Could the US have kept to their own constitution?

Ah, but one can easily argue that the Constitution was a contract, requiring all the consent of all the states to dissolve. Or, that the Constitution was the legal successor to the Articles of Confederation (and to the Framers, it was) which specifically called the union "perpetual", while the Constitution stated "more perfect"

"The compound government of the United States is without a model, and to be explained by itself, not by similitudes or analogies," James Madison said late in his life. Given the evidence metaphorically on the table, that swings the balance of probabilities against the first view.

The second can be countered by the counter-assertion that the Union was designed to work, but that breakup was better then maintaining it by force.

To quote http://etymonline.com/cw/secession2.htm:

In the Convention that framed the Constitution it was proposed to give the government power to call out the army to force a wayward state to fulfill its duty. Madison said: "The more he reflected on the use of force the more he doubted the practicability, the justice and efficacy of it when applied the people collectively and not individually. -- A union of the States containing such an ingredient seemed to provide for its own destruction. The use of force against a State would look more like a declaration of war than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound."[1]

It is because the constitution is amendable that it is still alive.

In most other countries people had to resort to violence, or the threat of violence, to implement desired changes in the constitutional order.
An order that lags behind the times becomes obsolete and will be disposed of.
(As will an order that is running to far ahead.)

You are assuming the times must change, and that the U.S constitution refusing to cannot prevent change or take it in a direction more consistent with the Constitution.

Even if that were true, it does not mean that the Constitution could not have been kept to. If you believe that, perhaps you could explain in a bit more detail how in this particular case change would somehow become necessary? Also, what would happen if it wasn't implemented.
 

HueyLong

Banned
You're not showing it from the text, however. That is interpretation.

The text states "a more perfect union." More perfect than what? Why, the "perpetual" union of the Articles.
 
You're not showing it from the text, however. That is interpretation.

The text states "a more perfect union." More perfect than what? Why, the "perpetual" union of the Articles.

If I say "I turned the tables", I might mean it metaphorically or literally. I might also mean it in some abstract sense which others don't understand (though I would consider it stupid in reality to use it like that). But what I meant by it is, almost tautologically, the meaning of the words.

You may have a point on the original meaning of the Constitution. Hamilton said that a Bill of Rights was unnecessary, "For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?"[2]
2. "Federalist" No. 84.

Therefore, he assumed that unless a power was given it did not exist.

However, to quote http://etymonline.com/cw/secession2.htm again:

In Pennsylvania, James Wilson, as the only member of the ratification convention who had also been a delegate at the Constitutional Convention, did the bulk of explaining and defending the new document. He equated the American states with the individuals in Locke's theory, giving up a part of their natural liberty in the expectation of more good and happiness in the community than they would have alone. "The states should resign to the national government that part, and that part only, of their political liberty, which, placed in that government, will produce more good to the whole than if it had remained in the several states."

Not to mention that Constitution obviously allows for it's own amendment by the formal process of such. And the Tenth Amendment ensures that the States have all authority not given to the Federal Government or the people- including secession.

Another quote from the same sight. (They argue my point better then I would):


Consider the following as an insight into how the Founders would have regarded Lincoln's vision of a perpetual union of the American states, held together by the strong arm of the federal government.
The scene is the ratification debate in New York state in the summer of 1788. Alexander Hamilton is defending, against anti-federalist objections, the power granted to the federal government, under the proposed system, to levy taxes directly on the citizens rather than making requisitions from the states. This is one of the Constitution's specially enumerated powers. It is a defined path for the federal government to override state authority. Hamilton points out the obvious necessity for a government to be able to pay its bills: "if we have national objects to pursue, we must have national revenues."
Remember, this is the arch-Federalist speaking, the man whose name is associated more than any other in the Constitutional Convention with the authority of the federal government. He paints the picture of the country without this power, and of a state refusing a federal requisition:
"It has been observed, to coerce the states is one of the maddest projects that was ever devised. A failure of compliance will never be confined to a single state. This being the case, can we suppose it wise to hazard a civil war?
"Suppose Massachusetts, or any large state, should refuse, and Congress should attempt to compel them, would they not have influence to procure assistance, especially from those states which are in the same situation as themselves? What picture does this idea present to our view? A complying state at war with a non-complying state; Congress marching the troops of one state into the bosom of another; this state collecting auxiliaries, and forming, perhaps, a majority against the federal head. "Here is a nation at war with itself. Can any reasonable man be well disposed towards a government which makes war and carnage the only means of supporting itself -- a government that can exist only by the sword? Every such war must involve the innocent with the guilty. This single consideration should be sufficient to dispose every peaceable citizen against such a government. But can we believe that one state will ever suffer itself to be used as an instrument of coercion? The thing is a dream; it is impossible."[8]
The Constitution enumerated the powers of the federal government, not those of the states or the people. It gave the federal government just such powers as, the Founders understood, would prevent this kind of conflict. The power to tax citizens directly was among them. It did not give the federal government broad, unspecified powers of coercion to do the very thing Hamilton abhorred here.
 

67th Tigers

Banned
Quote:
Originally Posted by 67th Tigers
In plain language: The Army Shall Have Guns.

Not true, as has been demonstrated. The context was, after all, individual rights.

No, it was in the context of collective defence. It was written when the Continental Army was effectively disbanded and the Militia was the only military. This was the short period the Federal Government thought the population could provide their own arms, before militia parades and embodiments showed the population was mostly unarmed, and the Militia acts were changed to state the State is responsible for arming the militia on embodiment.
 
You know, I'm amazed by the view that Americans have of their founding fathers. They're not just great men who founded their country - they areamazing, godlike beings who can do no wrong. Their private letters get dragged out as trump cards, not only when it comes to their personal lives and views, but when it comes to the country the States was, is, and should be. I am willing to bet that the person who tries to rebut Carinthium's Hamilton quote above is not going to do so with a quote from, say, Lincoln, despite his being a very great man who frankly saved the country and is a good deal more relevant to the structure of the modern US than someone whose first try at an ideal governing document was the Articles of Confederation, but instead with Madison or Jefferson or somebody.

Personally, I suspect that if your first president had been a drunk too, you'd have a lot healthier political dialogue. :)
 
No, it was in the context of collective defence. It was written when the Continental Army was effectively disbanded and the Militia was the only military. This was the short period the Federal Government thought the population could provide their own arms, before militia parades and embodiments showed the population was mostly unarmed, and the Militia acts were changed to state the State is responsible for arming the militia on embodiment.

1-

Look at context. The first few amendments in the Bill of Rights protects individual rights.

We don't get rights/powers for non-individuals until the end of the BoR.

2- There was a tradition in England of being suspicious of a permanent army since the time of Cromwell. The ideal of the Second Amendment (which, I should point out, was not reapealed, nor did anybody call there to be. This shows that they thought it best for it to stay)

They did not (in case you say this) believe that the Constitution should be changed de facto without de jure change by the processes provided.

"If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong," Washington wrote, "let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit, which the use can at any time yield."

3- Have you considered the possibility that they believed the citizens should be armed, and that States arming them was merely a substitute? The American Revolution's philosophical basis included the Lockean idea of the people revolting if the government infringed on various rights, and the people bearing arms was essential to the process.

You know, I'm amazed by the view that Americans have of their founding fathers. They're not just great men who founded their country - they areamazing, godlike beings who can do no wrong. Their private letters get dragged out as trump cards, not only when it comes to their personal lives and views, but when it comes to the country the States was, is, and should be. I am willing to bet that the person who tries to rebut Carinthium's Hamilton quote above is not going to do so with a quote from, say, Lincoln, despite his being a very great man who frankly saved the country and is a good deal more relevant to the structure of the modern US than someone whose first try at an ideal governing document was the Articles of Confederation, but instead with Madison or Jefferson or somebody.

Personally, I suspect that if your first president had been a drunk too, you'd have a lot healthier political dialogue.

I don't share that delusion (I am Australian)- I used the quotes I could find because I only provided myself a limited amount of time to search. For determining the original intent of the Constitution, it is better to consult the letters of the likes of Washington and Hamilton then Lincoln.

"Saving the country" is an irrational argument, because there is no good reason why the U.S need exist. In fact, I challenge anybody here on this forum who honestly believes it to demonstrate that it would be a good idea, if necessary, to use war to prevent the secession of states (if not for the slavery issue).

You are confusing having an effect on the structure of the modern U.S with actually doing good for it. Lincoln was the former to a great deal, but not the latter.
 
When there is a disagreement over what the Constitution says amongst it's framers (not just the "founding fathers"), why not refer to the actual text itself?
nor shall private property be taken for public use, without just compensation.
this seems simple, But.............

You just bought a vacant lot in a row of Beach Houses. Before you can apply for a building permit, Some busy body finds a Red dotted ground beetle on your lot.
As the RDG Beetle is on the endangered specie list, you can not build.

?Has your Private property been Taken for public use.?
You still own it, No one else can just come on it and do things [Trespass]. the local Government is sending you a Tax Bill.
And the Endangered Specie Act certainly doesn't mention any provision for, or about taking Private Property.

Ah - but your right to build has been taken, ? Do you have a Constitutional right to Build?
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
[lets ignore the fact that the US Supreme Court declared the Tenth amendment Mute in 1959]
It turns out that the denial of your permit was based on the State ESA, not the Federal Act.
Your State has already moved to claim the taking power away from the people.

Looks to me that a strict interpretation sees you SOOL. You lost your Money and Ain't getting it back.
But notice nothing in the text of the Fifth Amendment decided this.
In fact the 5th doesn't define Private Property, so Interpretation is needed.

A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.

Lets start with a Well Regulated Militia,
?Does this mean one with regular training sessions, or one that follows government imposed regulations.?
More and more today it has come to mean Government Regulations, Despite that the Founders would [probably] go with the Training.
And that most Militias today strenuously Object to the Government, and its attempts to regulate everything.

But again there is no Definition in the Text.

This is the problem of trying a Strict interpretation. The common sense Definition of terms has changed over the past 200 years.
 

67th Tigers

Banned
1-



2- There was a tradition in England of being suspicious of a permanent army since the time of Cromwell. The ideal of the Second Amendment (which, I should point out, was not reapealed, nor did anybody call there to be. This shows that they thought it best for it to stay)

No, standing armies simply did not exist until the Wars of Religion (and their little Anglo sideshow). Cromwell formed the first standing army, and it's still around. Kept getting bigger in fact.

3- Have you considered the possibility that they believed the citizens should be armed, and that States arming them was merely a substitute? The American Revolution's philosophical basis included the Lockean idea of the people revolting if the government infringed on various rights, and the people bearing arms was essential to the process.

No, because the same people put the Militia Acts, amongst others, to restrict weapons ownership to members of the Militia (which was essentially every White Anglo-Saxon Protestant, no guns for Blacks, Catholics, Indians etc.), what today is the National Guard or State Militia.

"That every citizen so enrolled and notified, shall within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack. . . ."

- Militia Act of 1792

Later revised to:

"That every citizen duly enrolled in the militia, shall be constantly provided with arms, accoutrements, and ammunition. . . ."

- Militia Act of 1803 (since only 1 in 4 militiamen had access to a musket, invariably either one of the Queen's Arms from the SYW or a Franco-Spanish musket as supplied to the Continental Army and absconded with in the AWI, the Federal Government takes arming them onto itself)
 
I agree with the majority here that it's completely impossible to have a document that can be the basis of governing a country for 250 years without requiring any subjective interpretation at any time.

But I think there is a way to salvage the hypothetical, and that is to ask: What if the case of Marbury v. Madison had come out the other way, and it never became part of the US governmental system that the Supreme Court can declare that a law conflicts with the Constitution?

In this scenario, the SC -- other than when it decided a dispute between one state and another -- would be the same as the highest appellate court in a state, only for the federal system. For instance, if there were a prosecution for a federal crime such as racketeering, and the prosecution created a novel legal issue, it could be appealed up to the SC, which would then interpret the racketeering law. But the SC would not be in the business of interpreting the Constitution.

I think an exact timeline of how this would play out would be extremely interesting. I can't come up with one myself. But, even in spite of terrible SC decisions such as Dred Scott and Plessy v. Ferguson, I think it's very likely that the results would be disastrous. The only check on the executive would be the legislature, and vice versa. You probably would see a rift between the two continually grow until the country was cleaved right down the middle, much like what characterized a certain era of British history. Since the presidency was not originally designed to be a powerful position, and since the US has no state religion and thus the president wouldn't have any allegiances on a religious basis... it's actually likely that the legislature would win this battle, and instead of an "imperial presidency" as we currently have, we'd have an "imperial legislature." Again, not exactly sure what concrete results this would have, but I do think the Constitution would cease to have much relevance and the system would get out of whack leading to bad decisions.
 
this seems simple, But.............

You just bought a vacant lot in a row of Beach Houses. Before you can apply for a building permit, Some busy body finds a Red dotted ground beetle on your lot.
As the RDG Beetle is on the endangered specie list, you can not build.

?Has your Private property been Taken for public use.?
You still own it, No one else can just come on it and do things [Trespass]. the local Government is sending you a Tax Bill.
And the Endangered Specie Act certainly doesn't mention any provision for, or about taking Private Property.

Ah - but your right to build has been taken, ? Do you have a Constitutional right to Build?
[lets ignore the fact that the US Supreme Court declared the Tenth amendment Mute in 1959]
It turns out that the denial of your permit was based on the State ESA, not the Federal Act.
Your State has already moved to claim the taking power away from the people.

Looks to me that a strict interpretation sees you SOOL. You lost your Money and Ain't getting it back.
But notice nothing in the text of the Fifth Amendment decided this.
In fact the 5th doesn't define Private Property, so Interpretation is needed.



Lets start with a Well Regulated Militia,
?Does this mean one with regular training sessions, or one that follows government imposed regulations.?
More and more today it has come to mean Government Regulations, Despite that the Founders would [probably] go with the Training.
And that most Militias today strenuously Object to the Government, and its attempts to regulate everything.

But again there is no Definition in the Text.

This is the problem of trying a Strict interpretation. The common sense Definition of terms has changed over the past 200 years.

Historians can research what the definition used to be. As I said earlier, the meaning of a word is what the person who said it intended the meaning to be. The fact the Constitution is broken in it's intent does not change the fact.

No, standing armies simply did not exist until the Wars of Religion (and their little Anglo sideshow). Cromwell formed the first standing army, and it's still around. Kept getting bigger in fact.



No, because the same people put the Militia Acts, amongst others, to restrict weapons ownership to members of the Militia (which was essentially every White Anglo-Saxon Protestant, no guns for Blacks, Catholics, Indians etc.), what today is the National Guard or State Militia.

"That every citizen so enrolled and notified, shall within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack. . . ."

- Militia Act of 1792

Later revised to:

"That every citizen duly enrolled in the militia, shall be constantly provided with arms, accoutrements, and ammunition. . . ."

- Militia Act of 1803 (since only 1 in 4 militiamen had access to a musket, invariably either one of the Queen's Arms from the SYW or a Franco-Spanish musket as supplied to the Continental Army and absconded with in the AWI, the Federal Government takes arming them onto itself)

You might be right about the Militia Acts, but not about the New Model Army.

the New Model Army disbanded after the Restoration of 1660.
http://en.wikipedia.org/wiki/New_Model_Army#Interregnum

I agree with the majority here that it's completely impossible to have a document that can be the basis of governing a country for 250 years without requiring any subjective interpretation at any time.

But I think there is a way to salvage the hypothetical, and that is to ask: What if the case of Marbury v. Madison had come out the other way, and it never became part of the US governmental system that the Supreme Court can declare that a law conflicts with the Constitution?

In this scenario, the SC -- other than when it decided a dispute between one state and another -- would be the same as the highest appellate court in a state, only for the federal system. For instance, if there were a prosecution for a federal crime such as racketeering, and the prosecution created a novel legal issue, it could be appealed up to the SC, which would then interpret the racketeering law. But the SC would not be in the business of interpreting the Constitution.

I think an exact timeline of how this would play out would be extremely interesting. I can't come up with one myself. But, even in spite of terrible SC decisions such as Dred Scott and Plessy v. Ferguson, I think it's very likely that the results would be disastrous. The only check on the executive would be the legislature, and vice versa. You probably would see a rift between the two continually grow until the country was cleaved right down the middle, much like what characterized a certain era of British history. Since the presidency was not originally designed to be a powerful position, and since the US has no state religion and thus the president wouldn't have any allegiances on a religious basis... it's actually likely that the legislature would win this battle, and instead of an "imperial presidency" as we currently have, we'd have an "imperial legislature." Again, not exactly sure what concrete results this would have, but I do think the Constitution would cease to have much relevance and the system would get out of whack leading to bad decisions.

The amount of interpretation needed can plausibly be insignificant, as long as it is kept to that the intent of those who actually made the Constitution is the final judge.

Technically, nothing is completly impossible except a logical contradiction, though we in practice assume that it is impossible for the lawys of physics to be broken. If one is to assume the existence of free will, then at the worst it is highly unlikely.

As for your version of the WI, calling a presidency "imperial" is justified because it is comparable to the old Emperors. An "imperial legislature", as you call it, would actually be more in keeping with what was intended.
 
[lets ignore the fact that the US Supreme Court declared the Tenth amendment Mute in 1959]

Further proving that jurisprudence as understood by Marshall and the Federalists would do little to prevent the government from growing indefinitely.

Seriously, the Tenth is probably the most important of the Bill of Rights amendments, but just because the court has been packed with a bunch of partisan bozos means we get to ignore it?

Forget it. You can't change the Constitution just by getting your guy into one of the high seats. You have to do it through the democratic means provided by the same document.

It turns out that the denial of your permit was based on the State ESA, not the Federal Act.
Your State has already moved to claim the taking power away from the people.

Anyone who thinks this is vague doesn't understand the concept of popular sovereignty.

Powers are first and foremost relegated to the People. The People then cooperate to found a government through their Constitution. This becomes their state government. The state government has specific powers given up to it through its Constitution. Then, the state governments come together with the people to form a Federal government with its own Constitution.

The tenth amendment is sort of tautological, but only in the sense that it's re-affirming something already held to be true by the constitutional document -- that the federal government has no powers that are not specifically delegated to it, and all other powers are the province of the people or the states.
 
Just the simple facts that the Constitution is a document of finite length, general language, and was written at a certain time means that there will be interpretation involved in applying it to specific cases with specific circumstances in different eras. In a certain case, there might be an argument that is clearly more correct under the Constitution. But that is also often not the case. And even if it is, it still takes interpretation to get to it.

I think an unspoken assumption here is that it would be possible to have a system where the Constitution is amended every single time an issue comes up that it hasn't explicitly provided for. This is also totally implausible. Don't get me wrong, I'm sympathetic to the argument that the document was intended to be amended more often than 17 times in 225 years... but you would be talking in this scenario about dozens of amendments per year, each one of which would have to be proposed by Congress or by the states, and then voted on by the states. This would not be the least bit possible with so many amendments in the pipeline at once. The entire purpose of having representative government is so the vast majority of people don't have to worry so much about this crap and can do real work ;)

Again, I think the hypothetical of the Supreme Court not having constitutional review power is a plausible and interesting one. But if they weren't the ones whose job it was to interpret the Constitution, someone else would have to. The issue would then be where that power ended up going and how it would play out.
 
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