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

Skallagrim

Banned
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.

The goal is definitely the former. Lots of precedents hadn't been set, however. The way judicial review should work (or if it should exist at all) wasn't set yet, even. Ican easily imagine that even while attempting to strengthen the position of the federal government, Hamilton accidentally phrases it in a way that later comes back to bite him. (Posthumously, one imagines, since Burr will probably have shot him by then.)

Needless to say, there are several clauses that allow for wide interpretation. Needless to say, obsessive as I am about the law being precise and correct, I hate those irritatingly vague clauses. ;) But yes, they exist. Still, even if extending federal power is your goal, they can still only take you so far. Much as Hamilton would have liked it to, the constitution does not say "the federal government can do whatever it wants".


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.

If the situation you describe were to exist, it would be as you describe. But what's under discussion here is not that; for instance, the USA had federal tariffs in 1789-1859, too. Because such tariffs aren't unconstiutional by any stretch of the imagination. Perhaps I simply misspoke when I called the scenario a "states' rights wank". The thing is that when I say that, I mean something like OTL's antebellum period. That was a states' rights wank, I'd say: the federal government was tiny back then. (But still present enough to fight, for instance, the Mexican-American war, and certainly not so decripit that states had to form their own armies out of desperation.)

I'm not talking about a scenario where the original Articles of Confederation are maintained, for instance. Those, unless drastically amended, would very likely have resulted in what you describe.


...regardless of all other factors, the point is probably moot. In all likelihood, the wording of the ATL legal provision under discussion here would have presented no problems at all, and things would have gone largely as in OTL. But the other, more dramatically altered scenario, is of course worth exploring. :)
 

Deleted member 97083

If the situation you describe were to exist, it would be as you describe. But what's under discussion here is not that; for instance, the USA had federal tariffs in 1789-1859, too. Because such tariffs aren't unconstiutional by any stretch of the imagination. Perhaps I simply misspoke when I called the scenario a "states' rights wank". The thing is that when I say that, I mean something like OTL's antebellum period. That was a states' rights wank, I'd say: the federal government was tiny back then. (But still present enough to fight, for instance, the Mexican-American war, and certainly not so decripit that states had to form their own armies out of desperation.)

I'm not talking about a scenario where the original Articles of Confederation are maintained, for instance. Those, unless drastically amended, would very likely have resulted in what you describe.


...regardless of all other factors, the point is probably moot. In all likelihood, the wording of the ATL legal provision under discussion here would have presented no problems at all, and things would have gone largely as in OTL. But the other, more dramatically altered scenario, is of course worth exploring. :)
I meant that in that "states rights wank" (which yeah, I guess is sort of exaggerated and not necessarily the logical outcome of irreconcilable variance) there wouldn't be federal tariffs or they would be constantly struck down by states with inability to enforce them; as a result, states would either have very limited tariffs, or similar tariffs but all the profits would go to the states. However that would pose a problem for landlocked states who may have to pay multiple bordering states' tariffs, which could be lower, or they could be as high as the federal + state tariff IOTL which would be absolutely crushing if that was just one coastal state's tariff.
 
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.
As peacenik, if I tell people we shouldn't get involved in some area of the world because we've made such a mess of things in so many other areas, that's not what people want to hear. It's like people want to immediately jump from a negative influence to a positive.

So the analogy, people want to jump from government being a handmaiden of corporations directly to taming corporations, I know this is pretty much what I want!
 
http://www.bbc.com/news/world-us-canada-18588027

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The 2010 ruling, known as Citizens United [Emphasis added] allowed corporations, labour organisations and wealthy donors to donate millions of dollars through groups known as super PACs.

Such groups can raise and spend unlimited money, but are not allowed to co-ordinate with the candidates they support.
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A summary from our friends across the pond.

I think there was a Supreme Court decision on campaign finance in the 1970s which drew a distinction between speech and giving money. We're a long way from that now!
 
As peacenik, if I tell people we shouldn't get involved in some area of the world because we've made such a mess of things in so many other areas, that's not what people want to hear. It's like people want to immediately jump from a negative influence to a positive.

So the analogy, people want to jump from government being a handmaiden of corporations directly to taming corporations, I know this is pretty much what I want!

I'm with you on wanting a government that tames rather than serves fat cats. I also want to date Kaylee Hartung, and the latter is more likely.

As far as not intervening overseas, people don't want to hear it but they need to. I'm starting to think our foreign policy strategy is law of averages.
 
I'm starting to think our foreign policy strategy is law of averages.
Do you mean, we're always fighting the last war?

We get stuck and don't know how to extricate ourselves from an intervention which is not working out at all, and then the next time we delay and delay even though it looks like a straightforward intervention could do some real good.
 
I'm with you on wanting a government that tames rather than serves fat cats. I also want to date Kaylee Hartung, and the latter is more likely.
Well, you just never know. I think she's going to go on over to CNN and be one of the people covering national politics. Could be an area of common interest. If you get a chance, I'd suggest asking her if she'd like to get a cup of coffee as if this is the most normal thing in the world. She might say no, she might say yes. You could be among the minority of guys who approach her in a nonconvoluted manner, and while no guarantee, probably does increase your chances. ;)

Returning to politics, this might be one interesting area where one type of liberal intellectually parts company with one type of conservative.

Personally, I very much agree with the Code of Hammurabi that the first task of government is to protect the powerless (less powerful) from the powerful (more powerful), but I also agree that this has probably been the exception and in any case is probably a very idealistic view. I'm not sure where that gets us. I'm also of the opinion that between employee and employer, between patient and hospital, between me and 24-hr fitness, that things don't have to be perfectly equal, but equal enough to have some semblance of negotiation and working together, and that another business down the road is only a big chunk of the answer and not the whole thing. Not sure where that gets us either.
 
A summary from our friends across the pond.

I think there was a Supreme Court decision on campaign finance in the 1970s which drew a distinction between speech and giving money. We're a long way from that now!

Any discussion of that ruling needs to take into consideration the facts of the case itsslf, why it was before the Court in the first place.
 
Do you mean, we're always fighting the last war?

We get stuck and don't know how to extricate ourselves from an intervention which is not working out at all, and then the next time we delay and delay even though it looks like a straightforward intervention could do some real good.

Agree with that point, but by law of averages I mean intervention keeps backfiring and our leaders keep saying "It'll work THIS time!" I guess it does have to work sooner or later.
 
America would be certainly more.... conservative? reactionary? traditional? I'm not sure if I am using the correct word here but I think you get my point.
 
. . . intervention keeps backfiring and our leaders keep saying "It'll work THIS time!" . . .
We'd had some successes, I'd say President Clinton with northern Ireland is such an example. I do agree that it's rather the case of building from the exceptions.

One bright line I very much believe in is stopping genocide. Admittedly, looking back it's clear, in real time it's often murky gray. And add to this that the faction committing genocide usually tries to cloak what they're doing, plus work the hell out of the gray areas.
 
America would be certainly more.... conservative? reactionary? traditional? I'm not sure if I am using the correct word here but I think you get my point.
Economically, the U.S. might be more progressive. In 1918, the Supreme Court in a 5-4 decision struck down an Act of Congress that manufactured goods made with child labor could not be part of interstate commerce.
 
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