Line Item Veto

[alaskaguy]

Interestingly Rudoph Giuliani claimed in the Republican Debate asserted that the line item veto is not constitutional. Mr. Giuliani's statement was directed at Romney,
“You have to be honest with people and you can’t fool all of the people all of the time: the line-item veto is unconstitutional.â€￾ Mr. Giuliani added: “The Supreme Court has ruled on it. So you can bang your head up against a stone wall all you want.â€￾

This thread is in particular aimed at Cyclonepride because he has mentioned on numerous occasions that he advocates the line item veto.

Any scholars out there that can provide input on whether the line item veto is unconstitutional?

 

[alaskaguy]

According to the following link a constitutional admendent would need to be passed before a line item veto could become law:

Washingtonpost.com: Court Strikes Down Line-Item Veto

It looks like we won't see the line item veto in our lifetime?

 

[dmclone]

That sucks. Romney made it sound like they were working on a line item veto that would hold up in court.

 

[SpokaneCY]

Guly DID say that it would be constitutional

if it was structured differently. So there is some mechanism if you can believe a politician on a stage during a debate.

Ron Paul is crazy - not crazy funny like Perot, but crazy scary like Lizzy Borden.

 

[iceclone]

Interestingly Rudoph Giuliani claimed in the Republican Debate asserted that the line item veto is not constitutional. Mr. Giuliani's statement was directed at Romney,
“You have to be honest with people and you can’t fool all of the people all of the time: the line-item veto is unconstitutional.â€￾ Mr. Giuliani added: “The Supreme Court has ruled on it. So you can bang your head up against a stone wall all you want.â€￾

This thread is in particular aimed at Cyclonepride because he has mentioned on numerous occasions that he advocates the line item veto.

Any scholars out there that can provide input on whether the line item veto is unconstitutional?

I don’t claim to be a constitutional scholar, but the Supreme Court did strike down line-item veto as being unconstitutional during the Clinton administration. While the composition of the court is different now, the current court seems very unlikely to come to a different conclusion, since 5 justices that were part of the 6-3 majority are still on the bench. Giuliani is therefore correct: proposing line-item veto is pretty much banging one's head against a wall. (Or it could be pandering for votes.)

 

[Wesley]

 

[Cyclonepride]

According to the following link a constitutional admendent would need to be passed before a line item veto could become law:

Washingtonpost.com: Court Strikes Down Line-Item Veto

It looks like we won't see the line item veto in our lifetime?

Yeah, exactly. The whole reason for the amendment process is to add necessary items to the constitution that are not currently allowed. It's a difficult process, so that not just any old thing can be added. But it is there because the founders of country did not foresee that we might just start making up our rules and ignoring the constitution altogether.

 

[Cyclonepride]

If we want abortion legalized.......pass an amendment

If we want our federal government involved in local schools......pass an amendment

If we want immigrants to automatically become citizens......pass an amendment

 

[Cyclonepride]

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
It's much, much easier to just ignore the constitution when it doesn't suit our particular purposes. Just call the document a "living, breathing document" and it makes it all ok. Maybe next time I get a speeding ticket, I can refer to the state law in questions as a living, breathing document that doesn't suit my purposes at that time.:idea:

 

[alaskaguy]

Cyclonepride it is obvious that you are not an advocate of the "living constitution." Do you consider yourself an "originalist" or one who feels that the original intent of the Framers is the only criterion that should be used in deciding constitutional issues?

I ask this question because the Constitution is remarkably unclear on a number of issues. Therefore, it is absurd for someone to claim that they have all the answers.

Here are some examples that I have borrowed from various publications:

The First Amendment is about as clear as it gets: "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press. . . ." But its very clarity creates a problem. Robert Bork says that the phrase referring to speech can't be taken literally, that some forms of speech can be proscribed. How can an originalist take that position? So, can some art forms qualify as speech? Can the right to spend millions on political attack ads be regulated?

The Second Amendment deals with the rights of the people within a well-regulated militia to bear arms. Does it apply to machine guns? To grenade launchers? To vigilante groups? To the guy in the street? Rights for those sorts or weapons and people can't have been the original intent since such weapons of mass destruction were unknown and the term "well-regulated" doesn't apply to vigilantes. So someone has to decide these issues, and a better decision is likely to emerge if the courts are exposed to all judicial philosophies.

Another example is the Ninth Amendment: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." Mr. Bork says that "there is almost no history that would indicate what the Ninth Amendment was intended to accomplish." Then he asserts that it could only refer to rights that might be granted by the states. The judicial activism there is breathtaking. An average guy would take the words at face value: We have rights that are not explicitly mentioned in the Constitution. Privacy comes to mind.

So it seems as if there are cases where originalism leads to absurd results. What do you think?

 

[Cyclonepride]

Cyclonepride it is obvious that you are not an advocate of the "living constitution." Do you consider yourself an "originalist" or one who feels that the original intent of the Framers is the only criterion that should be used in deciding constitutional issues?

I ask this question because the Constitution is remarkably unclear on a number of issues. Therefore, it is absurd for someone to claim that they have all the answers.

Here are some examples that I have borrowed from various publications:

The First Amendment is about as clear as it gets: "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press. . . ." But its very clarity creates a problem. Robert Bork says that the phrase referring to speech can't be taken literally, that some forms of speech can be proscribed. How can an originalist take that position? So, can some art forms qualify as speech? Can the right to spend millions on political attack ads be regulated?

The Second Amendment deals with the rights of the people within a well-regulated militia to bear arms. Does it apply to machine guns? To grenade launchers? To vigilante groups? To the guy in the street? Rights for those sorts or weapons and people can't have been the original intent since such weapons of mass destruction were unknown and the term "well-regulated" doesn't apply to vigilantes. So someone has to decide these issues, and a better decision is likely to emerge if the courts are exposed to all judicial philosophies.

Another example is the Ninth Amendment: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." Mr. Bork says that "there is almost no history that would indicate what the Ninth Amendment was intended to accomplish." Then he asserts that it could only refer to rights that might be granted by the states. The judicial activism there is breathtaking. An average guy would take the words at face value: We have rights that are not explicitly mentioned in the Constitution. Privacy comes to mind.

So it seems as if there are cases where originalism leads to absurd results. What do you think?

I would consider myself an originalist, but mainly because the original intent of the constitution has it's basis in natural law. In the example regarding the Ninth Amendment, Bork's statement is ludicrous. Any knowledge of natural law would make his answer obvious, as natural law tells us that our rights are not given to us by our government. Evidently Bork has never read the Declaration of Independence, because it would tell him exactly what they mean by that. "We hold these truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness- That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness." Governments do not grant natural rights to people. They innately have these rights, and it is they who grant the government it's power, not the other way around.

Natural law also gives us a good idea how to handle the first two examples. My understanding is that one of the fundamental tenets of natural law is that my rights end where your rights begin. So any natural right that I have, whether it is speech related, or grenade launcher related, end where my actions start to infringe on your rights. A grenade launcher is, by common logic, not necessary for your own protection, and your ownership and use of such an item has a distinct possibility of causing harm to others.

Natural Law and Natural Rights

 

[iceclone]

I would consider myself an originalist, but mainly because the original intent of the constitution has it's basis in natural law. In the example regarding the Ninth Amendment, Bork's statement is ludicrous. Any knowledge of natural law would make his answer obvious, as natural law tells us that our rights are not given to us by our government. Evidently Bork has never read the Declaration of Independence, because it would tell him exactly what they mean by that. "We hold these truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness- That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness." Governments do not grant natural rights to people. They innately have these rights, and it is they who grant the government it's power, not the other way around.

Natural law also gives us a good idea how to handle the first two examples. My understanding is that one of the fundamental tenets of natural law is that my rights end where your rights begin. So any natural right that I have, whether it is speech related, or grenade launcher related, end where my actions start to infringe on your rights. A grenade launcher is, by common logic, not necessary for your own protection, and your ownership and use of such an item has a distinct possibility of causing harm to others.

Natural Law and Natural Rights

So if I understand you correctly, wouldn't your position be better described as saying that the constitution should be interpreted according to the ethical theory of natural law? It doesn't sound very strict originalist (not that there's anything wrong with that :smile.

Back to the original topic of the thread, I think any strict originalist would be squarely against the line-item veto. It seems very clear that the intend was that the president could either sign or veto - nothing in between.

On a closely related topic: What do you think of all the "signing statements" that have been issued by the current administration? I think they are going completely overboard, there is absolutely no basis for them in the constitution (again either sign or veto), and they are creating a very bad precedence.

 

[Cyclonepride]

So if I understand you correctly, wouldn't your position be better described as saying that the constitution should be interpreted according to the ethical theory of natural law? It doesn't sound very strict originalist (not that there's anything wrong with that :smile.

Back to the original topic of the thread, I think any strict originalist would be squarely against the line-item veto. It seems very clear that the intend was that the president could either sign or veto - nothing in between.

On a closely related topic: What do you think of all the "signing statements" that have been issued by the current administration? I think they are going completely overboard, there is absolutely no basis for them in the constitution (again either sign or veto), and they are creating a very bad precedence.

Well, in my opinion the natural law basis is original intent. I read that there were additional amendments (three?) to the bill of rights that were more clear statement of natural law, but these were not ratified, mainly because slave owners could clearly see the implications of such things being included.

I support a line item veto as an amendment. The founders clearly knew that certain things might be necessary to add as time goes by. It is a tough process, so that much support would be needed, and any addition would need to be well thought out. If the Constitution was read for original intent, then there would be no need of a line item veto. So, with that thought, I would definitely support an original intent amendment, that would wipe out the need for a line item veto. As Bork has said himself, much of the government as it stands has little basis in the Constitution, but is not overturned because of the massive change such a change would entail at this point.

Signing statements are clearly a usurpation of power, and should be struck down as such.

 

[CloneAggie]

If we want abortion legalized.......pass an amendment

If we want our federal government involved in local schools......pass an amendment

If we want immigrants to automatically become citizens......pass an amendment

Why only if you want abortion legalized should an amendment have to be passed? Doesn't it go both ways?

 

[Kyle]

I would consider myself an originalist, but mainly because the original intent of the constitution has it's basis in natural law.

Those statements seem almost contradictory when one looks at effects on constitutional jurisprudence. Natural law theory is the bedrock of substantive due process, which is usually the bane of the existence of those who advocate original intent.

 

[Cyclonepride]

Those statements seem almost contradictory when one looks at effects on constitutional jurisprudence. Natural law theory is the bedrock of substantive due process, which is usually the bane of the existence of those who advocate original intent.

How so? The whole of western society is based on natural law theory, including our constitution. The writers of the constitution wrote it with natural law in mind. Were they contradicting themselves?

 

[clone52]

If we want abortion legalized.......pass an amendment

If we want our federal government involved in local schools......pass an amendment

If we want immigrants to automatically become citizens......pass an amendment

You think that the people that want abortion to be legal should pass an amendment? Isn't it the other way around?

 

[Kyle]

How so? The whole of western society is based on natural law theory, including our constitution. The writers of the constitution wrote it with natural law in mind. Were they contradicting themselves?

Here is an example from the Court. Just a few years back Lawrence v. Texas said that prohibiting private homosexual conduct was unconstitutional. The reasoning was basically that privacy in sexual relations is a natural right. However, those on the court that espouse original intent argued that laws prohibiting various sexual activities, especially sodomy, were in existence in some places when the constitution was enacted, and no one at the time thought they were unconstitutional. Therefore the original intent of the framers was not to protect homosexual relations.

 

[Cyclonepride]

You think that the people that want abortion to be legal should pass an amendment? Isn't it the other way around?

My point is that abortion is an important enough topic that we should consider amending the constitution to settle the debate. It should not be left for a judge to decide. Put up two seperate amendments, and see which one passes for all I care. But one small group of people should not decide a topic in which millions of lives are at stake.

 

[CloneAggie]

My point is that abortion is an important enough topic that we should consider amending the constitution to settle the debate. It should not be left for a judge to decide. Put up two seperate amendments, and see which one passes for all I care. But one small group of people should not decide a topic in which millions of lives are at stake.

And if neither pass?