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U.S. Constitution Title: Our Republican Constitution The nation’s leading libertarian legal scholar tells the riveting story of the long struggle between two fundamentally opposing constitutional traditions and explains that beneath every passionate debate between conservatives and liberals lies a deep disagreement about our founding document. Americans today are deeply divided—politically, ideologically, and culturally. Some of us live in blue states and watch CNN; others live in red states and watch Fox News. Some Americans want more government, others less. We engage in passionate debate over issues like gun control, health care, same-sex marriage, immigration, and the war on terrorism. But above all, says renowned legal scholar Randy E. Barnett, we are in fundamental disagreement about the Constitution. From the early days of the American republic, the nature of government “of the people, by the people, for the people” has been disputed. This is because there are not one but two very different notions of “We the People” and popular sovereignty, which yield competing schools of constitutional thought. The democrats view We the People collectively and think popular sovereignty resides in the people as a group. They view the Constitution as a living document and contend that today’s majority should not be governed by the dead hand of past majorities. The republicans view We the People as a collection of individuals. Their vision of government is that it should not reflect the will of the majority—but rather secure the preexisting rights of each and every person to life, liberty, and the pursuit of happiness. This fundamental disagreement lies at the heart of our current national divide. In Our Republican Constitution, Barnett tells the fascinating story of how this conflict arose shortly after the Revolution, leading to the adoption of a new and innovative republican constitution; and how the struggle and eventual victory over slavery led to its improvement by a newly formed Republican Party. Yet soon after, progressive academics and activists urged the courts to remake it into a democratic constitution by ignoring key passages of its text. And eventually the courts complied. Luckily, this debate is far from over. Drawing from his deep knowledge of constitutional law and history—as well as his experience litigating on behalf of medical marijuana and against Obamacare—Barnett explains why We the People would benefit greatly from the renewal of our Republican Constitution, and how this can be accomplished in the courts and political arena. Advance Praise For Our Republican Constitution “Georgetown law professor Randy Barnett is a rarity in academia. He is not only one of the most important constitutional scholars of our time, but a brilliant advocate for the restoration of our republic by embracing the Constitution and defending individual sovereignty. This is a very important book for constitutional conservatives and all Americans who love liberty and country.”—Mark R. Levin, lawyer, radio host, and author of Plunder and Deceit and The Liberty Amendments “You don’t have to be in agreement with Randy Barnett to respect his scholarship, enjoy his writing, and learn from his arguments. But—trigger warning!—after reading this book, I predict you’ll find yourself more persuaded than you expected to be of the urgent case for reclaiming our Republican Constitution.”—William Kristol, editor of The Weekly Standard “Randy Barnett is one of the country’s most important and creative constitutional thinkers. In Our Republican Constitution, he revives and restates the natural rights tradition in American constitutional thought for our time, explaining why our system of government is based on the primacy of rights and respect for the individual sovereignty of each and every one of us.”—Jack M. Balkin, Yale Law School “Randy Barnett has given us the book that will help every American develop a greater understanding of the Constitution. But Barnett does so much more than help us recall our constitutional heritage and the power of the courts to protect the rights of the people; he also points to a path forwartv 5th.d for constitutional conservatives. This is essential reading for anyone interested in the future of our Constitution, from one of the most insightful constitutional scholars and political philosophers of his generation, and one of the leaders in our shared effort to restore the Constitution’s commitment to individual liberty.”—MIKE LEE, U.S. SENATOR FOR UTAH Post Comment Private Reply Ignore Thread Top • Page Up • Full Thread • Page Down • Bottom/Latest The problem with resisting the idea of the "will of the people" TOO much is what we see in the Republican Party right now, where you have a candidate who emerged from a divided field of 17 competitors with a MASSIVE lead, that has won all of the major places where people have voted by SUBSTANTIAL margins, who leads by millions and millions of votes, and hundreds of delegates, and whose opponents have no mathematical chance of winning. And yet there are machinations going on in every caucus state, and in hidden delegate naming processes, backroom deals, even the legality of outright BUYING delegates, and all for what, precisely? To thwart the overtly expressed will of the people, because, well, "the GOP is not a democracy", and "the people's votes are just opinions". The usual argument is that the people may act as a mob and there need to be checks and balances. Trump's supporters haven't been a mob, though. They've followed the rules and went out to vote. And they voted for him, massively so. To find that there are deeper and deeper rules, ever more complex, arcane and hidden, by which the people's votes can be utterly neutralized and ignored, and some guy who didn't even run can be foisted on the party "because the party isn't a democracy", simply begs the question: maybe the party needs to be MORE of a democracy, because the oligarchic republican model of party governance is sure showing the limitations of a process that IGNORES the will of the people in favor of anti-majoritarian tricks and procedures. Right now, Trump and the primaries and voters are the democratic argument, while Cruz and the delegate games and deeply arcane rules that amount to utterly ignoring the votes of the people are the "republican" argument. And the republican argument is being made to look really, REALLY awful by what the Republicans are doing with it. People look at the GOP, see what is happening, and see a serious deficit of democracy there. To hear that same arguments made for Republican-style backroom deals at the level of the nation as a whole really weakens that argument.
#2. To: Vicomte13, Y'ALL (#1) "Barnett tells the fascinating story of how this conflict arose shortly after the Revolution, leading to the adoption of a new and innovative republican constitution. ------ Yet soon after, progressive academics and activists urged the courts to remake it into a democratic constitution by ignoring key passages of its text. And eventually the courts complied." One way the 'courts have complied' is by buying into the democratic concept that political parties can make up their own rules for how candidates for elections are to be chosen. As you say, the result is: ---
-- there are machinations going on in every caucus state, and in hidden delegate naming processes, backroom deals, even the legality of outright BUYING delegates, and all for what, precisely? To thwart the overtly expressed will of the people, because, well, "the GOP is not a democracy", and "the people's votes are just opinions. I think we are long overdue to rein in party political powers in the choosing of candidates for office. -- Certainly, this might require a constitutional amendment, but this election cycle shows a clear need for reform. Your thoughts?
#3. To: tpaine (#2) My honest thoughts are that Trump will be the nominee and, fired up by having it nearly stolen from him, on the Republican side that he, as President and head of the party, will ram through real reform in the Republican party. I expect that the caucuses will start to disappear, replaced by primaries (which are much more broadly democratic), and that he will hammer through rules that allow the candidate who won the delegates to choose the delegates. The party Establishment made war on Trump and lost. Trump is going to take over the party and rewrite the rules. Then I think Trump will win the election. I think the combination of his popularity, his reasonableness on stupid hot button issues and his refusal to be stampeded by political correctness, along with his willingness to hit the bitch right in the face with her criminality, will result in Trump's victory in the general election. And I think that the defeat of Hillary, an obviously unqualified candidate who was foisted upon the party because of superdelegate power, will result in pressure within the Democrat Party to change. And the sweeping democratic changes of the Republican Party will cause the Democrats embarrassment, and cause them to become more democratic and transparent in their primaries as well. This election is a donnybrook for the Eastablishments of both parties. I think they're all going to end up utterly disgraced, and the Bernie movement in the Democrat Party, and Trump in the Republican, will drive both parties towards reforms in the direction of fairness and transparency, and that will be good for everybody.
#4. To: Vicomte13, Y'ALL (#3) This election is a donnybrook for the Eastablishments of both parties. I think they're all going to end up utterly disgraced, and the Bernie movement in the Democrat Party, and Trump in the Republican, will drive both parties towards reforms in the direction of fairness and transparency, and that will be good for everybody.
I think we are long overdue to rein in party political powers in the choosing of candidates for office, -- our 'courts have complied' by buying into the dubious 'democratic' concept that political parties can make up their own rules for how candidates for elections are to be chosen. This must stop, -- And candidates chosen in a constitutionally compatible fashion. -- -- Certainly, this might require a constitutional amendment, but this election cycle shows a clear need for reform. Do you (or anyone?) have any thoughts on this specific problem?
#5. To: tpaine (#4) My specific thoughts are what I said before. To summarize, I think that the democratic defecit in candidate choosing is going to sear both parties this time. The Left is going to get stuck with Hillary because of superdelegates, but Bernie is where the people are. And on the right, every effort is being made to stop Trump. I think that Trump's win and Hillary's loss will result in internal reorganization in a democratic direction in both parties.
#6. To: Vicomte13, Y'ALL (#5) There is a dubious 'democratic' concept that political parties can make up their own rules for how candidates for elections are to be chosen. This must stop, -- And candidates chosen in a constitutionally compatible fashion. -- -- Certainly, this might require a constitutional amendment, but this election cycle shows a clear need for reform. Do you (or anyone?) have any thoughts on this specific problem?
My specific thoughts are what I said before. Needless to say, I'm disappointed. I thought you were a contender..
#7. To: Vicomte13, All (#1) Why don't you give it a rest? Trump doesn't bitch, cry, moan, groan, gnash his teeth over the fact that he has a significantly higher proportion of delegates than he has of the proportion of votes. Why isn't that not a corruption of We The People voting? потому что Бог хочет это тот путь #8. To: tpaine, Vicomte13, All (#6) This must stop, -- And candidates chosen in a constitutionally compatible fashion. -- There is no constitutionally compatible fashion laid out in the Constitution. Certainly the Constitution doesn't mandate that the majority of voters choose POTUS. The Electoral College where the person who gets the most votes may not be the winner is a perfect example of that (remember Bush v. Gore?). There is nothing dubious about political parties making their own rules for how candidates for elections are to be chosen as long as those rules do not violate the Constitution. The only requirement for national office in the Constitution has to do with citizenship and age. You sound just like a DRat such as Vicomte13 who wants the Constitution to be interpreted based on the political winds de jure or license to make up stuff and claim it to be constituiontal. потому что Бог хочет это тот путь #9. To: SOSO (#8) I'm still not a Democrat. Which renders the rest of what you say invalid.
#10. To: SOSO (#7) Why don't you give it a rest? Because I'm winning. My side is winning. We're taking the country. And you're losing. Your side is losing. You're losing the country. You keep calling me a Democrat, which I am not. And I keep on antagonizing you, rubbing your face in your defeat, in how much you have lost, because I can. You antagonize me with a stupid, false accusation, and I keep antagonizing you with true images of the way the country is changing and slipping away with you. The REASON it is changing and slipping away from you and your type is because when you did hold power and were in the ascendance, back in the age of Reagan, you blew it. You lost power because your ideas did not work. They failed. The economy buckled, and the greed of your leaders left you behind.
But you're still lashing out at the people whom your leaders - who are really the man who screwed you - told you were your enemies, and you're still unable to discern anything. You bought into a political cult, it failed you, but you're still clinging bitterly to it. Its leaders transferred to their sleek yachts and sped away. You're left behind in the wreckage, but you're still blaming others. Trump has surged forth to win because right-leaning people have rejected your philosoiphy of what it is to be on the right. They are embracing a different one, a better one, the one that made us great in the 19th Century, as opposed to the one that squandered our grreatness in the late 20th. That's why I don't give it a rest, and won't give it a rest: because YOU don't. You lost because your grand ideas were bad, but you didn't learn a damned thing from their collapse, and you're still hurling insults at the people your former leaders - who left you stranded - told you were your enemies. You hate the wrong people, and you're too stubborn to realize it. The Republican party with their insider machinations regarding Trump is exposed for the sleazy corrupt shithole it always was. Trump looks like he's going to win it anyway, very much against the will of the partisans, very much because that's the will of people like me. We are fighting you for command. Once we take command, we are going to strip away the rules that let your leaders do what they tried to do to Trump. Things will be more transparent, clean and fair. The nominee will be the one for who people voted. And the elements in power right now who resist that will be flushed out of power and replaced by people with a better attitude. Give it a rest? Sure. Once my side has conquered yours and rewritten the rules. Then I will give it a rest, because it's not kind to keep beating on the vanquished. You're not going to stop calling me a Democrat. I'm not going to stop going after the corruption and rot in the Republican party.
#11. To: Vicomte13 (#10) Why don't you give it a rest? Because you are cheating in a corrupt system that allows Trump to have more delegates than his proportion of votes. What a fraud!! The RNC should be assumed to allow this to happen. Trump is steal delegates that he hasn't earned. Shame on Trump, shame on Reince Priebus, shame on the RNC. потому что Бог хочет это тот путь #12. To: SOSO (#11) Because you are cheating in a corrupt system The system is corrupt. There is no "cheating" in a rigged casino. You do what you need to do to win. Then, once you're in command, you change the rules to prevent that sort of thing in the future. First you have to win.
#13. To: SOSO (#8) There is a dubious 'democratic' concept that political parties can make up their own rules for how candidates for elections are to be chosen. This must stop, -- And candidates chosen in a constitutionally compatible fashion. -- -- Certainly, this might require a constitutional amendment, but this election cycle shows a clear need for reform. Do you (or anyone?) have any thoughts on this specific problem
There is no constitutionally compatible fashion laid out in the Constitution. Exactly,-- that's why I said a solution will require an Amendment.
Certainly the Constitution doesn't mandate that the majority of voters choose POTUS. The Electoral College where the person who gets the most votes may not be the winner is a perfect example of that (remember Bush v. Gore?). We all remember, and that's why both republicans and other parties are calling for reform..
There is nothing dubious about political parties making their own rules for how candidates for elections are to be chosen as long as those rules do not violate the Constitution. And an Amendment stopping 'rule by political parties' on how candidates qualify for elections would give 'we the people' a true choice in ALL elections, local , state, and fed..
The only requirement for national office in the Constitution has to do with citizenship and age. That would remain. -- An Amendment would just deny political parties the power to choose all the candidates.
You sound just like a DRat such as Vicomte13 who wants the Constitution to be interpreted based on the political winds de jure or license to make up stuff and claim it to be constituiontal. No, I'm calling for a constitutional amendment to correct the valid problem of too much power in the hands of party hacks. You sound like one of the hacks.
#14. To: tpaine (#13) You sound like one of the hacks. Yeah, that's why and changed my registration to Independent because I am a party hack. Riiiiight........... потому что Бог хочет это тот путь #15. To: Vicomte13 (#12) The system is corrupt. There is no "cheating" in a rigged casino. You do what you need to do to win. Then, once you're in command, you change the rules to prevent that sort of thing in the future. So said every wannabe King and tinhorn tyrant in history. You and your DRat tribe are straight down the fairway on this. потому что Бог хочет это тот путь #16. To: tpaine (#0) The book is available from Amazon at: http://www.amazon.com/Our-Republican-Constitution-Securing-Sovereignty/dp/0062412280 The four quotes by Levin, Kristol, Balkin and Lee apear on the back of the dust cover. The other comments appear on the inside of the dust cover. There is one statement on the dust cover which is confusing or just wrong.
The democrats view We the People collectively and think popular sovereignty resides in the people as a group. ... I should think a "collection of individuals" would be a group, not exactly what Barnett conveyed in the book, see pp. 18-19. I include the prefacing paragraph to clarify Barnett's usage of the terms "Democratic Constitution" and "Republican Constitution."
In this book, I call these divergent visions the "Democratic Constitution" and the "Republican Constitution," but I don't intend these labels to be partisan. There are political conservatives who hew to some aspects of the Democratic Constitution and some progressives who adopt aspects of the Republican one. Many people flit between conceptions depending on which happens to conform to the results they like. I chose the terms democratic and republican constitutions because both terms have deep roots in our constitutional history, and neither is pejorative. I dislike arguments by labels and both these labels today have a positive connotation. Barnett asserts, "the Republican Constitution view We the People as individuals," as distinguished by the dust cover assertion of "The republicans view We the People as a collection of individuals." The term is susceptible of yet another description, that it referred to the people who formed each of the political communities called States, which were the members of the Union. It was not one consolidated group, but a set of groups, each forming a constituent State. Sovereignty was found in the individual, but it was exercised only by individuals acting as a political community known as a State.
#17. To: tpaine (#0) It does not appear that Barnett in Our Republican Constitution, or in his legal textbook, Constitutional Law, Cases in Context, (1,348 pp.), discusses primary elections and the law. Below, I present a couple of U.S. Supreme Court opinions which are on topic and may be of interest. Freedom of association, to associate or not associate, appears to be an important and relevant constitutional provision. http://loc.heinonline.org/loc/Page?handle=hein.usreports/usrep419&id=609#609 Cousins v. Wigoda, 419 U.S. 477 (1975)
Syllabus - - - - - - - - - - http://loc.heinonline.org/loc/Page?handle=hein.usreports/usrep450&id=185#185 Democratic Party of United States v. Wisconsin, 450 U.S. 107 (1981)
Syllabus Democratic Party, 450 U.S. 107 (1981) at 110-112:
The election laws of Wisconsin allow non-Democrats including members of other parties and independents—to vote in the Democratic primary without regard to party affiliation and without requiring a public declaration of party preference. The voters in Wisconsin's "open" primary express their choice among Presidential candidates for the Democratic Party's nomination; they do not vote for delegates to the National Convention. Delegates to the National Convention are chosen separately, after the primary, at caucuses of persons who have stated their affiliation with the Party. But these delegates, under Wisconsin law, are bound to vote at the National Convention in accord with the results of the open primary election. Democratic Party, 450 U.S. 107 (1981) at 109:
1 Rule 2A provides in full: Democratic Party, 450 U.S. 107 (1981) at 110:
2 Rule 12B of the Delegate Selection Rules for the 1980 Democratic National Convention provides in part: Democratic Party, 450 U.S. 107 (1981) at 121:
The issue is whether the State may compel the National Party to seat a delegation chosen in a way that violates the rules of the Party. And this issue was resolved, we believe, in Cousins v. Wigoda, 419 U. S. 477. Democratic Party, 450 U.S. 107 (1981) at 124:
IV
#18. To: nolu chan (#17)
From the above decision, I'd conclude that SCOTUS says that political parties CANNOT disqualify delegates that do not follow party hacks orders.. Correct?
#19. To: tpaine (#18)
From the above decision, I'd conclude that SCOTUS says that political parties CANNOT disqualify delegates that do not follow party hacks orders.. The opposite, see the Syllabus of Democratic Party. The State cannot enforce a law which infringes upon the National Party's freedom to gather in association.
Held: Wisconsin cannot constitutionally compel the National Party to seat a delegation chosen in a way that violates the Party's rules. Cousins v. Wigoda, 419 U. S. 477, controlling. Pp. 120-126. See also the Cousins Syllabus, the precedent upon which the Court relied in Democratic Party.
2. In the selection of candidates for national office a National Party Convention serves the pervasive national interest, which is paramount to any interest of a State in protecting the integrity of its electoral process, and the Circuit Court erred in issuing an injunction that abridged the associational rights of petitioners and their Party and the Party's right to determine the composition of its National Convention in accordance with Party standards. Pp. 487-491. In #4, you stated,
This must stop, -- And candidates chosen in a constitutionally compatible fashion. -- I believe you may need an Amendment to establish a constitutionally compatible fashion to choose candidates. See Laurence H. Tribe, American Constitutional Law, 2nd Ed., at 1688,
Nearly all of the Constitution's self-executing, and therefore judicially enforceable, guarantees of individual rights shield individuals only from government action.[1] Accordingly, when litigants claim the protection of suc guarantees, courts must first determine whether it is indeed government action—state or federal [2]—that the litigants are challenging.[3] Footnote [1] offers in part,
1. The Bill of Rights, the first eight amendments to the Constitution, on their face constrain only the condct of the federal government, and the the extent of their incorporation in the fourteenth amendment due process clause, see § 11-2, supra, also limit state governments. Similarly, the prohibitions found in article I, §§ 9 and 10, as well as the guarantees of the fifteenth, nineteenth, twenty-fourth and twenty-sixth amendments, restrain only federal and state government action. The fourteenth amendment due process and equal protection clauses limit only state action. Congress may protect the privileges or immunities of national citizensip by regulating private conduct, see § 5-14, supra, but the fourteenth amendment grants courts the power to protect such rights only from state action. Footnote [2] clarifies the contextual meaning of "state action."
2. Throughout this chapter, the words "state action" will denote action by any level of governent, from local to national. A political party is a private organization, not a government entity. An Amendment could be fashioned to define minimum standards that would govern how political parties select nominees for office and provide for enforcement. I had not spent any thought on this, but granting more power to the federal government is always fraught with the perils of unintended consequences. If an amendment made holding primaries in each state a party requirement, this could prove to be an insurmountable challenge to third parties. So, I am hesitant to consider empowering the Federal government to regulate the parties.
#20. To: nolu chan (#19) At #4, I stated, This must stop, -- And candidates chosen in a constitutionally compatible fashion. -- -- Certainly, this might require a constitutional amendment, but this election cycle shows a clear need for reform. Do you (or anyone?) have any thoughts on this specific problem?
I believe you may need an Amendment to establish a constitutionally compatible fashion to choose candidates. -- See Laurence H. Tribe, Thanks for your agreement, -- but asking me to then 'see Tribe', a big govt enabler, is counterproductive..
An Amendment could be fashioned to define minimum standards that would govern how political parties select nominees for office and provide for enforcement. ----- I had not spent any thought on this, but granting more power to the federal government is always fraught with the perils of unintended consequences. Amendments do not necessarily grant power to government.
If an amendment made holding primaries in each state a party requirement, this could prove to be an insurmountable challenge to third parties. So, I am hesitant to consider empowering the Federal government to regulate the parties. So would I be, - more than hesitant. Obviously, the Amendment would be very hard to craft in order to protect our freedom to select candidates... Thanks for your input...
#21. To: tpaine, Vicomte13, Soso (#0) (Edited) I don't think you will find answers in this book that will answer your concerns about the current election cycle. The basic argument is the definition of "We the People" . Do the constitutional protections guarantee the rights of the collective people as the progressives believe ? Or is "We the people " individuals who's rights are guaranteed . My understanding is that the Constitution was designed to protect the individual from the excesses of government . This talk of finding a more 'democratic' way to select our leaders would make most of the founders gag. Instead they built safeguards into the system in an attempt to counter the excesses of majoritarian populism . That is why we have an electoral college . That is why the States run elections . When Madison examined the deficiencies of the Confederation before the Constitutional Convention he concluded that the fault lies in the people themselves . In 'Sec 11 Injustice of the laws of States.' He writes :"If the multiplicity and mutability of laws prove a want of wisdom, their injustice betrays a defect still more alarming: more alarming not merely because it is a greater evil in itself, but because it brings more into question the fundamental principle of republican Government, that the majority who rule in such Governments, are the safest Guardians both of public Good and of private rights." Madison wrote that we must be more realistic about popular majorities. The largest factions of special interests can always outvote the people of smaller special interests . But there is no safeguard for the rights of the minority or individuals in that system . The Constitution that was crafted by the founders attempted to address this. "To secure the public goods and private rights against the danger of such a faction ,and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed."Madison Federalist Papers #10 Oh, miserable mortals! Oh wretched earth! Oh, dreadful assembly of all mankind! Eternal sermon of useless sufferings! Deluded philosophers who cry, “All is well,” Hasten, contemplate these frightful ruins, (Voltaire) Top • Page Up • Full Thread • Page Down • Bottom/Latest |
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