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Would you not consider active and intentional erosion of the very cornerstone of the United States Constitution an act of War against the union. Couldn't one ar

by x0054 11y ago

Would you not consider active and intentional erosion of the very cornerstone of the United States Constitution an act of War against the union. Couldn't one argue that by undermining the very definition of what makes America America, these people are directly giving aid to our enemies, what ever those might be?

dragonwriter 11y ago
Yeah, that's exactly the kind of "anything that I think harms the country is Treason" logic that the Constitutional definition of Treason was put into place to negate, the trend of defining new and creative forms of "treason" having been familiar to the founders. Treason's not a hammer to beat your political opponents over the head with. Electoral accountability and separation of powers between the branches is the control on unconstitutional laws, not Treason prosecutions. And, on a more practical level, if you don't have the federal executive and the judiciary on your side, your new federal "Treason" definition does you no good against politicians pushing laws that would violate the first amendment. But if you have the federal executive and judiciary on your side, all the laws violating the first amendment in the world that can be passed aren't going to have any effect. So, aside from its unconstitutionality and undesirability on a theoretical level, there are in practice no situations where your law would both (a) be needed, and (b) have any effect.
rayiner 11y ago
Fun fact: the Bill of Rights didn't even apply to the states until 1925. At the time of the founding when the Constitution was presumably still all American and whatnot, a law like this to protect the unique interests of an agricultural state would've been kosher. There might have been a state constitutional issue, but those are much easier to amend. The idea of a federal court striking down a law duly enacted by a state legislature (by more than 2/3 of each house) on the basis of the federal constitution, as happened here, would have been very disquieting to the framers.
- kelnos 11y ago
  The idea of a federal court striking down a law duly enacted by a state legislature (by more than 2/3 of each house) on the basis of the federal constitution, as happened here, would have been very disquieting to the framers. I very much doubt that's the case: if so, they were fairly stupid. Giving federal courts the ability to strike down state laws is necessary when we have the Commerce Clause. It's about balance: kill the Commerce Clause, and you can let the states sort it out (e.g. California could say, "ok, Idaho, you want to pass a law that unjustly jails people for reporting on agricultural criminal activity... fine, go for it, but we're going to ban imports of all your goods into our state"). Keep the Clause, and you need something to check potentially-abusive state power.
  - rayiner 11y ago
    States have their own constitutions and their own courts to protect their own citizens. The original purpose of the federal courts was to ensure a neutral forum for the enforcement of federal laws, not to be a second level of oversight of how states treat their own citizens. But I agree with you, the original design was stupid. I'm just saying that before people start frothing at the mouth about the spirit of the first amendment, they bear in mind it wasn't originally intended to be used the way it was here.
    - dragonwriter 11y ago
      > The original purpose of the federal courts was to ensure a neutral forum for the enforcement of federal laws The Constitution is a federal law; the enforcement of the Constitution -- including against State violations -- is included within the enforcement of federal law. This is fairly express in the Constitution, and it was clear in practice in the first couple decades the Constitution was in operation. Now, the protections in the Bill of Rights didn't extend to the States under the original Constitution, so its true that enforcing the Bill of Rights against the States was not part of that -- but not because the original design didn't involve the federal judiciary enforcing the federal Constitution against the States, but because that part of the federal Constitution didn't apply to the States. (And, technically, it doesn't now, either, however the current understanding is that 14th Amendment due process applies protects fundamental rights -- many of which are coextensive with, or at least closely approximate, those protected against federal encroachment by the Bill of Rights -- against state encroachment.)
- dragonwriter 11y ago
  Federal courts were striking down state laws for violating the federal constitution while the founders were still politically active; most notably for intruding on Congress's Commerce clause authority. They might have been disquieted by the kind of restrictions on the state that emerged later based on the civil war amendments, especially the 14th, but then, many modern Americans would be disquieted by the founders acceptance of slavery while speaking of equality popular sovereignty. The founders weren't gods, but men taking some controversial--even among each other--steps forward for the political context of their day.

by x0054 11y ago

dragonwriter 11y ago

Yeah, that's exactly the kind of "anything that I think harms the country is Treason" logic that the Constitutional definition of Treason was put into place to negate, the trend of defining new and creative forms of "treason" having been familiar to the founders. Treason's not a hammer to beat your political opponents over the head with. Electoral accountability and separation of powers between the branches is the control on unconstitutional laws, not Treason prosecutions. And, on a more practical level, if you don't have the federal executive and the judiciary on your side, your new federal "Treason" definition does you no good against politicians pushing laws that would violate the first amendment. But if you have the federal executive and judiciary on your side, all the laws violating the first amendment in the world that can be passed aren't going to have any effect. So, aside from its unconstitutionality and undesirability on a theoretical level, there are in practice no situations where your law would both (a) be needed, and (b) have any effect.

rayiner 11y ago

Fun fact: the Bill of Rights didn't even apply to the states until 1925. At the time of the founding when the Constitution was presumably still all American and whatnot, a law like this to protect the unique interests of an agricultural state would've been kosher. There might have been a state constitutional issue, but those are much easier to amend. The idea of a federal court striking down a law duly enacted by a state legislature (by more than 2/3 of each house) on the basis of the federal constitution, as happened here, would have been very disquieting to the framers.

kelnos 11y ago
The idea of a federal court striking down a law duly enacted by a state legislature (by more than 2/3 of each house) on the basis of the federal constitution, as happened here, would have been very disquieting to the framers. I very much doubt that's the case: if so, they were fairly stupid. Giving federal courts the ability to strike down state laws is necessary when we have the Commerce Clause. It's about balance: kill the Commerce Clause, and you can let the states sort it out (e.g. California could say, "ok, Idaho, you want to pass a law that unjustly jails people for reporting on agricultural criminal activity... fine, go for it, but we're going to ban imports of all your goods into our state"). Keep the Clause, and you need something to check potentially-abusive state power.
- rayiner 11y ago
  States have their own constitutions and their own courts to protect their own citizens. The original purpose of the federal courts was to ensure a neutral forum for the enforcement of federal laws, not to be a second level of oversight of how states treat their own citizens. But I agree with you, the original design was stupid. I'm just saying that before people start frothing at the mouth about the spirit of the first amendment, they bear in mind it wasn't originally intended to be used the way it was here.
  - dragonwriter 11y ago
    > The original purpose of the federal courts was to ensure a neutral forum for the enforcement of federal laws The Constitution is a federal law; the enforcement of the Constitution -- including against State violations -- is included within the enforcement of federal law. This is fairly express in the Constitution, and it was clear in practice in the first couple decades the Constitution was in operation. Now, the protections in the Bill of Rights didn't extend to the States under the original Constitution, so its true that enforcing the Bill of Rights against the States was not part of that -- but not because the original design didn't involve the federal judiciary enforcing the federal Constitution against the States, but because that part of the federal Constitution didn't apply to the States. (And, technically, it doesn't now, either, however the current understanding is that 14th Amendment due process applies protects fundamental rights -- many of which are coextensive with, or at least closely approximate, those protected against federal encroachment by the Bill of Rights -- against state encroachment.)
dragonwriter 11y ago
Federal courts were striking down state laws for violating the federal constitution while the founders were still politically active; most notably for intruding on Congress's Commerce clause authority. They might have been disquieted by the kind of restrictions on the state that emerged later based on the civil war amendments, especially the 14th, but then, many modern Americans would be disquieted by the founders acceptance of slavery while speaking of equality popular sovereignty. The founders weren't gods, but men taking some controversial--even among each other--steps forward for the political context of their day.