Tag: constitution

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judiciary national politics & policies

Constitutionalize the Court

Supreme Court, court packing

“To undo the damage Republicans did by stealing multiple Supreme Court seats,” argues Demand Justice, “we should immediately add seats to the Supreme Court and appoint justices who will restore balance.”

“Stealing”? That’s hyperbolic, to say the least. The Senate used its constitutional prerogative by refusing to approve President Obama’s nomination of Merrick Garland in 2016 and four years later by swiftly voting to confirm Justice Amy Coney Barrett.

The group’s proposal? Add four new justices. 

Facing a 3 to 6 justice deficit (Dem-​nominated vs. GOP-​nominated), many Democrats and groups like this one have settled on adding four.

For “balance.” 

Which means, to them, going from the minority to the majority.

And you thought Democrats weren’t good at math!

Last week, President Biden announced a commission to look into this “court packing” notion, as well as other possible changes to the High Court, including term limits. 

“My colleagues and I need not wait for the findings of a commission,” offered Rep. Mondaire Jones (D‑N.Y.). It is “obvious,” he added, “we must expand the Supreme Court, before it’s too late.”

That is, before the next election or a resignation or tragic death of a single D‑Senator might flip the Senate to Republican control. 

“Adding seats is straight-​forward and easy,” reminds Demand Justice, correctly explaining that the Constitution specifies no number, “so Congress can change it at any time.”

Yes, even with the slimmest of congressional majorities Democrats could completely re-​make the High Court. Without a single Republican vote. 

A partisan takeover of the Supreme Court is way too “easy” — until we place the number of justices firmly in the Constitution, away from poisonous partisan politicians. 

It’s the most urgent reform of all.

This is Common Sense. I’m Paul Jacob.

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national politics & policies partisanship

Our Rules or Theirs?

Last Thursday, President Biden signaled “that he would be willing to consider supporting the elimination of the filibuster,” CBS News reported following his first news conference, “if Senate Republicans use it to block Democratic legislative priorities from receiving a full vote on the Senate floor.”

“If”? Stopping the majority party from taking its legislation to a floor vote without a 60-​vote supermajority to end debate is what the filibuster does.  

The president, a Democrat, is saying the filibuster is OK … as long as Republicans don’t use it.

You will of course not be shocked to learn that Biden has been a longtime, adamant supporter of the filibuster. In 2005, he gave an impassioned defense, arguing, “At its core, the filibuster is not about stopping a nominee or a bill — it’s about compromise and moderation.”

Biden called the GOP attack then a “fundamental power grab” and said his oration “may be one of the most important speeches for historical purposes that I will have given in the 32 years since I have been in the Senate.”

Yet, the filibuster is not in the Constitution. 

It is simply a Senate rule. And the majority party in the Senate can thereby fiddle with it. 

I’m not so much wed to the filibuster as I am wed to the idea that the rules with which Washington insiders wield power serve us and not just themselves. 

The filibuster should be made official in law or Constitution precisely so politicians cannot change it on whim or passion. 

Or it should be ended. But not before one party (or both) actually campaigns to end it, so that the American people can weigh in. Because these must be our rules if it is to be our government. 

This is Common Sense. I’m Paul Jacob.

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ideological culture national politics & policies

Equal Wrongs

ERA, Equal Rights Amendment, ratify, Constitution,

Back in the 1970s, the late Phyllis Schlafly charged that, if the Equal Rights Amendment (ERA) were ratified, women would be subject to the military draft. 

Funny thing, though — the ERA was not ratified, yet any return to the draft means our daughters would be forced into combat just like our sons. 

The 14th Amendment already requires equal protection of the laws.

Congress proposed the amendment in 1972 with a seven-​year period for ratification by the necessary 38 states. Even with an extension, the ERA fell three states short … well, make that eight, since five states* rescinded their initial ratifications. 

“One thing we are going to need to do right away,” declared Senate Democratic leader Dick Saslaw, “is pass the Equal Rights Amendment in Virginia.”

But it’s back, sorta. In recent years, Nevada and Illinois have ratified the timed-​out amendment. And with Democrats taking control of both chambers of the Virginia Legislature in this year’s election, the state could now become the 38th to ratify. 

Not so fast. Even Supreme Court justice and progressive action-​hero Ruth Bader Ginsberg has made it clear that the amendment has expired, that the process must begin anew. No amendment should be bum-​rushed into the Constitution.

Though some conservatives warn the ERA may undermine women’s rights. I support the language of the amendment as it plainly reads: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”**

Possible wrinkle: can anyone read plainly?

This is Common Sense. I’m Paul Jacob.

* Idaho, Kentucky, Nebraska, South Dakota, and Tennessee.

** There were two boilerplate clauses, in addition: Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. Section 3. This amendment shall take effect two years after the date of ratification.

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ERA, Equal Rights Amendment, ratify, Constitution,
Categories
judiciary national politics & policies Popular Second Amendment rights

Packing

Beto

“Are you proposing taking away their guns?” 

“I am,” replied former Texas Congressman Robert Francis “Beto” O’Rourke to ABC World News Tonight anchor David Muir’s question. If, anyway, “it’s a weapon that was designed to kill people on a battlefield.” 

“Hell, yes,” he added, later in last week’s Democratic presidential debate.

“We’re going to take your AR-​15, your AK-47.”

Yesterday, I noted that U.S. Senator Kamala Harris seemed oblivious to any consideration of the constitutional rights of citizens to “bear arms.” Today, consider the constitutional work-​around both Democrat presidential contenders support. You see, when they talk about confiscating your guns, they do not intend to go to all the hard work of changing the law of the land. They plan, instead, merely to change the High Court — something the president, with a majority of Congress, can do — and have the new justices re-​visit the legal interpretation.

O’Rourke “spoke openly after launching his run,” informs Politico, “about expanding the high court to as many as 15 judges.” Fox News reported that he “is open to making drastic changes to fundamentally reshape the Supreme Court — essentially court-​packing, with a twist.”

The “twist” is the scheme that I wrote about in March. In a bizarre nod to bipartisanship, O’Rourke would have Republicans select five justices, Democrats select five more, and then have those ten judges select yet another five. 

Only tradition and public opinion have kept the highest court in the land from previous hijackings.

Is Republican opposition all that stands in the way now?

Gives a whole new meaning to the question: Are you packing?

This is Common Sense. I’m Paul Jacob.

Beto

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general freedom U.S. Constitution

Why We Fought

When I was young, we were instructed to revere the men dubbed by President Warren Harding as “the Founding Fathers.” Reverence has since gone out of fashion.

Even today’s freedom-​minded often express a general iffiness about America’s separation from England.

Now, I’m so deep-​seatedly anti-​monarchical, so resolutely anti-​royal that I tend to shake my head at this sort of stuff. Yet people I very much admire might be called Revolution Liberty Skeptics.

“Can anyone tell me why American independence was worth fighting for?” asks economist Bryan Caplan. He says “it’s hard to get a decent answer” on specific policies improved by the secession from the Empire, at least liberty-wise. 

He speculates, for example, that separation “allowed American slavery to avoid earlier — and peaceful — abolition.”

Historian Jeffrey Rogers Hummel ably answers him, noting that before “the American Revolution, every New World colony, British or otherwise, legally sanctioned slavery, and nearly every colony counted enslaved people among its population. As late as 1770, nearly twice as many Africans were in bondage throughout the colony of New York as within Georgia, although slaves were a much larger percentage of Georgia’s population.” Vermont, which did not join the union until 1791, abolished slavery in 1777. By 1804, gradual emancipation had begun in all the remaining northern states that had not abolished slavery outright.*

Do we really think all this would’ve happened under British rule?

As Hummel reminds us, “emancipation had to start somewhere.”

It started in the country that put liberty up front.**

Scoffing at the Revolution now won’t put liberty further forward.

This is Common Sense. I’m Paul Jacob.

 

* New York’s gradualist plan declared all children of slaves born after July 4, 1799, to be free after ages 25 and 28 years, female and male, respectively. 

** Hummel makes good points on other freedoms, too.

 

 

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general freedom incumbents local leaders national politics & policies political challengers U.S. Constitution

The First Shall Be Last

Article the first, Amendments, Constitution, Representation, found, ratified, Apportionment of the U.S. House of Representatives

We were taught in school that the first ten amendments to the Constitution make up the Bill of Rights. True enough.

But not completely true — as I pointed out at Townhall.

In 1789, Congress passed and sent to the states twelve constitutional amendments, called “articles.” Our current First Amendment was billed as Article the Third.

The first two of the original batch did not pass at that time: Article the First and Article the Second. That latter article, after more than two centuries of wandering around legislatures, was finally ratified by the necessary three-​fourths of the states as the 27th Amendment to the Constitution. In 1992.*

As for the rejected Article the First, last Tuesday, Eugene M. LaVergne filed a motion, pro se, before a federal three-​judge panel convened in the D.C. Circuit to hear his challenge to “the validity and Constitutionality of the 2010 Apportionment of the U.S. House of Representatives.” He and four other rabble-​rousing New Jersey citizens are challenging the courts to acknowledge a surprising truth: the original Article the First was actually ratified.

On June 21, 1792, Kentucky’s legislature voted to ratify, making it the twelfth of fifteen states at that time to do so.

It’s a complicated story. One of the elements is a clerical error.

But rectifying this old mistake would have huge repercussions.

How huge? Currently the lower house of Congress has a mere 435 members. Were this amendment acknowledged, that number would soar to over 6,150 members.

And that would be a good thing.**

This is Common Sense. I’m Paul Jacob.

 

* Sadly, its sensible prohibition — “No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of representatives shall have intervened” — was immediately rendered toothless by the automatic cost of living salary adjustments congressmen had already provided themselves.

** Skeptical? Well, click here for a preview of more detailed arguments to come.

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