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Thread: Our Timidity is Killing the Constitution

  1. #111
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    Our Timidity is Killing the Constitution

    Quote Originally Posted by prometeus View Post
    Since the Senate as a body is comprised by a number of members none of which are more important than any other member what other possible method exists for the body to express its advise and consent other than by a majority vote?

    I do not see you suggesting any other method. Why don't you offer what you consider sensible?

    Because it removes the voice of some members.

    It is and you still can not offer a different method.
    Since the Senate as a body is comprised by a number of members none of which are more important than any other member what other possible method exists for the body to express its advise and consent other than by a majority vote?
    Your reply by means of a question to my question isn’t an answer.

    At issue is the meaning of Article 2, Section 2, paragraph 2. You concluded the “only sensible way” for the advice and consent clause to be satisfied, in the absence of the text specifically prescribing a method,
    was a vote on the nominee. The problem with that approach is the imposition of a specific procedure the text of the Constitution does not require. How does that make sense? Consider the hypothetical Socratic dialogue.

    Citizens Q to Senate: you must vote on the nominee.

    Majority leader: Says who?

    Citizen Q: Says the advice and consent clause.

    Majority leader: Yeah? English is my native language, no my only language. The clause is written in English. Tell me which part of the English language used in the advice and consent clause demands a vote?

    Citizen Q: While not specifically prescribed, a vote is the “only sensible way” when no method is prescribed.

    Majority Leader: You previously said the advice and consent clause mandated a vote. Now you’re confessing the clause doesn’t prescribe a vote but you’re imposing one anyway as a fulfillment of the very clause you just conceded doesn’t mandate a vote for fulfillment. How the hell does that work?

    Citizen Q: A vote is the only sensible way to meet advice and consent.

    Majority leader: Based on what? The text of the Constitution doesn’t say a vote is the only sensible way to satisfy advice and consent. So on what basis are you justified to impose your notion of a vote as the meaning of advice and consent?

    Citizen Q: Sounds good to me...ever heard of cogito ergo sum, well I’ve borrowed that idea with the modification of, “I think it, therefore, it is.”

    Majority Leader: In other words, because you said so.

    That’s basically your argument, a vote is the “only sensible way” and is to be the meaning because you said so! Well, so the hell what! A certain segment of our society has some ideas of what specific constitutional phrases mean but this hardly renders their view acceptable as the meaning of the constitutional phrase. Religious right have some ideas about the meaning of the establishment clause and free exercise clause, just as you do, but that fact doesn’t magically baptize their view as the meaning of to be ascribed to the Constitution, or yours.

    And your argument is a damn redundancy. The drafters used two separate words, “Advice” and the word “Consent.” Your notion of a vote essentially equivocates, a false equivalence I might add, those two words to mean the same thing, a vote. With your view the clause reads, “by and with the vote and vote” of the Senate.

    Yet, the evidence reveals the word advice and consent were not synonymous. The advice component was understood as involving consultation with the President about the nominee once a nomination was made.

    There’s no evidence, however, that advice or consent was mandated by the Senate. The advice and consent clause was a limit on executive power, it was not a mandate for the Senate to ever give it, much less provide it by a required vote.

    Where there is a clear textual commitment of a power to a branch of government, and the text prescribes no method for executing the power, how, or when, then logically it is within the discretion of the branch to decide how the power is to be exercise and when.

    The President is the Commander in Chief of the military once called into action. The Constitution provides no method the President must follow when exercising this power. Your logic, however, treats a lack of textual guidance as to how the power is to be exercise as no impediment to imposing a specific method but rather that lack of any prescribed method is an invitation to create one out of magical, constitution fairy dust! Which doesn’t make any sense to that executive power or to the Senate’s power of advice and consent.



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    Last edited by NotreDame; 08-21-19 at 01:21 PM.
    "I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents." James Madison, Father of the U.S. Constitution and 4th president of the United States.

  2. #112
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    Re: Our Timidity is Killing the Constitution

    Quote Originally Posted by NotreDame View Post
    Your reply by means of a question to my question isn’t an answer.
    Actually it was as it reasserted by position and asked for yours, but that is not the real issue.

    At issue is the meaning of Article 2, Section 2, paragraph 2. You concluded the “only sensible way” for the advice and consent clause to be satisfied, in the absence of the text specifically prescribing a method,
    was a vote on the nominee. The problem with that approach is the imposition of a specific procedure the text of the Constitution does not require.
    To be fair, yes the possibility of not acting is also a way for the Senate to "express" their position. I was not taking that into consideration when I made my statement.

    That’s basically your argument, a vote is the “only sensible way” and is to be the meaning because you said so!
    No, not at all. Any body comprised of multiple members and on that is not just a rubber stamp for a despot, expresses its work by voting. That democratic process has been the cornerstone of the nations foundation.

    And your argument is a damn redundancy.
    Is it? How?

    The drafters used two separate words, “Advice” and the word “Consent.”
    And where have I stated anything to the contrary?

    Your notion of a vote essentially equivocates, a false equivalence I might add, those two words to mean the same thing, a vote.
    How the hell did you come up with that?

    Yet, the evidence reveals the word advice and consent were not synonymous.
    Nobody said they were.

    There’s no evidence, however, that advice or consent was mandated by the Senate. The advice and consent clause was a limit on executive power, it was not a mandate for the Senate to ever give it, much less provide it by a required vote.
    I did not state anything to the contrary, by as I mention earlier in this post I did fail to include not acting by the Senate.
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  3. #113
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    Re: Our Timidity is Killing the Constitution

    1. I shan't comment on whether or not President Trump should be impeached.

    2. I just wanted to report that I heard today on C-SPAN a scholar who claimed that the Founding Fathers and leading politicians of the new republic under George Washington had expected that impeachment would be liberally used at all levels of government in order to make sure that our alleged representatives acted properly.

    3. Like most Americans, I have grown up thinking that impeachment should be used only as a last resort. That scholar claimed that was not the original intent.

  4. #114
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    Re: Our Timidity is Killing the Constitution

    Quote Originally Posted by TheParser View Post
    impeachment would be liberally used at all levels of government in order to make sure that our alleged representatives acted properly.
    your illiteracy remain profound: Constitution does not say " act properly" it says high crimes and misdemeanors!!! James Madison saw the Impeachment Clause as “indispensable . . . for defending the Community [against] the incapacity, negligence or perfidy of the chief Magistrate.”

  5. #115
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    Re: Our Timidity is Killing the Constitution

    At the risk of reopening an old wound, life interfered with my opportunity to responds in full to your previous post. I'm still a bit hamstrung, but I thought a fuller resonse was in order, and it's been on the back burner for a week, now. Skipping the first two,
    which some discussion has been had on (if overwhelmed by snark and hypocritical inanities), I'd like to return to your later points:
    Quote Originally Posted by clapee View Post
    3. The Senate impeachment clause is actually the 6th clause of the 3d article. But, I am [confused?] why you would cite the Senate impeachment clause while deriding the House for not impeaching Trump. Help me out a bit. Moreover, there is precedent to not convict a president for obstruction of justice and perjury, though there was ample evidence - his name is Bill Clinton. And, we all know precedent matters in these things.
    The confusion is not unwarranted, but misplaced. The point is that some kind of formal consideration is appropriate regarding the standards of conduct of a sitting executive. That has occurred more frequently than actual impeachment. Nixon and Agnew, for example, were never impeached, but investigations occurred. There are at least three broad categories of investigation that would be appropriate regarding Trump: campaign finance and other election irregularities; obstruction of justice and Congress; and corrupt practices (such as emoluments and conflicts of interest). I'm not even suggesting that removal would be the likely outcome, but there is far more than "probable cause" to inquire further. "High crimes and misdemeanors" is a much, much lower bar than conviction of a felony offense, though that clearly is not outside the realm of possibility.

    Quote Originally Posted by clapee View Post
    4. This is an inherent problem with the reliance upon non-specific legislation being fleshed out with agency regulations. The regulations can be changed using an alteration if interpretation or with the rulemaking authority as opposed to the legislative process. This happens in every administration, and is not peculiar to Trump.
    I don't disagree with the general premise that Congress has an overreliance on passing implementation to bureaucracies, but giving discretion is a far cry from actively dismantling regulatory schema. I also acknowledge that this has been a Republican technique since at least Reagan, but that does not make it right or honorable. Indeed, it is a violation of their oaths of office and the plan of the Constitution. Congress is the preeminent authority on policy, as it passes the laws. The executive's authority is circumscribed by that reality. When appointments and regulations are directly aimed at dismantling the underlying laws expected to be implemented, that is a constitutional problem, whatever administration is doing it. It leads to things like Iran-contra. Congress, for too long, has failed to take responsibility for is own obligations and actions/inaction. Trump is the result.

    Quote Originally Posted by clapee View Post
    5. The Congress does not have plenary authority to haul executive officials to inquire about any topic it may desire. The existence of executive privilege exists to allow the executive to effectively carry out its tasks.
    Substantively, I disagree. Congress has near-plenary authority to oversee government, and executive privilege, as you should know, is an extremely limited defense to specific circumstances. I think honor would require you to acknowledge that it has been greatly abused and misused by this administration. They have asserted privilege when obviously none exists.

    Quote Originally Posted by clapee View Post
    6. This is somewhat silly. Your point may be valid if Trump just wasn’t nominating people, but his number of nominees is in line with other presidents. The number of nominations confirmed, on the other hand is a different matter. Moreover, there is no requirement that Trump appoint a person to every position that is available. I frankly do not have a problem with that.
    On this, you're just factually wrong. Public appointee tracker. Trump has failed to nominate nearly half of all Senate-consent positions and has more acting agency heads than any predecessor, by a long mile. This is exacerbated by the high turnover rate. This is a bug, not a feature.
    Last edited by NWRatCon; Yesterday at 12:11 PM.
    Mission: "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." ACLU. Why isn't every American a member?

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