[kf6tac]

Originally Posted by locosway

That's what I was saying...

In school I was taught that the BoR was my list of rights, and often you'd hear the argument "Show me where in the BoR's does it say you can do that".

There needs to be a fundamental change in how we're taught what our rights are, and how we got those rights. The ideas taught in schools (at least where I am) are wrong.

Kind of. When you're dealing with the federal government, then "Show me where in the Bill of Rights does it say you can't do X" is the wrong question, because the federal government is one of limited powers; you should be asking, "Show me where in the Constitution does it say that the federal government can prevent me from doing X."

When you're dealing with the state governments, though, "Show me where in the Bill of Rights does it say you can't do X" is the pertinent question, at least for the most part. Unlike the federal Constitution, which grants certain limited powers to the federal government, state constitutions are generally crafted as documents intended to limit the otherwise plenary power of the state governments. In the absence of a state law or federal constitutional provision depriving the states of the power to act, the state can generally do it. This is partially why the RKBA situation in California is so precarious -- the Second Amendment is not (yet) incorporated, so it does not constrain the state's power, and the state constitution does not recognize a right to keep and bear arms.

[bwiese]

Originally Posted by TaxAnnihilator

Oh, and you should look into showing your kids how California's constitution can be amended on the whim of only a small percentage
of citizens. 8% of Voters in the past Gubernatorial election to get
it on the ballot, then a majority of voters approving it! Then its there!

The passage of Prop 8 reflects, really, a money game.

The Mormon Church injected (likely illegally - I believe their religious tax-exempt status is well-threatened) large sums of money before more localized LGBT teams organized their fundraising response.

Fortunately, Prop 8 will be overturned because it facially differs little from Jim Crow laws - it involves a denial of a government-conveyed status (with benefits) on a subset of people for mere "personal dislike" reasons. It's not really much different than banning Chicanos from public parks, or saying blacks in Mississippi need to be off the street before sundown.

[locosway]

So, with Marbury v Madison, how did we get from Judiciary review of laws to Judiciary review of amendments which are supposed to be part of the constitution and not up for interpretation?

[kf6tac]

Originally Posted by locosway

So, with Marbury v Madison, how did we get from Judiciary review of laws to Judiciary review of amendments which are supposed to be part of the constitution and not up for interpretation?

I'm pretty sure there's nothing saying that the Constitution is not up for interpretation. Marbury v. Madison itself was an interpretation of the powers granted to the federal judiciary by the Constitution. The judiciary is the final authority on what the laws mean (or, to borrow words from Marbury v. Madison, "to say what the law is"), but "laws" in this context includes both the Constitution itself and the enactments of Congress.

[locosway]

But the constitution and it's amendments are not laws, they're restrictions on the government which are clearly written as far as most people are concerned. I understand that Marbury v Madison gave the judiciary the power to interpret laws, but it didn't say anything about the constitution.

[TaxAnnihilator]

I will take your comment and raise you my comment! I think that MOST propositions are about someone getting paid out of turn - teachers, police, firefighters, prison guards to name a few.

Why elect a legislature and then take their power to balance the budget away by passing Bond after Bond after...

People are entirely too emotional and uninformed to have this power.

On the Morman issue, I have taken a Taxation of Non-Profits LLM course which taught me the so called rules and was shocked to find that in reality big institutions get away with lobbying activities that would put CGF out of business.

Can your read the disillusioned tone of my young voice. Depressing. Really.

Originally Posted by bwiese

The passage of Prop 8 reflects, really, a money game.

The Mormon Church injected (likely illegally - I believe their religious tax-exempt status is well-threatened) large sums of money before more localized LGBT teams organized their fundraising response.

Fortunately, Prop 8 will be overturned because it facially differs little from Jim Crow laws - it involves a denial of a government-conveyed status (with benefits) on a subset of people for mere "personal dislike" reasons. It's not really much different than banning Chicanos from public parks, or saying blacks in Mississippi need to be off the street before sundown.

[kf6tac]

Originally Posted by locosway

But the constitution and it's amendments are not laws, they're restrictions on the government which are clearly written as far as most people are concerned. I understand that Marbury v Madison gave the judiciary the power to interpret laws, but it didn't say anything about the constitution.

The Constitution itself says that the Constitution (along with certain other things) is part of the "supreme law of the land." Plus, the Supreme Court was interpreting the Constitution as early as 1798 (Calder v. Bull, interpeting the scope of the ex post facto clause), if not earlier. The Justices at the time were all of the same generation that had ratified the Constitution; three of them were members of the Constitutional Convention and two others were well-known Federalists who pushed for ratification. If the Constitution was meant to be beyond interpretation, I'd think that they would have been the first to say it, and their contemporaries the first to cry foul if they did it anyway.

[locosway]

Originally Posted by kf6tac

The Constitution itself says that the Constitution (along with certain other things) is part of the "supreme law of the land." Plus, the Supreme Court was interpreting the Constitution as early as 1798 (Calder v. Bull, interpeting the scope of the ex post facto clause), if not earlier. The Justices at the time were all of the same generation that had ratified the Constitution; three of them were members of the Constitutional Convention and two others were well-known Federalists who pushed for ratification. If the Constitution was meant to be beyond interpretation, I'd think that they would have been the first to say it, and their contemporaries the first to cry foul if they did it anyway.

Good point

[GaryV]

Originally Posted by locosway

I've never taken a college level government course, but in HS I did take History. Home come this was never talked about? It seems that if these ideas of what really was, instead of what people think it was, were to be pushed, we would have less problems than we do.

Another reason I'm glad my kids are home schooled...

Part of the problem is that public schools are run by the government, which itself works in many ways like a religion (as any organization does). And one of the first things a religion does is to construct a mythology that justifies the religion's own existence. As time goes on, the mythology evolves to be less and less based in reality and more and more based on justifying the existence and then authority of the religion.

So, what we get taught about US history in public schools is mostly a complete myth hung together on a bare framework of relatively worthless facts that at least lend the mythology an air of truthfulness. For example, I recently read a debate about Columbus Day. One participant criticized another by saying that all he must remember from what he was taught was the little ditty that starts "In 1492, Columbus sailed the ocean blue". But is this really a bad thing? Besides the date, and the names of his ships, virtually nothing that is taught through high school about Columbus is true. Instead, it's almost all a completely fictional founder myth that was largely invented in the 19th and 20th century.

As one researcher into the quality of high school history education noted, history is probably the only subject where college and university professors prefer their students to have been taught less rather than more at the high school level, because that means they have fewer fictions to unlearn before they can taught the real facts in the field.

[locosway]

Yes, I noticed this taking college level history. There was a night and day difference.

[GaryV]

Originally Posted by Foulball

The most interesting part of the BOR (to me at least) is the preamble, which clearly notes that the BOR was for the states themselves.

"The conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added."

I'm not quite clear whether you mean that it was made for the good of the states themselves, or to limit the states. While the preamble could be construed to mean the former, it most certainly does not mean the later. It says that, during the ratification process, several of the states made it clear that they wanted a BoR so that the powers granted in the federal constitution (to the federal government), would not be abused (by the federal government). If anything, the preamble indicates that the BoR was originally intended as a limitation only on the federal government, since the powers referred to were primarily only federal powers.

[kf6tac]

Originally Posted by GaryV

I'm not quite clear whether you mean that it was made for the good of the states themselves, or to limit the states. While the preamble could be construed to mean the former, it most certainly does not mean the later. It says that, during the ratification process, several of the states made it clear that they wanted a BoR so that the powers granted in the federal constitution (to the federal government), would not be abused (by the federal government). If anything, the preamble indicates that the BoR was originally intended as a limitation only on the federal government, since the powers referred to were primarily only federal powers.

I think the language is mostly an artifact of the fact that the Constitution was meant to establish a republic of 13 united states, not a democracy consisting of the people living in the 13 states. Through the pre-Civil War portions of the Constitution, the states -- not the people -- are consistently the unit that receive primary importance. Electoral votes are allocated by state; United States Senators were appointed by the state governments; the Constitution and any amendments are ratified by a super-majority of the states, not of the population at large; etc.

[locosway]

With an electoral college, why do we still do the popular vote? It means nothing, so I just don't get it.

Also, since we ARE in an electoral college, why do we vote one way for locals, or not vote at all for locals, but then vote or vote differently for the president?

[kf6tac]

Originally Posted by locosway

With an electoral college, why do we still do the popular vote? It means nothing, so I just don't get it.

Also, since we ARE in an electoral college, why do we vote one way for locals, or not vote at all for locals, but then vote or vote differently for the president?

The way the electoral college originally worked in the presidential elections right after ratification was that individuals put themselves on the ballot to run as electors to represent their state. People went out and voted for electors, not for presidential candidates -- although the electors themselves probably ran based on which presidential candidate they intended to vote for. Then the electors would get together and submit their electoral votes for president. The idea, again, was that the federal government represents the federation of states -- so it should be state representatives (of a sort) who elect the president.

In the time since then, though, just about all of the states have altered their election laws (perfectly legally, since the Constitution leaves the governance of elections up to the states, as long as they comply with certain boundaries set by the Constitution) so that the electors for each state are an all-or-nothing proposition -- whichever candidate wins the state gets all of the electors. It kind of guts the republican (small R) idea that was originally embodied by electoral college, but in the post-Civil War era, that is not particularly unusual.

[Cokebottle]

Originally Posted by locosway

With an electoral college, why do we still do the popular vote? It means nothing, so I just don't get it.

Also, since we ARE in an electoral college, why do we vote one way for locals, or not vote at all for locals, but then vote or vote differently for the president?

We have always voted for our local representatives.
The Presidential election is the only truly "national" election.

In the days before modern transportation, it took months for news to cross the country, so along with electing our local (including Washington) representatives, we voted for representatives who would travel to Washington to cast their vote for our candidate.
The electors could, but rarely if ever did, change their vote... so in effect, the people have never voted directly for their President, simply for delegates to elect them, the same way the primaries are handled.

Also, if the people voted directly, the candidates would have spent 100% of their time in the population centers and would make no effort to support those in rural areas/states.


Is it still needed?
States with large population centers do, and would remain to be the focus of campaigning even without the electoral college.

[GaryV]

Originally Posted by kf6tac

I think the language is mostly an artifact of the fact that the Constitution was meant to establish a republic of 13 united states, not a democracy consisting of the people living in the 13 states. Through the pre-Civil War portions of the Constitution, the states -- not the people -- are consistently the unit that receive primary importance. Electoral votes are allocated by state; United States Senators were appointed by the state governments; the Constitution and any amendments are ratified by a super-majority of the states, not of the population at large; etc.

Certainly this is true, but it is also a very plain and simple statement of known fact. The Constitution was debated and ratified by "The conventions of ... the States", and "a number of" them "expressed a desire...that further declaratory and restrictive clauses", i.e., a BoR, "should be added" "in order to prevent the misconstruction or abuse of its (the Constitution's) powers". If we just look at the plain meaning of the words, it's nothing more than a statement of historical facts surrounding the reason for the addition of the BoR - that many state representatives feared that the Constitution established a federal government with a little too much power for their liking, and that it'd be better to include some explicit limits on its power, rather than just trust that it would automatically limit itself to explicitly granted powers.

Your points express what I meant about the fact that the preamble could be read to mean that the BoR was for the benefit of the states, to protect their rights from federal infringement. As Akhil Reed Amar points out, the entire BoR originally (pre-Civil War) had a very strong "collective rights" component, as well as protecting individual rights, because, as you said, the states had more importance then than now.

[snobord99]

Originally Posted by TaxAnnihilator

Oh, and you should look into showing your kids how California's constitution can be amended on the whim of only a small percentage of citizens. 8% of Voters in the past Gubernatorial election to get it on the ballot, then a majority of voters approving it! Then its there! There is a distinction for making major changes, thankfully.

The initiative and referendum process in California is ridiculously easy and detrimental to the fiscal health of the state, in my opinion.

There's a reason we have the longest Constitution in the nation. I don't even think it should be called a "Constitution."

[Foulball]

Originally Posted by GaryV

Certainly this is true, but it is also a very plain and simple statement of known fact. The Constitution was debated and ratified by "The conventions of ... the States", and "a number of" them "expressed a desire...that further declaratory and restrictive clauses", i.e., a BoR, "should be added" "in order to prevent the misconstruction or abuse of its (the Constitution's) powers". If we just look at the plain meaning of the words, it's nothing more than a statement of historical facts surrounding the reason for the addition of the BoR - that many state representatives feared that the Constitution established a federal government with a little too much power for their liking, and that it'd be better to include some explicit limits on its power, rather than just trust that it would automatically limit itself to explicitly granted powers.

Your points express what I meant about the fact that the preamble could be read to mean that the BoR was for the benefit of the states, to protect their rights from federal infringement. As Akhil Reed Amar points out, the entire BoR originally (pre-Civil War) had a very strong "collective rights" component, as well as protecting individual rights, because, as you said, the states had more importance then than now.

That's how I read it too Gary. The states wanted certain, unassailable rights for their citizens to protect them from an encroaching federal government. Among them the right to arms. It's kind of ironic to me that some states would take some rights away from citizens and the Feds would have to help the people restore those rights. The founding fathers were afraid of too powerful a central government taking away citizens rights, not the states. I'm sure if they could re-write it now, they would include better language.