden to the party and the legislators, not the people.
Would these “originalists,” if they had their way, repeal the Bill of Rights, the first ten amendments to the Constitution. After all, they weren’t part of the original Constitution, having been ratified in 1791 while the Constitution was adopted in 1787. If so, then we would lose freedom of speech, freedom of the press, freedom of assembly, freedom to petition, the right to bear arms, protection against being forced to quarter troops, the right against unreasonable search and seizure, due process, the right against double jeopardy, the right against self-incrimination, eminent domain, trial by jury, the rights of the accused, confrontation clause, speedy trial, public trial, right to a lawyer, civil trial by jury, prohibition of excessive bail, cruel and unusual punishment, rights that are not enumerated in the Constitution shall not be prohibited, and powers not delegated to the Federal government are reserved to the states and/or the people.
What about repealing the 11th amendment: reinforces state’s rights by giving states immunity from suits from entities outside states’ borders. State’s rights advocates, Conservatives and Tea Partiers, wouldn’t want to repeal this, would they?
The 12th amendment provides for electors to elect the President and Vice President. Tea Partiers and Conservatives wouldn’t want to do away with this when they could win the presidency by winning the vote in many sparcely populated states without winning the overall national popular vote.
The 13th amendment abolished slavery and involuntary servitude; Tea Partiers and Conservatives wouldn’t want to do away with this, or would they?
The 14th amendment overrulled the Dred Scott v. Sandford (1857) Supreme Court decision. Its due process clause prevents state and local governments from depriving citizens of life, liberty or property unless certains legal steps are followed. Its equal protection clause insures that states recognize the rights enumerated in the Bill of Rights. Its most controversial words, which have Tea Partiers and Conservatives calling for its repeal are, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” They don’t like the fact that a pregnant illegal immigrant woman can give birth to a child in the United States, and that child automatically becomes a US citizen. This one stands a slight chance of repeal.
The 15th amendment prohibits the denial of voting rights based on race, color, or previous servitude. In other words, Conservatives would love to repeal this amendment, and not because it wasn’t part of the original 1787 Constitution.
The 16th amendment allows the federal government to collect an income tax. You would think all Americans would want this repealed, but not so fast. How would we fund the military? How would Conservative farmers get their subsidies? How would members of Congress fund their salaries (they keep giving themselves raises while the rest of us are suffering through a recession) and health care? Who would pay for the exorbitant military pensions of Conservative desk jockey generals? Where would the money come from for Congressional earmarks and pork?
Repeal of the 17th amendment is what started this discussion, and the 18th amendment, the prohibition of alcohol consumption, was repealed by the 21st amendment.
The 19th amendment gives women the right to vote. Will Sarah Palin and all those screaming female Tea Partiers repeal their voting rights? I seriously doubt it; they will only go so far for originalism (repealing the rights of people based on race and color, for example).
The 20th amendment sets the date when Congressional and Presidential terms start. Nobody really cares except those on the government payroll: newly elected Senators, Representatives and the President.
The 22nd amendment limits the President to two terms. George W. Bush would have repealed this because he felt that he was just starting to get it right in his eighth year, in spite of precipitating the current financial crisis by being inattentive and wasting the preceding seven years. Fortunately, the 22nd amendment, prevented another four Bush years.
The 23rd amendment gives Washington, D.C. representation in the Electoral College, to the chagrin of Conservatives and Tea Partiers.
The 24th amendment eliminated the poll tax, which made it easier for blacks to vote. Conservatives would definitely repeal this amendment, although they would insist that they’re not racists, just originalists.
The 25th amendment defines the succession to the presidency in the case of the death or incapacitation of an incumbent President. Dick Cheney ran the country for seven years, as sort of a shadow president; President Bush wasn’t dead and he didn’t appear to be incapacitated, just incompetent.
The 26th amendment establishes 18 as the national voting age, and the 27th amendment prevents laws affecting the salaries of Representatives and Senators from taking effect until the next session of Congress. Theoretically, all the Representatives and one third of the Senators can’t give themselves raises (if they don’t get re-elected).
Originalists have to remember that the Constitution wasn’t handed to James Madison on Mt. McKinley, chiseled in two stone tablets; it was conceived by humans, and it contains the ambiguities that humans sometimes unintentionally include in the best of documents. One of the jobs of the Supreme Court is to clarify those ambiguities.
The 28th amendment abolishes amendments 1-27; fortunately, it hasn’t been proposed. If it is, it will never come up for a vote or be ratified.
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Comment by nightlydvdreview
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The only amendment that I truly have a problem with is the 14th, and I'll tell you exactly why. This COULD happen:
To become president, you have to be a natural born citizen. (You do not have to be raised here, with American values.)
SO, a person born in, say in Chechnia, China, Cambodia, Britain, Australia, Japan, Tibet, Zimbabwe, Iran, or Peru can come here on vacation, give birth here, the child is an automatic citizen. They can return to their country, become raised with the values and beliefs of that country, and not return here until they go to college or become a professional in some aspect AND at age 35, qualify to become president of the US.
It can happen. I say plug the hole in the boat before it does.
Some people would say I am being "racist" in my beliefs. I deny it. I don't care where they come from. There should be a simple clause added to the 14th amendment that requires that if they are natural born that they are raised in the United States. OR another amendment added concerning the requirements for president that mandates that at least one of the parents is an American citizen and that the child lives at least 35 years within the country.
As far as immigration is concerned, I have no problem with it being done LEGALLY. My wife is from another country and I have paid my dues to get her here.
I have no problem with amnesty, providing they get documentation and pay the thousands of dollars that it costs to become legal. They are no better than me or my wife. So, all I am demanding is equal treatment. THEN we close the borders to illegals and any business employing illegals is fined the first time, shut down the next. If they can't get jobs, they won't come.