Constitutionality of Clinton as Secretary of State...

[CrimsonWhite]

no....those making the claim that somehow it's unconstitutional for her to take the position do. it's cute how a Republican President was able to get around it but now ya'll want the dem to follow the exact letter of the constitution.

when you consider that the outgoing President had about as much regard for the consitution as a roll of toliet paper I don't think this one article means that much in the big picture.

Actually, this has merit. The fix is easy and has precedence, but it is still meritorious. This is legally interesting.

Furthermore, in which instances has Bush acted in contradicton to the Constitution? Bear in mind that the only person's qualified to make that judgement wear black robes and begin meeting on the First Monday in October. If you are going to spew Dem taling points then be repared to back them up.

*crickets*

 

[Ravi]

*crickets*

Some people believe suspending hc and circumventing congress with signing statements are both unconstitutional.

 

[CrimsonWhite]

Some people believe suspending hc and circumventing congress with signing statements are both unconstitutional.

Unless some of those people have written a majority opinion of the Supreme Court, their opinions don't really matter.

 

[Ravi]

Unless some of those people have written a majority opinion of the Supreme Court, their opinions don't really matter.

True enough. But you did ask.

 

[Care4all]

The Constitution doesn't differentiate between "cost of living" and what you call an "actual pay increase." If the pay was increased then that legislator is ineligible under the Constitution.

the legislator DID NOT GIVE the increase to the Secretary of state, thru cost of living or thru any other kind of legislation, the President went around legislation and gave the Secretary of State a raise thru a presidential Executive order.....???

Why are people even talking about the congress or senate giving this raise....? The article CLEARLY STATES the President gave the increase to the secretary of state thru his executive order and congress had NOTHING to do with it, so no possible corruption there on Hillary or any congressman's part???

 

[pegwinn]

Wrong, as the ERA was never ratified.

Didn't have to be, the 14th Amendment and EEO statutes provided the results needed.

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

Of course. Any discussion of intent is akin to trying to attempt psychic bonding with the dead.

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.

Not true. The 14th Amendment provides equal protection under the law and since the Constitution is THE LAW its' protections apply. Prior to the 14th you would be correct. I have an interesting essay IRT the effects of the 14th on the USA. If I can find it, I will post it here.

Oh, and Luissa.... I knew you were joking because everyone loves Texas

 

[Steerpike]

Not true. The 14th Amendment provides equal protection under the law and since the Constitution is THE LAW its' protections apply. Prior to the 14th you would be correct. I have an interesting essay IRT the effects of the 14th on the USA. If I can find it, I will post it here.

Not true. No where in the 14th amendment are the Bill of Rights explicitly applied to the States, which is what you would need to find it there literally. The Supreme Court has read the incorporation into the 14th amendment.

 

[pegwinn]

Not true. The 14th Amendment provides equal protection under the law and since the Constitution is THE LAW its' protections apply. Prior to the 14th you would be correct. I have an interesting essay IRT the effects of the 14th on the USA. If I can find it, I will post it here.

Not true. No where in the 14th amendment are the Bill of Rights explicitly applied to the States, which is what you would need to find it there literally. The Supreme Court has read the incorporation into the 14th amendment.

1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The two emphasized portions literally strip the state of the power to ignore the federal constitution. This amendment was actually the end of the beginning of the death of states sovereignty.

 

[Steerpike]

1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The two emphasized portions literally strip the state of the power to ignore the federal constitution. This amendment was actually the end of the beginning of the death of states sovereignty.

No, the emphasized portion does not LITERALLY do that. Since the Bill of Rights previously constrained only the Federal government, there was no privilege or immunity held by the person vis a vis the state governments.

In fact, even now the Court doesn't apply those protections through the Privileges and Immunity clause. They are all incorporated through the due processes clauses.

And in fact early on the Bill of Rights was not incorporated through the 14th amendment at all. It was only later that the Court reversed itself and started interpreting the 14th amendment that way.

The incorporation is anything but literal. A 'literal' wording would say something to the effect of "the guarantees of such and such amendment are hereby applied to state and local government." Or any of a multitude of different ways you could write a literal incorporation. The 14th amendment is not anywhere a "literal" incorporation.

I should add that the 'literalists' are the ones on the Court who refused to incorporate the Bill of Rights early on. They took the position that if it was supposed to incorporate the Bill of Rights it would have said so.

The Bill of Rights only gets incorporated when the Court moves away from literalism and tries to discern the 'intent' of the drafters and also pulls public policy considerations into it. In fact, they are largely pulling in public policy considerations when they do the incorporation time and again, not resting on the literal reading of the 14th.

 

[pegwinn]

Good Comments. I will respond within so that I don't have to break it up. Even if we end up disagreeing it appears we are on the same side in the end.

No, the emphasized portion does not LITERALLY do that. Since the Bill of Rights previously constrained only the Federal government, there was no privilege or immunity held by the person vis a vis the state governments. The second sentence is correct. But, the 14th Amendment isn't simply an add on that takes effect from that point in the document. The amendment changes the entirety of the document. So, literally speaking, it established that the bill of rights applied to all citizens and forbade the states from jerking around with em.

In fact, even now the Court doesn't apply those protections through the Privileges and Immunity clause. They are all incorporated through the due processes clauses. Honestly, I am not worried about the court. They very often try to use Algebra to come up with 2+2=5. I am speaking only from my own knowlege and study. And, I don't claim to be anything other than an interested layman. That happens to be why I welcome disagreements. It allows the ol brain housing group to expand a bit.

And in fact early on the Bill of Rights was not incorporated through the 14th amendment at all. It was only later that the Court reversed itself and started interpreting the 14th amendment that way.

The incorporation is anything but literal. A 'literal' wording would say something to the effect of "the guarantees of such and such amendment are hereby applied to state and local government." Or any of a multitude of different ways you could write a literal incorporation. The 14th amendment is not anywhere a "literal" incorporation. From what I have read of the popular media of the day, including diaries and letters, the wording was in the colloquial syntax. Just because we (the 21 Century thinkers) would word it differently doesn't mean it isn't a literal statement.

I should add that the 'literalists' are the ones on the Court who refused to incorporate the Bill of Rights early on. They took the position that if it was supposed to incorporate the Bill of Rights it would have said so. I wish those guys had been as literal when the commerce clause got stretched out of shape. Yeah I know that is off topic, but it still peeves me.

The Bill of Rights only gets incorporated when the Court moves away from literalism and tries to discern the 'intent' of the drafters and also pulls public policy considerations into it. In fact, they are largely pulling in public policy considerations when they do the incorporation time and again, not resting on the literal reading of the 14th.

I despise attempting to gauge intent in any document that is so powerful. Unless of course I have a Ouija board and simultaneous access to all the ghosts of all the writers.

 

[Steerpike]

Pegwinn:

Good points in return. It looks like we differ on what constitutes a "literal" interpretation. I won't belabor the point, but I'll simply say that the fact it took so long to have any incorporation in the 14th amendment, as well as all the argument surrounding it, seems to me to argue against the incorporation being literal.

I agree on the Commerce Clause. It was nice in the 90s to see the Court FINALLY strike something down as exceeding Congressional authority under the commerce clause. Doesn't happen often.

 

[Againsheila]

IMO the key words in the article are "The provision is seen by most as designed by our Founding Fathers to protect against corruption."

Anybody here think our government isn't corrupt?

 

[Kevin_Kennedy]

IMO the key words in the article are "The provision is seen by most as designed by our Founding Fathers to protect against corruption."

Anybody here think our government isn't corrupt?

You make a great point. One could argue that the government is corrupt mostly because it has ignored the Constitution.

 

[Care4all]

getting back to the topic of this thread, if this was meant to stop corruption due to a senator or congressman giving the secretary of state position a raise, when they, themselves could be appointed to the spot....

If President Bush, went around congress, to give the Secretary of State a raise thru a Presidential Executive order, as the article stated, then how or rather why, would senator clinton be disqualified, when there was no means or effort or vote of hers that gave the Secretary of State position a raise?

Care