The Constitution is Not a Straight-Jacket

 

This is just a quick hit post. I saw a headline on yet another court action to stop the Trump administration from doing something that most people assume is within his administrative power to do. And the thought occurred to me that while the Constitution is famously not a “suicide pact” neither is it supposed to be a “straight-jacket” to limit what most people consider fairly common sense and typical government activity.

I am a limited-government proponent, so a court action stopping government action is not per se offensive to my constitutional sensibilities. But the form of law-fare that we have seen over the last two-plus years by progressives both on and off the bench is beyond frustrating. I have had it, and I hope the electorate will emphatically disapprove of this sort of obstruction by progressives in the next election cycle.

Discuss.

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There are 38 comments.

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  1. Hang On Member

    I wish judges had to be elected.

    • #1
    • July 10, 2019, at 8:57 AM PDT
    • 5 likes
  2. Arahant Member

    Rodin: I have had it, and I hope the electorate will emphatically disapprove of this sort of obstruction by progressives in the next election cycle.

    We can hope, although I have a very low opinion of that demon.

    • #2
    • July 10, 2019, at 9:08 AM PDT
    • 5 likes
  3. MichaelKennedy Coolidge

    Remember that Gulliver was tied down by a large number of Lilliputians. I forget how he got away. Been a few years.

    • #3
    • July 10, 2019, at 9:19 AM PDT
    • 3 likes
  4. Susan Quinn Contributor

    I assume you were inspired by the most recent absurd judicial act: a judge telling the DOJ and Trump that they can’t change out the staff working on the census question. Excuse me? We are talking about a staff change in the administration. You’re post is spot-on.

    • #4
    • July 10, 2019, at 9:24 AM PDT
    • 10 likes
  5. Paul Erickson Member

    The Constitution is not a Straight-Jacket

    Good thing. That would be so homophobic and un-woke.

    • #5
    • July 10, 2019, at 9:30 AM PDT
    • 9 likes
  6. Misthiocracy secretly Member

    Rodin: Discuss.

    On the one hand: The Constitution does not require that the federal government count the number of “citizens”. It only requires that the federal government count the “respective Numbers” of people in each state.

    On the other hand: The Constitution does not grant the executive branch the authority to count anything other than what Congress tells it to count.

    Article 1, Section 2, Clause 3:

    “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. ” (emphasis mine)

    On the third hand (feel free to call me “Tripod”): It could very well be that Congress at some point granted the executive branch free reign to design Census questions, and that legislation is still on the books. I dunno.

    • #6
    • July 10, 2019, at 9:40 AM PDT
    • 3 likes
  7. Paul Erickson Member

    Misthiocracy secretly (View Comment):
    On the third hand (feel free to call me “Tripod”)

    OK, but only if you’ve got three feet to match your hands.

    • #7
    • July 10, 2019, at 9:44 AM PDT
    • 4 likes
  8. Arahant Member

    Misthiocracy secretly (View Comment):
    On the third hand (feel free to call me “Tripod”)

    Surely there is a fourth or fifth point?

    • #8
    • July 10, 2019, at 9:56 AM PDT
    • 1 like
  9. PHenry Member

    I think I have to disagree with you. The constitution was actually supposed to be a straight jacket, one that severely constrains the federal government. Thus the ‘negative rights’ argument made by FDR and others.

    I see what you are driving at about the census, but I would prefer that the constitution be revered as a document intended to limit government, thus, a straight jacket on power hungry bureaucrats.

    • #9
    • July 10, 2019, at 10:44 AM PDT
    • 11 likes
  10. Aaron Miller Member

    Misthiocracy secretly (View Comment):
    On the one hand: The Constitution does not require that the federal government count the number of “citizens”. It only requires that the federal government count the “respective Numbers” of people in each state.

    Because a system of laws can only be functional while reason reigns. When people commonly refuse to distinguish between citizens and invaders, law becomes a game of opportunity and power.

    In other words, the Constitution was written by men who saw no need to spell out various assumptions about society. When those assumptions must be codified, they will be ignored regardless.

    • #10
    • July 10, 2019, at 11:23 AM PDT
    • 9 likes
  11. Fritz Member

    If there could be an end put to the supposedly nationwide injunctions being issued by district court judges, a lot of lawfare problems would be resolved.

    • #11
    • July 10, 2019, at 12:35 PM PDT
    • 6 likes
  12. Stina Member

    Aaron Miller (View Comment):
    In other words, the Constitution was written by men who saw no need to spell out various assumptions about society

    I think this is what I find so infuriating about our current times. We are completely untethered from any thing that grounds us to our past.

    It’s bizarre and frightening.

    • #12
    • July 10, 2019, at 1:49 PM PDT
    • 6 likes
  13. CarolJoy, Above Top Secret Coolidge

    Fritz (View Comment):

    If there could be an end put to the supposedly nationwide injunctions being issued by district court judges, a lot of lawfare problems would be resolved.

    Someone with the wisdom of a Sidney Powell would agree with you and expand on your thesis. But although I agree with you, I still don’t understand all the fine points that she has put forth about the need to reform the judiciary.

    • #13
    • July 10, 2019, at 2:15 PM PDT
    • 2 likes
  14. Stad Thatcher

    Misthiocracy secretly (View Comment):

    Rodin: Discuss.

    On the one hand: The Constitution does not require that the federal government count the number of “citizens”. It only requires that the federal government count the “respective Numbers” of people in each state.

    On the other hand: The Constitution does not grant the executive branch the authority to count anything other than what Congress tells it to count.

    Article 1, Section 2, Clause 3:

    “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. ” (emphasis mine)

    On the third hand (feel free to call me “Tripod”): It could very well be that Congress at some point granted the executive branch free reign to design Census questions, and that legislation is still on the books. I dunno.

    From what I understand, the majority opinion acknowledged the question was legal, but the reason for including it was not reasonable justified. If true, this means the opinion can be ignored.

    • #14
    • July 10, 2019, at 2:57 PM PDT
    • 5 likes
  15. I Walton Member

    Epstein discusses the constitution on July 3. Worth listening to as few bring such depth of knowledge and firmness of conviction to the topic.

    • #15
    • July 10, 2019, at 4:05 PM PDT
    • 3 likes
  16. Gumby Mark (R-Meth Lab of Demo… Thatcher

    PHenry (View Comment):

    I think I have to disagree with you. The constitution was actually supposed to be a straight jacket, one that severely constrains the federal government. Thus the ‘negative rights’ argument made by FDR and others.

    I see what you are driving at about the census, but I would prefer that the constitution be revered as a document intended to limit government, thus, a straight jacket on power hungry bureaucrats.

    I agree but the complicating issue is many of the courts developing a new legal theory, Trumplaw, which seems to apply only in certain specific circumstances.

    • #16
    • July 10, 2019, at 4:14 PM PDT
    • 8 likes
  17. Stina Member

    Gumby Mark (R-Meth Lab of Demo… (View Comment):

    PHenry (View Comment):

    I think I have to disagree with you. The constitution was actually supposed to be a straight jacket, one that severely constrains the federal government. Thus the ‘negative rights’ argument made by FDR and others.

    I see what you are driving at about the census, but I would prefer that the constitution be revered as a document intended to limit government, thus, a straight jacket on power hungry bureaucrats.

    I agree but the complicating issue is many of the courts developing a new legal theory, Trumplaw, which seems to apply only in certain specific circumstances.

    Such as… Trump opened his mouth.

    • #17
    • July 10, 2019, at 4:17 PM PDT
    • 5 likes
  18. Unsk Member

    Trump is allegedly considering an executive order to add the “are you a citizen question ” to the census. He would be on very solid Constitutional grounds. 

    From David Rifkin Jr and Gilson Gray in the WSJ and Clarice Feldman at American Thinker:

    “Section 2 of the 14th Amendment provides that if a state denies the franchise to anyone eligible to vote, its allotment of House seats shall be “reduced in the proportion which the number of such… citizens shall bear to the whole number of… citizens… in such state.” This language is absolute and mandatory. Compliance is impossible without counting how many citizens live in each state. [snip] The president should issue an executive order stating that, to comply with the requirements of Section 2 of the 14th Amendment, the citizenship question will be added to the 2020 census. In addition, he can order the Commerce Department to undertake, on an emergency basis, a new Census Act rule making. “

     

    On whether the Constitution should be a straitjacket:

    PHenry: The constitution was actually supposed to be a straight jacket, one that severely constrains the federal government. Thus the ‘negative rights’ argument made by FDR and others. 

    P is right the Constitution was supposed to be a straitjacket that severely contains the abuse of power by government. 

    Rodin: “Constitution is famously not a “suicide pact””.

    That is also true. However, I think where the rub is not with the Constitution; it is with those Supreme Court Justices and other judges in the Appeals Court that have grossly exceeded the powers granted them by the Constitution. Even if you concede that Marbury vs Madison decision gave the Supreme Court the power to interpret the Constitution, the way that Justices over the last 100 years have bent, ignored and flat out contradicted the Constitution simply violates the Constitutional order. At the time of Marbury vs Madison, words meant largely what they were intended to say, with very little argument from across the political spectrum. There was no deconstruction of our language, no idea that the truth is relative and other bending of a word’s true meaning. These contemporary concepts have made a mockery of Constitutional interpretation and have allowed current Justices to say Up is Down, Black is White, and Evil is Good.

    The Roberts concurrence on the Census question is a great example. He argued that argument for the question was “contrived”. A very and dubious subjective standard. Justice Alito warned of such questioning of government motive:

    ” (Alito) feared that the majority’s standard would invite trial judges to search for pretexts in other cases. “If this case is taken as a model, then any one of the approximately 1,000 district court judges in this country, upon receiving information that a controversial agency decision might have been motivated by some unstated consideration, may order the questioning of Cabinet officers and other high-ranking Executive Branch officials, and the judge may then pass judgment on whether the decision was pretextual,”

     

     

    • #18
    • July 10, 2019, at 5:44 PM PDT
    • 8 likes
  19. Gumby Mark (R-Meth Lab of Demo… Thatcher

    Unsk (View Comment):

    Trump is allegedly considering an executive order to add the “are you a citizen question ” to the census. He would be on very solid Constitutional grounds.

    From David Rifkin Jr and Gilson Gray in the WSJ and Clarice Feldman at American Thinker:

    “Section 2 of the 14th Amendment provides that if a state denies the franchise to anyone eligible to vote, its allotment of House seats shall be “reduced in the proportion which the number of such… citizens shall bear to the whole number of… citizens… in such state.” This language is absolute and mandatory. Compliance is impossible without counting how many citizens live in each state. [snip] The president should issue an executive order stating that, to comply with the requirements of Section 2 of the 14th Amendment, the citizenship question will be added to the 2020 census. In addition, he can order the Commerce Department to undertake, on an emergency basis, a new Census Act rule making. “

    I think there’s a problem with this strategy. The word omitted in front of “citizens” in the quoted language is “male”. And Section 2’s reference to the specific violation is “But when the right to vote at any election . . . is denied to any of the male inhabitants of such State . . .” On the other hand, maybe they can get Stacey Abrams’ support!

     

    • #19
    • July 10, 2019, at 6:05 PM PDT
    • 4 likes
  20. Unsk Member

    Gumby, As you well know at the time of the writing of that Section 2 of the 14 th Amendment, only males were allowed to vote, so the term “male” should not nullify the content of that amendment, which has not been amended since btw. To nullify that interpretation of the 14th amendment because of the word “male” would be yet another mis-interpretation of the Constitution. The intent was clearly to ascertain the correct number of citizens eligible to vote.

    • #20
    • July 10, 2019, at 8:33 PM PDT
    • 7 likes
  21. CarolJoy, Above Top Secret Coolidge

    Stad (View Comment):

    Misthiocracy secretly (View Comment):

    Rodin: Discuss.

    On the one hand: The Constitution does not require that the federal government count the number of “citizens”. It only requires that the federal government count the “respective Numbers” of people in each state.

    On the other hand: The Constitution does not grant the executive branch the authority to count anything other than what Congress tells it to count.

    Article 1, Section 2, Clause 3:

    “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. ” (emphasis mine)

    On the third hand (feel free to call me “Tripod”): It could very well be that Congress at some point granted the executive branch free reign to design Census questions, and that legislation is still on the books. I dunno.

    From what I understand, the majority opinion acknowledged the question was legal, but the reason for including it was not reasonable justified. If true, this means the opinion can be ignored.

    So the SCOTUS opinion can be ignored because it is contradictory? Is that your meaning? (I”m not disagreeing – just trying to figure the situation out.)

    And by the way, the question has been on every census up to 2020. It was definitely on the census during prior Administrations.

    ####

    • #21
    • July 11, 2019, at 1:02 PM PDT
    • 3 likes
  22. OmegaPaladin Moderator

    Misthiocracy secretly (View Comment):

    Rodin: Discuss.

    On the one hand: The Constitution does not require that the federal government count the number of “citizens”. It only requires that the federal government count the “respective Numbers” of people in each state.

    On the other hand: The Constitution does not grant the executive branch the authority to count anything other than what Congress tells it to count.

    Article 1, Section 2, Clause 3:

    “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. ” (emphasis mine)

    On the third hand (feel free to call me “Tripod”): It could very well be that Congress at some point granted the executive branch free reign to design Census questions, and that legislation is still on the books. I dunno.

    No, you are just a Motie.

    • #22
    • July 11, 2019, at 1:17 PM PDT
    • 3 likes
  23. TBA Coolidge
    TBA

    Paul Erickson (View Comment):

    Misthiocracy secretly (View Comment):
    On the third hand (feel free to call me “Tripod”)

    OK, but only if you’ve got three feet to match your hands.

    https://www.youtube.com/watch?v=yjVqxkxB5R4

    • #23
    • July 11, 2019, at 5:18 PM PDT
    • 1 like
  24. Jerry Giordano (Arizona Patrio… Member

    I don’t think that the “straight-jacket” metaphor is the best way to conceptualize the problem here.

    This is a separation of powers problem. It is judicial overreach, which is just as much a form of tyranny as executive or legislative overreach. However, in our current system and with our current norms of behavior, there is no effective check on judicial tyranny.

    The norm of behavior that would correct this is the historical approach taken by Presidents Jefferson and Jackson and Lincoln, who disregarded overreaching SCOTUS decisions. Here is a compendium of Jefferson’s responses to Marbury v. Madison.

    Lincoln, if I recall correctly, disregarded writs of habeas corpus issued by Chief Justice Taney.

    • #24
    • July 13, 2019, at 12:38 PM PDT
    • 6 likes
  25. Gumby Mark (R-Meth Lab of Demo… Thatcher

    Jerry Giordano (Arizona Patrio… (View Comment):

    I don’t think that the “straight-jacket” metaphor is the best way to conceptualize the problem here.

    This is a separation of powers problem. It is judicial overreach, which is just as much a form of tyranny as executive or legislative overreach. However, in our current system and with our current norms of behavior, there is no effective check on judicial tyranny.

    The norm of behavior that would correct this is the historical approach taken by Presidents Jefferson and Jackson and Lincoln, who disregarded overreaching SCOTUS decisions. Here is a compendium of Jefferson’s responses to Marbury v. Madison.

    Lincoln, if I recall correctly, disregarded writs of habeas corpus issued by Chief Justice Taney.

    There’s also FDR’s preemptive tack in this regard. In 1942, 8 Germans were landed in America by Nazi subs for purpose of sabotage. One of the Germans immediately turned himself in. Most of the eight had lived in America at one time or another and two held US citizenship. They were tried in closed proceedings by a military tribunal and six were sentenced to death. Filings were made on behalf of the defendants (I think the two citizens) to the Supreme Court seeking a writ of habeas corpus. Worried that the writ might issue, FDR had his attorney general speak privately with Chief Justice Stone to warn him that if the writ issued the President would not comply. The writ did not issue.

    The justice system moved quickly in this case. Eight weeks after the Germans landed in America, six were executed.

    • #25
    • July 13, 2019, at 1:14 PM PDT
    • 2 likes
  26. Arahant Member

    Jerry Giordano (Arizona Patrio… (View Comment):
    Lincoln, if I recall correctly, disregarded writs of habeas corpus issued by Chief Justice Taney.

    And considered having Taney jailed.

    • #26
    • July 13, 2019, at 2:07 PM PDT
    • 2 likes
  27. Jerry Giordano (Arizona Patrio… Member

    Arahant (View Comment):

    Jerry Giordano (Arizona Patrio… (View Comment):
    Lincoln, if I recall correctly, disregarded writs of habeas corpus issued by Chief Justice Taney.

    And considered having Taney jailed.

    Drawn and quartered might have been more appropriate, Eighth Amendment be damned.

    • #27
    • July 13, 2019, at 5:26 PM PDT
    • 2 likes
  28. Cato Rand Reagan

    I don’t know what particular decision you’re talking about but the Constitution is precisely a straight jacket. The whole point was to create a federal government to do a few things that just couldn’t be done elsewhere, but to tie it in knots when it tried to do anything else.

    • #28
    • 12 Hours Ago
    • 7 likes
  29. Fritz Member

    Cato Rand (View Comment):I don’t know what particular decision you’re talking about but the Constitution is precisely a straight jacket. The whole point was to create a federal government to do a few things that just couldn’t be done elsewhere, but to tie it in knots when it tried to do anything else.

    Agreed. There is a significant difference between the concept of a federal government and the concept of a central government.In the former, the several states are not subsidiaries of the national government, whereas in the latter, they would be.One illustrative analogy is counties are political subdivisions of a state, but states are not political subdivisions of the federal government. This distinction was enshrined in the 9th and 10th Amendments in our Bill of Rights.

    • #29
    • 12 Hours Ago
    • 6 likes
  30. OldPhil Coolidge

    Cato Rand (View Comment):I don’t know what particular decision you’re talking about but the Constitution is precisely a straight jacket. The whole point was to create a federal government to do a few things that just couldn’t be done elsewhere, but to tie it in knots when it tried to do anything else.

    Ding ding ding!

    • #30
    • 12 Hours Ago
    • 3 likes
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