Let’s start in Congress
Robert Byrd (D – KKK) wants to mandate that schools devote at least part of a day each year to teaching about the document. I think it might take more than a day. I also think members of Congress should be forced to attend that class at least weekly. A member of a school organization doesn’t agree:
“It’s the kind of intervention from the federal level that really has no place in our system of education,” said Vincent Ferrandino, executive director of the National Assn. of Elementary School Principals. “If there is concern on the part of members of Congress that the Constitution is not being taught in our schools, I think that’s an issue that ought to be raised in other venues.”
I don’t know guys. If you mandate that it is taught people might wake up and realize that the Congress violates it on at least a quarterly basis.
December 9th, 2004 at 12:11 pm
Wince:
“Your interpretation makes nonsense of the enumerated powers of Congress. Your contention is that Congress possesses all the powers reserved to the States and the people by virtue of being a proxy for the people. If that is the case, no enumeration of powers possessed by Congress is necessary, merely a list of powers denied, and the Tenth Amendment itself serves no purpose. This is elementary set logic. Do the math.”
No, on both counts. My contention is that the people are the ultimate source of governmental power, subject to the contstraints of the Constitution (which, in the end, was ratified by the people through their representatives, so the people are still the ultimate source of governmental power) and the Tenth merely recognizes this, as does the rest of the COnstitution. The enumerated powers serve several functions: they set a starting point for the government, they make clear that there are things that one branch or segment can do that others cannot, they establish the checks and balances neccesary for the governemtn, and they establish limits to the powers of a given branch, regardless of what the people want. The people cnanot decide to have COngress preside over treason trials, since that power is explicitly granted to the Courts, and thus explicitly denied COngress. the people cannot decide to have a state tarriff, since interstate commerce is expressly given to Congress, not the states. Etc. I go back to my original point: show me where the Constitution says X cannot be done by Y. If you cannot, then the states or the people — acting through their representatives at either level — may do so.
“If you prefer a living document, judges should be elected nationally like the President, with political parties and limited terms. I, like Jefferson, am not interested in judicial tyranny. Since you believe in a living document, you have no argument against Bush v. Gore. None at all. The Constitution means what the Justices say it does, and nothing more.”
Oh, stuff and nonsesne, and intellectually dishonest stuff and nonsense. A living document just means that we don’t shackle ourselves to dead men’s meaning of amigious terms. Cruel and unusual punishment means what society at the time says it means. The 14th applies to gays whether or not the people who wrote it intended it to aply only to blacks (which they did). It doesn’t mean that justices decided what the COnstitution means. And, frnakly, read an OI decision and tell me that the justice wasn’t decididng what the document means. A living document means looking at the whole document and taking everything in context, not despertly trying to parse out one word or phrasde form some Founder’s diary.
“he advantage of original meaning NOT intent (and there are PLENTY of documentary sources available) is that it gives a standard which can be applied. The living document theory applies no standard at all. It is therefore the LEAST objective standard. I’m glad you are happy with Bush v. Gore. I am aware that the language is sometimes deliberately vague. That vagueness was part of the original meaning, understood by the public at the time and by everyone up to the present. I hope you are not contending that anyone thought that the words “cruel and unusual” have a precise meaning.”
Nonsesne. Original intent and meaning give no standard. None. They are cheap historical treasure hunts where conservative justices desperately try to dig up some pieceof history and use it — out of context — to try and prove that the OCnstitution means what they want it to mean. You can — and justices have — looked at the hisotry of an issues and come to completely different A living document has the words in front of them, and what the words actually mean today. The fact that cruel and unusual was used and the fact that they are amigious is a god thing — its gives the COnstitution room to adapt to society. Societies learn and grow — and cruel and unusual does not mean in this society what it meant in 1789. Pretneding that it does, pretending that the Founders would have even ever tried to claim it should, is dishoenst and dangerous to the country.
“But your living document judges promptly emasculated it, especially the “privileges or immunities” clause.”
Well, no — it was your conservative, the words mean what the words mean judges. There are only a few privieges and immunities enumerated in the Constitution for citizens. Therefor, the 14th must aply only to those explicitly stated things. That was how the decision came about.
Now, I hink we may be discussing two different things, here. You say that the intent was meant to be broad. That is not actually clear form the records of the time — many, perhpas even a majority, of people thought that the 14th refered to black people. And this continued for quite sometimes — now one, after all, used it as an argument for female sufferage. On the other hand, you say that the meaning is broad. Yes, but only if you apply today’s understanding to the document — only if you use a living document standard. At the time, it was widely publically understood to refer to blacks. So either your argument does not get you where you want to go, or I am misunderstanding what you are driving at.
So, in effect, you cannot get to what you want using your own standard. You can only get to where you want using mine — the living document.
December 9th, 2004 at 1:09 pm
No, you did, when you got onto this “we are the government” kick. We’re not the government. The government is the government.
That’s debatable, but assuming that you’re right, it’s the plural of “person,” of which I am one, and I presume you are, too. So if you think you are a government, feel free to go out and act like one. Just don’t be too surprised when the real government steps in and reminds you it is, and who it’s not.
I’m not even sure I want to know what planet you live on, where “we find a violation of the Equal Protection Clause” means “we find that the Florida Supreme Court did not change the rules of the election.” It certainly doesn’t mean that on earth. Why don’t you just do the adult thing and admit you were full of crap?
No, it isn’t. All it refers to clearly is your legal illiteracy.
You’re the posting ignorant ramblings about stuff you know nothing about, not me. And somehow this is supposed to be MY fault? Oh wait, I almost forgot, you’re a liberal. Everything is somebody else’s fault. Never mind.
December 9th, 2004 at 3:14 pm
Uncle and Xrlq:
Sorry, but what Xrlq made was clearly a strawman argument. Saying that “the people are the government” is not the same thing as saying “I personally am the government,” yet it is clearly the latter (unmade) statement that Xrlq attacked. When you use such obvious strawman arguments and then have the cojones to deny doing it, it hardly seems worthwhile to even argue any more: you’re clearly not interested in honest debate.
Xrlq:
I know you are, but what am I? My uncle can beat up your uncle! Jesus Christ, man, go back to the third grade.
December 9th, 2004 at 3:45 pm
Tgirsch, you’re killing me. You and Kevin willfully blur the distinction between the people and the government, I point out how ridiculous that is, and suddenly I’m the one not interested in an honest debate.
Gee, I wonder where that notion that liberals routinely blame others for their own failures may have come from. Hint: not third grade.
December 9th, 2004 at 3:53 pm
“You’re the posting ignorant ramblings about stuff you know nothing about, not me. And somehow this is supposed to be MY fault?”
You are getting tiresome. You haven’t the character required to debate honestly, and when I point it out, you whine about how it isn’t your fault.
“I’m not even sure I want to know what planet you live on, where “we find a violation of the Equal Protection Clause” means “we find that the Florida Supreme Court did not change the rules of the election.” It certainly doesn’t mean that on earth. Why don’t you just do the adult thing and admit you were full of crap?”
Notice, please, that I provided the quotes that dealt with the SC’s decision regarding the FSC decisions as being allowed in principle but flawed in practice. And you ignored them. And that pretty much, sums up your entire debating style: accuse your opponent of not having support for what they say, then ignore the evidence they provide, and whine when you are called on it, and then build strawme out of your inability to understand something in context. Sheesh.
Wince
I am done with this thread, but if you want to conitue, please feel free to email me. I am interested in hearing your differnetiation between OI and original meaning. I think you are trying to say something interesting that I am not quite getting from your posts.
December 9th, 2004 at 3:57 pm
Xrlq:
Gee, I guess that makes George W. Bush the most liberal guy on the planet, then, huh? (With Rumsfeld right behind him on the liberal-o-meter.)
December 9th, 2004 at 4:58 pm
I guess maybe I’m just falling into the same trap as that idiot Lincoln: buying into the “of the people, by the people, and for the people” crap, eh? I thought the power of government derived from the people. Stupid me.
December 9th, 2004 at 6:06 pm
Xrlq:
Also, I must be missing something: U.S. v. Lopez doesn’t even mention the tenth amendment. Nor, for that matter, does Morrison. Certainly nothing is stricken down “on tenth amendment grounds.” Nitpicky? Maybe, but neither case fits the bill. (Sorry, I just now got a chance to look at these rulings.)
After browsing those rulings, however, it does make me curious about other commerce clause rulings, because “tortured” (to use your word) seems to be a common thread there.
Concerning Bush v. Gore, does the ruling say anywhere that the FSC violated Article II, Section 1? From what I read, they do find an equal protection clause violation, but they do not find an Art II, Sec 1 violation (or if they do, they don’t bother to say so). Unless, of course, I’m missing something, which is always possible.
December 9th, 2004 at 7:25 pm
I ignored anything. Quite the opposite, unlike you, I actually took the time to read and understand the portion of the opinion you quoted, first in your block quotation alone, and then, again, in context. If you had done the same yourself, you’d know that what the USSC described as as acceptable in principle was the substantive question of whether a law may rely on the clear intent of the voter, not a question of whether or not the Florida Supreme Court had changed that rule, or if it was allowed to do so. That issue is not addressed in the decision at all.
That’s just rich. First you lie and claim that the Tenth Amendment doesn’t prevent the federal government from doing anything, which it clearly does. Then you lie again, claiming that Bush v. Gore involved a conflict between two statutes, which it did not. Then you throw in a real whopper about the U.S. Supreme Court ruling that the Florida Supreme Court didn’t change Florida’s election rules retroactively, when in fact the majority made no finding on that issue one way or the other. And finally, to top it all off, you compound that last lie with even more lies, accusing me of ignoring a block quotation that you yourself obviously haven’t read, and one that has no bearing whatsoever on the topic at hand.
You are in no position to lecture anybody about being tiresome, lacking character or refusing to debate honestly.
December 9th, 2004 at 7:35 pm
Xrlq:
Let me see if I get this straight: If someone interprets something differently than you do, they are “lying?” If someone disagrees with you about points of detail, they are “unserious?” Why do you seemingly feel the need to impugn the intelligence and the integrity of those who disagree with you, at pretty much every turn?
You might not agree with the conclusions we’ve come to. You might even think we’re bat-shit loony. But nothing we have posted here even remotely suggests that we are intellectually dishonest, as you repeatedly seem to like to claim.
I’ve tried very hard not to be insulting, to make personal attacks, or to impugn your integrity. Obviously, you feel no need to return that simple courtesy.
And somehow, the “liberals” get painted as the “elitists.” How the hell does that work?
For the record, if you want to prove Kevin wrong on Bush v. Gore and send him proverbially crying to mommy, just point out the part of the ruling where they state that there’s a Art II Sec 1 violation. Kevin’s whole argument on Bush v. Gore would be eviscerated in one fell swoop, just that easily.
Alternatively, help me understand why the Supreme Court would look at the case, find an Art II Sec 1 violation, and then not bother to mention it in the ruling. It can’t be that challenging, can it?
December 9th, 2004 at 8:38 pm
This is a common logical fallacy, known as “affirming the consequent.” While it may be true that all liberals refuse to take personal responsibility, it doesn’t follow that all people who refuse to take personal responsibility are liberals, any more than it follows that if all people who jump out of airplanes die, all people who die must have jumped out of airplanes.
BTW, I don’t think liberals have a monopoly on bad logic, either, BTW. A disproportionate market share, perhaps, but not a monopoly.
It does, at least a moral level. No one disputes that. But it’s one thing to say the government derives its powers from the consent of the governed, and quite another to pretend that the government and the governed are one and the same. If the government were us, and not just a separate entity that is kinda/sorta accountable to us, there would be no need for a Constitution, except maybe to provide for regularly scheduled elections. And maybe not even that; surely “we” can trust “us” to hold elections as often as needed, right?
Technically they don’t, but really, they do. The court starts with first principles of enumerated powers, citing Article I, Section 8 instead of Amendment X. I’m not sure why they did that, seeing as Article I, Section 8 merely states many of the federal government’s powers; it does not expressly forbid it from exercising unenumerated ones. However, some legal scholars believe that the Tenth Amendment is largely redundant, as the doctrine of enumerated powers was implicit in the original Constitution even without it. Either way, the basic issue is the same.
Note, however, the reason why the court devotes relatively little attention to the principle of enumerated powers: it’s not controversial. All nine Justices agree that if the U.S. Constitution doesn’t affirmatively authorize the federal government to do X, the federal government can’t do X. The issue at hand is whether or not any part of the Constitution (read: the commerce clause) did in fact provide such authorization. Both times, five Justices said no, four said yes, and zero said it doesn’t matter since those powers ultimately rest with the people.
Yup. Prior to Lopez, the leading case was Wickard v. Filburn, a New Deal era case that upheld the power of the federal government to limit the amount of wheat a farmer can grow for himself and his own family, on the theory that growing one’s own wheat substantially impacts the amount of wheat one would otherwise buy on the open, interstate market. Very tortured indeed. Yet, despite Lopez and Morrison, Wickard generally remains “good” law to this day.
What’s saved Wickard, I think, is the fact that rape and guns in school are both activities that are non-economic, in a way even growing one’s own wheat is not. I don’t think the court will be able to draw such a fine distinction between growing one’s own wheat and growing one’s own pot. Thus, if the states do prevail in the current case, I have to think it will be the last nail in Wickard’s coffin. Not that I’m predicting this result, mind you. My take is that Justices Stevens, Souter, Breyer and Ginsburg will rule that everything is interstate commerce, Justices Rehnquist and Scalia will uphold Wickard under stare decisis, Justices Kennedy and O’Connor will declare marijuana unconstitutionally icky, and Justice Thomas will be the lone dissenter.
No. IIRC, Justice Rehnquist did say that in his concurring opinion while Justice Breyer denied it in his dissent, but the per curiam majority decision made no findings on that issue one way or the other.
December 9th, 2004 at 9:26 pm
No, and no. There are plenty of things rational people can disagree about. However, if a person states that 2 plus 2 equals 5, he is unserious. If he states that so-and-so has proven 2 plus 2 equals 5, when so-and-so has not in fact proven or even claimed any such thing, he’s either a liar himself, or an idiot repeating someone else’s lies. Either way, he adds nothing of value to the debate.
I don’t. I don’t remember accusing you of dishonesty, except when I probed you early on to make sure you were expressing a sincerely held view rather than jerking my chain. My more recent remarks were directed entirely at Kevin, not at you. Not because he disagrees, but because in a single thread, he made repeated statements that he either knew, or certainly should have known, to be false. It’s one thing to say “I agree with the Florida Supreme Court in Bush v. Gore,” and argue the pros and cons of it. It’s quite another to make factually incorrect statements about it, stated as though they were facts, and chide the other person for not “knowing” the phony “facts” you just got done making up. When called on an honest mistake, the thing to do is to own up to it, not to compound it further by making up even more facts, such as to falsely claim that the U.S. Supreme Court “held that the Florida court did not change the rules of the election” when it fact it issued no ruling on that issue at all. But when, having done all that and more, Kevin had the audacity to impugn my integrity and accuse me of dishonesty, well, I’m sorry, but that was beyond the pale.
I never claimed that the court ruled there was an Article I, Sec. 2 violation. Kevin’s lie/falsehood was in claiming that the court had ruled the opposite way, when in fact it declined to rule on that issue at all.
Like I said, they didn’t rule on the issue at all. That is not remotely equivalent to affirmatively ruling the way Kevin falsely claimed they did. Nor is it particularly uncommon for courts to pick and choose which issues they want to rule on, when a law can be struck down on one basis and the less desirable issue thereby mooted. My take: only the three relatively strict constructionist judges are comfortable ruling that any judge has ever “changed” a law merely by ruling on it. One of the things you learn upon joining Fight Club is that judges never “make” law, they merely “discover” what it has really meant all along. If the Supreme Court had ruled on Article II, Sec. 1, it would have had to do one of two things:
If I’m right, it figures that Justices Rehnquist, Scalia and Thomas, strict constructionists all, would be fine with Option 2, since the U.S. Supreme Court cases they’d be implicitly attacking are cases they don’t much like anyway. But it’s not hard to see why the other six would prefer to avoid this difficult choice if they can rule on a less controversial (to them, not necessarily to the general populace) issue.
December 10th, 2004 at 12:36 am
Xrlq:
I would have thought it was called “failing to have a sense of humor.” I stand corrected.
Well, there’s the whole “preventing mob rule” thing…
That’s an easy standard to apply when things really are that cut and dry; when things are ambiguously phrased and open to disparate interpretation, it’s not so simple.
Getting (way) back to the original subject, do I really think it’s as simple as my original “House = people, Senate = states” formulation? Of course not. But it still leaves open the question (asked WAY earlier) that if certain powers are reserved to the people, by what means may the people exercise that power? You claim that pressuring their (federal) representatives to do things on their behalf is verboten (unless the representatives are otherwise explicitly allowed to do them anyway).
Things like federal environmental regulations (which I assume you would classify as unconstitutional) didn’t happen in a vacuum. They’re not things that the congress just up and decided to do one day because they were bored. In many cases, there was tremendous public pressure for the government to do these things. (Yes, I acknowledge that there are some cases of the tail wagging the dog — witness estate tax repeal as a ready example).
But that’s largely what I’m getting at when I say that “we are the government.” Politicians simply do their best to figure out where the parade is going, and get in front of it.
As to Bush v. Gore, I think Kevin’s point was that if the justices had found (and agreed upon) an Art II, Sec 1 violation, they would have mentioned it. I think what you seem to be counter-arguing is that they didn’t even consider whether or not this was the case?
As I read it (admittedly, I’ve only skimmed it), there appears to be disagreement about whether/how the Florida Supreme Court may have “altered” the pre-existing law. From my admittedly cursory understanding of my reading, it appears as though the Florida law itself was somewhat ambiguously written, making it all but impossible to fully comply.
What may cause some confusion is that the dissents (in particular, Souter’s, in section B) seem to declare that no Art II, Sec 1 violation can be found. In an ironic twist, getting back to my original point in bringing up Bush v. Gore, Justice Ginsberg (who I’m sure you’ll agree is one of the more liberal justices) dissents on states’ rights grounds. (Note also that unlike the other dissenters, Ginsburg does not “respectfully” dissent — she simply dissents.)
To me, the whole Bush v. Gore mess is a great argument in favor of returning to human-readable paper ballots.
December 10th, 2004 at 12:46 am
Xrlq:
And while we’re pointing out logical fallacies, wouldn’t your original “You’re a liberal, therefore everything is someone else’s fault” similarly qualify? Specifically, argumentum ad hominem? (Either abusive or circumstantial depending on context.)
The point was that your tongue-in-cheek (or maybe not) remark was somehow admissible, but my tongue-in-cheek reply was not, because it was logically invalid? That seems odd.
My “sense of humor remark” above, obviously, should have had one of these: 🙂
December 10th, 2004 at 1:46 am
Don’t worry, I got the joke, I just felt like taking it to the next level. Idon’t really think all liberals shirk personsl responsibility, only most.
I doubt that. Who types on a computer standing up?
That’s one concern. Preventing a government from becoming too autocratic is another. IMO, both objectives are best served by treating all rights of the people as rights of ALL the people, as individuals, and not as rights of a government elected by 51% of the electorate (or less, in a three-way race) to usurp these rights.
As free individuals. Or, if they really want government to have that power, they can petition their state governments, which are closer to the people anyway, and which are not restricted by the Tenth Amendment (I’m using that as a shorthand for the enumerated powers doctrine). If they really feel strongly that this matter should be decided at the federal level, they can lobby their Congresmen to amend the Constitution. It’s hard to do that, but it’s supposed to be hard to do that.
Like I said, representatives in state governments are not bound by such requirements. AFAIK, no state constitution limits its legislature’s powers the way the 10th Amendment limits Congress’s.
Depends. If they were passed to implement a treaty, they’re constitutional. If they’re not, why can’t the states deal with the issue on their own?
Bad politicians do. Good ones do what they believe will be best for the country, and let the chips fall where they may. When President Ford pardoned Nixon, he made himself a 1/2-term President by pissing off almost everyone in the country except, well, Nixon. But many people who were pissed off then look back today and acknowledge that it was best for the country to put Watergate behind us. ‘Course, Ford was never elected President, so maybe he’s the exception to the government-equals-us rule.
Sort of. I’m sure they considered it informally while debating amongst themselves, but I suspect that they soon realized they would either reach a stalemate or open the can of worms I identified above, and soon found that the 14th Amendment was an easier out. Again, for them, not for us. The statutory deadlines were clear enough, that while an Art. II, Sec. 1 ruling may have thrown the legal community in for a loop, the population as a whole may have had a much easier time accepting it. FL SC rules that 7=17, USSC overrules saying 7=7. Lawyers would complain about federalism, everyone else would say “so what, 7 DOES equal 7, so there.”
BTW, it wasn’t just the dissents that mentioned Art. II, Sec. 1. Chief Justice Rehnquist’s concurring opinion, in which Justices Thomas and Scalia joined, did so as well, and ruled that a violation did occur. It did’t raise the more obvious violation, however, namely the repeated extensions of the statutory deadlines.
December 10th, 2004 at 12:54 pm
Xrlq:Who types on a computer standing up?
You know, I very nearly typed “I sit corrected,” but decided that would be overly legalistic. 😉 As for who types standing up, people who work on production floors (that used to be me, about five years ago); I also assume Rummy would, if he used a computer.
But again, all of these recourses are separately documented elsewhere in the Constitution, so why bother mentioning it again in the Tenth Amendment?
Because it’s impractical to do so. Just as one example, most of Tennessee’s pollution problems are born outside of Tennessee; prevailing winds and multi-state waterways bring a lot of pollution in from the outside. The other problem is the “race to the bottom” that would inevitably ensue. States ultimately compete with one another for jobs, and it’s cheaper for a company to locate itself where there are lax environmental/labor regulations than where there are stricter ones. So the states without such regulation (or with very lax regulation) gain a competitive advantage, and other states are forced to loosen or repeal their own regulations in order to compete. The economies of New York and California are big enough that they can get away with this at the state level to some extent, but there are 48 other states that aren’t New York and California. Further, the states with stricter regulation couldn’t pass protectionist legislation to compensate for the regulatory differences, because the federal constitution explicitly prohibits them from doing so.
As long as we’re talking in hypotheticals here, Santa Claus also brings gifts to all the children every Christmas. Except that in my lifetime, I’ve seen more empirical evidence of Santa’s existence. 😉
December 10th, 2004 at 1:42 pm
tgirsch,
I still haven’t gotten a reason why Congressional powers had to be enumerated if they get broad police power (anything the people want). Congress has never had broad police power before, and they don’t have it now. If they did, they wouldn’t explicitly claim that partial birth abortion was being banned via the enumerated interstate commerce power. They would just claim it was a power delegated from the people and be done with it. Everyone in all three branches of the Federal government is acting as if they do not have broad police powers, and as if the states do, and they are torturing the commerce clause to allow regulation of non-commercial activites. Are you (and the now probably absent kevin) playing devil’s advocate here?
Your environmental problems are the sort that, if they turn out to be pressing, we can amend the Constitution to fix. OTOH, they aren’t as pressing as you claim. Congress is allowed to regulate interstate commerce. If Congress says that all automobiles which are sold, assembled, financed, etc., via interstate commerce must have pollution controls, voila, you’ve covered something like 99.999% of all cars. And that is EXACTLY how Congress has passed environmental legislation, as regulations on interstate commerce, a power they possess. Congress wouldn’t be able to police my leaf burning, or my particular furnace, however. If that isn’t enough Congress also has the power of the purse. They can cut off funds to states which don’t police themselves well enough. So really you are reinterpreting the Constitution when it isn’t needed. Let’s keep the meaning of the document the same and change it via amendment, not unelected judges.
Yours,
Wince
December 11th, 2004 at 2:25 pm
I’m one of those evil Ayn Rand-Michigan Militia reactionaries who believes, with George Washington, that “Government is not eloquence, it is not reason. It is force! Like fire, it is a dangerous servant and a fearful master.”
It was not Ayn Rand who arrested John Geddes Lawrence and Tyron Garner in the middle of the night for making love in their own home. It was not the Michigan Militia who shot Randy Weaver’s wife and child. It was government in both cases. Government is at best a necessary evil and must be restrained as much as possible. And that goes for democratic government most of all. The worst tyranny of all is the tyranny of the majority. That is what our Constitution was written to guard us against more than anything else.
“In questions of power, then, speak no more of confidence in man, but, rather, bind him down from mischief with the chains of the Constitution.”
-Thomas Jefferson
“If all mankind, minus one, were of one opinion, and only one man were of the contrary opinion, mankind would be no more justified in silencing that one than he, if he had the power, would be justified in silencing mankind.”
-John Stuart Mill