Ask Old School Republican Anything

[MarkD]

I have drafted a proposal for a constitutional amendment and would like your reaction: Would you support or oppose this? Below is a summary of the proposal, not the full draft.

My proposal has a Preamble and four sections. The Preamble begins with a two-paragraph-long quotation from Justice James Iredell in the 1798 case of Calder v. Bull, then the Preamble concludes:
"The purpose of this article of the US Constitution is to give three previous amendments greater clarity and precision. The United States government and the respective states should have clear and precise guidelines about their legislative powers. This article will clarify two amendments that are binding on the United States, and it replaces a part of the Fourteenth Amendment, which is binding on the states."
Section 1: The Due Process Clause of the Fifth Amendment shall henceforth be understood to only mean procedural due process, not substantive due process. In other words, government must not punish anyone without affording that person fair procedures, but the courts are not to second-guess the merits of the laws being enforced. But the federal government does have to treat everyone equally, the same way the states have to according to Section 3(b) of my proposal.
Section 2: The Ninth Amendment is only binding on the federal government, not on the states.
Section 3: The second sentence of Section 1 of the Fourteenth Amendment is hereby repealed and that sentence will be replaced with a new set of rules designed to be narrower and clearer.
3(a) The states have to obey enumerated rights in the first eight amendments, but the only un-enumerated right that states have to obey is the right to interstate travel. The Supreme Court has twice said "Our obligation is to define the liberty of all, ..." but my proposal tells the Court, and the rest of the country, that statement was completely incorrect. The federal judiciary has neither an obligation nor a prerogative to define liberty. The judiciary's obligation is to expound on the rights that are in the Constitution, not to expand them. The federal judiciary is instructed to stop declaring that states have to obey "fundamental rights" and "basic civil rights" that are not in the Constitution (again, with the one exception being the right to interstate travel). Therefore the Court's decisions about abortion, using contraceptives, sodomy, and any other libertarian ideas not enumerated in the Bill of Rights, no matter how controversial or uncontroversial, will all be overturned.
3(b) The states are not allowed to discriminate against anyone on the basis of race, national origin, sex, sexual orientation, or disability status (and because of Section 1 above, the same will go for the federal government). Other than those five kinds of discrimination, all other kinds of discrimination are allowed. The rulings made by federal courts in 2013-2015 about same-sex marriage will be preserved. There will be no such thing as a "fundamental right to marry," but bans on interracial marriage and same-sex marriage will still be unconstitutional.
3(c) The states still have to respect voting rights as established in nearly all precedents the Supreme Court has laid down on that subject so far. In order to avoid gerrymandering of congressional or state legislative districts, redistricting must be done by independent redistricting commissions.
Section 4: Bush v. Gore was the worst decision the Supreme Court has ever rendered, and nothing like it must ever occur again.

Here is a way I have thought of explaining the potential political appeal of my proposal; I have shared this before on Forum Community and asked whether others would consider supporting it.

I carefully designed my proposal to be a compromise between liberal and conservative points of view. Some specific elements will be appealing to conservatives but very much unappealing to liberals, while other elements will be appealing to liberals but very much unappealing to conservatives.  
Appealing to conservatives but repulsive to liberals.
 – Keep the McDonald v. Chicago precedent
 – Overturn Roe v. Wade
 – Overturn Plyler v. Doe
 – Allow states to discriminate based on a person’s status as a non-citizen    

Appealing to liberals but repulsive to conservatives.
 – Disallow states to discriminate based on sex, gender identity, or sexual orientation
 – Keep the Obergefell v. Hodges precedent (the decision, but not the Court's opinion)
 – Keep the Saenz v. Roe precedent
 – Condemn the Bush v. Gore decision and insist that it never be repeated  

Agreeable to both conservatives and liberals.
 – Continue imposing the Bill of Rights on the states
 – Continue protecting the equal right of all citizens to vote
 – Continue prohibiting state discrimination based on race and national origin
 – Start prohibiting state discrimination based on disability status
 – Require redistricting to be done by independent commissions

So, are you interested?

[MarkD]

I have drafted a proposal for a constitutional amendment and would like your reaction: Would you support or oppose this? Below is a summary of the proposal, not the full draft.

My proposal has a Preamble and four sections. The Preamble begins with a two-paragraph-long quotation from Justice James Iredell in the 1798 case of Calder v. Bull, then the Preamble concludes:
"The purpose of this article of the US Constitution is to give three previous amendments greater clarity and precision. The United States government and the respective states should have clear and precise guidelines about their legislative powers. This article will clarify two amendments that are binding on the United States, and it replaces a part of the Fourteenth Amendment, which is binding on the states."
Section 1: The Due Process Clause of the Fifth Amendment shall henceforth be understood to only mean procedural due process, not substantive due process. In other words, government must not punish anyone without affording that person fair procedures, but the courts are not to second-guess the merits of the laws being enforced. But the federal government does have to treat everyone equally, the same way the states have to according to Section 3(b) of my proposal.
Section 2: The Ninth Amendment is only binding on the federal government, not on the states.
Section 3: The second sentence of Section 1 of the Fourteenth Amendment is hereby repealed and that sentence will be replaced with a new set of rules designed to be narrower and clearer.
3(a) The states have to obey enumerated rights in the first eight amendments, but the only un-enumerated right that states have to obey is the right to interstate travel. The Supreme Court has twice said "Our obligation is to define the liberty of all, ..." but my proposal tells the Court, and the rest of the country, that statement was completely incorrect. The federal judiciary has neither an obligation nor a prerogative to define liberty. The judiciary's obligation is to expound on the rights that are in the Constitution, not to expand them. The federal judiciary is instructed to stop declaring that states have to obey "fundamental rights" and "basic civil rights" that are not in the Constitution (again, with the one exception being the right to interstate travel). Therefore the Court's decisions about abortion, using contraceptives, sodomy, and any other libertarian ideas not enumerated in the Bill of Rights, no matter how controversial or uncontroversial, will all be overturned.
3(b) The states are not allowed to discriminate against anyone on the basis of race, national origin, sex, sexual orientation, or disability status (and because of Section 1 above, the same will go for the federal government). Other than those five kinds of discrimination, all other kinds of discrimination are allowed. The rulings made by federal courts in 2013-2015 about same-sex marriage will be preserved. There will be no such thing as a "fundamental right to marry," but bans on interracial marriage and same-sex marriage will still be unconstitutional.
3(c) The states still have to respect voting rights as established in nearly all precedents the Supreme Court has laid down on that subject so far. In order to avoid gerrymandering of congressional or state legislative districts, redistricting must be done by independent redistricting commissions.
Section 4: Bush v. Gore was the worst decision the Supreme Court has ever rendered, and nothing like it must ever occur again.

Here is a way I have thought of explaining the potential political appeal of my proposal; I have shared this before on Forum Community and asked whether others would consider supporting it.

I carefully designed my proposal to be a compromise between liberal and conservative points of view. Some specific elements will be appealing to conservatives but very much unappealing to liberals, while other elements will be appealing to liberals but very much unappealing to conservatives. 
Appealing to conservatives but repulsive to liberals.
 – Keep the McDonald v. Chicago precedent
 – Overturn Roe v. Wade
 – Overturn Plyler v. Doe
 – Allow states to discriminate based on a person’s status as a non-citizen   

Appealing to liberals but repulsive to conservatives.
 – Disallow states to discriminate based on sex, gender identity, or sexual orientation
 – Keep the Obergefell v. Hodges precedent (the decision, but not the Court's opinion)
 – Keep the Saenz v. Roe precedent
 – Condemn the Bush v. Gore decision and insist that it never be repeated   

Agreeable to both conservatives and liberals.
 – Continue imposing the Bill of Rights on the states
 – Continue protecting the equal right of all citizens to vote
 – Continue prohibiting state discrimination based on race and national origin
 – Start prohibiting state discrimination based on disability status
 – Require redistricting to be done by independent commissions

So, are you interested?

I disagree with the fact that the 9th amendment should apply to the states and I agree with the 14th amendment interpretation that the Constitution should apply to the states as well .
So I probably would not support it overall


Now for the individual parts here’s my opinion on them :

 – Keep the McDonald v. Chicago precedent : Agree
 
– Overturn Roe v. Wade : I wouldn’t support repealing it outright but I would support making it clear that states have right to ban it after 15-16 weeks with the standard exceptions and not use public funds for it as well

 – Overturn Plyler v. Doe : Disagree  , and I have a better solution to this in my next part
 
– Allow states to discriminate based on a person’s status as a non-citizen: disagree rather would see this : ban states and cities from having sanctuary states and cities , defunds non essential funding for illegal immigrants at state and federal level (education and healthcare I consider essential)


 – Disallow states to discriminate based on sex, gender identity, or sexual orientation : Agree
 – Keep the Obergefell v. Hodges precedent (the decision, but not the Court's opinion) : Agree but why was the opinion bad
 
– Keep the Saenz v. Roe precedent: Agree

 – Condemn the Bush v. Gore decision and insist that it never be repeated  : agree though recount laws should also be clarified in this as well so it’s not ambiguous like 2000


 – Continue imposing the Bill of Rights on the states : Agree
 
– Continue protecting the equal right of all citizens to vote: Agree

 – Continue prohibiting state discrimination based on race and national origin : Agree

 – Start prohibiting state discrimination based on disability status: Agree

 – Require redistricting to be done by independent commissions : Agree

You agree with the vast majority of the details -- including every part that I put in because I thought those parts would appeal to liberals -- but you still oppose it "overall" because of how my proposal deals with the Ninth Amendment?

Originally, the entire Bill of Rights was adopted only to control the federal government. The Supreme Court ruled, unanimously, that the states do not have to worry about whether the federal government, including the federal courts, will force the states to abide by the principle of Freedom of Religion, the right to bear arms, no compulsion to testify against oneself, etc., etc. The Bill of Rights was adopted only for the purpose of assuring that the federal government will not be too powerful and might violate the rights of the people. The Ninth was part of that understanding.

The original meaning of the Ninth was parallel to the Tenth Amendment; both the Ninth and Tenth remind the federal government that it has limited and enumerated powers. The difference between the Ninth and the Tenth is the fact of what is being protected from federal overreach. The Ninth protects the rights of the people and the Tenth protects the powers of the states.

My proposal preserves the status quo vis-à-vis the "incorporation" of the rights in the first eight amendments into the Fourteenth so that the states DO have to respect those rights. See Incorporation of the Bill of Rights. The reason I say that the Ninth should not be incorporated into the Fourteenth is because the U.S. Constitution does not enumerate powers of the states. The Constitution only tells the states what they may NOT do. Of course, in theory, if a state legislature is passing laws it is not authorized to pass by their state constitution, that conceivably would be that the state is violating the principle of the Ninth Amendment in the U.S. Constitution, but that is a matter for state courts to address and invalidate, not the federal courts. The Ninth cannot be used by the federal courts against state and local laws because of what I say in Section 3a) of my proposal.

[MarkD]

Is there anything special that makes you an Old School Republican?

The reason I chose that name is:


1. Pre Trump Republicans such as Kasich and Romney are now considered Old School Republicans

2. I am pretty moderate on issues such as Healthcare etc which Old School Republicans were

Based on what you were saying you agreed and disagreed with about my amendment proposal I thought your title meant you were a Rockefeller Republican.

[MarkD]

On the non citizen point : I gave a counter proposal which by the way would basically be making Prop 187 law nationwide so it is pretty conservative as well.

It is even more conservative, isn't it, to insist that citizenship is preferable to being a resident alien, and that there is not and should not be any constitutional guarantee that aliens will be treated equally with citizens? The point was made by William Rehnquist -- the first sentence in the 14th Amendment provides a definition of citizenship, so why interpret the Equal Protection Clause -- at the end of Section 1 of the 14th -- as if it forbids conferring any benefits to citizenship? And, I would add, the Constitution itself discriminates against aliens since citizenship is a qualification for serving as President or serving in Congress. Is it really appropriate to interpret the Equal Protection Clause of the 14th as if it makes any government discrimination against non-citizens constitutionally suspicious? If it is appropriate for there to be judicial review when government discriminates against aliens, then isn't the end point going to be that aliens have an equal right to vote and to serve in any aspect of government, voiding that part of the qualifications clauses? As Prof. John Hart Ely said, "[C]onstitutional law appropriately exists for those situations where representative government cannot be trusted, not those where we know it can." So is it really necessary for there to be judicial review of all instances in which government discriminates against non-citizens? If you still think so, or if it's that you want a proposal with more nuance and detail than what I have drafted, then recognize that my proposal was designed to be a compromise, one in which I know everybody would not agree with every specific thing that the proposal will accomplish, if it's enacted, but most people will find most of it attractive.

On economic issues well I support Reaganmoics while Rockefeller Republicans did not, oppose single payer while many Javits and Rockefeller supported it , support reducing the regulatory powers of the executive branch etc.

Then I strongly recommend that you look into the Convention of States Project. You could add your name and address to the 1.4 million people who have signed the petition that we want to reign in the power of the federal government, restoring our founders' original design that the federal government be limited to its enumerated powers. So far, fifteen states have passed the resolution; we need nineteen more states to do so, including some states that have Democrat-dominated state legislatures. Oregon could be one of the states that joins our movement!