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> We need a law prohibiting secret law. I am not American, and much less an expert in law, but isn't this already illegal? From what I gather, American law ult

> We need a law prohibiting secret law. I am not American, and much less an expert in law, but isn't this already illegal? From what I gather, American law ultimately rests on the same western civilization ideas that already come from the Roman Empire and before. Surely your constitution or other fundamental laws should already cover this, or am I wrong?

nickff 10y ago
If you strictly interpret the constitution, a great deal of federal agencies and actions are clearly disallowed, but these restrictions have been gradually eroded (most notably during and since the 1930s). The US government is supposed to be one of enumerated powers, and it was never granted the power to create anything like the Department of Health and Human Services, the Department of Education, or the Federal Electoral Commission. There is no provision for any warrant-less searches (which violate the Fourth Amendment), and campaign finance laws clearly violate the First Amendment (strictly read). Delegation of the power to criminalize activities is also not allowed by the constitution, yet there are thousands of regulatory crimes. The Tenth Amendment is clearly a dead-letter now.
- nathanaldensr 10y ago
  The Constitution is simply a means to an end now; it's merely a political talking point. It stopped being the actual basis for ethical, legal governing a long time ago. If your house's foundation (the Constitution) is crumbling, do you continue to build on top of it (laws) to keep the house from collapsing?
  - dwe3000 10y ago
    I think your analogy is a little misleading. In my opinion, the foundation is still strong, but where the foundation was for one shape of house, the additions and changes made on top of the foundation are unstable. I do agree that for most discussions around US Federal government, the Constitution does not play an ethical or legal role.
  - TelmoMenezes 10y ago
    > If your house's foundation (the Constitution) is crumbling, do you continue to build on top of it (laws) to keep the house from collapsing? To me this is one of those statements that might sound superficially wise, but hides something very dark. Yes, if you take the analogy literally, it seems foolish to build on crumbling foundations. But that sort of literalism might be silly here. What do you mean by "crumbling"? The entire project of a democratic republic lies on the collective respect for a set of rules that provide the scaffolding for all power to be granted by the people, according to the will of the people, to do what the people think is best for them. Right? That's the whole idea of government in the American sense, correct? Now if the political class starts to ignore some of the ground rules (which is equivalent to taking power for itself), and nobody prevents this, can we claim that the democratic republic maintained its integrity? Or was democracy itself eroded? And if the answer to this last question is yes, how can one defend that the moral choice is to just accept it? Shouldn't we obviously demand strict observance of the ground rules, so that the legitimacy of those who exercise power in our name is unquestionable, before anything else? And then try to change the ground rules if the majority feels that they no longer serve us? And then strictly observe the new rules so that legitimacy is not compromised, and so on? Or am I just crazy?
  - pharrlax 10y ago
    >If your house's foundation (the Constitution) is crumbling, do you continue to build on top of it (laws) to keep the house from collapsing? Obviously a country is not a house, and countries have been very successful with only a single constitution (America) and with many (France). But generally changing constitutions frequently does not make for a politically stable state, and much in terms of quality of life rests on political stability.
- gohrt 10y ago
  Why do constitutional scholars disagree with your interpretation?
  - wodencafe 10y ago
    [Citation Needed]
- rayiner 10y ago
  I lean strongly textualist and I disagree with your conclusion. 1) The federal government is one of enumerated powers, but it has plenary authority over areas it is allowed to regulate. The Constitution gave the federal government the power to tax, spend, and "regulate interstate commerce." In a world where interstate commerce is pervasive, giving the federal government those powers allows it to do almost pretty much everything. But those are the words on the page! Just because the result might have surprised framers who were thinking about independent agrarian farmers for whom an interstate transaction might be the rare exception does not mean you can ignore what the words on the page mean. 2) As to agencies, the Constitution creates an executive, and contemplates the existence of executive deparments. The first agency, the customs service, was created by the first Congress in 1789! 3) The Constitution prohibits only "unreasonable" searches and seizures. That implies the power to search and seize. And the idea that warrentless searches are presumptively unreasonable is as much a judicial-created gloss on the Constitution as the idea of exceptions to the warrant requirement. Remember: the very first Congress created a scheme of warrantless searches by the Customs Service. 4) The non-delegation principle is itself a judicially-created concept. It's not in the Constitution. 5) The 10th amendment never meant anything. It literally says "any power not granted to the federal government is reserved to the states or to the people." It doesn't provide any basis for deciding what those powers are. Take something like Obamacare. If that's a legitimate exercise of of the taxing or commerce power, it by definition cannot violate the 10th amendment because it's an exercise of an enumerated power. And if it wasn't a valid exercise of those powers, it's void for not being a valid exercise of an enumerated power. The 10th amendment can never be the reason a law is invalid.
  - nickff 10y ago
    1) You are interpreting the 'Necessary and Proper" clause without respect to the 'proper' part of it. I agree that effective regulation of many areas requires regulation of intrastate commerce, but that is improper. 2) Customs was a power given to the federal government, as it was the primary method of taxation, and regulation of international commerce. 3) The ratifiers of the Constitution were most concerned with preventing general warrants, as had been commonly issued by the British as a tool of invasive monitoring and oppression, and the Fourth Amendment was included to prevent these practices. The warrant-less searches we see today are operating in a manner similar to the general warrants, but without even an explicit general warrant. 4) The Constitution has no provision allowing for Congress to delegate any criminal, civil, or regulatory law or rule-making, thus such delegation is un-enumerated and impermissible. The president only has the authority to "take Care that the Laws be faithfully executed", and not even to exercise discretion in an arbitrary fashion. 5) The Tenth Amendment is simply an explicit statement that all powers not explicitly mentioned in Article I, Section 8 are out-of-bounds for the federal government.

nickff 10y ago

If you strictly interpret the constitution, a great deal of federal agencies and actions are clearly disallowed, but these restrictions have been gradually eroded (most notably during and since the 1930s). The US government is supposed to be one of enumerated powers, and it was never granted the power to create anything like the Department of Health and Human Services, the Department of Education, or the Federal Electoral Commission. There is no provision for any warrant-less searches (which violate the Fourth Amendment), and campaign finance laws clearly violate the First Amendment (strictly read). Delegation of the power to criminalize activities is also not allowed by the constitution, yet there are thousands of regulatory crimes. The Tenth Amendment is clearly a dead-letter now.

nathanaldensr 10y ago
The Constitution is simply a means to an end now; it's merely a political talking point. It stopped being the actual basis for ethical, legal governing a long time ago. If your house's foundation (the Constitution) is crumbling, do you continue to build on top of it (laws) to keep the house from collapsing?
- dwe3000 10y ago
  I think your analogy is a little misleading. In my opinion, the foundation is still strong, but where the foundation was for one shape of house, the additions and changes made on top of the foundation are unstable. I do agree that for most discussions around US Federal government, the Constitution does not play an ethical or legal role.
- TelmoMenezes 10y ago
  > If your house's foundation (the Constitution) is crumbling, do you continue to build on top of it (laws) to keep the house from collapsing? To me this is one of those statements that might sound superficially wise, but hides something very dark. Yes, if you take the analogy literally, it seems foolish to build on crumbling foundations. But that sort of literalism might be silly here. What do you mean by "crumbling"? The entire project of a democratic republic lies on the collective respect for a set of rules that provide the scaffolding for all power to be granted by the people, according to the will of the people, to do what the people think is best for them. Right? That's the whole idea of government in the American sense, correct? Now if the political class starts to ignore some of the ground rules (which is equivalent to taking power for itself), and nobody prevents this, can we claim that the democratic republic maintained its integrity? Or was democracy itself eroded? And if the answer to this last question is yes, how can one defend that the moral choice is to just accept it? Shouldn't we obviously demand strict observance of the ground rules, so that the legitimacy of those who exercise power in our name is unquestionable, before anything else? And then try to change the ground rules if the majority feels that they no longer serve us? And then strictly observe the new rules so that legitimacy is not compromised, and so on? Or am I just crazy?
- pharrlax 10y ago
  >If your house's foundation (the Constitution) is crumbling, do you continue to build on top of it (laws) to keep the house from collapsing? Obviously a country is not a house, and countries have been very successful with only a single constitution (America) and with many (France). But generally changing constitutions frequently does not make for a politically stable state, and much in terms of quality of life rests on political stability.
gohrt 10y ago
Why do constitutional scholars disagree with your interpretation?
- wodencafe 10y ago
  [Citation Needed]
rayiner 10y ago
I lean strongly textualist and I disagree with your conclusion. 1) The federal government is one of enumerated powers, but it has plenary authority over areas it is allowed to regulate. The Constitution gave the federal government the power to tax, spend, and "regulate interstate commerce." In a world where interstate commerce is pervasive, giving the federal government those powers allows it to do almost pretty much everything. But those are the words on the page! Just because the result might have surprised framers who were thinking about independent agrarian farmers for whom an interstate transaction might be the rare exception does not mean you can ignore what the words on the page mean. 2) As to agencies, the Constitution creates an executive, and contemplates the existence of executive deparments. The first agency, the customs service, was created by the first Congress in 1789! 3) The Constitution prohibits only "unreasonable" searches and seizures. That implies the power to search and seize. And the idea that warrentless searches are presumptively unreasonable is as much a judicial-created gloss on the Constitution as the idea of exceptions to the warrant requirement. Remember: the very first Congress created a scheme of warrantless searches by the Customs Service. 4) The non-delegation principle is itself a judicially-created concept. It's not in the Constitution. 5) The 10th amendment never meant anything. It literally says "any power not granted to the federal government is reserved to the states or to the people." It doesn't provide any basis for deciding what those powers are. Take something like Obamacare. If that's a legitimate exercise of of the taxing or commerce power, it by definition cannot violate the 10th amendment because it's an exercise of an enumerated power. And if it wasn't a valid exercise of those powers, it's void for not being a valid exercise of an enumerated power. The 10th amendment can never be the reason a law is invalid.
- nickff 10y ago
  1) You are interpreting the 'Necessary and Proper" clause without respect to the 'proper' part of it. I agree that effective regulation of many areas requires regulation of intrastate commerce, but that is improper. 2) Customs was a power given to the federal government, as it was the primary method of taxation, and regulation of international commerce. 3) The ratifiers of the Constitution were most concerned with preventing general warrants, as had been commonly issued by the British as a tool of invasive monitoring and oppression, and the Fourth Amendment was included to prevent these practices. The warrant-less searches we see today are operating in a manner similar to the general warrants, but without even an explicit general warrant. 4) The Constitution has no provision allowing for Congress to delegate any criminal, civil, or regulatory law or rule-making, thus such delegation is un-enumerated and impermissible. The president only has the authority to "take Care that the Laws be faithfully executed", and not even to exercise discretion in an arbitrary fashion. 5) The Tenth Amendment is simply an explicit statement that all powers not explicitly mentioned in Article I, Section 8 are out-of-bounds for the federal government.