An "irreconcilable variance" standard for striking down laws in the U.S.

And then there's Citizens United (2010), for I don't want to merely technically possess civil rights, I want to be broadly middle-class in a growing economy and a fully functioning democracy so I can effectively exercise these rights.

On another similar thread, a member stated that this Court decision is not as bad as it looks. I hope so.

I suspect it's yet another small to medium step toward plutocracy with a government and esp. a Court which tilts toward corporate power. And I'd particularly challenge fellow progressives and liberals who might depend too much on courts as champions of justice. I think in a large number of governmental systems and time periods, courts have instead often been among the most 'conservative,' most pro-status-quo, and most pro-already-powerful actors in government.

As a nation, I think we're in a little bit of trouble. We need to talk about what we have going in our favor right now and build on these aspects, and this needs to be a big part of the ongoing conversation.
 
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I think even with the "irreconcilable variance" standard that Plessy v. Ferguson (1896) can be viewed as a failure and a bust. And as a timid/pro-status-quo decision.
 
And then there's Citizens United (2010), for I don't want to merely technically possess civil rights, I want to be broadly middle-class in a growing economy and a fully functioning democracy so I can effectively exercise these rights.

On another similar thread, a member stated that this Court decision is not as bad as it looks. I hope so.

I suspect it's yet another small to medium step toward plutocracy with a government and esp. a Court which tilts toward corporate power. And I'd particularly challenge fellow progressives and liberals who might depend too much on courts as champions of justice. I think in a large number of governmental systems and time periods, courts have instead often been among the most 'conservative,' most pro-status-quo, and most pro-already-powerful actors in government.

As a nation, I think we're in a little bit of trouble. We need to talk about what we have going in our favor right now and build on these aspects, and this needs to be a big part of the ongoing conversation.

Citizen's United merely protects political speech, which is fundamental to a functioning free society.
 
. . . merely protects political speech, . . .
I would like to be optimistic, too.

If the topic interests you, I would ask that you please sketch me a quick scenario or two of how we can move in the direction of greater democracy, rather than a system which is drifting toward plutocracy as it seems to be doing these days.
 
I would like to be optimistic, too.

If the topic interests you, I would ask that you please sketch me a quick scenario or two of how we can move in the direction of greater democracy, rather than a system which is drifting toward plutocracy as it seems to be doing these days.

To do so, I would have to accept two premises that I do not: that pursuing greater democracy is worth pursuing, and that our system is becoming more plutocratic.
 
Alright, I guess we could have some system where the elites are in charge. But economic elites such as business people and so forth don't seem to vote in ways which will benefit the whole community, rather they vote in ways which will benefit themselves.

And then we could trot forth Howard Gardner who's professor at Harvard. Now, back in 1983 this ol' boy came forth with a theory that there are at least 7 types of human intelligence. Interesting! Only two of which are measured by the SAT test. Even more interesting. :)
 
Alright, I guess we could have some system where the elites are in charge. But economic elites such as business people and so forth don't seem to vote in ways which will benefit the whole community, rather they vote in ways which will benefit themselves.

And then we could trot forth Howard Gardner who's professor at Harvard. Now, back in 1983 this ol' boy came forth with a theory that there are at least 7 types of human intelligence. Interesting! Only two of which are measured by the SAT test. Even more interesting. :)

Anyone who is in charge is, by definition, part of the elite, no matter what system you have. Well, maybe not a government run by pure sortition, but thats the only real exception.
 
Then we're more at risk of becoming serfs of corporations, as we are slowly drifting in that direction.

PS Thank you for bringing up Buck v Bell from the 1920s, which is on my personal list of bum Supreme Court decisions.

A agree that we're moving toward oligarchy, but the past two administrations have substantially increased government power in most aspects of our lived, with the result being that the benefits went to the fat cats.

Which isn't a surprise. My county supervisor is probably in the phone book. My state senator personally returned a call last time I needed help with a state issue. With my Senators and Representatives I get a staffer. Bush or Obama or Trump? Good luck getting an audience if you're not already rich and powerful. Putting more power in the hands of the federal government and the executive branch benefits the fat cats. They have the access and thus the ability to influence policy in their favor. You also see recent Court decisions (Kelo and the individual mandate) that upheld corporate abuses of individuals.

If you go down the list of "good" decisions, you'll find Brown, Loving, Mapp, Miranda, Escobedo, Griswold, Lawrence, Obergefell. They all have one thing in common: limiting government.

The "bad" decisions include Bardwell v Illinois, Plessy, Korematsu, Bowers v Hardwick, the aforementioned Buck v Bell (one of the most despicable ever but flies under the radar for the SCOTUS Hall of Shame), Kelo, Kaley v US. Common theme is affirmation of government power.
 

Deleted member 97083

Because if it's the latter, and there's still a tenth amendment just like the OTL one, Hamilton has shot himself in the foot by turning this ATL into a total states' rights wank. Which would be highly ironic and therefore amusing, of course.
States would become mini warlord kingdoms over the years.
 

Skallagrim

Banned
States would become mini warlord kingdoms over the years.

Sorry, but that doesn't hold water. Not to say that there's no way that such a thing could happen, but it doesn't logically follow from the premise. The powers explicitly granted to the federal government in OTL are of course quite limited, but you'll note that the USA didn't splinter into warring kingdoms in the 1789-1859 period... and the Civil War that came thereafter certainly had more fundamental causes. (If anything, a total "states' rights"-oriented Union would completely avoid the Civil War... because federally abolishing slvery would never even be a distant option. Which is horrible for the obvious reasons, but still proves that "decental union =warlord kingdoms" is a pretty far-fetched conclusion.)

Now, I won't lie: personally, I'm a fan of organisational diversity (and thus of decentralism, provided human rights are centrally guaranteed). This may colour my views to some extent. That said, regardless of personal preferences, AH is just about what's interesting. I'll enjoy a good Federalist-wank as much as the next guy. I just brought the issue of states' rights up here because the suggestion for this kind of law was brought up by Hamilton of all people, and because if worded in a certain way, it could end up being exactly the opposite of what he wanted. From an AH perspective, that's interesting. And kind of funny.

But what would the outcome be, in actual fact? Some kind of super-weak union destined to fail? I think not. It would merely mean... the kind of constitutionalist approach we saw in 1789-1859 in OTL. That is: a rather small federal government that is limited to a few key tasks (and most of them relating to foreign affairs), while the states typically enjoy primacy domestically. Only as of the Civil War did this begin to change, in part because the side that had tied is cause to the idea of "states' rights" ended up losing. But also because the settlement of the whole slavery issue was ultimately forced by the federal government, thus beginning the shift of domestic political primacy from the states to DC. Finally, there was the interesting question of secession itself. Technically, if one reads the tenth amendment literally, secession must be a prerogative of the states. The Constitution doesn't mention it, and anything not delegated to DC by the Constitution is reserved to the states. This was (from a legal perspective, very sloppily) brushed aside in Texas v. White-- in 1869, with the Civil War fresh in memory. I wouldn't call that an apolitical verdict, but it is what it is. It started a long tradition of studiously ignoring the tenth amendment.

From this political situation, the current state of affairs arose. The federal government gradually took on ever more tasks, and often tasks that are not and were never delegated to it by the Constitution. Whatever one may think of it, it's the way it is. But it's not the way it's always been, or absolutely had to become. If the federal government hadn't taken on the many, many new tasks it has since the latter 19th century, we may assume the states would have done it. As I always say: look at Europe. The EU has no union-wide departments of education, health, etc. ...the member-states each do it. Since its conception, the EU has nevertheless seen fit to function without descending into warlord statelets. If the kind of legal rule discussed in this thread had been introduced (and worded in the way I suggested) in the USA... well, the USA would just be more like the EU, as far as division of tasks and powers between states and DC would be concerned. This, too, is interesting from an AH perspective.

Needless to say, there would be other potential outcomes. @CaliGuy asked (and I completely missed that earlier, sorry!) how the USA reconciles its many federal powers with the tenth amendment in OTL. What I wrote about Texas v. White gives it away: many things are just not really reconciled at all. The tenth amendment has largely become a dead letter. From the way I treat the subject, I'm sure it's clear that this irritates me. Not because I fundamentally object to any kind of central power, but because I think just ignoring an amendment you don't like is sloppy. So, supposing the kind of legal provision suggested in this thread had been introduced, and supposing that its exact wording forced courts to scrap all laws that conflict with any part of the constitution... would that just freeze-frame the whole US government in its limited antebellum form? Maybe. But maybe, the Constitution would just have seen more amendments, designed to grant new (clearly defined) powers to the federal government. Legally, at least, it would have made for a much more correct solution.

In any event, my point remains that depending on the wording, the kind of legal provision under discussion in this thread either does very little, or fundamentally stops the OTL growth of federal power (while not prohibiting an ATL way for federal power to still expand). But even if it's the latter... a collapse of the Union seems a very unlikely outcome.
 
Organize with others to release a political film near election time that happens to be critical of Hillary Clinton, for one.[/QUOTE
You can't organize otherwise?

It seems to me that the benefit is you can do it through a corporation. But historically corporations were creatures of the state, and in the 18th century you couldn't create one at will.
 
I don't understand? Your argument is Citizens United supported free speech, because prior to that point you couldn't organize to advocate a political viewpoint through funding. Is that right?
 
@Skallagrim

In any event, my point remains that depending on the wording, the kind of legal provision under discussion in this thread either does very little, or fundamentally stops the OTL growth of federal power
I think it's goal to be the former. I mean, if the goal is to let the law stand, you're not going to go hunting for stuff. You're only going to make a ruling that a law is unconstitutional if it really jumps out at you.

And we haven't mentioned the elastic clause for interstate commerce. And there might well be other clauses which can be viewed as elastic.
 
I don't understand? Your argument is Citizens United supported free speech, because prior to that point you couldn't organize to advocate a political viewpoint through funding. Is that right?

Given that the organization had to argue before the Supreme Court that their film was free speech, its obvious there were restrictions.
 

Deleted member 97083

From this political situation, the current state of affairs arose. The federal government gradually took on ever more tasks, and often tasks that are not and were never delegated to it by the Constitution. Whatever one may think of it, it's the way it is. But it's not the way it's always been, or absolutely had to become. If the federal government hadn't taken on the many, many new tasks it has since the latter 19th century, we may assume the states would have done it. As I always say: look at Europe. The EU has no union-wide departments of education, health, etc. ...the member-states each do it. Since its conception, the EU has nevertheless seen fit to function without descending into warlord statelets. If the kind of legal rule discussed in this thread had been introduced (and worded in the way I suggested) in the USA... well, the USA would just be more like the EU, as far as division of tasks and powers between states and DC would be concerned. This, too, is interesting from an AH perspective.
Yeah but the EU was founded as late as 1993, relies on the member states already existing and being stable before joining the EU, most of them already being in NATO, and most EU member states already had departments of education and health before joining. If the USA was a "states rights wank" from the very beginning, there are a lot more problems with it, considering over the course of the 19th century the US conquered a whole continent and formed new states. With a very weakened federal government you'll see states making their own armies on the frontier because the federal army is too weak, and fighting Toledo Wars all the time with the federal government failing to mediate territorial disputes. Later, when free states declare that all slaves entering their boundaries are freed, there would be Toledo Wars between slave states and free states, with no clear conclusion because there would be no way to federally abolish slavery.

Also the federal tariffs were important for supporting infant industries who would otherwise collapse after influxes of British goods. So a few more states would be non-industrialized like the South--perhaps with only New England fully reaching its OTL industrial potential. Maybe a few states that weren't industrialized actually would be industrialized by setting their own tariffs and making the investments needed in strategic resources, but it wouldn't be very many of them. Also before air travel, landlocked states would effectively have to pay coastal states' tariffs.
 
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