Congress Should Force the Court's Hand

[TPaine7]

The Fourteenth Amendment empowered Congress to enforce its "privileges or immunities" clause by legislation.

Congress, by refusing to exercise its power, risks losing it forever. They should legislate on guns (or on another privilege or immunity in the Bill of Rights) under the Fourteenth Amendment and explicitly base their authority to do so on the "privileges or immunities" clause. The more controversial the law--say for instance, national gun carry--the better, and the more likely to be appealed to the Supreme Court.

Then we would see just how deeply the stare decisis = written in stone conviction goes.

Their own institutional power is something you can bet your life all branches of government actually care about. Congress should be able to see that this is in their own self-interest.

[Jackson1999]

1. Interesting....

I never thought of that, and i won't happen, but interesting.

[Statistical]

2. Congress likes Slaughterhouse.

The people need to be governed. Privileges and rights and stuff makes that more complicated.

Congress, Executive, SCOTUS = 3 foxes deciding who is the best guard for the henhouse.

Congress could impeach the Supreme Court for failing to uphold "privileges or immunities". Hell the Justices were even so bold as to admit that Slaughterhouse is wrong yet they still won't change it.

The analogy would be like a judge telling you he 100% knows you are innocent before he convicts you.

[TheWraith]

4. That's an awfully simplistic viewpoint.

You're assuming that 537 federal elected officials all neatly fall into the same grouping. The problem isn't willingness to enforce rights, it's getting a suitable coalition together, and for the right cause. Republicans, for instance, aren't going to support a bill based on restoring and expanding First or Fourth Amendment rights. Too many Dems wouldn't support the Second. Repubs and too many Dems wouldn't support gay rights under the 14th. WAY too many Dems wouldn't support decriminalizing drugs.

Each side has their own ideas of what constitutes rights, and only a few people are willing or able to see the big picture.

[TPaine7]

6. Oh I realize it's higly unlikely--virtually imposible

I was being idealistic, speaking of what should be, not what is or will be.

I have absolutely no illusions that those guys believe in any big picture view of the Constitution or care (enough) about America's long term freedom and prosperity to take any political risks for it. Their focus is short term advantage and political gain.

The problem isn't willingness to enforce rights...

I think it is. Congress will not enforce rights against mob sentiment. They won't even enforce the ban on torture or stop nationwide illegal spying on innocent Americans. Those are violations of rights they "all" believed in before America started hyperventilating. It is not in their short term political best interest to stand up to Bush/Obama.

Similarly, it was not in Congress' best short term political interest to stop the internment of Japanese citizens of the United States.

Edited to add:

The best leaders, presidential or otherwise, are the ones that calm American's fits of hysteria and thus change the calculus of congresscritters on their best short term political interest by changing the nation's mood. If Bush had calmed America and framed the issue as our refusing to budge from our principles in the face of cave dwelling lunatics, we could have taken pride in our strength of character instead of shivering and becoming willing to commit any atrocities to "be safe."

It is possible that a leader could change the calculus in Congress, though I admit that it is very unlikely.

[TPaine7]

10. Oops

I thought that my OP was being addressed.

[Abq_Sarah]

8. You have to turn public opinion first

For instance, if the majority of the people favor legalizing marijuana for medical purposes, your state legislature is likely to pass a bill doing just that once it becomes a political issue. If enough states pass that law, the federal government can no longer ignore us. That works with every issue as long as that particular issue doesn't run afoul of the constitution or state laws.

[Statistical]

9. However my point is they all took an oath to uphold the Constitution

and then routinely don't.

The entire system is corrupt. Maybe not corrupt to the point of being "ungovernable" and I am not suggesting scrapping it and starting over would be better.

Still the vast majority of Politicians don't give the Constitution any respect. That applies to both sides of the aisle. Theoretically all politicians should look at any legislation and say "does the Constitution grant us the power to pass this" if the answer is no they are duty bound to not propose it.

For most Politicians the Constitution is just something that gets in the way of passing an agenda. That applies to 80%+ of politicians in both parties.

[ProgressiveProfessor]

3. Just like abortion...

The Congress could and should pass national abortion legislation. Roe v Wade is a horrible decision that needs some serious clarification. However, instead they hide behind the courts.

[gorfle]

5. It's politically safe.

instead they hide behind the courts.

And thus they can avoid being on the record one way or the other.

[Katya Mullethov]

7. PRESENT !!!!!

Modern statesmanship .