Tuesday, August 25, 2015

Refanging The 10th Ammendment

I'm a huge fan of Charles Murray. Despairing of the incompetence and nearly unconstrained growth of the Federal government, he wrote the book By the People: Rebuilding Liberty Without Permission in which he makes cogent, yet unsatisfying arguments for civil disobedience that he suggests will throw sand in the government gearbox. He calls for the masses to rise up in litigious revolt, finding ways to use the insanely complicated bureaucracy against itself. His plan is too easy to defeat as the government would find ways to adjust their regulations and defeat his guerrilla campaign.

In it's place, I'd suggest a new ammendment to the Constitution, along the lines of the 10th.
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.
This has been trampled by the courts to the point where semi-literate toads like Congressman Pete Stark can tell you that the Federal government can do anything it wants. Rewrite that amendment and all of a sudden, almost all of the Federal government becomes unconstitutional and is put out of business immediately, to be recreated in the states or not as the citizens see fit.



tim eisele said...

So if you were to re-write it, how do you think it should read? And how would you keep it from being "reinterpreted" away again?

(and then there's the question of getting it passed as an amendment. I don't see any way that Congress could be persuaded or forced to do it to themselves, we'd have to go through the route of 2/3 of the states passing it before getting 3/4 approval from their legislatures. Since it would amount to giving more power to the states, that's a bit more likely, at least, but still a long shot)

(Although I'm not sure giving more power to the states is actually an improvement. If you read the Constitution, it doesn't look like the states are prohibited from doing very much. It actually looks like states are even free to be, say, hereditary dictatorships if they want, provided that they don't violate the Bill of Rights too flagrantly.)

K T Cat said...

Look, I'm an idea guy. I leave the details to others.


In all seriousness, I didn't think it past this point, but in going through Churchill's history books, when you get to the Americans of 1776-1820, it's clear that the current behemoth was not what they had in mind. They created a Constitution to prevent that, but the courts and legislatures have adulterated it beyond recognition. What it needs is a restatement of restraint.

IlĂ­on said...

I think that one of the biggest reasons, and perhaps the biggest reason, that the current (and collapsing) behemoth is an anti-liberty behomoth is that people -- even senators and supreme Court (*) justices -- simply don't understand the Constiution, and mostly never try to rectify the lack. It's sort of like the case of the Bible ... everyone has one, and no one reads it.

The nearlky universal misunderstanding of the Constitution starts in civics class, wherein we are taught falsehoods about the Constitution which a simple reading of it ought to dispell.

For instance, one of the first things drummed into us in civics class is that we have a federal government of three "co-equal" branches. Now, this claim is false in two ways: it's false by the Constitution (that is, it is fase de jure), and it is false by how the federal government actually operates (that is, it is fase de facto).

De facto, our rulers are various judges within federal courts. And just below the judges are the "permanent government" within the bureaucracy, which is ostensibly answerable to the chief executive.

De jure, the Constitution established the *Congress* as the supreme branch of government.

Another civics class myth is that the Constitution establishes an "independent" judiciary (which is "co-equal" with the other branches). It does nothing of the sort: the Constitution makes the federal courts, and specifically the supreme Court, creatures of the Congress -- the Constitution given the Congress the authority to declare that almost every matter of law is outside the jurisdiction of the supreme Court (and thus all federal courts): so, for instance, if Congress were so minded, it could simply enact bills overturning both Roe and Obergefell and include provisions declaring these matters to be outside the jurisdiction of the federal courts.

Another civics class myth is that the Constitution grants the power of "judicial review" to the supreme Court, and thus to the federal courts under it. The Constitution does nothing of the sort; the Court's exercise of "judicial review" is an unConstitutional usurpation going back to 1803 (John Marshall's power grab appealed to the then-current partisan needs of both the Federalists and the Democrats, and so the politicians cooperated in violating the Constitution ... as they have been doing ever since).

Isn't it odd that so many of the myths we are taught in civics class have the effect of making us blind to blatant violations of the Constitution? Really, it's not all that odd -- the tone of our nationalized education was set in the Progressive Era, and the Progressives were all about a stealth overthrow of the Constitution.

(*) interesting tidbit -- the Constitution never mentions any "Supreme Court", but only a "supreme Court"