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Source: (consider it) Thread: state/provincial rights vs. Authority of the STATE
lilBuddha
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The (American) state's rights issue has come up on this board, once again. Instead if the normal discussion of what this constitutes, I would like to discuss the necessity.
First, why is it necessary?
Second, why do the rights its supporters so often wish to preserve are those limiting the rights of others?(this one seems more relevant in America then, say, Canada.)

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mousethief

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Why is what a necessity? Having multiple levels of government? Having some issues the purview of the national government and some issues the purview of the several states?

Not sure what you're asking.

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Leorning Cniht
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It's a particular instance of a fairly fundamental question of democracy: who is the demos?

Do people living a thousand miles away have any right, for example, to tell my neighbours and I how we construct our homes?

If we are to have legally enforced community decency standards (public nudity, blasphemy laws, regulation of advertising and so on), who is the community that defines these standards?

It seems obvious to me that one world-wide set of standards is inappropriate - I think there's plenty of room for communities where public nudity is permitted, and communities where exposing knees or shoulders is forbidden.

On the other hand, some things are universal - if someone wants to build a nudist town in the desert, they should go ahead. If someone wants to build a town for child rapists (hello, Warren Jeffs), they shouldn't.

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Beeswax Altar
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Canada?

You want the US to be like Canada? Fine. Join me in adding a notwithstanding clause to the constitution and everybody will be happy.

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Sober Preacher's Kid

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Necessary? It the creation of two levels of government was the only thing that made Confederation possible.

What is now Ontario and Quebec were locked in an unhappy marriage as the Province of Canada with a single legislature which was perennially deadlocked. Actual governing had become impossible. Reform was impossible as neither side would consent to be a minority and place its particular local concerns at the mercy of the other. Upper and Lower Canada clearly needed and desperately wanted a divorce. Confederation with New Brunswick and Nova Scotia was the only way Westminster would allow that.

Along the way it also made Canada fit to carry out westward expansion to the Pacific and keep the Americans below the 49th Parallel.

But the necessity of Provinces in Canada lies in four key words: "Property and Civil Rights", Section 92(13) of the BNA Act. It means all private law in a province: property ownership, family law, contracts, insurance, whatever. Quebec used and still uses French civil law, while Ontario uses English Common Law, as do the other provinces. Provinces were a way allow each community to enjoy its preferred legal system in the same country. The only court that rules on both the Common Law and the Civil Code together is the Supreme Court of Canada.

Meanwhile, common concerns like customs, foreign trade, bankruptcy, marriage and divorce were expressly given to the Federal Government, as was the Criminal Law. Provinces enforce the criminal law, but Ottawa writes it. Every province used English criminal law and so there was little objection to a national standard.

Confederation expressly and purposely allowed French Canada to become a majority in Quebec with certain guarantees to the English community there with regards to representation and schools. Ontario and Quebec each had to support two school systems, one Protestant (Ontario called it "public" but it was de facto protestant until the 1980's) and one Catholic.

The vexed question of Canadian history has always been minority rights, especially since the minority somewhere was often the majority somewhere else or had the sympathy of another majority. We have learned after 140 years that the only way to make it work is to be generous with minority rights. It's either that or this country flies apart.

What can I say, this country is a family. The relatives squabble, they detest each others' irritating habits and they argue constantly. But deep down, there's love there.

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monkeylizard

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For the U.S., it's fundamental to how our government works. It's even in our name, The United States of America. Hop in the way-back machine to when there were 13 colonies as part of the British Empire. Each had its own charter and was a distinct legal entity. When we kicked out the king and all of his men, those 13 distinct entities chose to come together as one nation. however, the events leading up to and during our war for independence instilled a distrust of centralized government. Representatives from each of the 13 new states agreed upon and signed our Constitution which establishes the federal government's structure along with its powers and responsibilities. The US Constitution simultaneously establishes and limits the powers of the federal government. The 10th ammendment says that any authority not expressly granted to the federal government in the Constitution remains in the realm of each individual state. Underneath it all, we are 13 (now 50) individual governments united together with a single centralized government to handle the things that all states agree are better served at a common federal level. Issues like common currency, raising and paying for an army, etc.

Over the past 226+ years since the signing of the Constitution, the reach and power of the federal government has grown beyond a strict reading of the US Constitution. Some of us favor that. Some of us don't. That leads to arguments (and at one time, open war) about states' rights vs. federal power.

[ 08. May 2014, 13:58: Message edited by: monkeylizard ]

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stonespring
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Oddly enough, both Green Politics and the Social Teaching of the RCC emphasize the principle of subsidiarity: exercising power at the most local effective level. This does not require federalism but federalism is one way of putting it into practice.

One aspect of local autonomy that makes me furious is the local control of education that we have in the US. States have a decent amount of control over money and curriculum and the Federal Government has started to influence K-12 education by putting conditions on its grants of money over the last several decades, but fundamentally the US system of public education is set up and run by local districts (and funded by local property taxes). Despite all the advantages of such a system, this means that wealthy school districts have better facilities, attract better teaches with higher pay, and send a greater proportion of their students to the best universities. Inequity based on family income exists in public education in every country, but one of the main reasons it is so bad in the US is local funding and local control. Parents of children in affluent school districts guard this prerogative ferociously, so it's unlikely to ever change.

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Sober Preacher's Kid

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Whereas the US is 50 states learning to live together, Canada is one country which divides into provinces for certain items.

There is one uniform criminal law in Canada, the Criminal Code of Canada. We have a national banking system, Federal elections are under the direct control of the Federal Government and a single court of appeal. The Supreme Court of Canada can hear anything it wants, it isn't limited to Federal law.

It's Property & Civil Rights where the differences come out.

Just a different take on the idea.

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Leorning Cniht
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quote:
Originally posted by stonespring:
Parents of children in affluent school districts guard this prerogative ferociously, so it's unlikely to ever change.

I am familiar with a school district not too far from here that has just built a third high school to deal with the recent population growth (lots of new building). The school district has areas which are fairly wealthy, and areas which are fairly poor.

In the old days, with two high schools, it "just so happened" that all the rich kids were zoned for one school and all the poor kids were zoned for the other.

Now introduce a third school, so you carve about a third out of the catchment areas of each of the other two schools to feed it. The screaming and threats of lawsuits from people who thought they had bought their way into the "rich" school, and were now discovering that their children would be attending school with those poor kids went on for years.

It wasn't a funding thing - all three high schools are well-funded. It was entirely a "which other children do I want my child to associate with" thing.

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stonespring
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Some parts of the country have school districts with multiple high schools. Other ones (often on the East Coast) have districts with only one high school - so the differences from district to district are more pronounced.

Of course, within larger school districts there is a lot of inequity from school to school and even within schools. If a school serves multiple socioeconomic groups you will often see widespread "tracking" of students into remedial, standard (euphemized as "college prep"), and advanced/honors/AP/IB tracks. Although these tracks claim to represent academic ability, they also often mirror economic and ethnic divisions.

The term "magnet school" came from the belief that putting a program for advanced students in a poorly performing school with mostly minority students would draw more affluent white families and their tax dollars into the school or districts. Schools within a district compete for students if they have special programs that allow students to enroll in a different school in the district.

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lilBuddha
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quote:
Originally posted by monkeylizard:
Hop in the way-back machine to when there were 13 colonies as part of the British Empire. Each had its own charter and was a distinct legal entity. When we kicked out the king and all of his men, those 13 distinct entities chose to come together as one nation. however, the events leading up to and during our war for independence instilled a distrust of centralized government.

At the time of forming, this made more sense than it does today, IMO. Distance factors were much greater and this made more sense. Now it leads to a complexity that is more problematic than helpful. Taxes being one. If I understand this correctly, some states' taxes subsidise other states. So, a state which voted for legalising SSM might then be paying for another to repress it.
A person in Colorado whose approved dispensary sells pot, might then be arrested whilst traveling in another state, or even at his own dispensary.
Like the electoral college, state's rights might well be an idea whose time has passed.

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Beeswax Altar
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I'd take a smaller federal government that did less in exchange for state and local autonomy.

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monkeylizard

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quote:
Originally posted by lilBuddha:
At the time of forming, this made more sense than it does today, IMO.

Perhaps, but to change that radically would require the Constitution to be abandoned and replaced with another structure. By definition that means the USA would cease to exist and a new nation would be founded in its place covering the same geographic area and populace.

The US Constitution can be (and has been) changed through an ammendment process where 3/4 or more of the states approve the change. An ammendment can address a structural issue of government (e.g. limiting the President to 2 elected terms) or grant a federal power which was previously assumed reserved for the states to determine (e.g. abolishing slavery).

In other words, all 50 of us agree to what our shared responsibilities are and allow our elected federal government to carry those out. If enough of us decide to change what the federal government can or can't do or how it's structured, we can get together and make that change.

[ 08. May 2014, 21:22: Message edited by: monkeylizard ]

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Leorning Cniht
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quote:
Originally posted by lilBuddha:

A person in Colorado whose approved dispensary sells pot, might then be arrested whilst traveling in another state, or even at his own dispensary.

He might indeed be arrested by federal marshals, because dealing in pot remains a federal offense (and your Colorado pot dealer gets dragged into the scope of federal law via the rather wide reading of the commerce clause in the Constitution). But I can't think of an argument that would allow another state to arrest a Colorado pot dealer for dealing pot in Colorado, and which would pass Constitutional muster.
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Sober Preacher's Kid

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quote:
Originally posted by Beeswax Altar:
Canada?

You want the US to be like Canada? Fine. Join me in adding a notwithstanding clause to the constitution and everybody will be happy.

The Charter's Notwithstanding Clause hasn't been used since 1988. No sooner did it go into force than it turned into a dead letter.

Even Quebec now has cold feet about using it.

In a Westminster system with a lively Question Period, no politician wants to be seen as a rights-taker and a freedom-breaker. You may as well paint a target on your front and wear a sign that says "Open Season".

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monkeylizard

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quote:
Originally posted by lilBuddha:
Like the electoral college, state's rights might well be an idea whose time has passed.

I disagree on both counts. The electoral college is structured to mimic the representative count of each state. One elector for every Congressional representative. About half of us complain about it when it doesn't match the national popular vote and "our" guy loses, but if it went the other way, the moaning would come from the other side. That's how a representative republic works.

States rights being outdated is a matter of opinion. I agree with Beeswax Altar that I'd rather have less federal and more state power. The reason is that I'm one of 6.5 million people in Tennessee, but 1 of 313 million Americans. I know not all of us can/do vote, but my vote is more powerful at the state level than at the federal level. It's even more powerful at the county and city level. I don't care what someone in Maine thinks about where a cemetery can be located in Tennessee. Likewise, a Mainer doesn't care what I think about whether or not liquor should be sold on Sunday. Just 2 of many powers reserved for the states to regulate as they each see fit.

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saysay

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quote:
Originally posted by lilBuddha:
Second, why do the rights its supporters so often wish to preserve are those limiting the rights of others?(this one seems more relevant in America then, say, Canada.)

Huh?

In my experience people who advocate for state's rights are doing so because, as has been mentioned, a state can legalize marijuana but people can still be arrested and jailed at the federal level for violating the law.

It's part of the whole 'Three Felonies a Day' insanity.

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Beeswax Altar
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quote:
Originally posted by Sober Preacher's Kid:
quote:
Originally posted by Beeswax Altar:
Canada?

You want the US to be like Canada? Fine. Join me in adding a notwithstanding clause to the constitution and everybody will be happy.

The Charter's Notwithstanding Clause hasn't been used since 1988. No sooner did it go into force than it turned into a dead letter.

Even Quebec now has cold feet about using it.

In a Westminster system with a lively Question Period, no politician wants to be seen as a rights-taker and a freedom-breaker. You may as well paint a target on your front and wear a sign that says "Open Season".

So, no problem adding one to the U.S. Constitution of it will never get used.

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Gee D
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quote:
Originally posted by Sober Preacher's Kid:
Whereas the US is 50 states learning to live together, Canada is one country which divides into provinces for certain items.

The US (and Australia) have a federal system in which certain nominated powers are given to the federal govt and all others by default remain with the states; in Canada, it is the provinces to which the defined powers are given and the default powers are those of the central govt.

In practice the federal govt in both the US and here has increased its real powers. The main catalyst here has been the general assumption of power by the federal govt to raise income taxes, thus placing it in a position of much greater economic power than the founding fathers intended. The use by the federal govt of tied grants to the states in areas where the states would otherwise have exclusive power has further increased federal power. Curiously, this tactic is currently under review in the High Court, oral argument before the Court having finished today.

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monkeylizard

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The same thing happens here. Nothing grants the federal government the power to make seatbelt laws. So they tie federal road grants to a requirement that the receiving state has a seatbelt law. End result? Seatbelt laws in all 50 states. The fed manipulated the system that it created (taxation and grants) to effectively assume a power it would not otherwise have.

Combine the taxation and grants with the affectation doctrine of the commerce clause, tack on the 17th amendment*, and it sets the playing field in favor of the federal government, something that my reading of the Constitution and early American history says we were expressly trying to avoid. Oops.


*There were good reasons for it, but a side effect was the dilution of states' rights.

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mousethief

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quote:
Originally posted by monkeylizard:
The same thing happens here. Nothing grants the federal government the power to make seatbelt laws. So they tie federal road grants to a requirement that the receiving state has a seatbelt law. End result? Seatbelt laws in all 50 states. The fed manipulated the system that it created (taxation and grants) to effectively assume a power it would not otherwise have.

That is of course easier than easy to solve. The state can raise its own money to build and repair roads. I wish we would do this with school funding so we won't have disastrous testing protocols shoved down our children's throats. Of course that would also require our state legislatures to not be in the pockets of the profit-off-education industry. The feds do not require states to adopt Common Core standards. The states do that to themselves.

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monkeylizard

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It's not quite that easy. Let's say a state decided to give the US Department of (Transportation, Education, etc.) the finger and stop accepting any federal funding for roads, schools, whetever. They have to increase the state tax revenues somehow to offset the lost grant money. That doesn't mean the citizens of that state get to pay any less in federal income tax, so the roughly 50-60% of households which pay federal income taxes get screwed.

Even if all 50 states got together and decided to do that all at the same time, the fed would simply spend that money elsewhere.

The power now lies fully with the federal government. They can make it happen by announcing that in year X, grants for roads, schools, whatever will stop and the federal tax rate that year will drop accordingly. States can then plan to increase taxes beginning in year X to begin paying for those things themselves. I don't ever see the fed giving up any power that it has taken from the states. Ever.

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lilBuddha
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One problem with a state vs. The State is that, despite contrary rhetoric, the countries we speak of are actually countries, not collections of sovereign entities. The collective need will always necessitate the support of the various regions.
The road argument is silly. Roads within any state or province are part of a necessary network between them.
When Canada, America and Australia were formed, individual relatively autonomous regions were possible. In practical terms, they do no longer exist so.

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Leorning Cniht
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quote:
Originally posted by lilBuddha:

The road argument is silly. Roads within any state or province are part of a necessary network between them.

You may as well say that the roads within France are part of a necessary network between Spain and Belgium. It's true, but it doesn't magically mean that the EU takes over the building and maintenance of French roads.

And funnily enough, you can drive all around Europe, from country to country, without anyone needing to cross-subsidize anyone else's roads.

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monkeylizard

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quote:
Originally posted by lilBuddha:
When Canada, America and Australia were formed, individual relatively autonomous regions were possible. In practical terms, they do no longer exist so.

Regardless, in the US a legal contract exists which defines the structure and role of The State and its relationship to the member states. To change it would require using the methods prescribed within it, or abandoning the contract altogether.

Practically speaking, I think that as time goes by the federal government will assume more and more power from the states until "states rights" are completely gone. Although we'll still have a contract, neither side will abide by it and the single nation will move along through inertia.

[ 09. May 2014, 21:03: Message edited by: monkeylizard ]

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The ultimate result of shielding men from the effects of folly is to fill the world with fools. ~ Herbert Spencer (1820 - 1903)

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Soror Magna
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quote:
Originally posted by monkeylizard:
... Over the past 226+ years since the signing of the Constitution, the reach and power of the federal government has grown beyond a strict reading of the US Constitution. ...

This is an oft-repeated popular political argument that falls completely apart with a little thought. Of course the reach and power of the federal government has grown. The same is true of state and local governments. EVERYWHERE, not just in the USA. Why? Because there are a million things that have happened in the last 226 years that weren't envisaged, and since they weren't envisaged, it isn't necessarily the case that giving all new powers automatically to the states will always be the best option. Hence the practical need for what some call less-strict readings of the Constitution.

Transcontinental railroads. Birth control. Space exploration. Broadcasting and electronic communication and data. Racial integration. Air travel. Nuclear power. Nothing explicit in the Constitution about those. So, for example, states can and do arm their militias and police with all sorts of weapons and equipment, but does anyone really want e.g. Idaho to have its own nuclear weapons?

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Sober Preacher's Kid

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quote:
Originally posted by Gee D:
quote:
Originally posted by Sober Preacher's Kid:
Whereas the US is 50 states learning to live together, Canada is one country which divides into provinces for certain items.

The US (and Australia) have a federal system in which certain nominated powers are given to the federal govt and all others by default remain with the states; in Canada, it is the provinces to which the defined powers are given and the default powers are those of the central govt.

In practice the federal govt in both the US and here has increased its real powers. The main catalyst here has been the general assumption of power by the federal govt to raise income taxes, thus placing it in a position of much greater economic power than the founding fathers intended. The use by the federal govt of tied grants to the states in areas where the states would otherwise have exclusive power has further increased federal power. Curiously, this tactic is currently under review in the High Court, oral argument before the Court having finished today.

Not strictly true. The head of power of "Property & Civil Rights" covers all civil law except public criminal and administrative law. Most of Section 91 consists of exceptions to this power in Section 92. Additionally, there is Section 92(16) "All matters of a merely local or private nature" which has also been interpreted broadly.

In reality, the courts will try to classify a new matter by analogy under Sections 91 and 92, and if it doesn't fit then it goes to provinces under 92(16) if is more local than national, or under Peace, Order and Good Government if it is more national than local.

More to the point, Canada never developed the extensive system of tied grants that Australia did. There are only two conditional transfers left and they have have extremely general conditions that are not onerous.

The simple reason is Quebec and a few others usually screamed blue bloody murder over their provincial powers.

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Posts: 7646 | From: Peterborough, Upper Canada | Registered: Jun 2007  |  IP: Logged
monkeylizard

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# 952

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quote:
Originally posted by Soror Magna:
This is an oft-repeated popular political argument that falls completely apart with a little thought. Of course the reach and power of the federal government has grown. The same is true of state and local governments. EVERYWHERE, not just in the USA. Why? Because there are a million things that have happened in the last 226 years that weren't envisaged, and since they weren't envisaged, it isn't necessarily the case that giving all new powers automatically to the states will always be the best option. Hence the practical need for what some call less-strict readings of the Constitution.

The US Constitution is the legal document connecting the states together into one nation. That document specifically says that all new powers are reserved for the states. If enough states agree that's not the best option for a particular new power, they can defer that to the federal government by ammending the Constitution. The US founders knew that new things would come along. That's why the ammendment process exists.

Some of your examples (transcontinental railroads, broadcasting and e-communication, and air travel) are clearly involved directly in interstate commerce and can be regulated by the fed. Most pharmacology is involved in interstate commerce, so again the realm of the fed. Space exploration and nuclear power involved international treaties, so those are under the fed but not because of the Commerce Clause. Racial integration (and some you didn't mention like protecting endangered species) only have a casual connection to powers granted to the federal government.

I don't disagree that the fed needs to be creating unified policies on these things. I simply think that should have been done through the ammendment process, not through a very broad reading of the commerce clause.

[ 13. May 2014, 15:51: Message edited by: monkeylizard ]

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Posts: 2201 | From: Music City, USA | Registered: Jul 2001  |  IP: Logged
Beeswax Altar
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# 11644

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I'm all in favor of a constitutional convention. Politicians will never allow it. So much for government of the people, by the people, for the people. Instead, ultimate authority rests in the hands of 9 unelected people in black gowns. The US is essentially an oligarchy.

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monkeylizard

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# 952

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I blame the 17th ammendment for that. It killed any real oversight of the Senate, which should be keeping those 9 in check.

[ 13. May 2014, 16:33: Message edited by: monkeylizard ]

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The ultimate result of shielding men from the effects of folly is to fill the world with fools. ~ Herbert Spencer (1820 - 1903)

Posts: 2201 | From: Music City, USA | Registered: Jul 2001  |  IP: Logged
Beeswax Altar
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# 11644

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17th Amendment was a bad idea.

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Posts: 8411 | From: By a large lake | Registered: Jul 2006  |  IP: Logged
no prophet's flag is set so...

Proceed to see sea
# 15560

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quote:
Originally posted by Beeswax Altar:
I'm all in favor of a constitutional convention. Politicians will never allow it. So much for government of the people, by the people, for the people. Instead, ultimate authority rests in the hands of 9 unelected people in black gowns. The US is essentially an oligarchy.

I thought it was a plutocracy, controlled by the single party which pretends to be two, while executing the wishes of the corporate elite and wealthy. I would hope, but see it is perhaps in in vain given the current members of your court, that a court would be depoliticized and apply reasoning and rule of law instead of silly things like declaring corporations to be people.

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