Reply #30: Didn't you learn the lesson of Prohibition? "Positive" rights under the Constitution do NOT work

[happyslug]

What is meant by "Positive" right is a right the Government MUST provide, as oppose to a NEGATIVE right, where the Government is prohibited from doing. The Bill of Rights is a list of NEGATIVE rights, what the Government can NOT do:

The First PROHIBITS Government regulation of Speech, Press, Religion, public assembly or even lobbying.

The Second, prohibits the Federal Government from forbidding people from owning "arms" capable to Military use (The Supreme Court recent decision expanded this right to include "self defense", but that is a dispute for the Gun Dungeon not here).

The third prohibits the Quartering of troops in Civilina Homes during peace time.

Amendment 4 - Prohibits the Government from entering people's home without a warrant.

Amendment 5 - Prohibits:
a. any indictment other then by a Grand Jury,
b. Double jeopardy
c. forcing someone to be witness against himself
d. take some one's life, liberty, or property, without due process of law;
h. take private property be taken for public use, without just compensation.

Amendment 6 - Prohibits:

a. any trial other then a speedy and public trial
b. that the trial be by jury
c. a trial where the defendant can NOT confront the witnesses against him;
d. a trial where it is impossible for the defendant to compel witnesses to appear in his favor
e. a trial where the defendant is NOT permitted to have an attorney

Amendment 7 - Prohibits

a. A CIVIL trial with a out Jury if such trials had been Jury trials prior to 1787.
b. Any review of a jury trial NOT according to the rules of the common law.

Amendment 8 - Prohibits:

a. Excessive bail
b. excessive fines imposed,
d. cruel and unusual punishments inflicted.

Amendment 9 and 10 are viewed as statements that the above list is NOT conclusive i.e. other rights exist even of not stated in the bill of rights.

Notice all of the Rights in the Bill of Rights are NEGATIVE RIGHTS, and as such easy for the Courts to rule on i.e. state does X, X is prohibited by the Bill of Rights or other constitutional clause, the court rule X is unconstitutional and thus unenforceable.

The same can be said of the post Civil War Amendments. The Post Civil War
Amendments (The 13th, 14th and 15th) prohibited restrictions on African Americans (and other non-whites) that did not also applied to white Americans. The post Civil War Amendments did NOT require Congress to pass any law to enforce these rights, but gave Congress the right to do so. The people affected by discrimination had the right to use the post Civil War Amendments and go directly to court to prohibited any violations of those amendments, Congress need not do anything (Thorough Congress did on the Form of the 1866, 1871 and 1875 Civil Rights Acts, when support for those Acts loss public support, racism rose out of the ashes of Slavery and survived till public support against racism became the majority view starting in the 1950s, which lead to the 1964 Civil Rights Act).

What you are proposing is addition to several negative provisions (including prohibiting Corporation from contributing to election campaign) is to REQUIRE Congress to do something, such positive provisions have been avoided in the past by the US authors of the Constitution and its amendments, except for Prohibition. Prohibition required Congress to do something, remove Alcohol from the nation. We can see how successful that was.

Other nations have also tried Positive provisions, but ran across the same problem, the legislature controls the purse and if the legislature does NOT want to fund the required provisions how can the courts force them to do so? The old Soviet Union guarantee housing for everyone, then failed to provide the housing (did excessive spending on the Military instead). The Soviet Courts ignored the problem, and the Courts of the US refused to force Congress to spend the money even the Court believe was the minimum needed to enforce Prohibition.

Sorry, such positive constitutional provisions are doomed to failure UNLESS it also has massive popular support (and if that is the case, why have a Constitutional provision?, Congress will fund it so people would re-elect them).

Sorry, Sanders is the best provisions when it comes to a Constitutional Amendment, it continues the tradition of providing Negative Rights, i.e. prohibits the Government from permitting corporation to donate money. The Government does NOT have to do anything to stop such contributions, if made the opposition to the person who was given the contribution can take it to court.

The best Constitutional provisions are provisions that does NOT require any positive act by the Government. Such provisions may PERMIT such actions and then it is up to the Political process to make sure the action is done (Which would be the case even if the provisions required Government Action).

Negative provision shows an understanding of the limits on the Courts, they can prohibit the Government from doing things, but can NOT compel the Government to do anything UNLESS there is political support for the positive act. Such political support only needs a provision that PERMITS such actions, and the lack of such political support would quickly make a positive provision a dead letter (like the old Soviet right to housing).

Thus Sanders's proposal will work, for it permits public funding of elections, but does not require it. It relies on political support for such funding to carry the day, something that would be the case even if public funding was constitutionally mandated.