Does the US need a "notwithstanding" amendment?

[Justin]

The concensus on the gay marriage and state's rights is that we do not need a Federal DOMA amendment in our constitution. However both are bitterly divided at an alternative. Liberals want the courts to rule to force the states to allow gay marriages (John Kerry and Edwards nothwithstanding). Conservatives want the state's to choose wether not not to have fay marriage or accept and are afraid of courts forcing the states to arbitraily accept gay marriage or other judicial activism. You may say to your self, "what's the point?"

 

The point is I may have found a solution that may be equitable to both sides. In Canada, the 33rd Section of the Charter of Rights and Freedoms has a "Notwithstanding" clause. This clause gives the provinces the right to suspend certain parts of the Canadian Constitution that effect a certain law for a period years. It designed to prevent parliament and the Courts from forcing a province to obide by laws which it feels is in someway harming the Province. Let's take quebec as an example.

 

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If such a clause were in our constitution, states would be essentially left up to decide on thier own for once and for all certain things like gay marriage. Though it could produce another "Tarrif of abominations" effect later on though.

 

For more information on the "notwithstanding" clause go here:

http://en.wikipedia.org/wiki/Notwithstanding_clause

[Beet]

Theoretically, a state could use this clause to override anything in the constitution... say the First Amendment??

[12th Doctor]

This is idiotic.  If we had one, then they could just up and repeal anything they want.  Get these Jeffersonian/Jacksonian ideas out of your head, boy and embrace Federalism.

[KEmperor]

Theoretically, a state could use this clause to override anything in the constitution... say the First Amendment??

My thoughts exactly.

[True Federalist (진정한 연방 주의자)]

This would be similar in effect but not basis as the Virginia and Kentucky resolutions of 1798.  However, I'm not certain that the issue that Conservatives are woried about will arise.  A lot will depend upon the interpretation given to the full faith and credit clause of the constitution.  Since we no longer have slavery, it should prove simple to amend the constitution if it should prove neccessary to limit the clause so that civil contracts such as gay mariage that are legal in one state but not in another are not forced to be recognized by those states that do  not have gay marriages.  Such an amendmentt would strength states' rights and would be worth having.

[Justin]

Theoretically, a state could use this clause to override anything in the constitution... say the First Amendment??

It could but then that state would face voter-backlash and that state government would be thrown in the next election and be forced to rescind such an invocation.

[Justin]

Heres the exact wording in the Charter:

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[??????????]

Allow the states Nullification. Full faith and credit is BS.

[True Federalist (진정한 연방 주의자)]

Allow the states Nullification. Full faith and credit is BS.

Especially since one of the reasons that it was put in, slavery, is no longer legal.

[The Dowager Mod]

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

"except as a punishment"
sounds like it's not really illegal.

[Beefalow and the Consumer]

Thousands of 1960s Mississippi Klan members slap their foreheads in unison: "Why didn't WE think of that?"  Jim Crow would probably still be in effect today.

We have the 10th Amendment.  That's our check against Federal power.

[Nym90]

No.

[cwelsch]

Nope, sorry.  We tried this with nullification.  Too many people take it as an invitation to do whatever they want to whomever they want.

The way it works is simple: the states block the feds from infringing on liberty, the feds stop the states when they egregiously infringe on liberty, elections all around, add in a Second Amendment.  Serve warm.

[??????????]

Nope, sorry.  We tried this with nullification.  Too many people take it as an invitation to do whatever they want to whomever they want.

The way it works is simple: the states block the feds from infringing on liberty, the feds stop the states when they egregiously infringe on liberty, elections all around, add in a Second Amendment.  Serve warm.

50 Nations. The way it was intended. Nullification is a way of stopping the feds from infringing on our liberties.

[migrendel]

I fear the violence that would be done to fundamental rights in this country if states had veto power of civil liberties. I thus vote no.

[Beefalow and the Consumer]

Nope, sorry.  We tried this with nullification.  Too many people take it as an invitation to do whatever they want to whomever they want.

The way it works is simple: the states block the feds from infringing on liberty, the feds stop the states when they egregiously infringe on liberty, elections all around, add in a Second Amendment.  Serve warm.

50 Nations. The way it was intended. Nullification is a way of stopping the feds from infringing on our liberties.

The federal government should also be able to stop the states from infringing on our liberties.  It works both ways, you know.  "Secure the blessings of liberty for ourselves and our posterity."  That's one of the explicitly stated reasons we have a federal government.

[cwelsch]

Nope, sorry.  We tried this with nullification.  Too many people take it as an invitation to do whatever they want to whomever they want.

The way it works is simple: the states block the feds from infringing on liberty, the feds stop the states when they egregiously infringe on liberty, elections all around, add in a Second Amendment.  Serve warm.

50 Nations. The way it was intended. Nullification is a way of stopping the feds from infringing on our liberties.

Then who stops the state when they decided people who look like me or people who look like you don't get a vote, or don't get to work without permission, or don't get to move without a license, or don't get to own a gun?  Who stops the lefty states that want to take away first and second amendment rights for social reasons?  Who stops the Dixie states that might not mind riding a little fast and loose with the rights of racial minorities?

Nobody did, from 1876 to the 1950s, except for the 1920s anti-lynching laws (which were difficult to enforce).  That's why Ike sent in troops, to force integration.  If a state refuses to accept the rights of individuals, then either the feds or individuals have to step in.

Forget about states' rights, forget about federal power, the only thing that matters is individual rights, that is why all government exists or ought to exist.  There is no higher justification.  Therefore, all of our government ought to be geared and designed toward checks and balances and fail-safes on in dividual rights.  States' rights could easily be a shield for infringing individual liberty as much as protecting it.

[??????????]

Nope, sorry.  We tried this with nullification.  Too many people take it as an invitation to do whatever they want to whomever they want.

The way it works is simple: the states block the feds from infringing on liberty, the feds stop the states when they egregiously infringe on liberty, elections all around, add in a Second Amendment.  Serve warm.

50 Nations. The way it was intended. Nullification is a way of stopping the feds from infringing on our liberties.

Then who stops the state when they decided people who look like me or people who look like you don't get a vote, or don't get to work without permission, or don't get to move without a license, or don't get to own a gun?  Who stops the lefty states that want to take away first and second amendment rights for social reasons?  Who stops the Dixie states that might not mind riding a little fast and loose with the rights of racial minorities?

Nobody did, from 1876 to the 1950s, except for the 1920s anti-lynching laws (which were difficult to enforce).  That's why Ike sent in troops, to force integration.  If a state refuses to accept the rights of individuals, then either the feds or individuals have to step in.

Forget about states' rights, forget about federal power, the only thing that matters is individual rights, that is why all government exists or ought to exist.  There is no higher justification.  Therefore, all of our government ought to be geared and designed toward checks and balances and fail-safes on in dividual rights.  States' rights could easily be a shield for infringing individual liberty as much as protecting it.

I should clarify myself. I believe that Civil Rights should be protected by the federal government no matter what. I should have said that earlier and I apologize. However most other federal issues could be nullified by a state if they wish.

[ATFFL]

I should clarify myself. I believe that Civil Rights should be protected by the federal government no matter what. I should have said that earlier and I apologize. However most other federal issues could be nullified by a state if they wish.

In other words, the protection of civil rights is one of the powers clearly granted to teh federal government, much like providing for the common defense and establishment of foreign policy.