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Thread: American Constitution

  1. #61

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    Quote Originally Posted by Seamus Fermanagh View Post
    Whereas I prefer political decision making to be handled at the lowest practicable level and wherever possible by the people most directly affected and/or being forced to fund it.
    What about a dumbbell distribution between county/municipal and federal levels?
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  2. #62
    Praefectus Fabrum Senior Member Anime BlackJack Champion, Flash Poker Champion, Word Up Champion, Shape Game Champion, Snake Shooter Champion, Fishwater Challenge Champion, Rocket Racer MX Champion, Jukebox Hero Champion, My House Is Bigger Than Your House Champion, Funky Pong Champion, Cutie Quake Champion, Fling The Cow Champion, Tiger Punch Champion, Virus Champion, Solitaire Champion, Worm Race Champion, Rope Walker Champion, Penguin Pass Champion, Skate Park Champion, Watch Out Champion, Lawn Pac Champion, Weapons Of Mass Destruction Champion, Skate Boarder Champion, Lane Bowling Champion, Bugz Champion, Makai Grand Prix 2 Champion, White Van Man Champion, Parachute Panic Champion, BlackJack Champion, Stans Ski Jumping Champion, Smaugs Treasure Champion, Sofa Longjump Champion Seamus Fermanagh's Avatar
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    Quote Originally Posted by Montmorency View Post
    What about a dumbbell distribution between county/municipal and federal levels?
    Not impossible given my theme. I freely acknowledge that certain issues -- international relations, national defense for example -- mandate a federal level of control. In general, voters are somewhat less ignorant about those local too them and slightly more willing to toss out incumbents. These are healthy things in a republic.
    "The only way that has ever been discovered to have a lot of people cooperate together voluntarily is through the free market. And that's why it's so essential to preserving individual freedom.” -- Milton Friedman

    "The urge to save humanity is almost always a false front for the urge to rule." -- H. L. Mencken

  3. #63
    Praefectus Fabrum Senior Member Anime BlackJack Champion, Flash Poker Champion, Word Up Champion, Shape Game Champion, Snake Shooter Champion, Fishwater Challenge Champion, Rocket Racer MX Champion, Jukebox Hero Champion, My House Is Bigger Than Your House Champion, Funky Pong Champion, Cutie Quake Champion, Fling The Cow Champion, Tiger Punch Champion, Virus Champion, Solitaire Champion, Worm Race Champion, Rope Walker Champion, Penguin Pass Champion, Skate Park Champion, Watch Out Champion, Lawn Pac Champion, Weapons Of Mass Destruction Champion, Skate Boarder Champion, Lane Bowling Champion, Bugz Champion, Makai Grand Prix 2 Champion, White Van Man Champion, Parachute Panic Champion, BlackJack Champion, Stans Ski Jumping Champion, Smaugs Treasure Champion, Sofa Longjump Champion Seamus Fermanagh's Avatar
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    Quote Originally Posted by Pannonian View Post
    From what I've read, I strongly doubt if anyone else would have opposed Stalin any more effectively than Roosevelt did. To do that, the US would have had to take Britain's advice, and probably had to shore up Britain's imperial position as well in order to strengthen this anti-Communist ally. Everything I've read points to a determination not to do this. The US weren't going to fight for the benefit of the British and their empire. If that was going to be the case, then either the US takes up the slack as it did, with the accompanying costs. Or the USSR takes over more of the world than it did. Roosevelt was already as Anglophilic as any US president was going to get.
    That is certainly possible, as Stalin was nothing if not determined. Nor was Dewey particularly inclined towards England, though he was much less anti-Empire than some GOP -- backing up Churchill would have been more likely than with the failing FDR, but maybe not likely enough to do notably better at Yalta. But numerous folks in the US government at the time thought Yalta was a bad deal and that, at a minimum, we should have been constantly pushing Stalin to actually live up to the deal that was signed. He did not, as you well know.

    It is also true that the Russian attack in Manchuria had a notable effect upon the Japanese and their willingness to end the conflict -- yet even in February of 1945 all of the Allies knew that the war was, essentially, won and that the rest was follow through. Our strategy should have been to push the Soviets to live up to the deal and, absent a Soviet attack on Japan (which Stalin would have withheld), then simply blockade Japan and let it wither.
    "The only way that has ever been discovered to have a lot of people cooperate together voluntarily is through the free market. And that's why it's so essential to preserving individual freedom.” -- Milton Friedman

    "The urge to save humanity is almost always a false front for the urge to rule." -- H. L. Mencken

  4. #64
    Headless Senior Member Pannonian's Avatar
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    Quote Originally Posted by Seamus Fermanagh View Post
    That is certainly possible, as Stalin was nothing if not determined. Nor was Dewey particularly inclined towards England, though he was much less anti-Empire than some GOP -- backing up Churchill would have been more likely than with the failing FDR, but maybe not likely enough to do notably better at Yalta. But numerous folks in the US government at the time thought Yalta was a bad deal and that, at a minimum, we should have been constantly pushing Stalin to actually live up to the deal that was signed. He did not, as you well know.

    It is also true that the Russian attack in Manchuria had a notable effect upon the Japanese and their willingness to end the conflict -- yet even in February of 1945 all of the Allies knew that the war was, essentially, won and that the rest was follow through. Our strategy should have been to push the Soviets to live up to the deal and, absent a Soviet attack on Japan (which Stalin would have withheld), then simply blockade Japan and let it wither.
    Even Churchill recognised that, on the European front, Yalta wasn't going to change things beyond the margins (hence the infamous signed note). Any changes to the OTL needed to have happened before the push into eastern Europe, and even Marshall, by some distance the most Anglophilic of the US chiefs of staff, wasn't going to countenance further diversion from the NW European front. Which would have been a substantial betrayal of Allied promises to Stalin of course. In fact, if we look beyond the political environment (which was only discussed in Churchill's note), Stalin kept his promises to the Allies rather more than vice versa. Any efforts to hold Stalin to his promises wouldn't have washed; in the most concrete arguments of all, he was already keeping his promises far more than Churchill and Roosevelt had. In order to change things from the OTL, the Allies needed to break even more promises (which was what Churchill was urging on Roosevelt).

    Also, I doubt if a blockade of Japan would have been politically feasible. Japan was why the US entered the war. The European front was a byproduct. A negotiated peace with Germany might have been tolerated by the American public. Japan had to be punished.

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  5. #65

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    Quote Originally Posted by Seamus Fermanagh View Post
    Not impossible given my theme. I freely acknowledge that certain issues -- international relations, national defense for example -- mandate a federal level of control. In general, voters are somewhat less ignorant about those local too them and slightly more willing to toss out incumbents. These are healthy things in a republic.
    But reference to foreign affairs is kind of a deflection. Hasn't one of the most robust functions of federal government been to provide citizens a recourse 'over the heads' of local and state government?

    Quote Originally Posted by Seamus Fermanagh View Post
    That is certainly possible, as Stalin was nothing if not determined. Nor was Dewey particularly inclined towards England, though he was much less anti-Empire than some GOP -- backing up Churchill would have been more likely than with the failing FDR, but maybe not likely enough to do notably better at Yalta. But numerous folks in the US government at the time thought Yalta was a bad deal and that, at a minimum, we should have been constantly pushing Stalin to actually live up to the deal that was signed. He did not, as you well know.

    It is also true that the Russian attack in Manchuria had a notable effect upon the Japanese and their willingness to end the conflict -- yet even in February of 1945 all of the Allies knew that the war was, essentially, won and that the rest was follow through. Our strategy should have been to push the Soviets to live up to the deal and, absent a Soviet attack on Japan (which Stalin would have withheld), then simply blockade Japan and let it wither.
    While the Allies could eventually have bombed or starved Japan into submission (killing millions), I think the point of taking Japan quickly was to reduce overall costs, demonstrate the power of nukes to Stalin, and most importantly prevent Japan from falling under the Soviet thumb.

    A Communist Pacific would have been more damaging to American interests than anything arising out of Yalta.
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  6. #66
    Member Member Gilrandir's Avatar
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    Quote Originally Posted by Montmorency View Post

    A Communist Pacific would have been more damaging to American interests than anything arising out of Yalta.
    And yet America had (and still has) a communist pacific - China.
    Quote Originally Posted by Suraknar View Post
    The article exists for a reason yes, I did not write it...

  7. #67

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    Quote Originally Posted by Gilrandir View Post
    And yet America had (and still has) a communist pacific - China.
    No, not yet.
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  8. #68

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    Quote Originally Posted by Montmorency View Post
    No, not yet.
    To me it looks very close without some major policy shift.
    The failure of TPP without any alternative option, appears to open a rather large door for China.
    Not today, not tomorrow but...
    Thinking long-term is not the present administrations strength.
    Last edited by HopAlongBunny; 08-17-2017 at 14:05.
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  9. #69
    Praefectus Fabrum Senior Member Anime BlackJack Champion, Flash Poker Champion, Word Up Champion, Shape Game Champion, Snake Shooter Champion, Fishwater Challenge Champion, Rocket Racer MX Champion, Jukebox Hero Champion, My House Is Bigger Than Your House Champion, Funky Pong Champion, Cutie Quake Champion, Fling The Cow Champion, Tiger Punch Champion, Virus Champion, Solitaire Champion, Worm Race Champion, Rope Walker Champion, Penguin Pass Champion, Skate Park Champion, Watch Out Champion, Lawn Pac Champion, Weapons Of Mass Destruction Champion, Skate Boarder Champion, Lane Bowling Champion, Bugz Champion, Makai Grand Prix 2 Champion, White Van Man Champion, Parachute Panic Champion, BlackJack Champion, Stans Ski Jumping Champion, Smaugs Treasure Champion, Sofa Longjump Champion Seamus Fermanagh's Avatar
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    Quote Originally Posted by Gilrandir View Post
    And yet America had (and still has) a communist pacific - China.
    Not quite. China will, I suspect, become the power in the Western Pacific...but it will not really be a communist state when it does so. The innovation, industry, etc. needed to project power that far cannot be based on the old system. It will be another regulated capitalist state when its power in the region peaks.
    "The only way that has ever been discovered to have a lot of people cooperate together voluntarily is through the free market. And that's why it's so essential to preserving individual freedom.” -- Milton Friedman

    "The urge to save humanity is almost always a false front for the urge to rule." -- H. L. Mencken

  10. #70

    Default Re: Trump Thread

    Quote Originally Posted by Seamus Fermanagh View Post
    Not quite. China will, I suspect, become the power in the Western Pacific...but it will not really be a communist state when it does so. The innovation, industry, etc. needed to project power that far cannot be based on the old system. It will be another regulated capitalist state when its power in the region peaks.
    China is as capitalist as it's going to get, along with the rest of the BRICS, who to varying extents have defined a practice of "state/hybrid capitalism" that on inspection looks troublingly like old fascist economic principles.

    And, well, we all know what to call Putin around here, but perhaps Xi Jinping and Narendra Modi are consolidating power and focusing national rhetoric toward a similar mode in their respective countries.

    And whaddaya know, between Erdogan in the west and Duterte in the east, how swell that China and India are picking this auspicious moment to ignite a border spat...

    ...

    Gotta love border spats.
    Last edited by Montmorency; 08-17-2017 at 06:57.
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  11. #71
    Member Member Gilrandir's Avatar
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    Default Re: Trump Thread

    Quote Originally Posted by Seamus Fermanagh View Post
    Not quite. China will, I suspect, become the power in the Western Pacific...but it will not really be a communist state when it does so. The innovation, industry, etc. needed to project power that far cannot be based on the old system. It will be another regulated capitalist state when its power in the region peaks.
    Quote Originally Posted by Montmorency View Post
    China is as capitalist as it's going to get
    Whatever may lay in wait for China, it IS a Communist state. Look at the everlasting ruling party, the ideology it is steered by, political liberties in check, internet control...
    Quote Originally Posted by Suraknar View Post
    The article exists for a reason yes, I did not write it...

  12. #72

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    Capitalist...depends what you mean by that.
    The U.S.S.R was certainly capitalist; capital was the primary mode of production. Its' failure to overcome the alienation of labour through a wage relationship is arguably one reason it did not succeed.
    That nonsense aside, China will probably expand much like the U.S.: low-cost loans for development=>spurring exports of capital goods=>deepening imports of resources.
    Nothing in that process requires democracy, in fact some governments prefer China's willingness to ignore social issues.
    Somewhat dated, but this brief look at policy in Africa sketches the outline:

    https://www.cfr.org/backgrounder/china-africa

    Although, it does show that security and social issues can effect the cost of resources and need to be addressed.
    Last edited by HopAlongBunny; 08-17-2017 at 14:42.
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  13. #73
    Praefectus Fabrum Senior Member Anime BlackJack Champion, Flash Poker Champion, Word Up Champion, Shape Game Champion, Snake Shooter Champion, Fishwater Challenge Champion, Rocket Racer MX Champion, Jukebox Hero Champion, My House Is Bigger Than Your House Champion, Funky Pong Champion, Cutie Quake Champion, Fling The Cow Champion, Tiger Punch Champion, Virus Champion, Solitaire Champion, Worm Race Champion, Rope Walker Champion, Penguin Pass Champion, Skate Park Champion, Watch Out Champion, Lawn Pac Champion, Weapons Of Mass Destruction Champion, Skate Boarder Champion, Lane Bowling Champion, Bugz Champion, Makai Grand Prix 2 Champion, White Van Man Champion, Parachute Panic Champion, BlackJack Champion, Stans Ski Jumping Champion, Smaugs Treasure Champion, Sofa Longjump Champion Seamus Fermanagh's Avatar
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    Default Re: Trump Thread

    nvm. You are correct and I am wrong. Adios.
    "The only way that has ever been discovered to have a lot of people cooperate together voluntarily is through the free market. And that's why it's so essential to preserving individual freedom.” -- Milton Friedman

    "The urge to save humanity is almost always a false front for the urge to rule." -- H. L. Mencken

  14. #74

    Default Re: Trump Thread

    Vitiate Man.

    History repeats the old conceits
    The glib replies, the same defeats


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  15. #75

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    A very interesting blog by some law professor devoted to legal and constitutional details and arguments surrounding any and all cases out there for the impeachment of Donald Trump.

    Latest post is entitled "A due process challenge (almost certainly fruitless) to the Arpaio pardon". It discusses a legal challenge just put forward against the Joe Arpaio pardon on the argument that, holding that courts must not be hindered in maintaining by such means as prosecuting contempt their authority and proper activities, an executive pardon in supervenience of a ruling against contempt is actually in violation of the Fifth Amendment's Due Process clause.

    I guess that's a Constitutional rationalization of the complaint that "Trump's pardon undermines rule of law".

    The blog author, from his perspective as a legal scholar, discusses the merits of the case (despite thinking it's not a viable one).

    I’m sympathetic to the sentiment. Indeed, it is precisely because the Arpaio pardon is so corrosive of the constitutional order that I’ve argued that it is an impeachable offense. Nonetheless, trying to invalidate the pardon itself is a non-starter.
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    Lots of constitutional language is vague or necessarily subject to interpretation in light of unforeseeable events. The pardon clause is not of that sort. Article II, Section 2 says that the president, “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” That is as plain and unequivocal as any sentence the framers ever wrote. The framers could have written exceptions or qualifications into the constitution’s absolute grant of presidential authority. They could have made pardons subject to review by the Supreme Court. Or to override by Congress. Or something else. They didn’t. In short, the constitution made the president’s pardon power absolute, with one single exception – matters subject to impeachment.

    The Protect Democracy authors contend that the plain scope of the pardon power in the original constitution is somehow limited by the later-enacted provisions of the Bill of Rights, specifically the 5th Amendment’s guarantee of due of process of law. But just because the Bill of Rights was enacted after the original constitution doesn’t make it a warrant for rewriting any portion of the original constitution that one now finds inconvenient.

    Let’s consider the argument for a due process limitation on presidential pardon power:

    To begin, because the constitution is America’s fundamental law, in constitutional disputes of this sort, the contestants are necessarily confined to certain forms of argument.

    First, one can argue from the text, particularly where the text is ambigous or open-ended. (Textualism.) But the Article II text defining the presidents’s pardon power is clear and unequivocal. And the due process clause says nothing whatever about pardons.

    Second, one can argue from a combination of textual and extra-textual sources that the framers intended something not obvious from the text. (Originalism.) Here the argument would have to be that the authors or ratifiers of the 5th Amendment due process clause intended it to modify the unequivocal pardon language of Article II. There is no evidence whatever for this position. Indeed, there is not the faintest hint of a suggestion that anyone in the founding generation ever even thought about the pardon power in connection with the due process clause.

    Third, one can argue that, while a particular problem now at issue was not contemplated by the framers because technology or physical conditions or social arrangements have changed in ways they could not have anticipated, had they been able to anticipate modern conditions, they would have wanted the constitutional language to cover the problem. (A more elastic originalism.) A classic example is the judicial expansion of the 4th Amendment, which speaks of searching “houses, papers and effects,” to cover electronic communications 18th century politicians could not have envisioned. But in this case, Mr. Trump’s pardon of Arpaio is hardly something the framers could not have anticipated. Many of them were practicing lawyers. They understood courts, injunctions, and the power of courts to enforce their own orders. Had they wanted to carve out an exception to the pardon power for criminal contempt convictions, they could plainly have done so in Article II. They didn’t. And there is no hint that those who enacted the due process clause only a few years later (most of them the same people) had any other view of the question.

    Moreover, and this seems to me key, the framers did anticipate that a president might abuse the pardon power, and they provided a remedy: impeachment. As I discussed in my last post, no less a figure than James Madison made that express point at the Virginia ratifying convention.

    Fourth, one can disavow any interest in the intentions of the framers and treat the language of the constitution as a mere framework for an evolving set of rules, norms, and governing principles. But even the most elastic living constitutionalist cannot (or at least should not) completely ignore what the constitution itself says. The language of Article II, Section 2 is unequivocal. To use the vague concept of “due process” to negate the plain meaning of another section of the constitution requires a far more powerful argument than the good folks at Protect Democracy muster.

    For example, they assert that if a president were to announce that “he planned to pardon all white defendants convicted of a certain crime but not all black defendants, that would conflict with the Fourteenth Amendment’s Equal Protection Clause.” This is, frankly, remarkably sloppy stuff. In the first place, merely announcing an intention to behave in a racially discriminatory way does not violate the 14th Amendment. Moreover, even if the president were to act on his stated intention and begin issuing pardons only to white defendants, that might violate the spirit of the equal protection clause, but that would not invalidate the white pardons. Nor is it plausible to suggest that a court would order the president to start issuing pardons to similarly situated black persons.

    Or consider an analogous hypothetical – assume a president announced that he intended to nominate only white cabinet members, and then did so. Would that be outrageous? Sure. Would that violate the equal protection clause? No. Because the president’s power of nomination is plenary and not governed by legal rules. And even if one could construct some contorted argument that the 14th Amendment was violated, what would be the remedy? Does anyone seriously imagine that courts could order the president to withdraw nominations of the white cabinet officers, or order the president to substitute black ones?

    In each of these hypotheticals, the president would be exercising, however deplorably, an undoubted constitutional power. And in each case, there would be no constitutional mechanism to reverse the exercise of that power in the particular case. There would be other constitutional remedies — but they are political and rest primarily with the public and Congress and not the courts. In the second case, Congress could refuse to confirm all or some of an avowedly racist slate of nominees. In both cases, if the president were in his first term, an outraged public could refuse to re-elect him. Or Congress could impeach him immediately.

    A due process based judicial review of presidential pardons would have to be consistent with the checks-and-balances structure written into the constitution we have. It is not. The pardon power was designed in large measure as an executive check on judicial excesses. It would hardly make sense to give the judiciary a check on that check. And I can’t imagine how a court could fashion an appropriate standard of review of the pardon decision that wouldn’t give courts the final word on a question expressly, unqualifiedly, reserved to the president.

    The real meat of Protect Democracy’s argument is that the due process clause must be read to provide a judicial remedy for every improper executive action. That is not so. The constitution gives the judiciary the power to effect case-specific remedies for some executive improprieties, but not all. Sometimes the constitution provides no remedy except political ones.


    The Arpaio pardon is scandalous. But it will stand. Judges have no power to overturn it. Nonetheless, Congress has the power to remove — to impeach — the man who awarded it.


    Nice blog anyway.
    Vitiate Man.

    History repeats the old conceits
    The glib replies, the same defeats


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