I'm British, so please tolerate my ignorance for a moment.
If I understand US law correctly, the constitution can be amended at will, through a process not exceptionally arduous - certainly more difficult than passing ordinary legislation, but not exceptionally so. Many other federal states have similarly strict requirements when passing federal legislation, but have gone as far as to rewrite their constitutions from scratch.
If my understanding is correct, then what explains the US Constitution's position in political culture and discourse? I have been given the strong impression that the Constitution is regarded in many quarters as an immutable guarantee of basic freedoms or a fixed check on the powers of the state, but on a practical level it seems to be no such thing. There is a strong rhetoric in many quarters that if something is allowed or prohibited by the constitution then it is irrevocably and permanently allowed or prohibited, but the history of the document seems to contradict that.
The eighteenth amendment was repealed, why not the tenth? If the sixteenth amendment empowered the federal government to collect taxes directly, what would preclude a twenty-eighth amendment from allowing it to impose basic rights for employees?
It is my understanding that there is a federal minimum wage. Is this unconstitutional? If so, what real political significance does the constitution hold if it is so freely disregarded?
Apologies to all for the barrage of questions, but I have done a reasonable amount of reading on the subject and am genuinely baffled by the almost mythical nature of the US constitution and the apparent gulf between perception and reality.
The constitutionality of a Federal minimum wage is questionable. It was ruled unconstitutional in the 1930s along with a number of other expansions of Federal authority, however, the president and congress threatened to increase the size of the supreme court and add enough sympathetic justices to allow the replacement legislation to stand.
Changing the Constitution is intended to be hard. I want my elected representatives to be much more reluctant to change what the government is allowed to do than to change how it does the things it's already allowed to do. I especially want a list of things the government is not allowed to do to me, and I want it to be extraordinarily difficult to remove items from that list.
Note that almost all of the amendments either entrench fundamental rights - placing certain areas of federal policy-making out of bounds - or tweak the structure of the federal government's institutions. In other words, the amendments are (usually) aligned with the intention of the constitution itself, that is, to define the structure and powers of government.
Attempts to entrench particular social policies as constitutional amendments create an enormous amount of contention, are often considered an abuse of the amendment process, and usually fail, as the case of the 18th amendment demonstrates.
The amendment process is by design complex and time-consuming; the constitution has only been amended 28 times in 222 years, and the first ten were immediately upon its adoption. The most recent amendment - the 27th - was ratified in 1992; it was originally proposed as part of the Bill of Rights in 1791, and took almost 202 years to make it into the constitution.
The reality of is the constitution is surrounded by a well-developed body of law which is applied vigorously by the courts, who routinely strike down legislation determined to be unconstitutional; the rare attempts to use the amendment process to circumvent judicial review almost always fail.
In fact, apart from the 18th amendment, I can't think of a single instance in which a constitutional amendment was successfully enacted in order to create social policy that would otherwise be ruled unconstitutional by the courts - even FDR couldn't manage it.
If I understand US law correctly, the constitution can be amended at will, through a process not exceptionally arduous - certainly more difficult than passing ordinary legislation, but not exceptionally so.
It's orders of magnitude higher in difficulty. We've only amended our Constitution 27 times since 1788, and the first ten were all at once towards the beginning. We've probably passed at least tens of thousands of federal statutes in that time period.
Many other federal states have similarly strict requirements when passing federal legislation, but have gone as far as to rewrite their constitutions from scratch.
The Constitution defines and protects many of our essential civil rights and liberties. Many Americans are loath to allow the current political system to redefine those. Seeing the kind of hash "many other federal states" have made out of simple concepts like freedom of political expression, I'm inclined to think we made a better decision than they did.
I'm American, so please tolerate my spelling of "gray". And my irritation at my own country's weirdness. And my skepticism.
I'm at least as in-the-dark about this as you, though I highly suspect it's merely because people want it to be an immutable guarantee of basic freedoms, so they can point to it and say, "See? I'm right by this always-correct document". Every governing body wants something all-important they can point to, forever, to tell them what to do, and to blame if they later decide it's wrong.
Until they don't want it to be. Then it's full of / seriously lacking some socio-political fad.
Few attempting to change it progress past that stage, granted, and occasionally they are right in both uses, but it's far more often a legal weapon than it is a usable document.
Amending the US constitution is substantially harder than in most countries: any given amendment must be approved by a 2/3rds supermajority in both houses of Congress, and then must be ratified by 3/4ths of the State legislatures to take effect. The States themselves define requirements for their own "ratification", so they may also impose supermajority requirements (though IIRC none currently do).
Compare this with France, as an example, where constitutional amendment requires either a referendum, or approval both by each house of Parliament separately and then together. Not easy, but you don't need to get the buy in of all the regional governments to get it done. There actually have been amendments in the US which have been stopped by insufficient State buy-in: see the 27th amendment, which was submitted to Congress in 1789 and finally came into effect in 1992 when Alabama ratified it! (Note that most proposed amendments now have ratification-expiration clauses for this reason.)
Amending the US Constitution is obviously possible, because many amendments exist; but the strong cultural significance of the Constitution actually makes it much more difficult to amend. The Constitution is seen as a guarantee of rights and freedoms, and a codification of our "perfect" governmental system. Changing it at all is seen as a strategy of last resort; changing it in any way which is viewed as restricting freedoms, or as trivial, is generally shouted down by members of all sides. The fact that it's a Big Deal makes it harder than the procedure alone.
To balance this, though, there's the fact that it's a lot easier to sideline the Constitution than many like to believe. The only governmental branch with the power to strike down an unconstitutional law is the Court, which cannot strike it down unless someone actually brings a case challenging the law. So an unconstitutional law which is never applied, or which no one hates enough to bring a court case, is likely to stand. And in the US, one must have "standing" with the courts to bring a case--that is, you must have actually been harmed by someone under this law. You can't bring a case if you just disagree on general principles. This makes the process of removing bad laws very slow.
The wording of the Constitution is also fairly vague by intention, and clauses which are interpreted in one way by the courts now may be interpreted differently a century forward or backward in time. This allows a "soft" evolution of its content, and is the basis of much change over the life of the country. Note that a constitutional amendment was once considered necessary to ban alcohol, but that now bans on other substances in legislation are upheld by the courts.
The other side of this, though, is that if a Constitutional decision is made by the Courts, it's seen as pretty much decided by much of the country (though less so recently). Much social change in civil rights, reproductive rights, etc has been accomplished through court challenges.
I don't know how well-decided the constitutionality of the minimum wage is, but it seems unlikely to garner many serious challenges. Note also that the US Constitution includes a clause giving the federal government the power to "regulate Inter-State commerce", which has been used to justify all manner of things.
So to sum up: the US Constitution has a semi-sacred status as the document which enumerates and protects the rights of US citizens. It's pretty damn hard to amend, and this mythic status makes that even harder socially and politically. Enforcement is slow, tricky, and requires court action, but has real results. It's an odd system, I'll admit, and I wonder how well it works sometimes. But I personally like the idea that certain things should be really hard to change, and that those things should include our civil rights.
Irrelevant. The Constitution is a living document, and we have the ability via representatives to rewrite the rules of our social contract, including Constitutional Amendments.
The situation is exactly the same in Canada -- this is an area of provincial responsibility -- but the table entry for Canada mentions that the minimums vary from 10-15 days + 5-10 statutory holidays.
Do individual US states set minimums here? (I assume that if this isn't within the powers of the federal government, it's within the powers of individual state governments, right?)
As an American who has lived in several states, I have never heard of a state that has minimum leave requirements. A Googling doesn't turn up anything. Anyone else out there know, or does the dearth of info indicate that the states really don't set minimum leave?
Lots of other people commented on the fact that this could be changed, so I won't get into that – the fervor of state vs. federal debates in the US always surprises me, and I don't want to get shot at the next time I enter Ohio…
But would you actually need to have constitutional amendments to do that? Let's say a court decides that not giving your employees leave would be abuse, wouldn't that create a de facto mandatory leave, as you could claim a precedence against contracts without such provisions?
(Not a lawyer, not American, generally too naive in these matters, so be kind…)
The scenario you describe is what is generally referred to as "judicial activism" - judges creating law from the bench rather than simply applying the law as written.
It happens rather often in the US, and is strongly criticized (in some quarters) when it does.
I would have said existing labor laws, but that's not exactly a strong suit for the US, right? No maximum work hours per week, no paid paternal leave etc. (FLSA?)
A court could decide that, but unless the Supreme Court entirely ceased to do its job, the ruling would probably be reversed. Judges aren't allowed to make up laws.
A lot of libertarians, interestingly, disagree on this point, though there's a split between the more pro-federalist and less federalist libertarians. Many of the less federalist ones, though, want to revive a stronger federal constitution that preempts state power, especially via reviving the substantive due process doctrine that Lochner used to find a federal "freedom of contract" that would override state labor laws (http://en.wikipedia.org/wiki/Lochner_v._New_York).
I believe it is not so much that some libertarians are pro-federalist while others are less federalist. It is that most libertarians recognize that if the federal government was operating within the bounds of the constitution (that is, legally) then states would have much more power relatively, and that this is a good thing. All libertarians also, though, recognize that individual rights do exist, as this is the basis of libertarianism.
The constitution doesn't create any rights, it only contains prohibitions on the trampling of various rights. The Preamble of the Bill of Rights makes this clear. According to the constitution, individual rights pre-exist the creation of the constitution, and the BoR is merely there to make doubly sure that the government knows it is not given license to violate them.
Libertarians (generally) hold the view that the states do not have such a license either, as being rights, there is no situation (other than consensual explicit agreement) whereby they can be legitimately violated.
So, Libertarians may disagree on whether the constitution is a good document or not, but generally agree that it would be a better government than we have now.
To quote Lysander Spooner: Either the constitution has authorized the government we have now, or it has failed to prevent it.
Like Lysander, I believe libertarians see the constitution as a failed document. I don't think there are Federalist libertarians-- in fact, calling someone a "hamiltonian" is an insult in some libertarian circles.
(None of this is to say that you're wrong, but that you presented me an opportunity to expound on this since many people seem to be confused by libertarian positions. At worst I think you and I may disagree on semantics.)
Yeah, I do think there are not many Hamiltonian libertarians. But there seems to be a subset that, at least as a matter of tactics, and perhaps even long-term strategy, sees federal constitutional rights being enforced against the states as a major way of advancing libertarian ideas, which cuts somewhat against a more conservative "states' rights" sort of view. And some are willing to do so even when as a matter of textualism or originalism it's a bit of a stretch. Hence folks like Randy Barnett and David Bernstein advocate a revival of Lochner to preempt state employment regulations, despite the fact that many other libertarians think that "substantive due process" is a huge federal power-grab.
I suppose some other areas are less controversial, e.g. even most pro-decentralization libertarians are perfectly happy for courts to rule that the Second Amendment preempts state and local firearms laws, or that the First Amendment throws out state blasphemy laws.
There might not be any Hamiltonian libertarians, but that doesn't necessarily mean that libertarians are all Jeffersonians either.
What would you call a someone who sees the balance between federal and state governments to be beneficial to liberty and political stability? (An 'Adamsian', perhaps?)
I would personally agree that the balance of power is currently far too tilted toward the federal government, but I wouldn't oppose the re-incorporation of substantive due process under the 14th amendment as with Lochner any more that I object to the applicability to the states of the first, second, fourth or fifth amendments via the 14th.
I don't recall the names of the specific cases that mark the change, but the fallout after the 14th Amendment resulted in some but not all of the Constitution's limitations on government being applied to the States as well.
So, for example, 1st Amendment restriction on censorship are applied to States. However, the States aren't bound to some guarantees like a right to jury trial in civil cases (iirc).
Irrelevant. Individual states could do this and there's no constitutional violation. Canada is a federal system as well, which is why our minimum varies.
If you don't think the ERISA is unconstitutional, then point to the relevant wording that you think gives the Federal Government the right to regulate employment agreements between private individuals.
In the American system of government, the constitution isn't interpreted by random individuals voting on how they personally would read the text; it proceeds via caselaw and stare decisis. Since this particular issue was already litigated, ERISA is constitutional; since it was substantially litigated over 70 years ago (I'm not aware of any ERISA-specific controversy that wouldn't also apply to, say, the NLRB or Social Security), it's solidly constitutional.
Among the current Supreme Court, possibly only Thomas thinks otherwise; not even Scalia believes that, say, Social Security is unconstitutional. Of course, if you're a historian you can argue over what a historical court should've ruled, but that's pretty irrelevant to the Constitution as a functioning legal document.
What you describe is not the American system of government, nor the government as instituted by the constitution. The constitution is explicitly written such that every individual, "random" or not, is expected to enforce it. It is not a document that creates a government which is free to "interpret" it as is convenient to said government. The entire point of the revolution, and the extreme set of limitations put forth in the document was to prevent the government from having the power to interpret the document itself.
The constitution does not give the supreme court the power to amend it via ruling or "precedent". The methods for amending the constitution are laid out in the document itself.
Since the document does not give the federal government any power to regulate employment, these laws are unconstitutional. It doesn't matter what the supreme court says, as the supreme court is a group of political appointees beholden to the political establishment.
IF the constitution is not a functioning legal document, then then it has no power. If it is a functioning legal document, then all these unconstitutional laws are actually null and void (as ruled in Maybury v. Madison) and anyone enforcing them is committing a crime.
If it is your position that the existing government is not bound by the limitations of the constitution whenever it decides that it shouldn't be, then the government in question is not a constitutional government, and is, in fact, an occupying force with no legitimate authority. (not that the constitution was anything other than the result of an illegitimate coup in the first place, but for purposes of discussion, I'm granting that the constitution is legitimate.)
Absurdity. The Supreme Court does not amend the Constitution when it rules, it interprets it in order to establish whether legislation is in conflict with it, or which state should prevail in an interstate dispute, and so forth. It most certainly does matter what the Supreme Court says about such matters, because the judicial power of the United States is vested in it and extends to all cases arising under the Constitution.
Your view that the lack of any explicit mention of employment means that any federal laws regulating it are unconstitutional is widespread but self-contradictory. For one thing, employment is a fundamental part of commerce.
Yes, it has been; so broadly in fact as to render the constraint meaningless. Do you think that the Framers really intended such a broad meaning?
I think it is more likely that it has been intentionally broadened from its original scope in order that the Federal Government be able to exercise a wider range of powers than intended by the Framers.
I do not think that they intended such broad interpretations, any more than I think they anticipated industrial society. In regards to ERISA, it would be appropriate for us to also consider the intentions of those who passed the XVI amendment between ~1909 and 1913, which established the constitutionality of income tax, Congressional power to collect same (and set up agencies such as the IRS to this end), etc., and who had ample time to consider the relationship between this amendment and the rest of the Constitution by debating what sort of practical consequences might ensue.
While I don't always agree with the way the Supreme Court decides matters (and it has seen fit to reverse itself on more than one occasion), I like the system of using the court as the appropriate forum to try such questions, and of electing legislators and executives to develop or implement new rules where the existing ones turn out to be flawed. If you feel you have spotted a glaring flaw in the Court's reasoning, I urge you to write it up and circulate it as widely as possible.
How can you claim that the Framers were unaware of the possible consequences of industrialization when "An Inquiry into the Nature and Causes of the Wealth of Nations" was published in 1776?
Issues surrounding capitalism, the division of labor etc. were being actively discussed back then, and industrialization as we know it got started properly in 1789 thanks to the efforts of Sam Slater.
Besides which, the correct way to expand the powers of the Federal Government is by an amendment to the Constitution, not the liberal interpretation of existing clauses. The former is transparent & leaves room for public debate; the latter is the practice of political appointees who do not care for their expansion to be the subject of public scrutiny in advance.
I am finding it difficult to believe that I have been downvoted into troll-town for suggesting that legislation enacted by the Federal Government of the United States over the course of the last 62 years might NOT be unconstitutional.
Some of which were contested and deemed constitutional by the Supreme Court (though not the one I mentioned as far as I am aware).
Are people downvoting me because they hold an honest belief that the Federal Government of The United States is an illegitimate illegal entity backed by a corrupt Supreme Court? Just curious.
If you agree that it doesn't say the government can, then it can't by default.
The Constitution specifically enumerates the classes of laws that Congress can pass. All other powers are reserved for the states.
I'm not a strict constructionist by any means (and I'm personally glad that we've set some shady precedents of the Commerce Clause and Necessary & Proper Clause allowing practically anything), but the Constitution makes it clear that unless a power is specifically given to the Federal Government, the Federal Government can't do it.
Yeah, that is true. However I am of the opinion that things like this are similar to minimum wage (which is also not mentioned in the Constitution) but can be mandated by Congress (though I could be wrong, is it done State by State?)
* Be able to point to some part of the Constitution that says (either directly or indirectly) that Congress can pass the law
* Coerce each state into passing the law, often by withholding funding from states that don't. This is how they raised the drinking age to 21, for example. Congress didn't pass a law saying "Persons under 21 may not drink", it passed a law saying "States that don't raise their drinking age to 21 will only get some percentage of the highway funding they would otherwise get." This method is very effective because federal grants make up about 25% of most states' budgets.
But most laws are passed in the first way. Justification often comes from the Commerce Clause (which gives Congress the authority to regulate interstate commerce. But today, unlike in 1787, basically everything is interstate commerce if you think about it right.).
Sometimes it also comes from the Neccessary & Proper (or Elastic) Clause, which says that Congress can pass any law that is "necessary and proper" for performing one of the other powers. It was basically there so that people wouldn't view the Constitution as listing the exact laws that Congress can be passed. For example, the Constitution never said "Congress may setup a national bank", but when people claimed that the law doing so was unconstitutional, Hamilton claimed that a national bank was necessary and proper for carrying out the powers of taxation and borrowing, which are given to Congress in the Constitution.
The federal government can (and does) set statutory minimum holidays. They just apply only to the federal government (since it does not have the constitutional authority to specify anything beyond that).
Something else that puts this information in context is the number of public holidays and length of the workweek. Most white collar jobs in the U.S. are 5 days a week in the U.S. but 6 days a week in India, for example. Conversely, India has an amazing number of public holidays http://en.wikipedia.org/wiki/Public_holidays_in_India (although most employers will give only a subset of these off).
