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Abbott v. Yoo
In which yours truly, interviewing Gov. Abbott of Texas about his call to amend the Constitution, describes our own John Yoo’s principal objection to the Governor’s plan. Both a former judge and the former Texas attorney general, Gov. Abbot replies to Counsellor Yoo, vividly.
Two minutes of pretty darned fascinating television, if I do say so. But see for yourself:
Published in General
My objection is that the text of the Constitution isn’t the problem. The problem is with the officials of government (principally the Supreme Court, but hardly limited to them – the president is also a major offender) who “interpret” the words to mean whatever they wish, regardless of how the words were originally intended.
If you change the words, those same officials will just misinterpret your new words.
As every social conservative knows, once you declare that the Court must “uphold the rights” of citizens, but you don’t apply any standard for what those rights are … or worse, as happens now, you assert that rights can be made up (by the Court alone, of course – never to be voted on) as we go along to fit the changing values of the country, then the text of the Constitution doesn’t mean a damned thing. Who cares if you change the text?
I agree with KC. The Supremes fold/spindle/mutilate the text and just make poop up when they feel like it. They find whatever emanations of penumbras that they desire. The words mean whatever they say they mean at that moment.
I do appreciate his explanation of the difference between a Constitutional convention and convention of the states.
Thanks, very much, for isolating this, Peter.
Awesome. When do we get Yoo’s reply?
And when are you gonna get these two together behind the same UK table to hash this out?
Not sure when, Fred, but I can tell you that getting the two of them at the same table is at this very moment my fondest journalistic dream.
Our government is not abiding by the current Constitution. Why fine tune something that is ignored? The entire fault in our failure to abide by the current law is properly laid at the feet of the Supremes. How they became the final arbiters of our society’s laws is the most vivid fault of Congress. The Peoples’ house was supposed to be inviolate, but now a black-robed nincompoop can dictate that biologically impossible, scientifically irrelevant marriage is a good thing? One of the many reasons that I’m solidly with the bomb-throwing Trump.
Nonetheless, it is illuminating to see Abbott’s take on the matter. He’s a good man. Thanks again, Peter.
This here. Doesn’t matter what we pass, Amendment-wise. SCOTUS will just either ignore it outright, like the 9th Amendment, explain it away, like the 10th Amendment, or simply declare that up is sideways and green is purple. And because they’re the Supreme Court, when they do so, it becomes law.
I don’t blame the governor for making fun of Berkeley, though I doubt he won a lot of votes on the UT Austin campus either!
But I am worried that he takes the concerns about a runaway constitutional convention so lightly. The governor has two answers to the problem of constraining a convention: a) it will be a convention of the states and devoted only to limiting federal power; b) the states can still check the convention through their ultimate authority to approve (by three-quarters) or reject all amendments to the Constitution.
The first answer is no answer. Regardless of what the states or Congress call the Convention (Convention of the States, Convention of the People, Convention of the Right, Convention of the Left), once called it will have the freedom to work its own will. Nothing in the constitutional text allows the states or Congress to limit a convention to a narrow subject matter. The governor and the state of Texas may want to restrict the convention to the consideration of federalism amendments, but the convention may instead seek to do away with the separation of powers, the Bill of Rights, or the Takings Clause. A Convention may even want to overrule the existing limits on federal power — the people seemed to support this in 2008 when it sent a Democratic President, Senate, and House to Washington to enact Obamacare, the most extreme expansion of federal regulatory power in American history.
Second, it is true that one-quarter (plus one) of the states can still constrain the Convention by refusing to adopt its amendments. But suppose the Convention issues a call for popular approval of a totally new Constitution (one without a separation of powers, for example, or with a new Bill of positive Rights). And suppose the Convention says that the new Constitution will take effect once enough states representing a majority of the population have approved.
Since we have never had a Convention, we do not know whether the three-quarters requirement in Article V of the Constitution could truly constrain a popular (but not supermajority) ratification of a successor Constitution. We have one historical example: the existing Constitution. The Philadelphia Convention was composed of delegates who were sent by the states to propose amendments to the Articles of Confederation. Instead, they proposed a complete replacement that ignored the amendment process under the Articles and instead created its own process for ratification. Once nine states ratified the Constitution, the Articles were swept away, even though the Constitution was technically illegal under the Articles. Our current Constitution was the product of popular sovereignty, rather than the amendment process of its own day. Can we be confident that the same thing could not happen again?
Should something like that happen, I suspect Texans would decide the United States had been dissolved and reassert its national sovereignty. California and Hawaii would have the same option. Perhaps the rest of the states would be stuck.
Texas could not do this? Well the states cannot change the Constitution through an Article V Convention without the three-quarters requirement.
If push comes to shove, remember where the only nuclear weapons production facility in North America is. Texas would be a nuclear power, and unlike Ukraine will not be foolish enough to surrender its weapons in exchange for border guarantees.
Seawriter
John’s right. Concern about a runaway convention is justified.
We tried this once before and a runaway convention is exactly what happened.
Now, it turns out that they produced a classical liberal masterwork. But they also did it at the high watermark of the Enlightenment.
Considering that our current political system has given us a choice between Hillary Clinton and Donald Trump, I shudder to think of that it would produce if we were to have a convention today.
Fred, I think the governor makes a good point that this isn’t a Constitutional convention.
That said, I think his ideas about how all the states ratify similarly limiting measures is fantasy, but appreciate his thoughts on it.
After a lunch meeting yesterday and talking to different folks it seems the Texas Reoublican party, and Gov. Abbott by virtue of senior office holder, are dealing with different/unique issues and some of this convention drumbeat is an intentional distraction.
Suppose it does? We do not have a Congress, SCOTUS, or POTUS that cares a fig about what our Constitution actually provides–only their desired skew of its words. How is the risk of a ConCon greater than a continued blatant refusal to stay within the limits of the written Constitution? SCOTUS is more interested in what prior decisions say than what the Constitution says. Congress is more interested in their next election than in what the Constitution says. And POTUS is more interested in accreting more power to its office not matter the party of its occupant. So tell me again the real risk in a ConCon? It looks different from street-level than from a campus’ ivory tower.
This is crazy risk and a distraction to give the impression some politicians are dealing with our problems.
That, or Yoo and Randy Barnett.
Of what?
It’s not actually a constitutional convention. It’s not even an amending convention. It’s a suggesting convention. The only work product of such a convention would be suggested amendments.
Yoo and Cole are operating under an understanding that lacks the context of the rules of the convention.
And the last time we tried that, they ended up rewriting the whole thing. This isn’t some scary fantasy scenario we’ve come up with. We have precedent.
How about just Randy Barnett. As far as I know nobody has done a more thorough–and to my mind–better job of laying out where we are, how we got here, and what could be done to rescue Our Republican Constitution than Randy Barnett. If there are others I’d be happy to check them out too.
So….the last time was a ‘scary scenario’? And exactly how did their ‘scary’ work-product become binding on the state-participants?
In the land of leftist historical narratives nothing is what it seems
Beautiful. Thank you, Peter Robinson.
Sadly, I fear K C M is right. There’s next to nothing wrong with the written Constitution we have. Our real problem is that we operate by an unwritten constitution, against the written one.
When was that?