The 9th and 10th Amendments, the “unenumerated rights and reserved powers” according to wikipedia, are relatively simple:
Amendment #9:
Redressing the fear most federalists had about enumerating a list of rights in the Constitution (i.e. that such enumeration would be interpreted as exhaustive). This Amendment makes it clear that such an interpretation would be erroneous.
Amendment #10:
So the only powers that the Constitution grants to the federal government are limited to those that are explicitly laid out in the Constitution, and anything left over is reserved for the State governments or the people.
And yet, American democracy has outperformed virtually all other systems on earth, and the only systems that perform “slightly” better, are small social democracies, which incidentally are also representative democracies (so IMO it’s pretty hard to support the idea of autocracy).
I simply think we’re suffering from over-centralization and (in agreement with the OP) our checks and balances are beginning to break down.
In terms of centralization, I’m primarily concerned about the over-concentration of corporate power. With respect to checks and balances, regulatory agencies have become clearinghouses for corruption (and congress, along with many of our statehouses, has become a cesspool).
I think we need agencies like the EPA, SEC, FCC, FDA, etc. However, the problem is … these agencies have become a one stop shop for corporate lobbying, and when you factor in the revolving door (e.g. between agency attorney’s and the corporations they regulate and of course lobbying firms), it has created a recipe for disaster. So I think we need legislation that once again allows state courts to hear cases, like negligence suits, even where federal regulation dominates the field (and the tortfeasor is in compliance with federal regulation), which for the most part they won’t do (citing the supremacy clause). This way, every judge, jury, plaintiff, and lawyer in the country becomes a potential regulator (and you can’t bribe everyone).
With industries like banking, under Dodd Frank the big banks actually became larger, while small community banks are under attack (we see huge amounts of consolidation in the community banking sector, because they can’t afford compliance costs). This is exactly the opposite of what should have happened in the aftermath of the financial crisis (and this is because of political corruption, Bill Moyers did a great documentary showing the absurd levels of corruption in the Clinton administration, and how that led to the repeal of Glass Steagall, we just saw Eric Holder skip his way back to his cushy lucrative position representing the very people who helped to create this mess). It’s gotten so bad, they don’t even bother to try and hide the cronyism anymore.
Public financing of campaigns would also be great. People fixate on Citizens United, but the fact is … NAFTA, WTO, the repeal of Glass Steagall, the Iraq war, etc. all happened before the decision in Citizens United. Moreover, we need more robust anti-corruption laws. And it would be great if democracy could be more participatory, but that takes a real culture shift (and it has to be initiated from the bottom up).
Obviously, we need a smarter people (along with a long laundry list of other reforms). But unless we tackle the structural problems in our system, we’ll never get to the other stuff (we will just continue to slide towards the abyss). I’m personally supporting Bernie Sanders (and honestly, I don’t want to hear about his chances or whatever, I would saw my arm off before voting for Hillary). But even if a good guy like Bernie does become President, we can’t just go back to complacency. Indeed that’s when the real work begins (which is a point Bernie is emphasizing).
I’m a newbie … didn’t realize this was an old thread. But hey, I’ll talk to anyone who’s willing to check out Bernie (yes shameless plug, but I’m no political hack, just a dude who hopes our country doesn’t go down in flames)
My apologies for not responding to your comments sooner. Although this may be an old thread, for me it’s a very important subject. I’m not sure how saying US democracy has “virtually” outperformed all other systems (with the exception of a few small social democracies) would qualify as an oxymoron? I did include the qualifier “virtually” (synonymous with almost or with only a few minor exceptions etc.) for just that reason.
Additionally, our agencies are clearinghouses for corruption in the sense that they aggregate regulatory authority in one place and there’s a revolving door between government regulators and the industries they regulate (or the law & lobbying firms that represent those industries), so it creates an incentive to be a less potent regulator (after all, you not only have to concern yourself with adequate performance as a regulator, but also your future job prospects). Quite frankly, I doubt anything can be done to eliminate this completely, but fortunately, there are other ways to make sure our system is properly balanced. That is … more checks and balances. In this context, we would want regulation and oversight of industry to come from more than just a single government agency.
Someone mentioned autocracy as the best possible system. I responded by noting that autocratic regimes generally under-perform relative to representative democracies (at least western democracies). There’s always been this debate between the ideas of participatory and deliberative democracy, but I don’t think the two concepts are mutually exclusive. Here in the US our checks and balances system makes sure that public policy decisions are made very slowly (to the frustration of many, but there is some logic to this framework). Under more ideal circumstances (where you have good checks against corruption), slow decision making generally correlates with more deliberation. So you can solicit public participation at every level of government, but with robust checks and balances, also create a highly deliberative process that produces high quality results. But there’s also a less tangible aspect to this. Some of the best performing democracies solicit very high levels of citizen participation (Switzerland is my favorite example). Of course they also invest heavily in their people, so they have an extremely well informed population. There’s many benefits to this approach. When a citizenry feels enfranchised and involved in public policy, you see much more national unity, civic participation, etc. (all things which highly correlate with good national performance in the typical socioeconomic metrics we use to assess the quality of nations).
So I would argue that US democracy could be improved by even further enhancing citizen participation, but we also (and probably most importantly) need more checks and balances to foster both integrity in the process and intelligent decision making.
I reread this paragraph and somehow it made perfect sense this time around–don’t know why it didn’t the first time–and yes, it would be nice to know that the people can try regulatory agencies for things like negligence. From what I understand, the US government is tightening the belt around what kinds of cases can be tried and what kinds can’t–way different from the policies you guys had in the early days of your country–when it actually belonged to the people. Now it’s like the people are taking their instruction from the government and other agencies in power; indeed, the government today is looked upon as the “boss” and people are apt to ask “What am I allowed to do? What can I not do?” It use to be: “What will we allow the government to do?”
I did some research into the Dodd-Frank act and it’s still way over my head (although I could stand to do more research). The gist of it that I got from the wiki article is that it was Obama’s response to the financial crisis of 2008, and it was intended to “add stability” to the American economy. But like all other government responses, it’s just another layer of regulation and interference into the market.
The main points of it, according to the article, are as follows:
While I can’t say I completely understand all this in full (for example, what’s the national thrift charter?), I recognize the pattern–more regulation and grip tightening over key industries.
When I read Obama’s quote about the purposes of the act being a “sweeping overhaul of the United States financial regulatory system, a transformation on a scale not seen since the reforms that followed the Great Depression,” it made me wonder: does every manner of hardship the US goes through have to be met with “sweeping overhauls” or “transformations on a scale not seen since…” the invention of sliced bread (or some such nonsense)? Isn’t this just the President responding to an event because, well, because the people expect a response period? Or maybe it’s the typical maneuver of: crisis occurs → slip in reforms for more government centralization.
To me, it seems like FDR all over again.
I’d like to see that documentary. Any chance you remember the name of it?
This hints at an answer to my earlier question.
So my research on Bernie tells me he’s a Democrat (although there was mention of his being an independent). How do you view Bernie, liber8? Is he mainly left-leaning or would you call him an independent. Do you personally partake in this war between liberals and conservatives, or do you call yourself an independent?
Not grey or black really. Dog shit dark brown where the entire world is shit. There are varying degrees of shit but it is all shit nonetheless.
To see how easily democracy has become susceptible to oligarchic influences transformed into a full blown tyrannical system one can see how the birth of democracy was doomed from the start.
Until people start taking a serious look into human nature all system abstractions like democracy or whatever will always be doomed from the start.
Is there at least anything interesting to talk about, even if only philosophically as opposed to inspiring some hope? Do you at least like to talk about the varying degrees of dog shit dark brown? Are there shades of shit brown that are “less awful” than other shades, or at least different in quality?
I’m wondering if there’s any room here for a discussion without you repeating ad nauseam that it’s all the same hopeless shit.
So are you saying that in principle at least, there is the possibility of democracy (and other system abstractions) not being doomed from the start–when people start taking a serious look into human nature, that is? What would we see when we take a serious look into human nature? You must know what that is since you expect the rest of us to see it upon taking a serious look, and you must know how seeing it might prevent system abstractions from being doomed from the start.
Going in the order of the Amendments presented by the wiki article, the next four in line are the 11th, 16th, 18th, and 21st. Note that at this point in the analysis, we are breaking from chronological order. At least the first ten were introduced into the Constitution all at once and so one could rightfully go through them in numerical (if not chronological) order. But as we are using the wiki article as a guide, which breaks from this order after the first ten, so will we. The wiki article seems more bent on going by category, or by the content of the Amendments, and with respect to the 11th, 16th, 18th, and 21st Amendments, the wiki article (and perhaps other sources) places them into the category of “Government Authority”.
It’s interesting to note that even within the first ten–the Bill of Rights–there was a classification scheme, at least as far as the Wikipedia article goes–whereby the first 3 are placed into the “Safeguards of Liberty”, the next 4 are placed into the “Safeguards of Justice”, and the last 2 are placed into the “Unemumerated Rights and Reserved Powers”, yet the article didn’t lose track of the chronological order. What this means is that the Amendments themselves fall quite naturally into these categories. This would make sense given that they were all introduced at once–and so really, there is no chronological order–which means that the authors of the Constitution, or at least those charged with amending it for the first time, got to choose what order they appeared in, and so maybe the classification scheme is not a coincidence.
(This certainly makes more sense than my other theory, which was inspired by some late night psychedelic intoxicants during which time I was reading the Wikipedia article and misread the first “ten Amendments” for the “Ten Commandments”–and suddenly had a psychedelic epiphany according to which this was no accident. It is said, if you study ancient Hebrew scholarship that the ten commandments can be divided into two groups: the first four dealing with man’s relation to God, and the last six dealing with man’s relation to man (they further say that the first four can be divided up into 206 “mini-commandments,” the number of bones in the human body, and the last six can be divided up into 365 “mini-commandments”, the number of days in the year–which some have interpreted to mean: obey these laws with every bone in your body, every day of the year). But it seems there is a much more rational explanation for the categorization scheme for the Bill of Rights the wiki article presents to us than some space cadet’s psychedelic insight: the authors had the opportunity to categorize them thus–not to mention that the categorization scheme is hardly the same: 3 categories vs. 2–the only thing shared in common being that there are ten of them, and the words “amendment” and “commandment” sound the same… oh, and they both constitution the supreme law of the land for a certain people).
Anyway, Amendment #11 (1794 ← I’m going to start dating these just to preserve something of the chronological order):
So this says, not so much that citizens can’t engage in a law suit against State governments other than their own, but that the Federal judicial branch cannot get involved.
Fair enough.
The interesting thing about the Amendment, however, is that it was prompted as a response to a court case in which a South Carolinian successfully sued the State of Georgia for debts that Georgia owed to him. Although this suit was successful, the 11th Amendment made all subsequent cases in which a citizen (American or otherwise) sued a State other than his own the exclusive jurisdiction of the States themselves–again, not stripping the citizens’ legal entitlement to do so–such that the Federal courts could not Constitutionally involve themselves. I say this is interesting because it would be the first Amendment to restrict the freedoms and legal rights of the people*, and particularly in response to a judicial outcome that some people didn’t like–in fact, it is the first Amendment period after the Bill of Rights (even chronologically–which is again interesting, if only because though the rest of the Amendments after the first ten break from chronological order, this one seems to still stick–this too is probably explained by the fact that with the first Amendment after the Bill of Rights, you get to invent the first category (other than the Bill of Rights), and as far as a collection of categories goes, why not make the first one invented the first in the order they are presented).
This Amendment also overturned the first clause of Article 1, Section 2, which states in part:
“The judicial Power shall extend to all Cases…between a State and Citizens of another State…”
This is very telling of the Amendment process–it appears that Amendments may not only add to or modify the original content of the Constitution but may outright nullify certain clauses therein. I mean, if the original content of the Constitution states that the Judicial Power of the United State may extend to all cases between a State and Citizens of another State, and the 11th Amendment says: no it can’t–then the Amendment process has the power to overrule the Constitution itself in its then-current form.
Amendment #16 (1913 ← Wow, 117 years for 6 new Amendments to appear–compare that with the following 11 new Amendments in the next 79 years ← Is this a significant difference? Could it be because of the faster or more erratic pace of progress in the twentieth century?):
Again, this Amendment appears to be a reaction to the outcome of a court case: Pollock v. Farmers’ Loan & Trust Co.
The court case ruled that taxes on rent, dividends, and interest were to be considered “direct taxes”, of which Article I, Section 9, Clause 4 says “No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.” Because the taxes being laid on rent, dividends, and interest were not “in Proportion to the Census or Enumeration” as stated in this Clause, and because the court ruled that these taxes were indeed “direct taxes,” therefore falling under the purview of this Clause, the court ruling, in effect, declared these taxes unconstitutional (if only indirectly). Amendment 16, once again, undid this, permitting the Federal government to waive the proportionment law in regards to taxes on rent, dividends, and interest.
Amendment #18 (1919):
Ah, an expiration date–or rather an “inspiration” date, if you will–meaning that the States have 7 years in order to put it into effect–by this wording, it wasn’t operative until the States ratified it, and only before the 7 year period.
So that means that at most, 7 years plus 1 more, are given by this Amendment to outlaw alcohol, making 1927 the absolute deadline.
I don’t think there’s much else to say on this Amendment–we’re all familiar with it’s history and its aftermath–the black market, the rise of organized crime, and it’s repeal in 1933 (6 years after the absolute deadline) by the 21st Amendment:
So basically a counterpoise to the corresponding Section in the 18th Amendment.
It might be interesting to note that the 21st Amendment is, according to the Wikipedia article on The Twenty-first Amendment to the United State Constitution, “…unique among the 27 amendments of the U.S. Constitution for being the only one to have been ratified by state ratifying conventions,” which is one of the two methods authorized by Article V for ratifying proposed Amendments. I wonder what the impetus for this was. I suppose research will tell.
as I re-read this, I’m already second guessing my statement. It sounds, on this second reading, like a restriction on the Federal government–that is, on what kinds of cases they are permitted to hear and which they are not. As far as the freedoms and the rights of citizens, nothing is infringed–citizens remain just as free and entitled by right to sue any government they want–it’s just that they don’t get the support of the Federal government, but that would count more as a privilege than a right.
I’m not really interested in “fixing democracy” at this point–I’ve become far more interesting in carrying on this analysis of the American Constitution.
After I’m done, I think I might do the same for the Canadian Constitution.
(You’re welcome to take over this thread at that point as I probably won’t carry on that task here ← but that’s not a promise.)
Feel free to critique then–having someone to debate with would be a hell of a lot better than talking to myself.
If the Constitution was worth the parchment it was written on, how is it that the United States form of democracy has become a shitty corrupt tyrannical nightmare that it is today?
He said a lot more than this in the above post, and I responded to it thus:
–to which Uccisor answered in the affirmative.
In short, I didn’t get what I wanted out of this thread. It’s been very enlightening however, and what Uccisor and Eric have given me is a sense of the “best possible alternative”–essentially, the American Constitution in it’s original form (with or without certain of the Amendments, but we’ll come back to this question after we’re through the analysis of the Amendments). The tragic view of human nature is that even with the best possible system, it will eventually succumb to corruption, but this doesn’t make all systems subject to corruption equally bad.
What does everyone think of Amendments prompted by the dissatisfaction of some in reaction to the outcome of a court case?
Do you suppose this might have been a contributing factor to the 1929 stock market crash?
Amendment #21 sounds like it was written by someone who was drunk.
And research has told:
“Why specify conventions over legislatures, as every other amendment had been ratified up to then? The thought was that the people of the conventions, which would typically be average citizens, would be less likely to bow to political pressure to reject the amendment than elected officials would be.”
One more thing: should an amendment be able to dictate the method by which it is ratified?
The clause in Article V that provides for the two methods by which amendments are to be ratified seems intended to permit these two method for all proposed amendments. How would Madison et. al. have reacted to the idea these methods would be options for some amendments but not others?
Suppose that despite section 3 of the 21st Amendment, 3/4 of the State Legislatures ratified it (I don’t know why they would given section 3, but there’s nothing stopping them). According to Article V, the Amendment would be passed, but according to the Amendment itself, it would not.
Section 3 of the 21st Amendment is not saying the legislative approach cannot be used, it’s just saying that if it is used, the Amendment will not be valid.
If 3/4th of the legislative assembly vote in favor of the Amendment, then it passes. But then what’s being passed? What does the Amendment say? It says that if this Amendment was not voted in by a convention assembly, then it is null and void. So indeed the legislative assembly can vote the Amendment in, but they would be voting in an Amendment that nullifies itself by that very process.
I wonder if the 18th Amendment was inspired by the 13th Amendment abolishing slavery? I wonder if the idea that the trafficking of a certain commodity (slaves) can be banned was the impetus for some to consider whether the trafficking of other commodities (alcohol) could receive a similar treatment via a Constitutional Amendment. Would anyone have even thought of banning alcohol via a Constitutional Amendment if it weren’t for the 13th Amendment?
