Assume massive Kenyesian Spending

[degsme]

The existence of Bell Labs would argue against your contention --

Two problems with that line of reasoning

1) the exception (ie the existance of outliers) proves the rule

2) Bell labs operated in the environment of a goverment enforced and protected monopoly. as such its profit margins were "cost plus" so it could simply pass the full cost of R&D onto the consumers as part of the costs on top of which profits were built.

Thus it was not subject to the market forces of most corporations and arguably then WAS SUBSIDIZED BY THE GOVERNMENT. And the best evidence of this what happened to Bell Labs after the breakup.

the corporation instituted basic research and continues to do so. Further, you're citing an average "time to market" -- does it apply in every case? Of course not. The time to market between Tesla's inventions and the production of commercial power was on the order of 60 months.

Yes, and? Lot's of discoveries are serendipitous.

"lots" is a weasel word of no meaning. The MAJORITY of BASIC DISCOVERIES are not "serendipitous", now turning a basic discovery (teflon) into a groundbreaking idea (coating pans with it) IS. Which argues for Government funding of Basic research, making that research available to the public and letting the entrepreneurial serendipity turn it into products.

The production of commercial quantities of aluminum is one such (definitely a society changing development, it happened without either private OR public dollars being used).

No actually it was not. Aluminum refinement itself was the result of somewhat random lab combinatorics that was common in the mid an late 1800s (modern day alchemists). But the Hall-Herault process was developed INDEPENDENTLY by two researchers looking specifically for a way to make production of the material cheaper....FOR THE MILITARY...






And that still doesn't make the research a legitimate operation of the government.


Oh, Bosh, Degs. Hamilton's rantings aren't valid -- he flip flopped so many times that it there is no way to know his true stance on anything.[/QUOTE]

 

[trapdoor]

Two problems with that line of reasoning

1) the exception (ie the existance of outliers) proves the rule

No, Degs -- that's the last gasp of someone who can't show their belief to be universal.

2) Bell labs operated in the environment of a goverment enforced and protected monopoly. as such its profit margins were "cost plus" so it could simply pass the full cost of R&D onto the consumers as part of the costs on top of which profits were built.

Bell Laboratories continues to operate today, outside any monopoly or cost-plus environment (if you'd been paying attention earlier in the thread you'd know this already). It is true that it once operated in the environment you describe, that is no longer the environment in which it operates. According to you, then, it doesn't operate at all. It's employees will be quite shocked.

The MAJORITY of BASIC DISCOVERIES are not "serendipitous", now turning a basic discovery (teflon) into a groundbreaking idea (coating pans with it) IS. Which argues for Government funding of Basic research, making that research available to the public and letting the entrepreneurial serendipity turn it into products.

Oh -- it's arguable whether most researchers find what they expect -- I'd say the majority of basic discoveries come as a genuine shock to the researchers involved. That's immaterial really, as the argument against government funding for basic research has nothing to do with the efficacy of that funding, but rather with the legality of that funding.

No actually it was not. Aluminum refinement itself was the result of somewhat random lab combinatorics that was common in the mid an late 1800s (modern day alchemists)... But the Hall-Herault process was developed INDEPENDENTLY by two researchers looking specifically for a way to make production of the material cheaper....FOR THE MILITARY...

No, in America Hall developed the process on his own -- no military involvement or even interest. Herault inherited a tannery and borrowed 50,000 francs (from his mother) to develop basically the same process simultaneously with Hall. Neither was working for the military. If you argue that they wanted to sell their product to the military, well, that's a long stretch for finding that their efforts were somehow taxpayer subsidized. It's like saying the five gliders and one successful powered aircraft built by Wilbur and Orville Wright (and paid for out of their own pockets) was subsidized because eventually they sold some airplanes to the Army.

 

[Woolleybugger]

For years now you have been harping on using the amendment process to run our government. In your mind, if the words are not in the constitution, you have to add an amendment to get them there. Vagaries like N and P, commerce, general welfare and so on are no obstacles to you. Constitutional arguments between Hamilton and Jefferson are immaterial, you decide who is right despite the history. At the end of the day, your notion of governance was never adopted yet here you sit day after day trying to force the tooth paste back in the bottle because you don't like the taste of it. Well, in my opinion, folks like you are like abductees taken to a UFO and back, interesting to talk to but ultimately quite silly. Sorry trap but your bottom line is a complete denunciation of our history in pursuit of some purity test that never existed even within the founding fathers themselves. Earth to Trap: Hamilton won, Marshall won, Jefferson lost a lot of these battles.

 

[trapdoor]

For years now you have been harping on using the amendment process to run our government. In your mind, if the words are not in the constitution, you have to add an amendment to get them there. Vagaries like N and P, commerce, general welfare and so on are no obstacles to you. Constitutional arguments between Hamilton and Jefferson are immaterial, you decide who is right despite the history. At the end of the day, your notion of governance was never adopted yet here you sit day after day trying to force the tooth paste back in the bottle because you don't like the taste of it. Well, in my opinion, folks like you are like abductees taken to a UFO and back, interesting to talk to but ultimately quite silly. Sorry trap but your bottom line is a complete denunciation of our history in pursuit of some purity test that never existed even within the founding fathers themselves. Earth to Trap: Hamilton won, Marshall won, Jefferson lost a lot of these battles.

I'm not "harping" -- I'm reading the Constitution, all of the Constitution, and citing the people who wrote it as sources (my preferred source is Madison, as he was the primary editor of the final document).

Vagaries like N and P, commerce, general welfare and so on are no obstacles to you.

That's not true. I merely regard them as subordinate to the initial detail of powers. The necessary and proper clause says this about itself directly. "The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, (emphasis in bold added). Government cannot merely act on anything it thinks is necessary and propper that is a misreading of the clause. Government can do anything "necessary and proper" to its detail of authorities.

At the end of the day, the form of government that I describe is what was adopted. The states would never have ratified a constitution that contained the sweeping authorities you find there. Have you ever read any of the actual debates on the topic from the era?

Me deny history? I refuse to do so. What I deny is that the distortions of the Constitution put in place in the 20th century, mostly during the New Deal, are anything more than that. Hamilton? Hamilton said there was no need for a Bill of Rights, as there was no need to forbid the government to do things it had never been authorized to do. That he reversed himself later means what, exactly?

 

[degsme]

That's not true. I merely regard them as subordinate to the initial detail of powers.

Um sorry, General Welfare is enumerated in the same "initial detail" and sentence as Common Defense and Paying the Debts.

NPC then empowers each to be cast into law by a duly authorized Congress.

And Am 14 Section 4 clarifies the dispute that had gone on around this by saying that for something to be a valid debt of the USA, it simply must be declared so by a valid law.

Me deny history? I refuse to do so. What I deny is that the distortions of the Constitution put in place in the 20th century, mostly during the New Deal, are anything more than that. Hamilton? Hamilton said there was no need for a Bill of Rights, as there was no need to forbid the government to do things it had never been authorized to do

And then subsequent to its passage he stated clearly what he thought the General Welfare clause enumerated as an authorized Power of The Government. And you are denying the history of that when you say that the "expansive view" of "General Welfare" is unique from 1935 onwards.

 

[Woolleybugger]

Trap has his favorite authors of the initial laws and has chosen Madison as his annointed authority. I love me some Madison but even he had a hard time figuring out how his ideas could work in a real government. The truth is that for the first 10 years or so, Hamilton won. Once Marshall got the Chief Justice role, Marshall won for a long time even though Jefferson fought him tooth and nail. His attempt to make the period between 1790 and FDR an era of perfect harmony or common interpretation of the law is conveniently missing huge debates on all sorts of issues fundamental to both our constitution and our history. Would Trap have stood next to Calhoun and cheered? Probably. Would he have told Marshall he was wrong on Marbury? Likely. Would he have told Hamilton to not pursue the US Bank? Yes. But then he would have to rewrite our entire history to make his own personal view of those decisions the new law of the land going forward. His insistence that the amendment process should replace judicial and legislative decisions would have crippled us joining the modern era in case after case, problem after problem, advancement after advancement. The government would be a shell of what it became over time and the problems leaders over the last 200 years solved or tried to solve would still be with us unless the amendment process was successful. It is paralysis masquerading as prudence. Roosevelt wants natoinal parks? Forget about it. Want to force Chicago to clean up the raw sewage they dumped into the water? Forget it. Want a standing Army? No way. Want nukes? Nope. Want an air force? No. Want Nasa? No, FBI? No. Dept of commerce, ag, interior, education, energy, HUD, and so on? Nope.

It is this kind of thinking that keeps me from considering these views as serious views by serious thinkers.

 

[degsme]

Trap has his favorite authors of the initial laws and has chosen Madison as his annointed authority. I love me some Madison but even he had a hard time figuring out how his ideas could work in a real government. The truth is that for the first 10 years or so, Hamilton won.

And Hamilton also won WRT The Louisiana Purchase, Sewards Folly, and Lincoln's commentaries on the "rights of secession" http://www.nps.gov/liho/historyculture/secunlawful.htm. And these are but the major triumphs of Hamilton's view of General Welfare expenditures.

There are also many minor ones. As you point out, implicit in Marbury is Congress's right to arbitrarily create Offices, and debts associated with those offices by simply passage of law. Trap's response is that Marbury makes no such explicit ruling. But Trap's whole approach to Constitutional rulings is one that eschews implication, inference and foundation and ONLY accepts explicit rulings. And that simply is not how Constitutional law works.

As Sotomayor so infamously opined, It is the Appellate division, which is enfranchised with the power of the SCOTUS except when SCOTUS overrules it, that sets POLICY OF ENFORCEMENT, ie interpretation of SCOTUS rulings. And only when that interpretation is deemed wrong by SCOTUS does SCOTUS grant cert. Thus all the Appellate Court rulings that recognize Hamiltonian plenary spending power from Marbury onwards - and frankly absent a LEXIS account its not practical to enumerate even fraction of them - are aligned with Hamilton's views. And Trap cannot refute them as Unconstitutional except by Definitional Insistance and as you pointed out - a studious denial of history.

Really what Trap doesn't get is that the period he "admires" is a 50 year interregnum that was basically a backlash against Black Civil Rights in the south ie a backlash against "uppity blacks and foreigners" (ie the laborers trying to form unions). It started in 1883 with the overturning of the Civil Rights Act of 1875 - that was clearly and Constitutionally based in the 14th Amendment - and basically went forward until 1935 when one of the justices basically realized how stupid it all was.

What Trap doesn't seem to understand is that by rolling things back to pre Wickard he also eviscerates ALL CIVIL RIGHTS laws. His claim is that somehow, magically, you could extract civil rights legislation from amongst that Constitutional wreckage, but offers no logically consistent manner in which to do so. Particularly in the area of Gender rights. And more significantly, as a gun fetishist, he doesn't see how Miller which is of that time and basically restricts the 2nd Amendment to "well regulated militias" doesn't also become part and parcel of that.

Its a "cafeteria Constitutionalism" not dissimilar from the way Suburban Mega Church "gospel of prosperity" cherry picks the christian texts...

 

[trapdoor]

Um sorry, General Welfare is enumerated in the same "initial detail" and sentence as Common Defense and Paying the Debts.

Yes -- but it has a specific meaning. The same language was used in the Articles of Confederation, where the states formed a "league" for "their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever." Under neither document does general welfare include the expansive reading you give it -- it merely means support must benefit the states generally and no one population specifically. This is clearly set out in the ratification debates. The states would not have ratified a constitution containing general welfare that was not constrained by the following detail of powers.

NPC then empowers each to be cast into law by a duly authorized Congress.

Not if the law passed by Congress is not supported by the detail of powers -- that law would then be unconstitutional. A law is constitutional if it is necessary and proper to "the foregoing powers." Congress cannot merely determine for itself that this or that is necessary and proper without reference to the Constitution. If it could, why have a Constitution. Just let Congress pass any alw it desires.

And Am 14 Section 4 clarifies the dispute that had gone on around this by saying that for something to be a valid debt of the USA, it simply must be declared so by a valid law.

You've yet to show me a single instance of SCOTUS agreeing with you on this interpretation of the 14th Amendment. I don't think you'll ever be able to because that reading is a distortion. Under the rubric you've constructed, Congress can decide to, for example, intern all people of Middle-Eastern appearance, allocate funds for the construction of internship camps, and intern all of them. There'd be no barrier to doing this either via funding (Congress, according to you, can fund whatever it likes) or via the Constitution, if Congress determines for itself that the internment would benefit the general welfare, or simply that because of a Mideast terrorist threat, the internment is necessary and proper. And you can't rely on the 4th or 5th Amendment protections as they do not specifically ban the expenditure of the funds (in your view) or an action that is necessary and proper, as determined by Congress (again, in your view).

And then subsequent to its passage he stated clearly what he thought the General Welfare clause enumerated as an authorized Power of The Government.

A strange characterization. The reality is that once he wanted to so something the document he helped create wouldn't allow, he flip-flopped on the authorities it offered. You readily ignore that he was roundly criticized, even by his fellow federalists, for doing this.

And you are denying the history of that when you say that the "expansive view" of "General Welfare" is unique from 1935 onwards.

Unique? Perhaps not. Allowed to become overwhelming? Not at all. The expansive view of the general welfare clause was not generally accepted in U.S. law until the 1930s. It was not firmly ensconsed in its modern sense until the late 1940s. How can we, as students of history, determine this? By examingin the exponential growth of government after the change. Are you really going to deny the huge growth of government entailed by the New Deal and beyond -- or are you going to say that it doesn't exist?

 

[trapdoor]

Trap has his favorite authors of the initial laws and has chosen Madison as his annointed authority. I love me some Madison but even he had a hard time figuring out how his ideas could work in a real government.

Annointed? No. Appointed? Yes, by the Consitutional convention where he was appointed to prepare the final draft. The idea that he would not be an authority on the text he prepared is ludicrous to me. Madison didn't have any trouble operating a real government based on his principles when he was president. He wasn't a great wartime president, which was shown by the poor preparation for the war of 1812, but his government operated nonetheless.

The truth is that for the first 10 years or so, Hamilton won

.

How do you figure? Hamilton was more influential with Washington, true, but you don't see most of his desires pass through Congress (admittedly, this may ahve to do a lot with his personal foibles).

Would Trap have stood next to Calhoun and cheered? Probably. Would he have told Marshall he was wrong on Marbury?

No -- Marbury is a necessary rulling establishing the authority of the courts as the final arbiter of the law. As the constituion says SCOTUS shall be the supreme court of all the land, I can't see Marbury as an exercise of any non-delegated authority.

Would he have told Hamilton to not pursue the US Bank? Yes

.

No. I would have told Hamilton that his Constitutional reasoning was flawed. The Bank could still have gone forward -- a national bank is necessary and proper to the creation and management of currency, a power delegated by the Constitution. The only reason I can see that Hamilton didn't use this constitutional argument himself is that he expected to be president some day and he wanted to extend federal authority so he could make additional use of the expansion.

His insistence that the amendment process should replace judicial and legislative decisions would have crippled us joining the modern era in case after case, problem after problem, advancement after advancement.

If I were insisting that the amendment process be used to do these things, I'd be wrong. What I insist, if anything, is that neither the judicial nor legislative processes can be used to expand the government into new areas of authority, as that is a violation of the Constitution. What we've seen, mostly in the past 80 years, is the abuse of the general welfare and commerce clauses to exceed the delegation of authorities. To do this, we've seen numerous things designated as "interstate commerce" that have no real-world interstate commerce connection, and a reading of the general welfare clause that basically makes no sense, as it allows aid to the welfare of specific groups, specific welfare, rather than to the nation as a whole, generally. I'm somewhat taken aback that intelligent people like yourself and Degsme can't see the dangers entailed in such a holistic expansion of federal power.

It is paralysis masquerading as prudence. Roosevelt wants natoinal parks? Forget about it.

Not forget about it, acquire the power legally.

Want to force Chicago to clean up the raw sewage they dumped into the water? Forget it.

Is it an issue in which the federal government should be involved? If so, then an amendment is no burden, and if not, a new law will not make the decision legitimate.

Want a standing Army? No way.

As the Constitution specifically authorizes such an Army, the statement is simply in error.

Want nukes? Nope. Want an air force?

Why would these be banned by the Constitution? It merely calls out an authority for "defense." If you enemy has an air force, defense requires an air force. Ditto nukes. The means of the defense isn't specified -- the defense authority is.

Want Nasa? No, FBI? No. Dept of commerce, ag, interior, education, energy, HUD, and so on? Nope.

Please -- at least try to follow me sensibly. Commerce? So long as it regulates interstate trade, it's fine. Ditto Ag. Ditto Interior as it manages federally owned property. Energy, HUD and so on? Make constitutional justifications for them -- keeping in mind that while energy might be regulated as interstate trade, local housing and local urban development are generally not federal authorities (why would they be?).

It is this kind of thinking that keeps me from considering these views as serious views by serious thinkers.

Well, far be it from me to intrude on other's thoughts, but it strikes me that Madison and Jefferson have been considered serious thinkers throughout most of U.S. history. I'd say William F. Buckley was a serious thinker. Rusell Kirk is one, as well. If you like, I can provide an entire library of serious thinkers who don't share the modernist "living" view of the Constitution.

 

[trapdoor]

And Hamilton also won WRT The Louisiana Purchase, Sewards Folly, and Lincoln's commentaries on the "rights of secession" http://www.nps.gov/liho/historyculture/secunlawful.htm. And these are but the major triumphs of Hamilton's view of General Welfare expenditures.

Degs -- once I cited Franklin Pierce, the most salient constitutional scholar of his age, on a matter concerning general welfare, and you dismissed it as a political statement made by a politician. As every statment you cited from Lincoln is exactly the same, I think it is fair debate that I dismiss them as authoritative.

As for the land acquisitions -- I'd say they benefitted the nation as a whole and fall under general welfare. This was certainly true of the Louisiana Purchase as it secured a trade route that benefitted the entire nation, and one that was greatly threatened by French threats to close New Orleans (France was involved in an inconvenient major war with England at the time).

There are also many minor ones. As you point out, implicit in Marbury is Congress's right to arbitrarily create Offices, and debts associated with those offices by simply passage of lawTrap's response is that Marbury makes no such explicit ruling.

No, Trap's response is that Marbury makes no such rulling either implicit or explicit, and it does not. It makes no reference to an implicit authority to create offices -- the offices in question are judicial offices and their creation is specifically authorized by the Constitution in Article 3, to wit, "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." The offices in Marbury were "such inferior courts," and Congress had legitimately "ordained and established" them. There is no implicit authority mentioned in Marbury, because there's no need for it -- the creation of offices was not in question.

But Trap's whole approach to Constitutional rulings is one that eschews implication, inference and foundation and ONLY accepts explicit rulings. And that simply is not how Constitutional law works.

This isn't true of my Constitutional arguments, either. But however the Constitution works, it was not designed to offer an unlimited federal authority based on hidden powers conceieved as powers over "commerce" where no commerce is involved, or a reading of general welfare that includes no generality. What I see as the difference between our views of the Constitution is that I think the document had a design, there was an intent, and that limits were set by that intent. You see little design, no accepted intent, and almost no limits. I find an unlimited government monstrous. You see it as a pet.

Really what Trap doesn't get is that the period he "admires" is a 50 year interregnum that was basically a backlash against Black Civil Rights in the south ie a backlash against "uppity blacks and foreigners" (ie the laborers trying to form unions).

Horseshit. I've never "admired" that period's racism. What I admire about the period is the era of functioning government sans its intrusion into state-level concerns. This shows such a government can be operated. That there was an overwheening social probem of racism and sexism existed alongside the function of government -- I would love to see government function as it did then, but society function as it does now, in an environment in which racism and sexism is condemned.

What Trap doesn't seem to understand is that by rolling things back to pre Wickard he also eviscerates ALL CIVIL RIGHTS laws.

No -- I merely require them to be enforced via a different method -- one that doesn't involve the commerce clause as an authority. There is plenty of enforcement authority in the 14th Amendment, when it comes to making certain the rights of individuals is respected.

Particularly in the area of Gender rights. And more significantly, as a gun fetishist, he doesn't see how Miller which is of that time and basically restricts the 2nd Amendment to "well regulated militias" doesn't also become part and parcel of that.

That's a misreading of the Miller decision that belongs in another thread (I'm a firearms collector -- that does not make me a fetishist anymore than being a blue-water sailor makes you a boat fetishist). I've offered my constitutional reasoning above.

 

[degsme]

Yes Lincoln is a politician. But unlike Pierce, the nation as a whole ACTED ON Lincolns assertions - as they did under Sewards Folly, Louisiana Purchase and even Marbury. The fact that RETROSPECTIVELY you can say "they benefitted the nation as a whole" doesn't change that AT THE TIME THEY WERE ENACTED they claim of a general benefit was not provable but asserted. The Constitutoin does not make a Congressional Error of Judgment inherently unconstitutional. So something like Social Security, Medicare, Dept. of Ed. the APPACA all fit within that same sort of General Welfare assertion. As legiimate a case (if not more so) can be made for each of those providing both a specific (Land Rush "stakeholders" received SPECIFIC Welfare) as well as GENERAL Welfare to the nation.

The offices in Marbury were "such inferior courts,"

No. JoPs are not courts. They are administrative officiating positions - issuing and validating a variety of license, combined with policing powers. As such the combination of prosecutorial and enforcement powers would be an Unconstitutional overreach of Judicial authority if it weren't civil/administrative.

But Trap's whole approach to Constitutional rulings is one that eschews implication, inference and foundation and ONLY accepts explicit rulings. And that simply is not how Constitutional law works.

This isn't true of my Constitutional arguments, either. But however the Constitution works, it was not designed to offer an unlimited federal authority based on hidden powers conceieved as powers over "commerce" where no commerce is involved

Trap I cannot count how many times you have made the claim that "the court does not explicitly rule X, Y or Z"...The clearest example being our discussions around Marbury where the plenary "indebting" power of Congress is clearly in question (because it was a Contractual Obligation question that was raised, not a Separation of Powers question) as necessarily conditional in The Congressional authority to engage in Contracting. Similarly you have made the claim that even though Prize Cases explicitly states that under no circumstances does a POTUS have the authority to INITIATE an Act of War (and Clinton v, NYC refutes the power of Congress to delegate Constitutional authority to the Executive)- you claim that the Constitutionality of the "War Powers Act" has never been adressed by the Court.

That LOGICALLY requires that you eschew the application of the PRINCIPLES of PRIOR Rulings to subsequent laws - because the two core issues in War Powers is

• Whether Congress can delegate to POTUS its decision making on INITIATING a war
• Whether POTUS as CinC has an authority to INITIATE a war

Clearly are addressed by the Prior rulings, and yet you claim that War Powers has never had its Constitutionality addressed.

And that goes to your claims about "admiring the period's racism". No one is claiming that you "admire it" so that's a Strawman deflection. Rather it is that you have not been able to demonstrate how your admiration for a period of Judicial Rulings that limit the Government's intrusion into state level decisions would perclude the self-same racism, and gender discrimination. Nor have you addressed how issues like my neighbor's "non source point pollution" and its impact on international treaty rights can be addressed without such intrusion.

Saying that

I would love to see government function as it did then, but society function as it does now

requires you to show that how our society functions now IS NOT a DIRECT RESULT of how Government functions NOW. And you cannot.

What Trap doesn't seem to understand is that by rolling things back to pre Wickard he also eviscerates ALL CIVIL RIGHTS laws.

No -- I merely require them to be enforced via a different method -- one that doesn't involve the commerce clause as an authority.

yet you offer no Constitutional mechanism by which to do this. Am 14 offers no INTRA-State enforcement mechanism.


And lastly, again Miller's restriction of arms carriage rights to "well regulated militias" is in no way a "misreading of Miller". In fact even Scalia in Heller agrees with me on this one - hence the very NEED (in his view) for Heller to repudiate this aspect of Miller. Again this is a case where you want to choose the MODERN rulings you want and somehow - magically - implant them into the Judicial philosophy that eschewed them....

 

[Woolleybugger]

Explain to me how you would stop state A from dumping raw sewage directly upstream from state B without the commece clause. And please don't tell me that somehow state B is going to convince the citizens of state A to stop polluting via some political campaign, state ballot or TV spot. Tell me why religious state D stopped mandatory tithing to the church for all state residents regardless of religion. We could go on and on and on and on through the history of our nation if you want. You think it was great before FDR. The history of the poor and middle class in America would point to that era as pretty miserable. I just finished a book on Chicago and the worlds fair in 1893. Tens of thousands out of work, no safety net, no pollution controls, no building codes, no health standards for food and drugs...massive poverty, people forced to hit the rails and roads to get a pittance working all day long, company owned towns, blatant racism, sexism and child abuse. No thanks. We have had this argument before, there really is no need to rehash it again. You have stated your opinions, we have stated ours. You support a revision of our history that will never happen, not in a million years will we ever return to that era either politically, economically or legally. You might as well spend all your time wishing California still had 1000 people living in it for all the good it does. Sorry trap but your points may be great debating points but they are not going to happen.

 

[degsme]

Annointed? No. Appointed? Yes, by the Consitutional convention where he was appointed to prepare the final draft.

From committees ALSO appointed and chaired by various people like Hamilton (who chaired the committed that wrote the initial language of the General Welfare Clause)... yes and?
That Madison was a "secretary to the whole" gives him no particular insights. And there is no record that he had ANY major input into the most significant compromises made - that was Franklin an others.

No -- Marbury is a necessary rulling establishing the authority of the courts as the final arbiter of the law. As the constituion says SCOTUS shall be the supreme court of all the land, I can't see Marbury as an exercise of any non-delegated authority.

Except that prior to Marbury many saw the SCOTUS as simply an arbiter of PARTICULAR "cases in law" and "controversies between states" - not whether or not a particular law ITSELF was Constitutional. And there is nothing in Article III that says one way or another whether SCOTUS's power over "cases in law" extends to whether or not that law comports with The Constitution itself. THAT line of reasoning is created within Marbury in direct contravention to Madison's and Jefferson's opinions.

His insistence that the amendment process should replace judicial and legislative decisions would have crippled us joining the modern era in case after case, problem after problem, advancement after advancement.

If I were insisting that the amendment process be used to do these things, I'd be wrong. What I insist, if anything, is that neither the judicial nor legislative processes can be used to expand the government into new areas of authority, as that is a violation of the Constitution

Trap your second sentence contradicts your first. The Constitution - as Hamilton so eloquently opined in 1789 - is designed in broad strokes specifically because it "embraces a vast variety of particulars, which are susceptible neither of specification nor of definition." Thus using LAWS to specify and define how far government authority extends or does not based on POLITICAL considerations is precisely what IS INTENDED. The LIMITS of that are the Broadly defined powers and limits set forth within The Constitution. And that is a BALANCING of various authorities. For example, The Authority of The Commerce Clause, clearly limits and in turn is limited by the "Due Process" and "takings" clauses of the 5th Amendment. Now the SPECIFIC BALANCE of how FAR the Commerce clause is used to reach was "susceptible neither [to] specification nor of definition" back in 1789. And where it needs to sit has been a continual factual, political, legislative and judicial oscillation. AND IT WAS INTENDED TO BE AS SUCH.

And no - The Constitution does not authorize a "standing army". In fact it does everything to try and prevent it. Given the 2 year limit on appropriations, theoretically a 4 year Enlistment Term is a null and void contract since any contract that you lack the authority to commit to is null and void. And Congress (and the Executive by extension) lacks the authority to make a commitment beyond 2 years for ANY military expenditure.

Why would these be banned by the Constitution? It merely calls out an authority for "defense"

And nukes do not offer "defense"... they can ONLY be used "offensively".. unless you take a more "modern understanding" of the term "defense".

So with Commerce the issue becomes what we do and do not recognize as affecting "interstate trade". What you don't seem to like is that back in 1789, what Adams grew in his back 40, had no demonstrable nor practicable impact on what the market price of agricultural products in the back woods of Georgia would be. But today, the Wonderbread bought at the country store in GA might well consist of two side-by-side loaves - one baked in Toronto with wheat from North Dakota, and the other baked in Virginia with Wheat from Ontario. And you cannot tell the difference by looking at them. And while that sale is local - the COMMERCE clearly is not only inter-state but international. And thus it falls within the scope of the Commerce Clause.

And no, I would not say William F Buckley is that serious a thinker. His notion that "serious thinking" is simply "standing atwhart the ship of progress yelling STOP!" is not particularly serious thought. As for Kirk, Russello and Jaffa pretty much disassemble him. A man who says Christianity and Western Civilization are "unimaginable apart from one another." Simply is not a serious thinker.

 

[trapdoor]

Yes Lincoln is a politician. But unlike Pierce, the nation as a whole ACTED ON Lincolns assertions

The nation acted on Pierce's assertions as well -- the statement came in a veto message, and the Congress did not over-ride the veto.

The fact that RETROSPECTIVELY you can say "they benefitted the nation as a whole" doesn't change that AT THE TIME THEY WERE ENACTED they claim of a general benefit was not provable but asserted.

Assertion -- applying a constitutional reasoning for the purchases, is what was needed. What we find today is the extension of powers that is unmoorred from any direrct constitutional authority.

So something like Social Security, Medicare, Dept. of Ed. the APPACA all fit within that same sort of General Welfare assertion.

No, they do not, as each of the described programs benefit the specific welfare of one portion of the population, not the general welfare of all. Social Security/Medicare benefits retires; Dept. of Ed benefits people with children; the APPACA benefits only the 20 percent of the population that doesn't already have health care. None of them benefit the nation, every citizen in the nation, as a whole -- and as such they do not benefit the "general" welfare.

No. JoPs are not courts. They are administrative officiating positions - issuing and validating a variety of license, combined with policing powers.

Yes, at the time of Marbury, the justices of the piece acted as courts. America had yet to establish appeals courts (they were unnecessary due to the size of the nation), and JoP's were the first medium of appeals. They were "such lesser courts" as called out in Article 3.

Trap I cannot count how many times you have made the claim that "the court does not explicitly rule X, Y or Z"...The clearest example being our discussions around Marbury where the plenary "indebting" power of Congress is clearly in question (because it was a Contractual Obligation question that was raised, not a Separation of Powers question) as necessarily conditional in The Congressional authority to engage in Contracting

.

I can't help you with your, shall we say "oblique," understanding of Marbury. Marbury doesn't involve the indebting authority. There was no "contract" so there could be no "contract" obligation. As you do with the Constitution generally, you are finding aspects of Marbury that do not exist in the real case. But, ad argumento, I'll give you an out. If you can find that Marshall addressed either the contractural authority, OR the creation of the JoPs in the ruling, I'll say you're right on these issues.

Similarly you have made the claim that even though Prize Cases explicitly states that under no circumstances does a POTUS have the authority to INITIATE an Act of War (and Clinton v, NYC refutes the power of Congress to delegate Constitutional authority to the Executive)- you claim that the Constitutionality of the "War Powers Act" has never been adressed by the Court.

The Constitutionality of the War Powers Act has NOT been addressed by the Court. I don't recall the exact date of the

Prize Cases

, but they were sometime in the first decade after the Civil War. They did not and could not address the constitutionality of the War Powers Act because that act was not passed until some 90 or 100 years later in history. (They also make no statement about the president initiating a military action that is NOT a war -- and this has been done at least 20 times after the Prize Cases reached their legal denouement).

That LOGICALLY requires that you eschew the application of the PRINCIPLES of PRIOR Rulings to subsequent laws - because the two core issues in War Powers is

Prior rulings don't apply to subsequent laws until they are tested in court, Degs. Thus the court can find interestate trade in Wickard, and find no interstate trade in Lopez, even though the passage of the laws tested in each case rested on the same constitutional reasoning.

• 
  

  Clearly are addressed by the Prior rulings, and yet you claim that War Powers has never had its Constitutionality addressed.

  And is has not been addressed and it is not accepted by the executive branch of government as a constitutional law -- and it never has been since its passage in 1973.
  
  

  Rather it is that you have not been able to demonstrate how your admiration for a period of Judicial Rulings that limit the Government's intrusion into state level decisions would perclude the self-same racism, and gender discrimination.

  Easily -- by resting the constitutional authority for enforcement of federal law on the equal protection clause of the 14th Amendment instead of on the commerce clause. In short, by putting the authority where it always belonged in the first place.
  
  

  Nor have you addressed how issues like my neighbor's "non source point pollution" and its impact on international treaty rights can be addressed without such intrusion.

  Your neighbor's "point source pollution" is an issue between you and your goddamn neighbor, Degs -- it isn't worthy of international law, much less federal law. If federal law were to address it, it would provide a perfect example of how such regulations lack proportionality.
  
  

  requires you to show that how our society functions now IS NOT a DIRECT RESULT of how Government functions NOW. And you cannot.

  And you cannot show otherwise. Society is one thing, law another.
  
  

  yet you offer no Constitutional mechanism by which to do this. Am 14 offers no INTRA-State enforcement mechanism.

  It absolutely does, Degs. It requires equal protection under the law, and it would be necessary and proper to that provision for the federal government to enforce such equal protection.
  
  

  And lastly, again Miller's restriction of arms carriage rights to "well regulated militias" is in no way a "misreading of Miller".

  It's a complete misreading of Miller, as Miller makes no such provision. Miller said that a specific gun, a sawed off shotgun, was not suitable for militia service. It made no provision at all that militia service was the sole reason individuals had arms -- what it said was a state could ban arms not suitable for militia service. As I said, you're misreading the case.
  
  

  In fact even Scalia in Heller agrees with me on this one - hence the very NEED (in his view) for Heller to repudiate this aspect of Miller.

  Then obviously you have not read Heller,either, in which the ruling specifically states that this is the first time the court has addressed the Second Amendment as an individual right.

 

[trapdoor]

Explain to me how you would stop state A from dumping raw sewage directly upstream from state B without the commece clause.

Well there are a couple of ways of addressing this concern, but the obvious one is the same thing that is used to keep State A from keeping all the water in a river and preventing it from flowing into State B at all. Riparian law, which is not based on the commerce clause. Another way is to legitimately use the commerce clause -- the water is used in commerce. The water crosses state lines. No one that I'm aware of is opposed to regulating actual commerce that actually crosses state lines -- what I object to is regulating commerce and non-commercial activities that do not cross state lines (see the Kelo decision or Wickard v. Filburn for salient examples).

Tell me why religious state D stopped mandatory tithing to the church for all state residents regardless of religion.

Generally -- religious state D dropped its established church because the notion became unpopular. The last truly established state church lost its establishment before the Civil War. Its interesting, however, that the court ruling saying that a state couldn't have an established church didn't take place until 1945.

You think it was great before FDR. The history of the poor and middle class in America would point to that era as pretty miserable.

I do not think it was "great" before FDR. I have direct exposure to poverty. My grandfather was a sharecropper who illegally poached fish using gill nets and telephone generators to make ends meet. My father was born in a shack, shared with 9 siblings and three nieces and nephews, that you'd use to store a fricking lawmower in today. I'm very aware of poverty and its impact -- and I still think that aid to the individual indigent is not a federal responsibility. What I think would have been "great" is for there to have been a legitimate constitutinal underpinning to the New Deal -- and I think this would have required amending the Constitution. Instead of pursuing that legitimate legal action -- which would have been approved by all -- FDR instead threatened to pack the court, forcing the court to lend a legitimacy to practices it had already held unconstitutional.

And that's the thing folks like you seem unable to grasp --the court was against the New Deal before it was for it. The New Deal protections were ruled unconstitutional and then, hey presto!, they were made constitutional. Was the court wrong the first time or the second, when it bowed to political pressure? It can't have been right both times.

You support a revision of our history that will never happen, not in a million years will we ever return to that era either politically, economically or legally.

I support no revision of history. History cannot be revised. But the fact that we have chosen to violate our own laws in the past can be changed -- we can reform and follow our own laws.

 

[degsme]

To override a veto you need a 66% supermajority. Saying that more than 34% of the representatives supported Pierces veto statement doesn't necesarily endorse the statement. Particualrly since that statement is tied to a veto that well could have been supported for other reasons. This is again the logical fallacy of False correlation. No such False correlation exists in Lincoln's statements AND ACTIONS associated with secession. No such False correlation exists in the purchase of Seward's Folly or the Louisiana Purchase etc. etc.

Now as to your claims about the 14th Amendment. In the case of the Priviledges and Immunities, there is no enforcement clause. Thus absent Commerce clause or a "more expansive interpretation of The Federal right to review state laws" - you have no enforcement mechanism. Furthermore - using your strict "textual" and "originalist" approach, at the time of Am 14 ratification, women were not yet fully legal persons - nor had they been at original ratification. Thus if we rewind to your halcyon days of jurisprudence, women have no rights as persons OTHER THAN to vote..

And this is precisely why the Commerce clause is invoked. It has clear enforcement powers. Thus Am 14 identifies what sorts of things are impermissible, and Commerce Clause grants enforcement powers, hence the linkage. In fact that form of linkage is precisely the kind of LIMITED GOVERNMENT you advocate.

And the reason the Commerce Clause applies to my neighbor is that my lake feeds a salmon spawning stream for a run that is subject both to Tribal and International treaties. And thus it is Federally an issue. And since these treaties are based in Commerce, it is again, Commerce Clause. Same applies in the case of Air Pollution from Ohio causing acid rain in NY Adirondacks. This is the problem you step around. Sure when the treaties with the native tribes were signed, we did not understand the impact of phospates on salmon spawning. Now we do. So the reach and consequence of those treaties is broader and requires broader enforcement. Don't like it? Take the POLITICAL actions to have the treaties repealled.

It's a complete misreading of Miller, as Miller makes no such provision. Miller said that a specific gun, a sawed off shotgun, was not suitable for militia service

And again we are back to your stubborn unwillingness to recognize the implicit assertions and claims that undergird a ruling. For it to be relevant to whether or not it is "suitable for militia service", and in failing to be so - to be bannable, requires that Am 2 apply ONLY in the context of a "well regulated militia" service. Absence such an underlying assumption Miller makes no sense. If Am 2 - under miller- was a General public right, then a sawed off shotgun COULD NOT be regulated since doing so would "infringe the right to bear arms". And yet Miller concludes that it CAN be regulated simply because it is NOT useful for Militia service. QED, Am 2 applies to MILITIA SERVICE and not to individual rights. ACCORDING TO Miller.

And in Heller Scalia invokes Miller from 2 directions. He specifically rebuts the underlying assumption that Am 2 is not an individual right... but to prevent that from opening up private ownership of WMDs, he creates, out of whole cloth legally, but invoking Miller's rubrick of "not useful for militia" to define "dangerous and unusual weapons". And then goes on to opine a variety of very far out ideas on what may or may not constitutute such weapons - such as those that cannot be "borne by a single person"...(of course making up out of whole cloth the notion that anywhere in Am 2 is a limit of a single person and ignoring the history of individuals owning many cannons).

And McDonald further invokes the dangerous and unusual formulation and essentially allows the banning of ALL weapons, IF it can be shown that the weapon constitutes more danger than safety.

Again, for you to refute this requires you to studiously ignore the implied logic of the SCOTUS rulings as you do when you say...

this is the first time the court has addressed the Second Amendment as an individual right.

That simply isn't true. Its the first time the court has EXPLICITLY addressed it, but that isn't anywhere near the same thing.

 

[trapdoor]

From committees ALSO appointed and chaired by various people like Hamilton (who chaired the committed that wrote the initial language of the General Welfare Clause)... yes and?

Hamilton did not write the general welfare clause, nor did he chair a committee that did so. The clause was written for the Articles of Confederation and lifted from it for insertion into the Constitution. Hamilton's sole involvement was basically to introduce it as legislation.

That Madison was a "secretary to the whole" gives him no particular insights. And there is no record that he had ANY major input into the most significant compromises made - that was Franklin an others.

If he had been "secretary" to the whole, you'd be correct, but he wasn't. He was selected by the whole to write the document based on both is abilities as a writer and his grasp of the law.

And there is nothing in Article III that says one way or another whether SCOTUS's power over "cases in law" extends to whether or not that law comports with The Constitution itself. THAT line of reasoning is created within Marbury in direct contravention to Madison's and Jefferson's opinions.

You're correct that under Marbury the court arrogated to itself the doctrine of judicial review. when Jefferson and Madison subsequently had power, they did nothing to change this doctrine. I 'd have to say at this point it stands as settled law (you believe me to be so slavishly a Madisonion that I can't recognize when he is wrong -- you are in error).

Trap your second sentence contradicts your first. The Constitution - as Hamilton so eloquently opined in 1789 - is designed in broad strokes specifically because it "embraces a vast variety of particulars, which are susceptible neither of specification nor of definition."

Hamilton, in writing this, was in error. Further, my second sentence, "What I insist, if anything, is that neither the judicial nor legislative processes can be used to expand the government into new areas of authority, as that is a violation of the Constitution." Does not contradict my first. "If I were insisting that the amendment process be used to do these things, I'd be wrong." You were saying that I want the amendment process to stand in for judicial rulings and legislative action. I do not. I want judicial rulings to illuminate the Constitution. I want legislative action to conform to the Constitution. I want amendments where additional authority is needed to ensure the latter.

Thus using LAWS to specify and define how far government authority extends or does not based on POLITICAL considerations is precisely what IS INTENDED

.

Not if the LAWS don't conform with the Constitution.

.

And no - The Constitution does not authorize a "standing army".

Article I, Section 8. (Congress shall have the authority) To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years. The standing Army is authorized -- it's funding is not.

And nukes do not offer "defense"... they can ONLY be used "offensively".. unless you take a more "modern understanding" of the term "defense".

Deterrence is defense. MAD was deterrent in nature.

So with Commerce the issue becomes what we do and do not recognize as affecting "interstate trade". What you don't seem to like is that back in 1789, what Adams grew in his back 40, had no demonstrable nor practicable impact on what the market price of agricultural products in the back woods of Georgia would be. But today, the Wonderbread bought at the country store in GA might well consist of two side-by-side loaves - one baked in Toronto with wheat from North Dakota, and the other baked in Virginia with Wheat from Ontario. And you cannot tell the difference by looking at them. And while that sale is local - the COMMERCE clearly is not only inter-state but international. And thus it falls within the scope of the Commerce Clause.

Where we disagree is point of sale. The purchase I make at that country store isn't interstate. The sale of the wheat to Wonder may have been. The sale of the bread to the store, from a supplier in Florida, is. My purchase over the counter is not. Wickards use of the wheat on his own farm was not -- even if he sold other wheat from that farmer to a Wonder factory in another state. Under the reading of the commerce clause you favor, everythign is commerce and all commerce is interstate -- there is no power denied the federal government under that regimen.

And no, I would not say William F Buckley is that serious a thinker. His notion that "serious thinking" is simply "standing atwhart the ship of progress yelling STOP!" is not particularly serious thought.

Possibly not -- but citing one example ignores a large body of work.

As for Kirk, Russello and Jaffa pretty much disassemble him. A man who says Christianity and Western Civilization are "unimaginable apart from one another." Simply is not a serious thinker.

And anyone who says otherwise is ignoring 2000 years of history, and doing so is not being a serious thinker, either.

 

[degsme]

Hamilton chaired the committee that wrote Section 8. Whether or not GW was lifted from AoCs is not relevant anymore than if they had chosen a part of the Talmud to insert directly into Section 8. It is the CHOICE in its context that matters.

Hamilton, in writing this, was in error. Further, my second sentence, "What I insist, if anything, is that neither the judicial nor legislative processes can be used to expand the government into new areas of authority, as that is a violation of the Constitution." Does not contradict my first. "If I were insisting that the amendment process be used to do these things, I'd be wrong." You were saying that I want the amendment process to stand in for judicial rulings and legislative action. I do not. I want judicial rulings to illuminate the Constitution. I want legislative action to conform to the Constitution

And yet you support McDonald which is a judicial ruling that negates militia and basically eviscerates the core of Am 2 and you oppose the use of the Commerce Clause as written.

Youare not consistent. Even your "Marbury is settled law" jumps the shark on that since as you admit Marbury is the very sort of arrogation not banned by the Constitution but not also empowered explicitly by it, that you object to elsewhere for "settled law".


The reason that your country store purchase IS interstate, is that the product is an interstate product. Using your logic NOTHING is interstate. Because ALL transactions occur in some given location. And thus absent a transaction where I am standing on one side of a state border and you on the other - there is no such thing as "interstate commerce". Using your logic the sale of the Bread to the store is local to the store. The sale of the wheat to Wonder is local to where it is baked.. NONE of them are "interstate"... and yet clearly that chain is an interstate commerce chain. Your interpretation essentially makes a mockery of interstate commerce regulation.

 

[trapdoor]

To override a veto you need a 66% supermajority. Saying that more than 34% of the representatives supported Pierces veto statement doesn't necesarily endorse the statement.

Nor did I make that claim -- I said the nation followed Pierce's actions, as it did. The nation's response to Lincoln was Civil War and the death of 750,000 people. I'll leave it to you which one found less acceptance.

Now as to your claims about the 14th Amendment. In the case of the Priviledges and Immunities, there is no enforcement clause. Thus absent Commerce clause or a "more expansive interpretation of The Federal right to review state laws" - you have no enforcement mechanism.

Yes, you do, because amendments do not stand alone, and enforcement is necessary and proper to the provision in the amendment. The necessary and proper clause would then apply.

Furthermore - using your strict "textual" and "originalist" approach, at the time of Am 14 ratification, women were not yet fully legal persons - nor had they been at original ratification. Thus if we rewind to your halcyon days of jurisprudence, women have no rights as persons OTHER THAN to vote.

Sorry, Degs, but your attempt to paint me as a racist or a sexist won't wash. I've already stipulated that for the government to operate as I desire, it would have to operate as it did pre-New Deal, minus the restrictions on minorities and woment. I have never said those days were "halcyon" -- I stipulate that the government obeyed the actual language in the Constitution better than it does today.

And the reason the Commerce Clause applies to my neighbor is that my lake feeds a salmon spawning stream for a run that is subject both to Tribal and International treaties.

In which case the commerce clause applies legitimately to that case -- but it does not apply legitimately to every case. While I can think of many cases that do not involve commerce, I doubt you can name a single one. In fact, you should be happy about the utterly deplorable Kelso decision as it applies the commerce clause in exactly the way you favor.

Same applies in the case of Air Pollution from Ohio causing acid rain in NY Adirondacks. This is the problem you step around.

No, Degs, I do not. I have not criticized the creation of the Clean Air Act -- what I criticizse is the bureaucracy created in the name of that act. Legislation should be the means of regulation, not the actions of non-elected regulatory officials. We should never, ever, have "stroke of a pen, law of the land" no matter how neat it is.

And again we are back to your stubborn unwillingness to recognize the implicit assertions and claims that undergird a ruling.

No, Degs, we are back to your unwilllingness to recognize that unless something is written into a court case, it is not implied in the court case. You cannot enforce an implication.

For it to be relevant to whether or not it is "suitable for militia service", and in failing to be so - to be bannable, requires that Am 2 apply ONLY in the context of a "well regulated militia" service.

That is not what the court found, nor what it was saying in that case. It said a state can ban weapons unsuitable for militia service. It made no statement at all about the individual's right to have a weapon outside militia service. There were no federal-level rulings on the books regarding the individual right to keep and bear arms until 2008.

Absence such an underlying assumption Miller makes no sense.

And with such an assumption, U.S. history makes no sense. Bottom line, Miller neither established nor mentioned, nor implied, that the militia was the sole reason for firearms ownership.

If Am 2 - under miller- was a General public right, then a sawed off shotgun COULD NOT be regulated since doing so would "infringe the right to bear arms".

Bosh, Degs. No different from requiring a parade permit for the right to peaceably assemble, or a business license for the operation of a newspaper.

And in Heller Scalia invokes Miller from 2 directions. He specifically rebuts the underlying assumption that Am 2 is not an individual right... but to prevent that from opening up private ownership of WMDs, he creates, out of whole cloth legally, but invoking Miller's rubrick of "not useful for militia" to define "dangerous and unusual weapons".

Well, now we're talking complete distortions. I'm not certain how to respond. Scalia doesn't construct anying out of "not useful to militia." He specifically states that some weapons that are useful to militia could conceivably be banned. As for the rest, you continually ignore a salient fact (and this is not an opinion, it's clearly stated in the opinion) that Heller (and McDonald) invite future challenges to determine where the line lies.

And McDonald further invokes the dangerous and unusual formulation and essentially allows the banning of ALL weapons, IF it can be shown that the weapon constitutes more danger than safety.

Outright lie.

That simply isn't true. Its the first time the court has EXPLICITLY addressed it, but that isn't anywhere near the same thing.

Outright lie.

 

[degsme]

I'm not saying you are a racist and sexist. I'm saying that you haven't demonstrated how you can take a non-interventionist view that you do, and still be able to get rid of Jim Crow and not enforce gender discrimination.

As to legislation vs. regulation - the problem is that you then close the door to appeals, and adjustments for facts on the ground. Again, you create a more brittle and more cumbersome system.

Now as to Miller and McDonald I'm going to go with the analysts who are Constitutional scholars but not gun fetishists. Because they are looking at it from a Constitutioanl analytics perspective rather than seeking confirmation of their beliefs.