Cantor, Bishop and the other supporters of the amendment believe they are rebalancing the Constitution in a way the Framers would like. But it’s strange that the lawmakers would show their reverence for the Founding Fathers by redrafting their work.
Hey, Dana. The Founders put an amendment process into the Constitution for a reason. Though I suspect that one reason that hadn’t occurred to them would be that people like you would decide that it was a “living document,” subject to perverse interpretation that would eviscerate it of their original intent.
[Afternoon update]
More thoughts on Milbank’s ignorance, from La Althouse.
One of the major flaws in the Articles of Confederation was the lack of an amendment process. Just think, that whole Constitutional Convention was a waste of time, and unnecessary, if they’d only realized they just needed to “reinterpret” the Articles and treat it as a “living document”.
Here’s what makes it even funnier. Milbank has a snarky dismissal of Cantor because Cantor is considering Madison in relation to amending the Constitution.
“Now he knows: He wants to be Madison’s editor.” Because Madison hated the idea of changing the Constitution through the amendment process…
Does Milbank even know that Madison introduced a dozen potential Amendments at very the First US Congress, and that ten of them got ratified during his lifetime (with an eleventh ratified much later)?
Or is that factoid too obscure? Bill of Rights doesn’t come up once, odd for an article supposedly about Constitutional Amendments and The Founders.
Another hack that can be safely ignored.
The article was full of half truths and ignorant statements and deserves a serious rebuttal. I hope someone wiser and more skilled than I can do that soon.
I think the purpose could be achieved easier and simpler by repealing the 17th amendment. This gives the Senate back to the state legislators and governors and returns states rights.
I wonder what the thinks of the other Amendments, like the 13th.
If he were good at logic, his high-school adviser would have steered him into a more intellectual rigorous field than journalism. Journalism is what you do when you’re not creative enough to write books, not smart enough to be an art critic or dealer, not talented enough to do art, and not good enough at math and logic to do science or engineering or fix cars.
It’s either write columns for the Post or walk dogs, really.
If he were good at logic, his high-school adviser would have steered him into a more intellectual rigorous field than journalism.
Milbank went to Yale and no doubt considers himself an intellectual. The problem is, while he may be intelligent about some matters, he’s not wise enough to realize the magnitude of his ignorance on others. Arrogance will do that to you if you aren’t careful. I suspect he thinks it better for judges to determine what the Constitution means than to actually abide by what the Constitution says. What he wrote was plainly ignorant, if not outright stupid.
Milbank went to Yale and no doubt considers himself an intellectual
Yeah, that seems to be a problem with Yale. Is it something in the water? I went to MIT and Berkeley, and in both cases left feeling far humbler about what I was certain I knew.
Allowing 2/3 of the states to overturn a Federal law is in no way shape or form what Madison, et. al. wanted. They wanted Congress, composed of elected representatives, to actually legislate, not a collection of state legislatures.
Trivia, but Madison didn’t want to amend the Constitution – he thought the Bill of Rights wasn’t needed. The amendments were offered as a condition of ratification.
Allowing 2/3 of the states to overturn a Federal law is in no way shape or form what Madison, et. al. wanted.
I guess Madison, et. al. included the amendment process because they realized that what they wanted may not always be what the rest of the country wants.
They wanted Congress, composed of elected representatives, to actually legislate, not a collection of state legislatures.
In Madison’s time, the Senators were appointed by their state’s legislatures. Given that, I suspect he would be a lot more comfortable giving state legislatures, who, at least in theory, are more accountable to their constituents than Congressmen a direct say in federal legislature than the current system which gives them no direct role.
Madison, as a Virginian, didn’t really want a Senate at all. We got a Senate because Connecticut (and other small states) didn’t want to be outvoted by Virginia and othe big states in Congress. Please note that, unlike the Continental Congress, which allowed for states to recall their delegates, a Senator is elected for six years.
What Madison, et. al. wanted is that We The People send a bunch of smart people to Congress. These Congressmen then figure out what’s best for the nation.
These Congressmen then figure out what’s best for the nation.
Not quite. First of all, Madison knew very well he was designing a republic, not a nation-state. He wanted no part of the latter, having seen vividly the result in Bourbon and Revolutionary France.
Which means, second of all, those “wise men” were supposed to limit their figuring to some very specific subject areas, and otherwise indeed leave the states to do what they pleased. He would almost certainly have been horrified at the metastatic growth of the Federal government, and the way it reaches deep into the private lives of everyone, and renders nearly impotent the legislative acts of his beloved Virginia.
Finally, the very fact that Madison (and Jefferson) authored the Virginia Resolution of 1798, which specifically argued that states had the right and duty to decide for themselves the constitutionality of acts of Congress, I’d say your statement at line 1 is provable nonsense.
What Madison, et. al. wanted is that We The People send a bunch of smart people to Congress. These Congressmen then figure out what’s best for the nation.
Then why bother with a bunch of enumerated powers? The whole Constitution could have been written on a matchbook cover.
US Constitution
Article 1: Congress shall figure out what’s best for the nation.
The End.
Gee Carl and Rob, don’t start bringing facts and logics into an argument with Gerrib. He might just respond with a reminder that he has some sheepskin that suggests he knows History.
Carl Pham – nullification (including the Virginia and Kentucky resolutions) is a ship that sank a long time ago. It was replaced by the Supreme Court taking unto itself a power nowhere specified in the Constitution – that of declaring a law unconstitutional.
Second, your timeline is off – the French Revolution happened after the Constitution was ratified.
Madison was directly designing a nation-state, to replace an unworkable Confederation of mini-nations.
Sounds like nullification is a ship that should be refloated.
Second, your timeline is off – the French Revolution happened after the Constitution was ratified.
But before the Virginia Resolution of 1798, which Carl referenced.
Madison designed the republic in 1787. He may have changed his mind by 1798. He did that a lot. Getting his ass kicked in the War of 1812 seems to have made him a believer in a stronger military, for example.
He may have changed his mind by 1798.
Well in that case, Milbank’s arguments are entirely moot. If Madison can change his mind as a founding father, then perhaps he would see today the loopholes in the Consitution that have been abused by legislatures, such as the Congress that ends later this month.
It’s hard to argue that we should keep the US government just the way it was in 1789 (AKA, the Tea Party argument) AND we should change it.
Changing one’s mind cuts both ways. Madison was against a standing army, until the lack of one got Washington burnt to the ground. He might have decided that what worked for an agrarian, horse-based society wouldn’t work for a mechanized and urban one.
we should keep the US government just the way it was in 1789 (AKA, the Tea Party argument)
Don’t let your ignorance get in the way of making a straw man.
“Trivia, but Madison didn’t want to amend the Constitution – he thought the Bill of Rights wasn’t needed. The amendments were offered as a condition of ratification.”
Chris, you’re pretty hilarious at times. He thought the BoR wasn’t needed because nobody would be dumb enough to assume what they stated wasn’t obvious and inherent. As I recall, one argument for not putting a cap on the income tax in the 16th Amendment was that if a cap were specified then it would be hit immediately, and without a cap, nobody would want to exceed the 3% they were talking about.
In either case, how’s that idea worked out for us? Even with the BoR specifically enumerating a pile of rights, including the 9th and 10th, which specifically said “just because we didn’t bother listing all the rights doesn’t mean the people don’t have them,” the Fed ignores them!
I want to know what combination of things I can take that will allow me to have conversations with Madison so that I, too, can spout off about what he thought in the 1700s and 1800s, and what he thinks now.
nullification (including the Virginia and Kentucky resolutions) is a ship that sank a long time ago.
You think so, do you? Then what’s Cantor’s Amendment all about, eh? The only real problem with nullification, son, is that it was advanced in defence of slavery. Had it not been tied so inextricably to the peculiar institution, I suspect it would have become the law and custom long ago. It may yet.
In any event, you’ve missed the point. You asserted that “[a]llowing 2/3 of the states to overturn a Federal law is in no way shape or form what Madison, et. al. wanted.” And yet, as I pointed out to you, in 1798 Madison himself explicitly stated that Virginia had the right to overturn (or more relevantly ignore) an unconstitional Federal law all by itself.
So, you know, you’re wrong. Apparently you’ve now moved the goalposts so that what you say you meant to say was “Madison in 1787 thought such and such…even if he repudiated it a decade later.”
It’s hard to argue that we should keep the US government just the way it was in 1789…AND we should change it.
Couldn’t we find a middle ground? One where, say, we are cautious and seek broad consensus before we change a form of government that has generated unparalleled prosperity and freedom for the past 2.3 centuries? Particularly if we imagine changing it in the direction of some of the most spectacular failures in Europe?
For example, we could agree that any changes in the form of government have to be in writing. And that they have to be proposed by 2/3 of Congress, or…hmm…by a convention called by 2/3 of the states, and ratified by 3/4 of the state. We could then append them to the original Constitution, so they didn’t get lost.
But what would we call such changes? And what a pity Madison didn’t think of writing this very sensible process into the Constitution itself, the moron!
I’d have to disagree, Carl. I think we ought to get a Bunch of Smart People to decide what the Constitution really means. Then we don’t have to change the Constitution. Whenever something comes up for which the Constitution is no longer needed, then the Bunch of Smart People will make the right decide to interpret the Constitution in the right way, even ignore it if that’s the best course of action. And life will be good for us because the Bunch of Smart People have Our Best Interests at Heart.
Karl, can we call the Bunch of Smart People “Commisars”? I think it is a more appropriate term than what we use today, “Czars”.
Da, comrade, let us call them that.
As to the amendment in question, there are several things I like about it. First, it compensates for the loss of state power after the 17th Amendment which we can see in the form of funding with strings attached and unfunded mandates.
Second, the power is limited in a number of ways. One can only use the process to nullify laws (there’s still ambiguity how selectively law can be revoked). New law cannot be created by this process. It requires a supermajority of states, meaning that laws will need considerable effort to revoke.
To summarize, we have a need, the restoration of federalism, which the proposed amendment addresses and the power comes with significant limitations.
What Madison, et. al. wanted is that We The People send a bunch of smart people to Congress.
If so, they’d be mighty disappointed today.
Article 1: Congress shall figure out what’s best for the nation.
Exactly what they read, when they bother to read it. The law is what they say it is. After a lifetime of incumbent ‘service’ they ‘know’ what they’re talking about.
I want Randy Barnett on the supreme court.
“I wonder what the thinks of the other Amendments, like the 13th.”
Personally, I think the 13th doesn’t belong in the Constitution as written, for its intended purpose. Like the 18th Amendment, it is a proscription on the activities of the people and belongs in the U.S. Code.
The Constitution is the law which the federal government must obey. The U.S. Code is the law which the citizen must obey.
Interestingly, when it comes to the 13th Amendment (“Neither slavery nor *involuntary servitude* shall be permitted…”) is applicable *only* to the government, given that it’s in the Constitution, but only the government has violated it since its ratification (the draft, among other things).