Constitutionality of Clinton as Secretary of State...

[Steerpike]

The Constitution doesn't say "...unless the compensation is placed back to it's previous level," therefore it would still be unconstitutional.

Do you view the entire Constitution from a strictly literal standpoint?

 

[Steerpike]

I agree, it is a very interesting legal question to ponder. I don't think it will, nor do I think it should prohibit Hillary from becoming SOS. They will do the same as they've done in the past and adjust the salary back and move on.

And for the record, I think Hillary will be do a great job!

Since it is an interesting question and at least facially disqualifies her, the question is why do you feel it shouldn't matter?

 

[Valerie]

Since it is an interesting question and at least facially disqualifies her, the question is why do you feel it shouldn't matter?

It matters to a degree, as does the precedent set to circumvent it, along with the intent of the rule in the first place.

 

[Kevin_Kennedy]

Do you view the entire Constitution from a strictly literal standpoint?

Yes. I am a strict Constitutionalist, and if something is not in the Constitution then the federal government doesn't have the authority to do it. I don't believe in a "living" Constitution or any kind of "implied powers."

 

[Care4all]

I haven't read the entire thread so please give me a "pass" if someone else has mentioned this already....

I don't think anyone is considering the "intent" of this section in the constitution and how it came about....

And in my opinion, when it was writen, there was no way in this world would they have conceived the idea that the President could or would, give the Secretary of State a raise THRU EXECUTIVE ORDER, where the congress had no say so what so ever!

When they wrote this, they forsaw the possibility of finagling of someone in Congress giving a raise to the Secretary position that they knew or forsaw themselves being in somewhere down the road....is my best guess at this....

And if this is the case, then the intent of this section in the constitution, would NOT prevent Hillary from becoming Secretary of State, especially since it was President Bush, thru executive order, who gave the Secretary of State, a raise.

Also, if an ill willed President ending his term, wanted to mess things up for anyone in Congress that he hated who had ambitions to move onward beyond Congress, all the President would have to do is give a raise to one of his appointees via executive order.

To me, this just shows how far President Bush reached with these hundreds of executive orders that he issued during his term....going around the congress and their constitutional duties.

Care

 

[Steerpike]

Yes. I am a strict Constitutionalist, and if something is not in the Constitution then the federal government doesn't have the authority to do it. I don't believe in a "living" Constitution or any kind of "implied powers."

There are problems with that position as well, however. For example, on a strict reading of the Constitution, the First Amendment only applies to the federal government and more specifically to "Congress." This includes the religious and speech protections. So, for example, a State could outlaw religion or, conversely, establish a "state" church, and your strict reading of the Constitution wouldn't prohibit it.

 

[Kevin_Kennedy]

There are problems with that position as well, however. For example, on a strict reading of the Constitution, the First Amendment only applies to the federal government and more specifically to "Congress." This includes the religious and speech protections. So, for example, a State could outlaw religion or, conversely, establish a "state" church, and your strict reading of the Constitution wouldn't prohibit it.

States have their own Constitutions that guarantee these rights as well.

 

[Steerpike]

States have their own Constitutions that guarantee these rights as well.

Sure, but State Constitutions are much more easily amended than the Federal one. If a State eliminated in its own Constitutional First and Second amendment protections, you wouldn't feel that the Federal Constitution ought to constrain them? Or would it be ok in your view for them to then ban religion and guns? As a hypothetical.

 

[Care4all]

There are problems with that position as well, however. For example, on a strict reading of the Constitution, the First Amendment only applies to the federal government and more specifically to "Congress." This includes the religious and speech protections. So, for example, a State could outlaw religion or, conversely, establish a "state" church, and your strict reading of the Constitution wouldn't prohibit it.

no steerpike, I don't think you are right on this presumption.

Mainly because the Constitution, says that what is NOT in the constitution is left to the states or to the people.

Since the 1st and second ARE in the US Constitution, then the states CAN NOT over ride it.

care

 

[Kevin_Kennedy]

Sure, but State Constitutions are much more easily amended than the Federal one. If a State eliminated in its own Constitutional First and Second amendment protections, you wouldn't feel that the Federal Constitution ought to constrain them? Or would it be ok in your view for them to then ban religion and guns? As a hypothetical.

The people of the state would have to vote on it, and I doubt they would vote their own protections away.

 

[Steerpike]

no steerpike, I don't think you are right on this presumption.

Mainly because the Constitution, says that what is NOT in the constitution is left to the states or to the people.

Since the 1st and second ARE in the US Constitution, then the states CAN NOT over ride it.

care

That is incorrect.

They are in the Constitution but specifically applied to the federal government. In fact, for much of our history the Bill of Rights really did apply only to the federal government. States could have their own religion, etc. for this very reason.

It was only when the 14th amendment came along (and a bit after it came) that the U.S. Supreme Court started ruling that certain parts of the Bill of Rights were now enforceable against the States through the 14th amendment. And not all of the Bill of Rights have even been applied to the States to this day.

So a strict reading of the Constitution gets you to the situation we had at the Founding, which is that the Bill of Rights only applied to the FEDERAL government and not the States.

 

[Care4all]

yes, states like massachusetts kept their State Church long after the constitution was formed, but i believe it was the 14th amendment? that clarified it, and they had to disolve their state sponsored Church.

 

[Steerpike]

The people of the state would have to vote on it, and I doubt they would vote their own protections away.

That wasn't the question. The reason I posed it as a hypothetical is so we can build certain assumptions into the question. The question assumed, of course, that they did vote them away, and my question to you is would you be OK saying the Bill of Rights doesn't constrain the States and they are free to do as they wish?

 

[Care4all]

if the states can take away the 1st and the 2nd, why not the 3rd, 4th, 5th 6th etc?

 

[Steerpike]

yes, states like massachusetts kept their State Church long after the constitution was formed, but i believe it was the 14th amendment? that clarified it, and they had to disolve their state sponsored Church.

The 14th Amendment didn't actually clarify it. The Supreme Court interpreted the 14th amendment as including the Bill of Rights in application to the States. The 14th amendment itself doesn't actually say anything about it.

If you look from the Founding of the country to the first incorporation ruling under the 14th amendment, you will find that many years of this country's existence proceeded under the idea that the Bill of Rights only applied to the Federal government.

 

[Kevin_Kennedy]

That wasn't the question. The reason I posed it as a hypothetical is so we can build certain assumptions into the question. The question assumed, of course, that they did vote them away, and my question to you is would you be OK saying the Bill of Rights doesn't constrain the States and they are free to do as they wish?

Well it is a ridiculous situation, for what reason would the people decide that they know longer want their basic freedoms?

 

[Steerpike]

if the states can take away the 1st and the 2nd, why not the 3rd, 4th, 5th 6th etc?

Well, if it wasn't for the Supreme Court-created Incorporation Doctrine under the 14th amendment, the States could do away with all of them.

But the point is, a strict interpretation of the Constitution gets you to that point, and that was the situation when the country was founded.

The incorporation of the 14th amendment to the states was created by the Supreme Court, it's not actually stated in the 14th amendment.

 

[Steerpike]

Well it is a ridiculous situation, for what reason would the people decide that they know longer want their basic freedoms?

In other words, the answer is no you wouldn't support it and you do not wish to admit it.

The whole point of a hypothetical is to assess a viewpoint. It doesn't matter why they'd do it. Most people who claim to be strict constructionists are not, and it appears you are not. That's fine. I'm not either.

 

[Kevin_Kennedy]

In other words, the answer is no you wouldn't support it and you do not wish to admit it.

The whole point of a hypothetical is to assess a viewpoint. It doesn't matter why they'd do it. Most people who claim to be strict constructionists are not, and it appears you are not. That's fine. I'm not either.

I would not support the amendment of the State Constitution saying we do not have our basic rights, that is to be sure.

And such an amendment would never pass, regardless.

However, it seems I have to play your little game or risk looking like a hypocrite. If the people of a state voted to do away with their freedom of speech, for the sake of your hypothetical situation, then the state legislature may then make laws that prohibit the freedom of speech. However, the federal legislature may not as it would still be constrained by the First Amendment.

 

[Steerpike]

I would not support the amendment of the State Constitution saying we do not have our basic rights, that is to be sure.

And such an amendment would never pass, regardless.

However, it seems I have to play your little game or risk looking like a hypocrite. If the people of a state voted to do away with their freedom of speech, for the sake of your hypothetical situation, then the state legislature may then make laws that prohibit the freedom of speech. However, the federal legislature may not as it would still be constrained by the First Amendment.

Ok. Well that's a consistent position. It isn't a game, however, it is called a 'hypothetical' and it is a logical tool used for precisely this purpose.

Most people I've known who claim to be constructionists would balk at the State's being able to do such a thing. That said, however, a old colleague of mine (I taught Constitutional law for a while at a small college) was very much a Constructionist and his immediate answer to that hypothetical would be that certainly the States had the power to do that, although he wouldn't support the idea of them doing it.

That's a consistent Constructionist viewpoint.