Did The Founding Fathers Back Health Insurance Mandates? (Updated)

-Submitted by David Drumm (Nal), Guest Blogger

Harvard Law School professor Einer Elhauge writes that the very first Congress, in 1790, passed a law that included a mandate that ship owners buy medical insurance, but not hospital insurance, for their seamen. That Congress included 20 framers and was signed by another framer: President George Washington. In 1792, Washington signed another bill, passed by a Congress with 17 framers, requiring that all able-bodied men buy firearms. In 1798, Congress, with 5 framers, passed a federal law that required seamen to buy hospital insurance for themselves.

Why weren’t these examples cited by the Solicitor General during his oral argument?

Randy Barnett, looks at the example of ship owners required to provide health insurance for their seamen. Barnett sees no substantive difference between the purchase of insurance and a regulation requiring the purchase of life preservers or life boats. Ship owners are in the business of commerce and this law regulates how that commerce is conducted.

However, ship owners are not in the business of shipping seamen. Ship owners are in the business of shipping cargo, which sometimes includes passengers. Life preservers and life boats are directly concerned with the shipping business. A regulation requiring that seamen be able to perform their duties would be tied directly to the shipping business. A regulation benefiting those seamen unable to do their work, is not.

Barnett also looks at the Militia Act that required persons to provide their own firearms and notes that this is not a “purchase mandate” since the guns could be gifts or borrowed or inherited.

However, the insurance mandate doesn’t exclude insurance that comes as a benefit from a employer, or insurance that is provided under a parent’s policy.

Two years ago, David Kopel points out that the 1798 law imposed a 20 cents per month withholding tax on a seaman’s wages. This revenue was to be turned over to the Treasury Department and used to support sick and injured seamen. Kopel notes that the 1798 law is a good precedent for programs such as Medicare.

Although Elhauge’s examples are not without problems, the arguments against the first two examples also have their problems.

While a single-payer system would have circumvented the constitutional issues, it would have never made it through Congress.

UPDATE:

Einer Elhauge Replies

Professor Randy Barnett is a good friend who deserves enormous credit for coming up with a creative constitutional argument that has commanded such attention.  But I don’t ultimately find his distinctions persuasive, and it isn’t because I like the health insurance mandate.  I am on public record calling it bad policy.  But that of course does not make it unconstitutional.

Although Barnett acknowledges that the early medical insurance mandates were exercises of Congress’ commerce clause power, he distinguishes them on the ground that they were imposed on actors who were in commerce, namely on shipowners and (in a third example he omits) seamen.  His distinction thus means that he admits that these precedents show that if one is engaged in commerce in market A – here the shipping market or the seamen labor market – then Congress has the power to impose a mandate to purchase in market B – here the medical insurance market – even though markets A and B are totally unrelated.  This concession conflicts with the argument of the challengers, which claimed that widespread activity in the health care market did not permit a purchase mandate even in the highly related health insurance market.  Indeed, this concession seems to make the whole action/inaction distinction collapse because the fact that no relation between the markets is required means that commercial activity in any market – say, the market for employment or food or housing – would permit the Obamacare mandate.  Because the Obamacare mandate applies only to those who have income that subjects them to income tax, it is necessarily limited to people who are active in some commercial market and thus his test would be satisfied.

On the gun mandate, Barnett offers two arguments.  First, he says it was different because it did not require individuals to buy guns if they got them from someone else.  But the Obamacare mandate similarly just requires you to have health insurance; you don’t have to buy it if someone else provides it for you, which is true for many who get their health insurance from the government or their employer, spouse, or parent.  Plus, the gun mandate required the self-provision of consumables like ammunition and gunpowder that required purchasing more than one was already going to use.

Second, Barnett says the gun mandate was different because it was an exercise of the militia power rather than the commerce clause power.  But I still think this misses the point.  As Judge Silberman held, the text giving Congress the power to “regulate commerce” on its face includes a power to mandate purchases given 1780s dictionary definitions of “regulate.”  To rebut this, the challengers have relied heavily on the notion that the unprecedented nature of purchase mandates allows us to infer the framers were against them.  This example shows there was no such unspoken understanding.  Nor does the text of the militia clause give much basis for a greater power to mandate purchases.  To the contrary, the relevant portion of the militia clause gives Congress the power “To provide for… arming ….the Militia,” that is the power to provide the militia with arms, which seems the opposite of forcing individuals to self-provide those arms.  If that text can be flexibly read to allow a purchase mandate, then such a reading is even more plausible under the Commerce Clause.

Moreover, even if the challengers do win on the Commerce Clause, the mandate must still be sustained if it is authorized under the necessary and proper clause.  Given that the challengers admit the constitutionality of the provisions that ban insurer discrimination against the sick and argue that those provisions cannot be severed from the mandate, it seems undisputed that the mandate was necessary to exercise Congress’ commerce clause power to ban such discrimination.  The challengers’ argument on the necessary and proper clause thus boils down to their assertion that purchase mandates are not “proper” – and these historic examples refute the notion that the framers thought there was anything improper about purchase mandates.

Finally, Barnett asserts that these are the only examples of federal purchase mandates.   Even if that were the case, they seem pretty telling given their framer involvement and they rebut the claim such mandates were unprecedented.  But in fact there are many other examples of federal purchase mandates. One federal mandate requires corporations to hire independent auditors. Another requires that unions buy bonds to insure against officer fraud.  Such mandates fit the mold of allowing activity in one market to trigger a mandate in a totally different market, and as noted above, if that is constitutional, then so is Obamacare’s individual mandate.

H/T: LGF, Eugene Volokh.

625 thoughts on “Did The Founding Fathers Back Health Insurance Mandates? (Updated)

  1. I wondered the exact same thing. I assumed it had something to do with the limits of what can be argued or how it can be argued before that court.

    I’d like to see these examples get a wider exposure. Along with the Treaty of Tripoli, signed by President & framer John Adam in 1797 that contains the line “As the Government of the United States of America is not, in any sense, founded on the Christian religion,”

    It would be fun to see some of those tri-corner hats with Lipton bags dangling from the go flying off the exploding heads of morans at rallys.

  2. Nal,

    That’s interesting….. I never knew about the seamen hospital act but it makes sense….. I was aware of the gun issue as I had read Becks book…… Thank you for an informative posting…… I have learned something new…..

  3. Hmm…must map this out. Not sure how well that precedent matches up to mandating the citizenry in its entirety purchase same. Blegh. Hate having to think on a Saturday!

  4. What the Original Framers of the Constitution (and this is before we even get to the Bill of Rights or the first ten amendments) is what Justice Scalia examines as Originalist Thinking. Now, what the Framers of a Constitutional Amendment later in history had in mind is of no consequence to Justice Scalia and that crowd. The Framers of the 13th Amendment to end slavery were not Framers with a capital F. Same attitude towards the 14th Amendment where the Framers intended to make all citizens, even poor white trash, equal. The Framers did indeed believe in socialized medicine and the ScaliaCare (which the present Justices enjoy) is well grounded in the original intent of the Original Framers.

    What would shock the Original Framers, and I think that most historians would agree that they would be shocked, is that there are three woman, many Catholics, and at least two Italian Americans plus one African American sitting as Justices on the Court as we speak (or bark).

    If Scalia and his minions hold that the Framers had no intention that my tax dime be spent on medicare or ObamaCare then this dog will file his suit to end ScaliaCare as they know it. What is sauce for the goose is sauce for the gander.

  5. Einer Elhauge: “Because the Obamacare mandate applies only to those who have income that subjects them to income tax, it is necessarily limited to people who are active in ‘some’ commercial market and thus his test would be satisfied.”

    Translated: ‘If you pay any income tax then you are involved in some sort of commerce and therefore are subject to the now unrestricted power of the commerce clause.’

    Wow; so much for the founders intent of forming a government of specifically enumerated powers; right?

    What a load of crap.

  6. Bob,

    I think talking dog makes sense, especially in this day and time…. But, I am in agreement with you About the over expanded commerce clause….. I think FDR although did a lot of good…. Expanded it to too much of a potential invasion of personal liberties…… Just think about the HWY bill and regulation of speed limits……

  7. Mespo,

    Haven’t you figured it out yet….. Life is like merry go round…… When you want to get on it you’re still in diapers…… Does not matter if you 1 or 80……

  8. Interesting article David. I had not heard of the Militia Act requirement. You are absolutely correct that a single payer program would not have made it through the Congress. The only way we will get to a single payer system is through incremental change, IMO.

  9. “Two years ago, David Kopel points out that the 1798 law imposed a 20 cents per month withholding tax on a seaman’s wages. This revenue was to be turned over to the Treasury Department and used to support sick and injured seamen. Kopel notes that the 1798 law is a good precedent for programs such as Medicare.”

    ———————————–

    I wonder if it went for what it was supposed to do, or just ended up in the general fund? My money’s on the latter…

  10. Nal asks:

    Why weren’t these examples cited by the Solicitor General during his oral argument?

    Good question.

    In the sense that the political divisions of government are suspected of being mere puppets, consider this for a hypothetical answer:

    Pentagonia, capitol of Bullshitistan, well aware of the current political climate, has declared who its greatest enemy is, believing it is health care:
    The U.S. military keeps searching the horizon for a peer competitor, the challenger that must be taken seriously. Is it China? What about an oil rich and resurgent Russia?

    But the threat that is most likely to hobble U.S. military capabilities is not a peer competitor, rather it is health care.

    (The Enemy the Pentagon Should Fear Most: Health Care, National Defense Magazine). We have been pointing out this very strange ideology for a while now, using “MOMCOM” symbolism to isolate the militant energy fighting against the middle class and poor in the United States.

    (Your Health Is Their Number 1 Enemy?! ). Just sayin’ … so who is running “The Show”?

  11. Dred, when people in the US figure out the only way to ‘solve’ our health care crisis is to change our food system and adopt the EU standards for food, body care and chemicals, there will be a war.

    The multinational corporations against the people.

  12. Shano,

    Right on. I’ve said repeatedly that the insurance is for medical care. Health care is something else entirely.

  13. “While a single-payer system would have circumvented the constitutional issues, it would have never made it through Congress.”

    Professor Ann Althouse, who Professor Turley reminds us is one of his nemesi believes (and I think others agree with her), this is Barack Obama playing 11 dimensional chess, again.

    Aha! I might know why the Solicitor General Donald Verrilli was so bad. I told you last October 2d I had a theory:
    I have a conspiracy theory, but I won’t tell you what it is…

    … because I hope the conspiracy — if it exists — succeeds. Some time next year, I’ll tell you what the theory was, as this is a conspiracy that will play out within a limited time frame. Don’t try to drag it out of me. I am not in this conspiracy, but I don’t want to blow the lid off of it. It’s has to do with certain political actors seeming to be pursuing one goal, when actually they seek the opposite.
    What say you? Did the SG throw the game?

    I believe her theory is that Obama specifically withdrew single payer as an option, and went for this mandate that he knew would be declared unconstitutional, just so that he can then propose single payer and not have it watered down into what we have here. Along the way he had Solicitor General Verrilli “throw” the case.

    Oh, how I wish I felt Obama could play 4 dimensional chess, much less 11 dimensional chess.

    But that’s Ann’s theory, and it is hers.

  14. These examples are drastically different from the individual mandate, in that participating in an occupation at the time was still voluntary. They were employer required, and not individualy mandated just because someone was alive. The fact that all these cases have health insurance in common is completely irrelevant. That said, the better argument against small government conservativism is the fact that their hero, Jefferson, is really the reason that the commerce clause is as big as it is today. He had the opportunity to veto the Lighthouse Act but didn’t take it. The only thing we can take is that small government – although highly superior to the alternative – is not sacrosanct. Even for Jefferson.

  15. Interesting theory anon. I am not sure that I agree, but I understand the concept. The flaw is that you still have the Republicans denying democracy in the Senate. If he s counting on a Democratic House and Senate, he isn’t playing chess. He would be gambling.

  16. @rafflaw,

    “The flaw is that you still have the Republicans denying democracy in the Senate. ”

    Yeah, well I think her theory as I project it is a pretty ridiculous theory (if in fact that is her theory) and though I believe tvtropes has nuked the fridge, I do think this theory is an example of the Batman Gambit:

    TVTropes: Batman Gambit

    Maybe I’m interpreting her wrong and she’s thinking of something different.

    @pete, re: nemesae, I hope you’re right because that is an even more better term.

  17. “Why weren’t these examples cited by the Solicitor General during his oral argument?”

    I guess the comparison with apples to ferrets probably wouldn’t fly.

  18. We have examples of single payer already – the VA and Medicare. The problem is, they aren’t universal. My preference would be to expand the VA to cover everyone.

  19. “being female wouldn’t that make her his nemesae?” (pete)

    Only if she is French and has two heads … otherwise it’s némésis (one head)

  20. Were any of these laws ever enforced or, more importantly, upheld by any court under challenge. The only laws useful in court arguments are those ruled upon by courts, and you know that very well Mr. Turley. In asking why they were not argued in the case at hand you don’t cite whether or not a court ever ruled on them?

  21. “The more things change nowadays, the more they go backwards.”~ Mespo
    ————

    that’s so very good…now I have to think of a way to use this line…

  22. bettykath1, April 14, 2012 at 10:54 pm

    We have examples of single payer already – the VA and Medicare. The problem is, they aren’t universal. My preference would be to expand the VA to cover everyone.
    ==============================
    I heard this (already being discussed) proposal just before Desert Storm when I worked at a VA. It made sense then, it makes more sense now…..the infrastructure is already there.

    The downside being the horrendous red-tape and beaurocratic drainbamage ingrained in the system…

  23. Woosty,
    What’s the chances of a VA bureaucratic clean-up using Swedish medical system as a model (I blush, of coure)?

    Anon and Rafflaw,
    I just love conspiracies. One other version (if I haven’t misunderstood what Anon cited of the lady) is that O. is counting on SCOTUS to give him a big election issue that affects all races, meaning even both houses of Congress.
    Then the public demand for a single payer would be there and a pliable Congress.

    PS I play chess on one dimension, not much variety in moves, but it’s simple.

  24. Regulating Commerce : 1790 meant Commerce by the waterways and Ocean. Each and all of the many States at that time had and still have Seaports.

    Rhode Island may exist primarily for it’s Sovereignty over it’s Ports having been the center of the Triangle trade . Making Rum from the Islands sugar which was bought with the Slaves traded. Refilling the Rum made here and carried back to Africa or wherever enroute the trades took place.

    But what happened to an Injured sailor if the next Port was the Islands or even another American Port on the way back up to Rhode Island?

    Mandating Medical Insurance in that instant would have been a God send to the readiness of the Dr’s accepting the Patient for care and Healing.
    This would have been a recruitment tool as well. Since a person only reasonably expected to live to about 50 years of age this assurance
    had to be for Socializing this essential support.

    Making Government managed health Insurance a choice and based upon ability to pay is really a Common Wealth and Security Protection. Instead of the Dr’s bleeding the Patients with Leeches we can see how the Insurance companies have filled that position since a person in ill health is under extreme disadvantage. Emergency Medicine is our forte since the Military depends on it’s promise to maintain reasonableness for the Warriors as we call them today. Maintenance of illness a strong second.

    Wealth is access to food and housing which maintains a body in reasonable health to begin with. Placing all our priority upon playing War games for the last 20 years….Yes! the Gulf War Veterans benefits start in 1990 through
    today. The transference of Wealth happening in this process along with the Bush tax cuts helps explain why the Big Rip Off is happening but doesn’t give a motivation which would force the hand of the 1% to act this way and reveal their true selves to public scrutiny? That can begin to be answered
    when we forecast the population trends.

    So do not expect a rational reasoning process from the 1%. The White European Colonial population is fading from dominance and they know Democracy is failing them by 2042. But this underlying Racism and Financial separation is nothing new. The something new is the mass communication becoming Socialized and interactive.

    Why pay for Latino’s and other minority childcare& Education.
    Health Insurance is exorbitantly expensive based on the current
    economic configuration and any reasonable dramatic outburst
    proclaiming that fact should start that SPIN.

    “To acquire and possess property and pursue and obtain Safety and Happiness” is my Right in Virginia. It is also my contention that this extends to the Rights not enumerated but retained in The Ninth Amendment of the US Constitution. But thats rational thinking without the Drama?

  25. idealist7071, April 15, 2012 at 5:21 am

    Woosty,
    What’s the chances of a VA bureaucratic clean-up using Swedish medical system as a model (I blush, of coure)?

    —————————–
    Absolutely none.

    Id, Are you kidding? That system is separate but equal. And that allows certain others to employ separate but NOT equal….

    don’t threaten the the status man…just don’t even do it…..and don’t look too smart while you are not being threatening either….big sticks held by cowards mean you have NO constitutionals….

  26. shano 1, April 14, 2012 at 1:12 pm

    Dred, when people in the US figure out the only way to ‘solve’ our health care crisis is to change our food system and adopt the EU standards for food, body care and chemicals, there will be a war.

    The multinational corporations against the people.
    ========================================
    It is scary to look into such things. When I did that with Twinkies, it was like pulling out the thread that ended up being the entire garment.

  27. Prof Barnet and I had an exchange of emails after I found his behavior on Charlie Rose “harsh” and arguments ineffective compared to Prof Seidman who was also on the show. We got off to a rocky start when I expressed the hope that every member of the SC who voted down healthcare should suffer in ways similiar to the millions who will suffer by their act. He found that “apalling” which i replied, I find it appalling when people in black robs hide behind the veneer of a legal system to make decisions affecting real lives. As I said, “Do I really need to remind you of the crimes against humanity imposed by courts in the name of the supposed law? You mean to say you don’t feel even the least bit contempt for Judge Taney (Dredd Scott), or the Nazi era judiciary? You don’t wish for them to experience the consequences of their decisions? If people die as a result of this ruling who then are the real “death panels”? This is not just law in the abstract, but law in the reality of consequences.”

    In any event, we did manage to end on a civil note (and I do appreciate the fact he even engaged with me at all), even if he never actually addressed any of the issues.

    As to the substantive and legal issues and argument, which I completely disagreed with him on and found weak – after reading his actual brief (as compared to his public and written comments) – my view was even more affirmed.

    I offered some comments before even finnishing a full review and that was the last I never heard from him.

    In any event the highlights of my comments to him included the following:

    – this really is an open and shut case. There is simply no question the healthcare law should be upheld. The real question is if the commerce clause does not apply to nearly 20% of the economy that is used by virtually every person and clearly crosses state lines then what would it apply to?

    – As to your fundamental arguments regarding the “mandate” [individuals compelled to pay a penalty/tax/fee for a product], especially that it is somehow novel I find weak and unfounded in facts, precedent, law, or history. Just because Justice Scallia finds it amusing (but not very clever) to talk about broccoli doesn’t make this at all comparable or factually accurate. We are [in fact] compelled to pay for broccoli [but not to eat it, any more then the health law mandates we have to see a doctor or buy insurance]. Every time the government does anything with our tax dollars, revenues, subsidies, or regulation we, as individuals are mandated to pay a portion of the cost [ie clean air act on cost of fuel]. I suspect it is that principle you really can’t stand.

    — Lopez and Morrison – even if you accept the basic ruling – are clearly irrelevant in the sense they applied to arguments based on indirect impacts at best (one might even argue remotely connected impacts at best) whereas healthcare and insurance clearly fall with the area of commerce and interstate in nature. You’re argument the law does not meet the standards Lopez and Morrison are weak and unsupported.

    – Calder, E. Enters, and Vahome’s were all ex post facto cases, hardly comparable to the current facts or law. In fact for all the hyperbole and Libertarian bumper sticker talking points you used, Paterson actually said, ““Every person ought to contribute his proportion for public purposes and public exigencies; but no one can be called upon to surrender or sacrifice his whole property, real and personal, for the good of the community, without receiving a recompence in value.”

    – Ironically, just as you argue the mandate would allow the government to force you to buy any product (and who says the CC or NPC don’t if it relates to commerce and interstate or intrastate that bears on interstate), if we accept your line of argument the government could not regulate any product… essentially the Commerce Clause would become meaningless, which, of course, what all good Libertarians basically believe and want (but which was ultimately defeated by the Federalists [and would go against all standards of legal interpretation not to give the CC words meaning]).

    -the Federal Seat Belt Regulations are instructive in all this: The federal Government mandated auto manufactures install seat belts (and other safety features on private and public transportation) which essentially forced every citizen to pay for something they may not have wanted. Furthermore, the regulations penalized the states if they did not implement regulations to get riders to use them.

    – You mean to say I have not been forced to pay farmers not to grow crops? Or that isn’t reflected in the cost of the products I do buy? Where does the Commerce Clause say it has a limiting value beyond interstate commerce? BTW: Are you aware that public health issues were an issue during the time of drafting the Constitution?”* As such we are not talking about applying the Constitution to some new technology that was not even conceived of at the time but rather something that was already well known. The Constitution and commerce clause makes no exception for making healthcare subject to its provisions. Indeed, it talks quite specifically about the “welfare” of the people (even if only in the preamble).

    – and my comments that upset him most: I hope every justice who votes to overturn the law finds themselves suffering from the same health problems and without healthcare they are imposing on the 30 million people who will loose their healthcare as result of their decision. Only in America can and idea originally conceived and implemented by the rightwing become so vehemently opposed by the same rightwing when it is actually implemented by the left. Clearly, we really do live in a crazy world.

    *Note that I also made the point issues of healthcare were already well established during the time of the framers.

    I can safely say that, Prof. Barnett never actually addressed any of my points either in our conversation or, in my view, in his submission to the SC.

    Not withstanding the notoriety given to the oral arguments, if the SC votes this down I believe it will be among the greatest politically motivated decisions in the history of the SC.

  28. 1zb1: “I can safely say that, Prof. Barnett never actually addressed any of my points either in our conversation or, in my view, in his submission to the SC”

    This may be due to your inability to express anything more than mere opinion about his arguments.

    Since arguing is ‘reason giving’, a counter argument consists of claims supported by reasons. Your claims & opinions about Barnett’s arguments are plentiful while your reasons are scarce to non-existent.

  29. Really, Bob? Read Lopez, Morrison, Enters, and Vahome’s? Do you even know what ex post facto case is? Do you really think an ex post facto case is applicable to the healthcare law?

    Then read the clean air act and the Federal Safety Laws. Oh, and did you bother reading his submission to the SC. Then when you are done with that, try some reading on the battle between the Federalists and anti-federalists (guess who won that battle in the drafting of the Commerce Clause And just where does it say the CC can not make you buy something… please show me those words in the CC.

    I’d say if what I wrote is what you call only opinion then what you wrote is what I call not thinking (or reading).

    ps: btw: do you you know what they call rulings by the SC?

    Lopez and Morrison – even if you accept the basic ruling – are clearly irrelevant in the sense they applied to arguments based on indirect impacts at best (one might even argue remotely connected impacts at best) whereas healthcare and insurance clearly fall with the area of commerce and interstate in nature. You’re argument the law does not meet the standards Lopez and Morrison are weak and unsupported.

    – Calder, E. Enters, and Vahome’s were all ex post facto cases, hardly comparable to the current facts or law. In fact for all the hyperbole and Libertarian bumper sticker talking points you used, Paterson actually said, ““Every person ought to contribute his proportion for public purposes and public exigencies; but no one can be called upon to surrender or sacrifice his whole property, real and personal, for the good of the community, without receiving a recompence in value.”

  30. 1zb1: “And just where does it say the CC can not make you buy something… please show me those words in the CC.”

    And there it is; the dark side of liberal thinking rears its ugly head yet again.

    So now we go from a system of specifically enumerated powers to the exact opposite–according to you, the Fed has unlimited powers explicitly excluded.
    Didn’t Hamilton warn about people like you in Fed 84?

    From a previous post:

    Simply because a person receives health care it does not necessarily follow that it is also part of commerce. A person may come into this world with the free help of a midwife and leave this world with the aid of a charitable hospice.

    The fact remains that the health care legislation commandeers the individual by forcing him to purchase a service as a condition precedent for merely residing lawfully in the United States.

    Let’s be clear, the activity here is not health care, it’s the participation in an insurance pool that profits corporations; rather than simply reimbursing the government.

    I grew up believing that liberals were the good guys; that so long as your intentions are good you can’t be wrong. How wrong I was. The road to hell is paved with good intentions. The dark side of liberal thinking comes into play when the liberal deludes himself into believing that so long as the intention is good, then the rules MUST bend to provide the means. This type of thinking left unchecked would leave us without an exclusionary rule or rules of criminal procedure since the liberal will always ‘know’ in a vigilante way who the guilty really are. Taken to the extreme, this type of thinking leads us down the path to communism and Stalinist like regimes.

    The law is not a search for truth, but a search for process. Contrary to liberal thinking here, we do not treat the constitution like a urinal puck simply because we feel we’re on the side of the angels.

    Congress has all the power it needs to achieve the same ends for health care reform by adjusting the tax rolls and medicare/medicaid rules toward a single payer system.

    The word is federalism! Please make a note of it and adjust your thinking accordingly.

  31. Here’s your swing vote.

    BOND v. UNITED STATES
    No. 09–1227. Argued February 22, 2011—Decided June 16, 2011

    Justice Kennedy:

    “Federalism has more than one dynamic. It is true that the federal structure serves to grant and delimit the prerogatives and responsibilities of the States and the National Government vis-à-vis one another. The allocation of powers in our federal system preserves the integrity, dignity, and residual sovereignty of the States. The federal balance is, in part, an end in itself, to ensure that States function as political entities in their own right.

    But that is not its exclusive sphere of operation. Federalism is more than an exercise in setting the boundary between different institutions of government for their ownintegrity. “State sovereignty is not just an end in itself: ‘Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.’” New York v. United States, 505 U. S. 144, 181 (1992) (quoting Coleman v. Thompson, 501 U. S. 722, 759 (1991) (Blackmun, J., dissenting)).

    Some of these liberties are of a political character. The federal structure allows local policies “more sensitive tothe diverse needs of a heterogeneous society,” permits“innovation and experimentation,” enables greater citizen “involvement in democratic processes,” and makes government “more responsive by putting the States in competition for a mobile citizenry.” Gregory v. Ashcroft, 501
    U. S. 452, 458 (1991). Federalism secures the freedom of the individual. It allows States to respond, through theenactment of positive law, to the initiative of those who seek a voice in shaping the destiny of their own times without having to rely solely upon the political processes that control a remote central power. True, of course, these objects cannot be vindicated by the Judiciary in the absence of a proper case or controversy; but the individual liberty secured by federalism is not simply derivative of the rights of the States.

    Federalism also protects the liberty of all persons within a State by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions. See ibid. By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawfulpowers, that liberty is at stake.”

    http://www.supremecourt.gov/opinions/10pdf/09-1227.pdf

  32. Bob, I do appreciate your effort. Actually, i don’t think Kennedy will be the only “swing” vote. But just to be clear what we are discussing and without going too gar into the whole business of enumerated powers, in fact the Article 1, SEC 8 Par 3 does pretty clearly and specifically say:

    [The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;.

    and, of course, “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers”

    Now, do you believe Healthcare and Insurance are forms of commerce?

    Do you believe that a significant aspect of Healthcare involves interstate forms of commerce (its only 17% of the economy)? or also as the SC has ruled, intrastate commerce that significantly impacts on interstate commerce?

    If you had read Lopez you would see that, in fact the powers of the fed (in this case with regard to the commerce clause) does have limits.

    In fact, your argument (the same as Barnet’s), is if the feds can make you buy insurance they can make you buy broccoli and anything else. (fyi, the mandate does not make you buy insurance but only pay a fine if you don’t have insurance). And in fact you are mandated to pay the subsidies to the farmers. In other words your position is the Fed can not regulate anything. Unfortunately, that’s not what the CC says.

    Oh buy the way, talking about “opinions” I would classify your comment as more like a rant.

  33. 1zb1,
    I don’t necessarily agree with all of Bob’s posts, but they are far from being “rants”. They are usually very detailed and very well documented statements of his positions. He is an exceptional student of the Constitution and the Supreme Court.

  34. Okay Raf and Bl… this is not a rant by Bob:….(and what altered reality are you two living in)

    “And there it is; the dark side of liberal thinking rears its ugly head yet again.

    So now we go from a system of specifically enumerated powers to the exact opposite–according to you, the Fed has unlimited powers explicitly excluded.
    Didn’t Hamilton warn about people like you in Fed 84?

    From a previous post:

    Simply because a person receives health care it does not necessarily follow that it is also part of commerce. A person may come into this world with the free help of a midwife and leave this world with the aid of a charitable hospice. (NOTE ON THIS FROM ZB: YEP, THAT PERSON AND ABOUT 12 OTHERS IN THE WHOLE WIDE WORLD)

    The fact remains that the health care legislation commandeers the individual by forcing him to purchase a service as a condition precedent for merely residing lawfully in the United States. (ZB NOTE: AND THE CLEAN AIR ACT DOESN’T FORCE YOU TO PAY FOR HIGHER COST OF GAS OR THE SEAT BELT SAFETY LAW DOESN’T FORCE YOU TO PAY THE COST OF SEAT BELTS; OF FARM SUBSIDIES DON’T FORCE YOU TO PAY HIGHER PRICES ON PRODUCTS OR EVERY REGULATION OF NEARLY EVERY KINDDOESN’T FORCE YOU TO PAY SOME ADDED COST

    Let’s be clear, the activity here is not health care, it’s the participation in an insurance pool that profits corporations; rather than simply reimbursing the government.(ZB NOTE: AND SO DO THE EXAMPLES ABOVE, IE FORCED TO PAY FOR SEAT BELTS THAT GOES TO SEAT BELT COMPANY OR FARM SUBSIDIES THAT GO TO FARMERS

    I grew up believing that liberals were the good guys; that so long as your intentions are good you can’t be wrong. How wrong I was. The road to hell is paved with good intentions. The dark side of liberal thinking comes into play when the liberal deludes himself into believing that so long as the intention is good, then the rules MUST bend to provide the means. This type of thinking left unchecked would leave us without an exclusionary rule or rules of criminal procedure since the liberal will always ‘know’ in a vigilante way who the guilty really are. Taken to the extreme, this type of thinking leads us down the path to communism and Stalinist like regimes. (ZB NOTE: RANT)

    The law is not a search for truth, but a search for process. Contrary to liberal thinking here, we do not treat the constitution like a urinal puck simply because we feel we’re on the side of the angels.(ZB NOTE: MORE RANT)

    Congress has all the power it needs to achieve the same ends for health care reform by adjusting the tax rolls and medicare/medicaid rules toward a single payer system.

    The word is federalism! Please make a note of it and adjust your thinking accordingly.(ZB YOU MEAN THAT CONCEPT THAT IS ACTUALLY IN THE CONSTITUTION THAT MAKES US A NATION RATHER THEN JUST A BUNCH OF SLAVE OWNING STATES)

  35. ZB: “YEP, THAT PERSON AND ABOUT 12 OTHERS IN THE WHOLE WIDE WORLD”

    No matter; it simply addresses the problem with your defining health care as commerce.

    ZB: “AND THE CLEAN AIR ACT DOESN’T FORCE YOU TO PAY FOR HIGHER COST OF GAS OR THE SEAT BELT SAFETY LAW DOESN’T FORCE YOU TO PAY THE COST OF SEAT BELTS; OF FARM SUBSIDIES DON’T FORCE YOU TO PAY HIGHER PRICES ON PRODUCTS OR EVERY REGULATION OF NEARLY EVERY KINDDOESN’T FORCE YOU TO PAY SOME ADDED COST”

    A regulation causing an increased cost for an item is by no means equivalent or even close to commandeering the individual by forcing him to purchase a service as a condition precedent for merely residing lawfully in the United States. The individual’s failure to purchase any of your examples above does not render him an outlaw.

    Finally, I find it quite telling that you had no comment for this:

    1zb1: “And just where does it say the CC can not make you buy something… please show me those words in the CC.”

    And there it is; the dark side of liberal thinking rears its ugly head yet again.

    So now we go from a system of specifically enumerated powers to the exact opposite–according to you, where the Fed has unlimited powers UNLESS explicitly excluded. Didn’t Hamilton warn about people like you in Fed 84?

    If Hamilton or Madison read what you wrote, i.e. completely inverting the purpose and intent of the constitution itself as a means to achieving your end, I’d imagine their ‘rant’ against you would be far more acerbic.

  36. If I read the article properly, you think it is not only morally right, but constitutional to force people to buy insurance? This is a very dangerous notion, and I’m a Canadian, I have so called free care. May I say I didn’t agree to socialized medicine, and if I had my way I’d opt out of all of it. On constitutional grounds there is little the federal govt can do, and that is a great thing. Regardless of what govt tries to do, and I believe most people have been taught that it’s a proper role, they should not have any such power.

  37. If I recall correctly, seat belts were mandated, along with side marker lights on US made autos, in ’68. Wearing them wasn’t mandatory until substantially later. Actually now, it’s harder to find a vehicle without the “options” you don’t want, than with.

  38. I really blame JT for all this. Its his website and by allowing every bit of nonsense to pass as discourse (so he can get his rankings up) really is rather sorrowful.

    Bob, your comments demonstrate you have neither read the law or any of the actual filing before the SC (and I also have to wonder if you have actually read the Constitution other then your anti-federalist version of it).

    1. The mandate requires you to either obtain health insurance or pay a penalty. You are not required to buy insurance and nor are you required to see a doctor or submit to any health procedure. Paying the fine does not get you health insurance. You continue to be free to NOT buy health insurance and not see a doctor when you are sick.

    2. As such, you are not an outlaw. Your use of the term “outlaw” is about as absurd and false as saying the law can make you eat broccoli.

    3. Your notion that there might be 12 people in existence who might go through the ordinary course of life without ever in some way or another consuming healthcare services some how supports your bizarre notion that healthcare is not a form of commerce is, well, bizarre and silly.

    4. Do you have a reading disorder. Read Lopez. The SC has defined the limits of the CC. Do you comprehend the distinction of “Police Powers”.

    5. Your problem (as is Barnett’s) is you just don’t like the CC; you don’t like the idea of any regulation of any kind; you don’t like the idea of a Federal Government at all. You would rather have a collection of corrupt states fighting against each other with the right to lawfully permit any inhuman act they like. I get. The problem is, that is not what the constitution says.

    6. I suggest you go back to the dawn of civilization when people lived in caves and there was no such thing as civilization, otherwise known as people working together for a common good while also trying to balance individual freedoms.

    7. I guarantee that in some form or another you have benefited from the federalism you despise – which makes you a fool or a hypocrite.

    8. As for your peanut gallery, the same to them.

  39. The penalty is properly known as a fine; or a sum imposed as punishment for an offense of the law–thus the term outlaw denotatively.

    All health care is not necessarily, i.e. by definition, commerce; just as all poodles are dogs but not all dogs are poodles.

    Lopez does not address the problem with declaring the mere act of living being a sufficient trigger to engage the commerce clause.

    My problem is with people like you, blinded by your self-righteousness who somehow feel licensed to re-write definitions and invert the laws because you’ve concluded that good intentions trump all laws.

  40. Bob, by your definition of “outlaw”, jay-walking makes you an outlaw.

    In any event, I realize you have to rant about “people like me” but the conversation (I hesitate to use the term) is about what the Constitution says and doesn’t say – what it means and doesn’t mean, and in this case specifically with regard to the Commerce Clause… You are incapable of staying on that issue. I accept you don’t like what it says – and incidently you have the right to try and change it, but it is what it is and not what you would like to be – which is non existent.

    You stand on the side of the anti-federalists. I get that, but in regard to the CC that was the loosing side.

    The notion that healthcare in this day and age is not commerce is so completely nonsensical that it makes any conversation really pointless. Medication, treatement, medical facilities, equipment and technology; the training of medical providers, medical research, the financing of all of the above; the fact that a vast percentage of healthcare spending coming from the federal government; the tax benefits associated with even “volunteer’ efforts. 17% of the economy is related to healthcare spending; the leading causes of sickeness and death is related to health issues. Please, please, please move on from the idiotic notion that healthcare is not about commerce.

    ps: I accept the fact I am an evil person because i think people should have healthcare not just because it is the right thing to do but because we are bankrupting the nation. I accept the fact I am evil person because paying for something you are actually using or going to use is not the worst thing in the world. I accept the fact that I am an evil person because making auto companies put seat belts in cars is not the end of the world; or making companies provide safe work environments even if it costs me more money is not the end of the world.

    Grow up!

  41. Per ‘what the constitution says’…

    Again…

    1zb1: “And just where does it say the CC can not make you buy something… please show me those words in the CC.”

    And there it is; the dark side of liberal thinking rears its ugly head yet again.

    So now we go from a system of specifically enumerated powers to the exact opposite–according to you, where the Fed has unlimited powers UNLESS explicitly excluded. Didn’t Hamilton warn about people like you in Fed 84?

    If Hamilton or Madison read what you wrote, i.e. completely inverting the purpose and intent of the constitution itself as a means to achieving your end, I’d imagine their ‘rant’ against you would be far more acerbic.

  42. Hamilton: “I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.”

    http://www.constitution.org/fed/federa84.htm

  43. D.S:

    If I read the article properly, you think it is not only morally right, but constitutional to force people to buy insurance?

    You did not read the article properly.

    Primarily, this article was about heavy-hitting Constitutional scholars slugging it out, always a fun topic. It was also about three previous laws that may or may not have a bearing on the current ACA mandate.

    I tried to present both sides accurately. If I disagreed with some of the counter-arguments, I stated my reasons. Criticism of counter-arguments does not imply support of the original.

    It is also an opportunity for the readers to weigh-in with their own take on the Constitutional arguments.

  44. Ah, the Peanut Gallery. Those were the days. If you watch closely, the kid on the far left in the stripped shirt, that’s Gene. He’s throwing shells at all the girls.

  45. Nal,

    If I recall at the time reference you are speaking there was even just as much political dissent……

  46. Blouise,

    And the girls just love me for it too. :mrgreen:

    Actually, I was just a bad idea when Howdy Doody was on the air. ;)

  47. Bob, as you well know, Federalists felt to start enumerating rights as in the Bill of Rights would actually undermine rights. In that regard the anti-feds won out and the Bill of Rights was ADDED.

    Now, if the Anti-Feds had their way there would not have been a commerce clause because in their view that would give tooooo much power to the central government. Essentially what they wanted was as things were under the Articles of Confederation. However, the Articles proved to be highly ineffective which is precisely why they found a need to write a new constitution with a stronger central government, AND the anti-feds won out on that account because, as even you know the Commerce clause is in the constitution – and as you also know under the rules of construction you must give weight to its presence.

    The very essence of the constitution was to create a workable central government (or what was the point of it all). Central to such an effort is the Commerce Clause. Without it you have, as a practical matter, a loose association of countries instead of a nation.

    That may be what you and prof Barnett and the rest of the liberterian delusionals want but that isn’t what we have.

    PS: quoting Hamilton is really nothing more then libertarian bumper sticker hyperbole. its not an argument but a talking point.

    D.S.: the mandate does not force you to buy insurance…. and not everyone has to even pay the penalty… get over it.

  48. Gene,

    I was going to tattle to Nal since it’s his thread … “Gene is throwing shells at me” but I figured he’s give me a Kitteh and put me in the corner. Life is so unfair to we lowly females.

  49. Blouise,
    Hilarious video clip. It scares me that I remember Howdy Doody!
    Gene,
    The good Benedictine nine had ways to deal with shell throwers! :)

  50. Woosty,

    You posted:
    “1, April 15, 2012 at 8:41 am

    idealist7071, April 15, 2012 at 5:21 am

    Woosty,
    What’s the chances of a VA bureaucratic clean-up using Swedish medical system as a model (I blush, of coure)?

    —————————–
    Absolutely none.

    Id, Are you kidding? That system is separate but equal. And that allows certain others to employ separate but NOT equal….

    don’t threaten the the status man…just don’t even do it…..and don’t look too smart while you are not being threatening either….big sticks held by cowards mean you have NO constitutionals”….
    __________________________________________

    Woosty,
    I don’t understand your reply at all. You seem angry at me. Are you?
    Why, please?
    And if you could be more specific that would help my understanding

    I said half in joking that our efficient non-bureaucratic system could be worth a stúdy. That was all, and blushed to have the hubris to offer it as a solution.
    Was that offensive in some way? Hope you see this and answer.

    You are one of my favorites and still are. Hope to remain on a good footing with you.

  51. Einer Elhauge Replies

    Professor Randy Barnett is a good friend who deserves enormous credit for coming up with a creative constitutional argument that has commanded such attention. But I don’t ultimately find his distinctions persuasive, and it isn’t because I like the health insurance mandate. I am on public record calling it bad policy. But that of course does not make it unconstitutional.

    Although Barnett acknowledges that the early medical insurance mandates were exercises of Congress’ commerce clause power, he distinguishes them on the ground that they were imposed on actors who were in commerce, namely on shipowners and (in a third example he omits) seamen. His distinction thus means that he admits that these precedents show that if one is engaged in commerce in market A – here the shipping market or the seamen labor market – then Congress has the power to impose a mandate to purchase in market B – here the medical insurance market – even though markets A and B are totally unrelated. This concession conflicts with the argument of the challengers, which claimed that widespread activity in the health care market did not permit a purchase mandate even in the highly related health insurance market. Indeed, this concession seems to make the whole action/inaction distinction collapse because the fact that no relation between the markets is required means that commercial activity in any market – say, the market for employment or food or housing – would permit the Obamacare mandate. Because the Obamacare mandate applies only to those who have income that subjects them to income tax, it is necessarily limited to people who are active in some commercial market and thus his test would be satisfied.

    On the gun mandate, Barnett offers two arguments. First, he says it was different because it did not require individuals to buy guns if they got them from someone else. But the Obamacare mandate similarly just requires you to have health insurance; you don’t have to buy it if someone else provides it for you, which is true for many who get their health insurance from the government or their employer, spouse, or parent. Plus, the gun mandate required the self-provision of consumables like ammunition and gunpowder that required purchasing more than one was already going to use.

    Second, Barnett says the gun mandate was different because it was an exercise of the militia power rather than the commerce clause power. But I still think this misses the point. As Judge Silberman held, the text giving Congress the power to “regulate commerce” on its face includes a power to mandate purchases given 1780s dictionary definitions of “regulate.” To rebut this, the challengers have relied heavily on the notion that the unprecedented nature of purchase mandates allows us to infer the framers were against them. This example shows there was no such unspoken understanding. Nor does the text of the militia clause give much basis for a greater power to mandate purchases. To the contrary, the relevant portion of the militia clause gives Congress the power “To provide for… arming ….the Militia,” that is the power to provide the militia with arms, which seems the opposite of forcing individuals to self-provide those arms. If that text can be flexibly read to allow a purchase mandate, then such a reading is even more plausible under the Commerce Clause.

    Moreover, even if the challengers do win on the Commerce Clause, the mandate must still be sustained if it is authorized under the necessary and proper clause. Given that the challengers admit the constitutionality of the provisions that ban insurer discrimination against the sick and argue that those provisions cannot be severed from the mandate, it seems undisputed that the mandate was necessary to exercise Congress’ commerce clause power to ban such discrimination. The challengers’ argument on the necessary and proper clause thus boils down to their assertion that purchase mandates are not “proper” – and these historic examples refute the notion that the framers thought there was anything improper about purchase mandates.

    Finally, Barnett asserts that these are the only examples of federal purchase mandates. Even if that were the case, they seem pretty telling given their framer involvement and they rebut the claim such mandates were unprecedented. But in fact there are many other examples of federal purchase mandates. One federal mandate requires corporations to hire independent auditors. Another requires that unions buy bonds to insure against officer fraud. Such mandates fit the mold of allowing activity in one market to trigger a mandate in a totally different market, and as noted above, if that is constitutional, then so is Obamacare’s individual mandate.

  52. Nal:

    I suggest you move the reply into the post itself since Professor Elhauge was kind enough to make a personal reply to your fine post via JT. It get buried in the comments section sometimes.

  53. Again…

    Einer Elhauge: “Because the Obamacare mandate applies only to those who have income that subjects them to income tax, it is necessarily limited to people who are active in ‘some’ commercial market and thus his test would be satisfied.”

    Translated: ‘If you pay any income tax then you are involved in some sort of commerce and therefore are subject to the now unrestricted power of the commerce clause.’

    Wow; so much for the founders intent of forming a government of specifically enumerated powers; right?

    What a load of crap.

  54. Because so few people here seem to have actually read the “The Patient Protection and Affordable Care Act.” I thought having it readily available might be of some value even if facts never seem to matter much around here. Below is the applicable section. The entire law can be found here:
    http://www.gpo.gov/fdsys/pkg/PLAW-111publ148/pdf/PLAW-111publ148.pdf

    Subtitle F—Shared Responsibility for
    Health Care
    PART I—INDIVIDUAL RESPONSIBILITY
    SEC. 1501. REQUIREMENT TO MAINTAIN MINIMUM ESSENTIAL COVERAGE.
    (a) FINDINGS.—Congress makes the following findings:
    (1) IN GENERAL.—The individual responsibility requirement provided for in this section (in this subsection referred to as the ‘‘requirement’’) is commercial and economic in nature, and substantially affects interstate commerce, as a result of the effects described in paragraph (2).
    42 USC 18091.
    Applicability.
    26 USC 38 note. 26 USC 38.
    VerDate Nov 24 2008 03:39 May 07, 2010 Jkt 089139 PO 00148 Frm 00124 Fmt 6580 Sfmt 6581 E:\PUBLAW\PUBL148.111 GPO1 PsN: PUBL148 dkrause on GSDDPC29PROD with PUBLIC LAWS
    PUBLIC LAW 111–148—MAR. 23, 2010 124 STAT. 243
    (2) EFFECTS ON THE NATIONAL ECONOMY AND INTERSTATE
    COMMERCE.—The effects described in this paragraph are the
    following:
    (A) The requirement regulates activity that is commercial and economic in nature: economic and financial decisions about how and when health care is paid for, and when health insurance is purchased.
    (B) Health insurance and health care services are a significant part of the national economy. National health spending is projected to increase from $2,500,000,000,000, or 17.6 percent of the economy, in 2009 to $4,700,000,000,000 in 2019. Private health insurance spending is projected to be $854,000,000,000 in 2009, and pays for medical supplies, drugs, and equipment that are shipped in interstate commerce. Since most health insurance is sold by national or regional health insurance companies, health insurance is sold in interstate commerce and claims payments flow through interstate commerce.
    (C) The requirement, together with the other provisions of this Act, will add millions of new consumers to the health insurance market, increasing the supply of, and demand for, health care services. According to the Congressional Budget Office, the requirement will increase the number and share of Americans who are insured.
    (D) The requirement achieves near-universal coverage by building upon and strengthening the private employerbased health insurance system, which covers 176,000,000 Americans nationwide. In Massachusetts, a similar requirement has strengthened private employer-based coverage: despite the economic downturn, the number of workers offered employer-based coverage has actually increased.
    (E) Half of all personal bankruptcies are caused in part by medical expenses. By significantly increasing health insurance coverage, the requirement, together with the other provisions of this Act, will improve financial security for families.
    (F) Under the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1001 et seq.), the Public Health Service Act (42 U.S.C. 201 et seq.), and this Act, the Federal Government has a significant role in regulating health insurance which is in interstate commerce.
    (G) Under sections 2704 and 2705 of the Public Health Service Act (as added by section 1201 of this Act), if there were no requirement, many individuals would wait to purchase health insurance until they needed care. By significantly increasing health insurance coverage, the requirement, together with the other provisions of this Act, will minimize this adverse selection and broaden the health insurance risk pool to include healthy individuals, which will lower health insurance premiums. The requirement is essential to creating effective health insurance markets in which improved health insurance products that are guaranteed issue and do not exclude coverage of preexisting conditions can be sold.
    (H) Administrative costs for private health insurance, which were $90,000,000,000 in 2006, are 26 to 30 percent of premiums in the current individual and small group VerDate Nov 24 2008 03:39 May 07, 2010 Jkt 089139 PO 00148 Frm 00125 Fmt 6580 Sfmt 6581 E:\PUBLAW\PUBL148.111 GPO1 PsN: PUBL148 dkrause on GSDDPC29PROD with PUBLIC LAWS 124 STAT. 244 PUBLIC LAW 111–148—MAR. 23, 2010 markets. By significantly increasing health insurance coverage and the size of purchasing pools, which will increase economies of scale, the requirement, together with the other provisions of this Act, will significantly reduce administrative costs and lower health insurance premiums. The requirement is essential to creating effective health insurance markets that do not require underwriting and eliminate its associated administrative costs.
    (3) SUPREME COURT RULING.—In United States v. South- Eastern Underwriters Association (322 U.S. 533 (1944)), the Supreme Court of the United States ruled that insurance is interstate commerce subject to Federal regulation.
    (b) IN GENERAL.—Subtitle D of the Internal Revenue Code of 1986 is amended by adding at the end the following new chapter:
    ‘‘CHAPTER 48—MAINTENANCE OF MINIMUM ESSENTIAL COVERAGE
    ‘‘Sec. 5000A. Requirement to maintain minimum essential coverage.
    ‘‘SEC. 5000A. REQUIREMENT TO MAINTAIN MINIMUM ESSENTIAL COVERAGE.
    ‘‘(a) REQUIREMENT TO MAINTAIN MINIMUM ESSENTIAL COVERAGE.—
    An applicable individual shall for each month beginning after 2013 ensure that the individual, and any dependent of the individual who is an applicable individual, is covered under minimum essential coverage for such month.
    ‘‘(b) SHARED RESPONSIBILITY PAYMENT.—
    ‘‘(1) IN GENERAL.—If an applicable individual fails to meet the requirement of subsection (a) for 1 or more months during any calendar year beginning after 2013, then, except as provided in subsection (d), there is hereby imposed a penalty with respect to the individual in the amount determined under subsection (c).
    ‘‘(2) INCLUSION WITH RETURN.—Any penalty imposed by this section with respect to any month shall be included with a taxpayer’s return under chapter 1 for the taxable year which includes such month.
    ‘‘(3) PAYMENT OF PENALTY.—If an individual with respect to whom a penalty is imposed by this section for any month— ‘‘(A) is a dependent (as defined in section 152) of another taxpayer for the other taxpayer’s taxable year including such month, such other taxpayer shall be liable for such penalty, or
    ‘‘(B) files a joint return for the taxable year including such month, such individual and the spouse of such individual shall be jointly liable for such penalty.
    ‘‘(c) AMOUNT OF PENALTY.—
    ‘‘(1) IN GENERAL.—The penalty determined under this subsection for any month with respect to any individual is an amount equal to 1⁄12 of the applicable dollar amount for the calendar year.
    ‘‘(2) DOLLAR LIMITATION.—The amount of the penalty imposed by this section on any taxpayer for any taxable year with respect to all individuals for whom the taxpayer is liable under subsection (b)(3) shall not exceed an amount equal to 300 percent the applicable dollar amount (determined without Penalty. 26 USC 5000A.
    VerDate Nov 24 2008 03:39 May 07, 2010 Jkt 089139 PO 00148 Frm 00126 Fmt 6580 Sfmt 6581 E:\PUBLAW\PUBL148.111 GPO1 PsN: PUBL148 dkrause on GSDDPC29PROD with PUBLIC LAWS
    PUBLIC LAW 111–148—MAR. 23, 2010 124 STAT. 245
    regard to paragraph (3)(C)) for the calendar year with or within which the taxable year ends.
    ‘‘(3) APPLICABLE DOLLAR AMOUNT.—For purposes of paragraph (1)—
    ‘‘(A) IN GENERAL.—Except as provided in subparagraphs (B) and (C), the applicable dollar amount is $750.
    ‘‘(B) PHASE IN.—The applicable dollar amount is $95 for 2014 and $350 for 2015.
    ‘‘(C) SPECIAL RULE FOR INDIVIDUALS UNDER AGE 18.—
    If an applicable individual has not attained the age of 18 as of the beginning of a month, the applicable dollar amount with respect to such individual for the month shall be equal to one-half of the applicable dollar amount for the calendar year in which the month occurs.
    ‘‘(D) INDEXING OF AMOUNT.—In the case of any calendar year beginning after 2016, the applicable dollar amount shall be equal to $750, increased by an amount equal to—
    ‘‘(i) $750, multiplied by
    ‘‘(ii) the cost-of-living adjustment determined under section 1(f)(3) for the calendar year, determined by substituting ‘calendar year 2015’ for ‘calendar year 1992’ in subparagraph (B) thereof. If the amount of any increase under clause (i) is not a multiple of $50, such increase shall be rounded to the next lowest multiple of $50.
    ‘‘(4) TERMS RELATING TO INCOME AND FAMILIES.—For purposes of this section—
    ‘‘(A) FAMILY SIZE.—The family size involved with respect to any taxpayer shall be equal to the number of individuals for whom the taxpayer is allowed a deduction under section 151 (relating to allowance of deduction for personal exemptions) for the taxable year.
    ‘‘(B) HOUSEHOLD INCOME.—The term ‘household income’ means, with respect to any taxpayer for any taxable year, an amount equal to the sum of—
    ‘‘(i) the modified gross income of the taxpayer, plus
    ‘‘(ii) the aggregate modified gross incomes of all other individuals who—
    ‘‘(I) were taken into account in determining the taxpayer’s family size under paragraph (1), and
    ‘‘(II) were required to file a return of tax imposed by section 1 for the taxable year.
    ‘‘(C) MODIFIED GROSS INCOME.—The term ‘modified gross income’ means gross income—
    ‘‘(i) decreased by the amount of any deduction allowable under paragraph (1), (3), (4), or (10) of section 62(a),
    ‘‘(ii) increased by the amount of interest received or accrued during the taxable year which is exempt from tax imposed by this chapter, and
    ‘‘(iii) determined without regard to sections 911, 931, and 933.
    ‘‘(D) POVERTY LINE.—
    VerDate Nov 24 2008 03:39 May 07, 2010 Jkt 089139 PO 00148 Frm 00127 Fmt 6580 Sfmt 6581 E:\PUBLAW\PUBL148.111 GPO1 PsN: PUBL148 dkrause on GSDDPC29PROD with PUBLIC LAWS
    124 STAT. 246 PUBLIC LAW 111–148—MAR. 23, 2010
    ‘‘(i) IN GENERAL.—The term ‘poverty line’ has the meaning given that term in section 2110(c)(5) of the Social Security Act (42 U.S.C. 1397jj(c)(5)).
    ‘‘(ii) POVERTY LINE USED.—In the case of any taxable year ending with or within a calendar year, the poverty line used shall be the most recently published poverty line as of the 1st day of such calendar year.
    ‘‘(d) APPLICABLE INDIVIDUAL.—For purposes of this section—
    ‘‘(1) IN GENERAL.—The term ‘applicable individual’ means, with respect to any month, an individual other than an individual described in paragraph (2), (3), or (4).
    ‘‘(2) RELIGIOUS EXEMPTIONS.—
    ‘‘(A) RELIGIOUS CONSCIENCE EXEMPTION.—Such term shall not include any individual for any month if such individual has in effect an exemption under section 1311(d)(4)(H) of the Patient Protection and Affordable Care Act which certifies that such individual is a member of a recognized religious sect or division thereof described in section 1402(g)(1) and an adherent of established tenets or teachings of such sect or division as described in such section.
    ‘‘(B) HEALTH CARE SHARING MINISTRY.—
    ‘‘(i) IN GENERAL.—Such term shall not include any individual for any month if such individual is a member of a health care sharing ministry for the month.
    ‘‘(ii) HEALTH CARE SHARING MINISTRY.—The term ‘health care sharing ministry’ means an organization—
    ‘‘(I) which is described in section 501(c)(3) and is exempt from taxation under section 501(a),
    ‘‘(II) members of which share a common set of ethical or religious beliefs and share medical expenses among members in accordance with those beliefs and without regard to the State in which a member resides or is employed,
    ‘‘(III) members of which retain membership even after they develop a medical condition,
    ‘‘(IV) which (or a predecessor of which) has been in existence at all times since December 31,
    1999, and medical expenses of its members have been shared continuously and without interruption since at least December 31, 1999, and
    ‘‘(V) which conducts an annual audit which is performed by an independent certified public
    accounting firm in accordance with generally accepted accounting principles and which is made available to the public upon request.
    ‘‘(3) INDIVIDUALS NOT LAWFULLY PRESENT.—Such term shall not include an individual for any month if for the month the individual is not a citizen or national of the United States or an alien lawfully present in the United States.
    ‘‘(4) INCARCERATED INDIVIDUALS.—Such term shall not include an individual for any month if for the month the individual is incarcerated, other than incarceration pending the disposition of charges.
    ‘‘(e) EXEMPTIONS.—No penalty shall be imposed under subsection
    (a) with respect to—
    ‘‘(1) INDIVIDUALS WHO CANNOT AFFORD COVERAGE.—
    VerDate Nov 24 2008 03:39 May 07, 2010 Jkt 089139 PO 00148 Frm 00128 Fmt 6580 Sfmt 6581 E:\PUBLAW\PUBL148.111 GPO1 PsN: PUBL148 dkrause on GSDDPC29PROD with PUBLIC LAWS PUBLIC LAW 111–148—MAR. 23, 2010 124 STAT. 247
    ‘‘(A) IN GENERAL.—Any applicable individual for any month if the applicable individual’s required contribution (determined on an annual basis) for coverage for the month exceeds 8 percent of such individual’s household income for the taxable year described in section 1412(b)(1)(B) of the Patient Protection and Affordable Care Act. For purposes of applying this subparagraph, the taxpayer’s household income shall be increased by any exclusion from gross income for any portion of the required contribution made through a salary reduction arrangement.
    ‘‘(B) REQUIRED CONTRIBUTION.—For purposes of this paragraph, the term ‘required contribution’ means—
    ‘‘(i) in the case of an individual eligible to purchase minimum essential coverage consisting of coverage through an eligible-employer-sponsored plan, the portion of the annual premium which would be paid by the individual (without regard to whether paid through salary reduction or otherwise) for self-only coverage, or
    ‘‘(ii) in the case of an individual eligible only to purchase minimum essential coverage described in subsection (f)(1)(C), the annual premium for the lowest cost bronze plan available in the individual market through the Exchange in the State in the rating area in which the individual resides (without regard to whether the individual purchased a qualified health plan through the Exchange), reduced by the amount of the credit allowable under section 36B for the taxable year (determined as if the individual was covered by a qualified health plan offered through the Exchange for the entire taxable year).
    ‘‘(C) SPECIAL RULES FOR INDIVIDUALS RELATED TO EMPLOYEES.—For purposes of subparagraph (B)(i), if an applicable individual is eligible for minimum essential coverage through an employer by reason of a relationship to an employee, the determination shall be made by reference to the affordability of the coverage to the employee.
    ‘‘(D) INDEXING.—In the case of plan years beginning in any calendar year after 2014, subparagraph (A) shall be applied by substituting for ‘8 percent’ the percentage the Secretary of Health and Human Services determines reflects the excess of the rate of premium growth between the preceding calendar year and 2013 over the rate of income growth for such period.
    ‘‘(2) TAXPAYERS WITH INCOME UNDER 100 PERCENT OF POVERTY LINE.—Any applicable individual for any month during a calendar year if the individual’s household income for the taxable year described in section 1412(b)(1)(B) of the Patient Protection and Affordable Care Act is less than 100 percent of the poverty line for the size of the family involved (determined in the same manner as under subsection (b)(4)).
    ‘‘(3) MEMBERS OF INDIAN TRIBES.—Any applicable individual for any month during which the individual is a member of an Indian tribe (as defined in section 45A(c)(6)).
    ‘‘(4) MONTHS DURING SHORT COVERAGE GAPS.—
    ‘‘(A) IN GENERAL.—Any month the last day of which
    occurred during a period in which the applicable individual
    Applicability.
    Determination.
    Definition.
    VerDate Nov 24 2008 03:39 May 07, 2010 Jkt 089139 PO 00148 Frm 00129 Fmt 6580 Sfmt 6581 E:\PUBLAW\PUBL148.111 GPO1 PsN: PUBL148 dkrause on GSDDPC29PROD with PUBLIC LAWS
    124 STAT. 248 PUBLIC LAW 111–148—MAR. 23, 2010
    was not covered by minimum essential coverage for a
    continuous period of less than 3 months.
    ‘‘(B) SPECIAL RULES.—For purposes of applying this paragraph—
    ‘‘(i) the length of a continuous period shall be determined without regard to the calendar years in which months in such period occur,
    ‘‘(ii) if a continuous period is greater than the period allowed under subparagraph (A), no exception shall be provided under this paragraph for any month in the period, and
    ‘‘(iii) if there is more than 1 continuous period described in subparagraph (A) covering months in a calendar year, the exception provided by this paragraph shall only apply to months in the first of such periods. The Secretary shall prescribe rules for the collection of the penalty imposed by this section in cases where continuous periods include months in more than 1 taxable year.
    ‘‘(5) HARDSHIPS.—Any applicable individual who for any month is determined by the Secretary of Health and Human Services under section 1311(d)(4)(H) to have suffered a hardship with respect to the capability to obtain coverage under a qualified health plan.
    ‘‘(f) MINIMUM ESSENTIAL COVERAGE.—For purposes of this section—
    ‘‘(1) IN GENERAL.—The term ‘minimum essential coverage’
    means any of the following:
    ‘‘(A) GOVERNMENT SPONSORED PROGRAMS.—Coverage under—
    ‘‘(i) the Medicare program under part A of title XVIII of the Social Security Act,
    ‘‘(ii) the Medicaid program under title XIX of the Social Security Act,
    ‘‘(iii) the CHIP program under title XXI of the Social Security Act,
    ‘‘(iv) the TRICARE for Life program,
    ‘‘(v) the veteran’s health care program under chapter 17 of title 38, United States Code, or
    ‘‘(vi) a health plan under section 2504(e) of title 22, United States Code (relating to Peace Corps volunteers).
    ‘‘(B) EMPLOYER-SPONSORED PLAN.—Coverage under an eligible employer-sponsored plan.
    ‘‘(C) PLANS IN THE INDIVIDUAL MARKET.—Coverage under a health plan offered in the individual market within a State.
    ‘‘(D) GRANDFATHERED HEALTH PLAN.—Coverage under a grandfathered health plan.
    ‘‘(E) OTHER COVERAGE.—Such other health benefits coverage, such as a State health benefits risk pool, as the Secretary of Health and Human Services, in coordination with the Secretary, recognizes for purposes of this subsection.
    ‘‘(2) ELIGIBLE EMPLOYER-SPONSORED PLAN.—The term ‘eligible employer-sponsored plan’ means, with respect to any Definition.
    Applicability.
    VerDate Nov 24 2008 03:39 May 07, 2010 Jkt 089139 PO 00148 Frm 00130 Fmt 6580 Sfmt 6581 E:\PUBLAW\PUBL148.111 GPO1 PsN: PUBL148 dkrause on GSDDPC29PROD with PUBLIC LAWS
    PUBLIC LAW 111–148—MAR. 23, 2010 124 STAT. 249
    employee, a group health plan or group health insurance coverage offered by an employer to the employee which is—
    ‘‘(A) a governmental plan (within the meaning of section 2791(d)(8) of the Public Health Service Act), or
    ‘‘(B) any other plan or coverage offered in the small or large group market within a State. Such term shall include a grandfathered health plan described in paragraph (1)(D) offered in a group market.
    ‘‘(3) EXCEPTED BENEFITS NOT TREATED AS MINIMUM ESSENTIAL COVERAGE.—The term ‘minimum essential coverage’ shall not include health insurance coverage which consists of coverage of excepted benefits—
    ‘‘(A) described in paragraph (1) of subsection (c) of section 2791 of the Public Health Service Act; or
    ‘‘(B) described in paragraph (2), (3), or (4) of such subsection if the benefits are provided under a separate policy, certificate, or contract of insurance.
    ‘‘(4) INDIVIDUALS RESIDING OUTSIDE UNITED STATES OR RESIDENTS OF TERRITORIES.—Any applicable individual shall be treated as having minimum essential coverage for any month—
    ‘‘(A) if such month occurs during any period described in subparagraph (A) or (B) of section 911(d)(1) which is applicable to the individual, or
    ‘‘(B) if such individual is a bona fide resident of any possession of the United States (as determined under section 937(a)) for such month.
    ‘‘(5) INSURANCE-RELATED TERMS.—Any term used in this section which is also used in title I of the Patient Protection and Affordable Care Act shall have the same meaning as when used in such title.
    ‘‘(g) ADMINISTRATION AND PROCEDURE.—
    ‘‘(1) IN GENERAL.—The penalty provided by this section shall be paid upon notice and demand by the Secretary, and except as provided in paragraph (2), shall be assessed and collected in the same manner as an assessable penalty under subchapter B of chapter 68.
    ‘‘(2) SPECIAL RULES.—Notwithstanding any other provision
    of law—
    ‘‘(A) WAIVER OF CRIMINAL PENALTIES.—In the case of any failure by a taxpayer to timely pay any penalty imposed by this section, such taxpayer shall not be subject to any criminal prosecution or penalty with respect to such failure.
    ‘‘(B) LIMITATIONS ON LIENS AND LEVIES.—The Secretary shall not—
    ‘‘(i) file notice of lien with respect to any property of a taxpayer by reason of any failure to pay the penalty imposed by this section, or
    ‘‘(ii) levy on any such property with respect to such failure.’’.
    (c) CLERICAL AMENDMENT.—The table of chapters for subtitle D of the Internal Revenue Code of 1986 is amended by inserting after the item relating to chapter 47 the following new item:
    ‘‘CHAPTER 48—MAINTENANCE OF MINIMUM ESSENTIAL COVERAGE.’’.
    (d) EFFECTIVE DATE.—The amendments made by this section shall apply to taxable years ending after December 31, 2013. 26 USC 5000A

  55. Bob Esq:

    quit fighting, it is a lost cause. No one believes the Constitution is a limiting power on the government and a protection of individual rights. I think even some of the founders were confused.

    Just let Obamacare kill the last shred of our Constitution and be done with it. It seems to me that is what most people want anyway. Just let the patient die, she has been on life support since at least 1913.

    Personally, I love broccoli and cant wait to have to buy it.

    People want to be told what to do and to be taken care of from cradle to grave, let them have what they want. Let them live like zoo animals if that is what the majority declares desirable.

  56. mespo:

    I saw the VC reply before checking my e-mail. I’ve updated the post. I considered an update but I thought more readers would see the comment. Both is an even better idea.

  57. A Conservative Law Professor on the Obvious Constitutionality of Obamacare

    Henry Paul Monaghan
    April 16, 2012 | 12:00 am

    The Constitution of the United States creates a national government of enumerated and therefore limited powers. Accordingly, troubled members of the Court should be applauded for their efforts to search for the limits to any principle advanced to uphold the health care mandate of the Affordable Care Act (ACA), not made the target of strident and caustic criticism. The Court is a great institution, and its members don’t deserve such abuse.

    That should be said, and I want to say it as clearly as I can. Nonetheless, I submit that sustaining the mandate would not give rise to the justices’ fears of boundless federal authority.

    The individual health mandate surely passes constitutional muster under settled judicial principles. The Constitution’s Commerce Clause grants Congress the authority “to regulate commerce … among the several States.” The Court’s precedents establish without question that Congress may regulate intrastate economic activities that Congress (not the Court) reasonably concludes have a substantial effect on interstate commerce. The existence of such congressional authority is especially clear when the challenged provision itself is part of a comprehensive legislative scheme that regulates interstate commerce.

    Moreover, the market for health care is distinctive (if not entirely unique) in several key respects. Virtually all of us will need and obtain health care at some point, but we often cannot predict when or in what ways we will need it. And for the vast majority of us, direct payment for the health care services we obtain would be prohibitively expensive. Yet not obtaining needed medical care can be the difference between life and death.

    These features help explain why, unlike many other markets, insurance is the overwhelmingly dominant means of payment in the health care market. They also explain why Congress has required that individuals be given emergency care without regard to their ability to pay. As a result, and again unlike other markets, uninsured individuals who are unable to pay directly for needed medical services necessarily shift the cost of those services to others—to health care providers, the government, individuals with insurance, and taxpayers.

    In that way, Congress is not creating a market which it then seeks to regulate. The insurance-based structure of the health care market is already firmly in place. That is why it was well within Congress’s discretion to design legislation to operate within, and to address problems posed by, this vast market.

    But the insurance market is so complex that addressing one aspect of the market can easily create others problems. For example, one longstanding problem is that the insurance model makes affordable health care unattainable for many individuals already in poor health. Congress responded by prohibiting insurers from denying coverage or charging higher rates based upon an individual’s pre-existing health conditions. Yet given that prohibition, one could reasonably conclude that currently healthy individuals might forgo the purchase of insurance until they need it. That would undermine the viability of the insurance pool, which depends on payments from currently healthy individuals to finance health care for those who need it, when they need it. In this respect, the individual mandate is intimately connected to, and advances the aims of, the overall regulatory scheme put in place by the ACA.

    The same is decidedly not true of the testing hypotheticals raised by members of the Court concerning mandates to purchase broccoli or automobiles: Individuals who wait to purchase such goods until they are needed do not undermine a larger regulatory scheme or shift costs to other consumers of those goods or to any other third party. Nor is the health mandate comparable to a requirement to purchase burial insurance, because no showing can be made that Congress would be responding to any real national problem. These factual distinctions in fact illuminate the narrowness of the ground upon which a decision upholding the mandate should stand.

    The purported limit on congressional power favored by the mandate’s opponents—between constitutionally permissible regulation of “activity ” and unconstitutional regulation of “inactivity ”—is simply unknown to Commerce Clause jurisprudence, is wholly unworkable, and makes no economic sense. But even if it had any legitimate constitutional purchase, it would be satisfied in the case of the ACA. The overwhelming majority of those subject to the individual mandate are or will be engaged in the economic activity of receiving health care services. For that overwhelming majority, the mandate is a regulation of economic activity.

    It is, of course, possible that the mandate could touch individuals living such isolated existences that they will never seek any health care services. For them, the mandate (if enforced against them) would indeed require an unwelcome purchase. But the Court’s cases have always recognized that Congress legislates on an aggregate, nationwide basis. No person can withdraw himself from the ambit of Commerce Clause-based legislation by arguing that, standing alone, his activity, or that a small group like him, does not substantially affect commerce. Congress is entitled to legislate based upon the aggregated activity of the class regulated. Honoring its longstanding traditions of judicial restraint and respect for the coordinate branches, the Court should not, in the present litigation, allow such hypothetical extreme cases to undermine the constitutionality of the ACA for the hundreds of millions already participating in the interstate health care market.

    I recognize that many persons believe the health mandate is very bad legislative policy. But the appropriate judicial response to such a complaint has long been clear. The Court was admirably forthright about the point in its ruling in Munn v. Illinois in 1876: “For protection against abuses by the Legislature, the people must resort to the polls, not the courts.”

    Henry Paul Monaghan is the Harlan Fiske Stone Professor of Constitutional Law at Columbia Law School.

  58. Thoughts for this Tax Day: The Federal Government makes us buy things everyday and those mandates are wrapped up in our taxes. Anybody consult you on the amount of national defense you want? How about setting the eligibility for welfare or AFDC or any other government entitlement program? Any Senator call you to get your input on the amount of the subsidy check going to San Juan or Pago Pago? No, and they never will. This outcry over individual mandate is a pure political banner cast to the ground by the legislature when the bill was passed and now picked up the SCOTUS to further their conservative agenda. Can’t get into more now. I have to get to the post office to pay my auto insurance – that’s individually mandated by government, too!

  59. Mark,

    What I believe Blouise is waiting for is for me to point out just how full of crap you are.

    What you posted was a lie; as in a lie can get half way around the world before the truth gets its shoes on.

    Your post clearly implies that there is absolutely no distinction between single payer socialized medicine, a.k.a medicare for all, and an individual mandate that commandeers the individual by forcing him to purchase a service as a condition precedent for merely residing lawfully in the United States.

    To say that mandates, such as the individual mandate in question, are “wrapped up in our taxes” is intentionally misleading since universal health care done that way, i.e. the proper way, would be the single payer system and not an individual mandate. Furthermore, your attempt to mislead the reader by equating lack of tax payer standing to being mandated by the government through a non-existent CC power to purchase an insurance contract from a for-profit corporation is reprehensible.

    And lest we forget your auto insurance mandate is predicated upon your choice to enter the field of commerce regulated by purchasing a motor vehicle.

    How does a man of your juristic acumen lose all respect for principle that is the very foundation of our national government?

    See Kennedy’s comments on Federalism above.

  60. Correction: I don’t think Blouise would have used such strong language as saying you’re full of crap; but I do believe she disagreed with your post.

  61. Ahh no, I wouldn’t ever say such a thing to mespo.

    And even though you didn’t mention it, the subject matter does rather bore me but, it is, never the less, an important subject that deserves as much discussion as it is receiving.

    I don’t support the individual mandate but do support the single payer system.

  62. Bob,Esq:

    I believe affordable health care is both a economic necessity (like unemployment insurance) and a public good (like national defense). Since we need both and no one wants to pay for it, it is precisely the type of cost to be borne by mandate or tax. Otherwise, we get all manner of flag wrapping nonsense like you’re spouting about infringing our freedoms. The Founders had no trepidation with a federal government providing for the “general welfare.” In fact, it’s one of the “Big Six” functions of the Preamble and Article I, Sec. 8. And while men like Jefferson argued that it applied only to taxation in regards to interstate commerce and national defense, it was Hamilton who argued for a broad scope of the clause that clearly would have included the power to provide for mandated health care by tax or mandate.* That is the interpretation that prevailed among such notable Founders as Washington and Adams in their Administrations. Hard to imagine that they too, ” lo[st] all respect for principle that is the very foundation of our national government.” Hell Washington required every able-bodied man to buy a gun (Militia Act) and he and Adams,<i. inter alia, invented the foundational “principle” you cite.

    Also, you can trifle all you want about voluntarily entering the stream of commerce with auto insurance, but that is an illusion. For most non-urban dwellers a vehicle a necessity — about as voluntary as your shoes.

    The interstate commerce approach belies the simple fact is that we fund all manner of mandates now and we pay both public, semi-public, and private sources to do the work whether it’s in interstate commerce or not. Thinking the US Army and civilian defense contractors, Bob, in the classic sense of national defense? But how about the price of first class mail with the USPS for intra-state mail? Anyone contact you about the rate hike? Think minimum wage legislation for purely intrastate businesses. Try arguing you’re protected by the intra-state nature of your trade by offering $1.20 an hour.

    There are simply too many counter-examples to your argument and it doesn’t comport with the very real interdependency of individuals in a modern state. You may wish we all were living on the family farm and having ol’ Doc Johnson come by once a year on a fee for service basis, but that is not reality in this age of Medicaid, Medicare, and individual health policies with our premium costs tied to the health of our fellow citizens.

    No less a mind than Benjamin Cardozo understood that restricting the General Welfare Clause was neither prudent nor what the Founders practiced though many seemed to suggest it. In Helvering v. Davis, 301 U.S. 619 (1937), he said:

    “Congress may spend money in aid of the ‘general welfare’…There have been great statesmen in our history who have stood for other views…The line must still be drawn between one welfare and another, between particular and general. Where this shall be placed cannot be known through a formula in advance of the event…The discretion belongs to Congress, unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment. This is now familiar law.”
    “Congress did not improvise a judgment when it found that the award of old age benefits would be conducive to the general welfare. The President’s Committee on Economic Security made an investigation and report, aided by a research staff of Government officers and employees, and by an Advisory Council and seven other advisory groups. Extensive hearings followed before the House Committee on Ways and Means, and the Senate Committee on Finance. A great mass of evidence was brought together supporting the policy which finds expression in the act…The evidence is impressive that, among industrial workers, the younger men and women are preferred over the older. In times of retrenchment, the older are commonly the first to go, and even if retained, their wages are likely to be lowered. The plight of men and women at so low an age as 40 is hard, almost hopeless, when they are driven to seek for reemployment.”
    “The problem is plainly national in area and dimensions. Moreover, laws of the separate states cannot deal with it effectively. Congress, at least, had a basis for that belief. States and local governments are often lacking in the resources that are necessary to finance an adequate program of security for the aged. This is brought out with a wealth of illustration in recent studies of the problem. Apart from the failure of resources, states and local governments are at times reluctant to increase so heavily the burden of taxation to be borne by their residents for fear of placing themselves in a position of economic disadvantage as compared with neighbors or competitors. We have seen this in our study of the problem of unemployment compensation…A system of old age pensions has special dangers of its own if put in force in one state and rejected in another. The existence of such a system is a bait to the needy and dependent elsewhere, encouraging them to migrate and seek a haven of repose. Only a power that is national can serve the interests of all.”

    You’re a purist Bob and the only sin in that approach is not realizing it and condemning those who aren’t. I’m a pragmatist. If we need it then we need it, and that should carry the day. Congress has the discretion and exercised it here.

    The Constitution is neither a suicide pact, nor some dead hand from the past holding us back. It is a living document which means it adapts to the circumstances of its existence in the context of the needs of the generation it serves. Jefferson said it best:

    “We may consider each generation as a distinct nation, with a right, by the will of its majority, to bind themselves, but none to bind the succeeding generation, more than the inhabitants of another country.”

    ~Thomas Jefferson to John Wayles Eppes, 1813.

    ______________

    * Hamilton said “The terms “general Welfare” were doubtless intended to signify more than was expressed or imported in those which Preceded; otherwise numerous exigencies incident to the affairs of a Nation would have been left without a provision. The phrase is as comprehensive as any that could have been used; because it was not fit that the constitutional authority of the Union, to appropriate its revenues shou’d have been restricted within narrower limits than the “General Welfare” and because this necessarily embraces a vast variety of particulars, which are susceptible neither of specification nor of definition.

    It is therefore of necessity left to the discretion of the National Legislature, to pronounce, upon the objects, which concern the general Welfare, and for which under that description, an appropriation of money is requisite and proper.” (Report on Manufactures 5 Dec. 1791)

  63. You know, Bob, mespo has probably pulled an ear out of his pocket and is talking to it right now. I’m going to go hide out in a trailer.

  64. Blouise:

    Don’t worry Blouise, “it takes a lot to make me cry.”

    (Kudos and RIP, Christopher Hitchens)

  65. Mespo,

    When was dueling made a criminal offense in your state….. I know DC banned it after Hamilton didn’t fare so well….

  66. Still on the books, too. It was in response to famous duel among the sons of two influential families in Winchester, I think.

    § 18.2-416. Punishment for using abusive language to another.

    If any person shall, in the presence or hearing of another, curse or abuse such other person, or use any violent abusive language to such person concerning himself or any of his relations, or otherwise use such language, under circumstances reasonably calculated to provoke a breach of the peace, he shall be guilty of a Class 3 misdemeanor.

    (Code 1950, § 18.1-255; 1960, c. 358; 1975, cc. 14, 15.)

  67. But mespo, it’s a band aide that neither cleans nor sutures the wound. And to liken it to auto insurance just doesn’t clear any of it up for me. For instance, here in Ohio collision is required but there is no such thing as no fault like there is in say, California. It’s a mess, nationally, even when auto is used as the example.

    Why apply a band aid, twisting and turning the various interpretations of the Constitution to fit a half-assed solution when one could be twisting and turning a little less to apply a solution already well in place like single payer medicare?

    Because it’s too hard?

  68. mespo,

    As you know, I have no issue with the expansive interpretation of the general welfare, but my objection to the mandate being an overreach is that the general welfare doesn’t include insurance company private profits. I also don’t think such profits are neccessary or proper. I agree health care insurance for all is an important priority under the ruberic of promoting the general welfare. The mandate is simply the wrong way to do it, especially given how the piecemeal state regulation of insurance is already maximum gamed to boost insurance company profits. I’d be better with it if the mandate came with a Federal controls of the insurance industry that included a profit cap because without one, denial of coverage is still going to be used to boost the bottom line whenever they can justify it. That’s not in the interest of promoting the general welfare either.

  69. Mespo,

    Has that law been used in a while? The reason I ask is it seems to violate the equal protection clause….. But then again…. With a law as broad as that it seems that it could cover the telecommunications act as well…..

  70. Gene,

    STOP DOING THAT! You can not keep saying what I’m saying when I’m saying it but saying it much better than I’m saying it at exactly the same time I am saying it.

    (sigh) mespo … and what Gene said.

  71. Blouise:

    You call it a band aid, I call it an increment.

    Gene H:

    I have concerns about the prudence of the plan, too, but no qualms about its constitutionality. I don’t like giving the insurers a windfall but usually with windfalls comes regulations. Bob, Esq is taking an all-or-nothing approach which seems a bit extreme to me. His thin-skin is perturbing. It’s not an easy call and is a topic as old as he Republic itself as I tried to demonstrate. There is no east answer here.

  72. Blouise, Theere were never 60 votes in the Senate for single payer. Already went through this on another thread. There are even less now. Not one republican is for single payer so it is this or nothing.

  73. “There’s a flip side of this that you see on the left, and that many people thought they saw in my column: If the individual mandate is overturned, it will essentially wipe out the only plausible path to a sustainable private health-care system and single payer will be the eventual result. So: Yippee?

    Not in my view. I think that path would look something like this: With health-care reform either repealed or overturned, both Democrats and Republicans shy away from proposing any big changes to the health-care system for the next decade or so. But with continued increases in the cost of health insurance and a steady erosion in employer-based coverage, Democrats begin dipping their toes in the water with a strategy based around incremental expansions of Medicare, Medicaid, and the Children’s Health Insurance Program. They move these policies through budget reconciliation, where they can be passed with 51 votes in the Senate, and, over time, this leads to more and more Americans being covered through public insurance. Eventually, we end up with something close to a single-payer system, as a majority of Americans — and particularly a majority of Americans who have significant health risks — are covered by the government.

    The key word there is “eventually.” This is a long, ugly process that ensures a very large uninsured population for decades. It’s also a process that ensures there won’t be a coordinated effort to control costs for sometime. Yes, it might end up with a system that’s tilted further towards public insurance than what’s envisioned in the Affordable Care Act. But it’s not at all obvious it would be a good system, and, in the decades between here and there, there will be a lot of unnecessary suffering and deaths among the uninsured. That’s the real cost of losing this opportunity to insure 30 million people. And it’s a cost that too often gets swept under the rug in Washington’s handicapping of the political fallout.” Ezra Klein Washington Post.

  74. Mark,

    “it is precisely the type of cost to be borne by mandate or tax.”

    Problem #1: Equating an individual mandate with a general tax.

    They are not equivalent in any sense. Raising revenue through a general tax and spending it for the general welfare of the nation is NOTthe same as appealing to a non-existent power in the constitution so as to mandate the citizen act in a certain way or be deemed an outlaw simply by virtue of doing nothing.

    Not that it’s relevant to my argument, but you should know that I’m not only in favor of a single payer health care reform but I also consider this country to be morally reprehensible for not already having one in place like most of the other nations of the earth. Accordingly, you may keep your conservative flag-sucking allegations to yourself.

    Not one of your counter-examples addresses the problem of an individual mandate since (nearly) all of them deal with simple taxing and spending for the general welfare. And what does Helvering say if not that the justifications for Social Security are equally applicable to a single payer (Medicare for all) system of health care?

    In your zeal to defend the Health Care law you’re making my case for a single payer system.

    Mark: “You’re a purist Bob and the only sin in that approach is not realizing it and condemning those who aren’t. I’m a pragmatist. If we need it then we need it, and that should carry the day. Congress has the discretion and exercised it here. The Constitution is neither a suicide pact…”

    I’m not the one holding a knife to the throat of the constitution; you are. This is the same nonsense spouted by Scalia after issuing that Stay in Bush V. Gore. How did he put it? The Court had to step in so as to avoid a constitutional crisis; separation of powers and the 12th Amendment (among other laws) notwithstanding?

    Scalia and cadre, the pragmatic five, saw that we needed to decide who would be president, and in their pragmatic discretion exercised a non-existent power to do so for the country. After all, if we needed it, we needed it and thus they carried the day.

    Ain’t that right Mark?

  75. Blouise:

    I spoke to a friend of mine in the insurance business. Five years ago he attended an industry seminar in which he was expressly told that “single payer” was coming and probably in the next ten years, It’s inevitable but the companies get to make their profits first.

  76. SwM,

    I know and I stayed out of it because the increment theory is not at all to my liking because I view it as largely incrementing insurance company profits with minimally incrementing coverage for the General Welfare. (forgive the madeup word)

  77. Mespo,

    Believe it or not…. This same type of law was upheld in Michigan…. Which had more specific language where men could be held criminally responsible for swearing in front of women and minor children….. I kid you not….

  78. P.S.

    Had you said “Bob, given there is no general penal power provided for in the constitution, now do you explain the existence of Federal Criminal laws and such institutions ans the FBI?”

    That would be an appropriate counter example which would lead us through the history of using Federal Tax laws as criminal statutes (e.g. the Harrison Tax Act) leading to the evolution of Fed Criminal laws and agencies.

    And yes, as a purisit, I would prefer a ‘nunc pro tunc’ amendment ratifying it all.

  79. Blouise, It is not ideal but it is better than emergency room care. The emergency room does not provide chemo therapy and the uninsured person is left to die.

  80. Blouise:

    I spoke to a friend of mine in the insurance business. Five years ago he attended an industry seminar in which he was expressly told that “single payer” was coming and probably in the next ten years, It’s inevitable but the companies get to make their profits first.

    —————————————————————————-

    But that is exactly why it is wrong and no amount of discussion regarding the Commerce Clause or the General Welfare changes that.

    It’s been inevitable since the early 90’s and the fact that the insurance companies didn’t prepare themselves sooner is just piss poor business management and I see no reason to coddle a bunch of inept businessmen and women because that is definitely not in the interests of the General Welfare.

  81. Bob, Esq.:

    You can couch it however you care to, but a government mandate is nothing but a tax especially this one enforced by the IRS.* If it makes you feel better, we could go to single payer in which case we’d pay our premium/tax directly to the single payer. Tell me how that has any practical difference? Seems you concede single payer constitutionality though it involves precisely the drain from your pocket that individual mandate does.

    By the way, on Bush v. Gore I absolutely agree the SCOTUS had to step in and avoid a constitutional crisis. They just made the wrong call by halting the recount for purely political reasons.

    _______________

    Government Brief, p. 52:
    ,b>The practical operation of the minimum coverage provision is as a tax law. It is fully integrated into the tax system, will raise substantial revenue, and triggers only tax consequences for non-compliance. See Liberty University, Inc. v. Geithner, No. 10-2347, 201153 WL 3962915, at *16-*22 (4th Cir. Sept. 8, 2011) (Wynn, J., concurring), petition for cert. pending, No. 11-438 (filed Oct. 7, 2011).

    The Court has never held that a revenue-raising provision bearing so many indicia of taxation was beyond Congress’s taxing power, and it should not do so here. The minimum coverage provision amends the Internal Revenue Code to provide that a non-exempted individual who must file a federal income tax return will owe a monetary penalty, in addition to the income tax itself, for any months in which the taxpayer or dependents lack minimum coverage. 26 U.S.C.A. 5000A.

    The amount of the penalty will be calculated as a percentage
    of household income for income tax purposes, subject to
    a floor and a cap. 26 U.S.C.A. 5000A(c). Individuals who
    are not required to file income tax returns for the taxable year are not subject to the penalty. 26 U.S.C.A. 5000A(e)(2). A taxpayer’s responsibility for family members depends on their status as dependents under the Internal Revenue Code, 26 U.S.C.A. 5000A(a) and
    (b)(3), and taxpayers filing a joint tax return are jointly
    liable for the penalty, 26 U.S.C.A. 5000A(b)(3)(B).
    The IRS will assess and collect the penalty in the
    same manner as assessable penalties under the Internal
    Revenue Code. 26 U.S.C.A. 5000A(b)(2) and (g).

  82. Blouise, It is not ideal but it is better than emergency room care. The emergency room does not provide chemo therapy and the uninsured person is left to die.

    —————————————————————
    But it is worse than not ideal. It’s selling millions of people down the tubes in order to compensate a few inept businesses.

  83. Blouise:

    “I see no reason to coddle a bunch of inept businessmen and women because that is definitely not in the interests of the General Welfare.”

    ******************

    Me either, but see old not-so-silent, Cal Coolidge:

    “After all, the chief business of the American people is business.”

  84. Bob, Esq.:

    ““Bob, given there is no general penal power provided for in the constitution, now do you explain the existence of Federal Criminal laws and such institutions ans the FBI?”

    *******************

    But there is general penal power. Article II, Sec. 3 “… he [the President] shall take care that the laws be faithfully executed,”

    How would you expect him to do that in the absence of general penal power? Write letters to the state’s attorneys’ general and ask them to prosecute federal law? Come on, you’re getting way over the top, now.

  85. Blouise, We will just have to disagree. I bet nearly everyone here purchases insurance from these same companies and the rest are on Medicare with a Plan B insurance supplement. I have seen too many people with pre-existing conditions denied coverage. The state of Texas has a high risk pool but the price is $600 a month. Obamacare will lower the cost for high risk substantially.

  86. Me either, but see old not-so-silent, Cal Coolidge:

    “After all, the chief business of the American people is business.”

    —————————————————————————

    But don’t you see, mespo. That has always been our biggest weakness, our Achilles Heel if you will. From the 3/5’s Rule compromise on forward. If business were our strength we wouldn’t have to spend all our time and money propping it up. It would be able to stand on its own.

  87. Mark,

    Whereas there exists a power to levy a general tax, there does not exist a power to mandate any action predicated on mere existence as a citizen. That’s called unlimited power. Gene also makes a cogent point per the obvious problems with forcing citizens to make payments directly to for-profit corporations. A general tax would be borne in the same equitable manner made possible by the tax code; whereas the same would not be true for citizens forced to pay differing individual bills.

    “By the way, on Bush v. Gore I absolutely agree the SCOTUS had to step in and avoid a constitutional crisis. They just made the wrong call by halting the recount for purely political reasons.”

    So you agree with Scalia; that the Court could exercise a power beyond right which no one had a right to simply in the name of pragmatism? You’re just upset because the result didn’t turn out your way?

    Call me silly, but I was banking on the Court’s fealty to the constitution, i.e the separation of powers and that lil ole 12th amendment.

    Who needs rule of law when you can have a pragmatic king; right?

  88. “AS usurpation is the exercise of power, which another hath a right to; so tyranny is the exercise of power beyond right, which no body can have a right to. And this is making use of the power any one has in his hands, not for the good of those who are under it, but for his own private separate advantage. When the governor, however intitled, makes not the law, but his will, the rule; and his commands and actions are not directed to the preservation of the properties of his people, but the satisfaction of his own ambition, revenge, covetousness, or any other irregular passion.”

    http://www.constitution.org/jl/2ndtr18.htm

  89. SwM,

    I was talking about the mandate which would only affect approx. 3% of the population. There is auto-enroll/opt-out and several other alternatives to the mandate.

  90. Blouise:

    I do see it but you’re operating in the normative world. I’m operating in this one that was shaped by all those sentiments you find disgusting. We move at a snail’s pace to our well-being. That’s the observation from de Tocqueville to Jefferson:

    “The ground of liberty is to be gained by inches, [and] we must be contented to secure what we can get from time to time and eternally press forward for what is yet to get. It takes time to persuade men to do even what is for their own good.”
    –Thomas Jefferson to Charles Clay, 1790.

  91. Mark,

    There is no general penal power; just like there is no Easter Bunny. Thus the reason it all evolved out of Tax Acts in the early 1900’s.

    The History of the Non-Medical Use of Drugs in the United States

    by Charles Whitebread, Professor of Law, USC Law School

    A Speech to the California Judges Association 1995 annual conference

    The Harrison Act

    The very first criminal law at the Federal level in this country to criminalize the non-medical use of drugs came in 1914. It was called the Harrison Act and there are only three things about the Harrison Act that we need to focus on today.

    Number one is the date. Did you hear the date, 1914? Some of you may have come this morning thinking that we have used the criminal law to deal with the non-medical use of drugs since the beginning of the Republic or something. That is not true. The entire experiment of using the criminal sanction to deal with the non-medical use of drugs really began in this country in 1914 with the Harrison Act.

    The second interesting thing about the Harrison Act was the drugs to which it applied, because it applied to almost none of the drugs we would be concerned about today. The Harrison Act applied to opium, morphine and its various derivatives, and the derivatives of the coca leaf like cocaine. No mention anywhere there of amphetamines, barbiturates, marijuana, hashish, hallucinogenic drugs of any kind. The Harrison Act applied only to opium, morphine and its various derivatives and derivatives of the coca leaf like cocaine.

    The third and most interesting thing for you all as judges about the Harrison Act was its structure, because the structure of this law was very peculiar and became the model for every single piece of Federal legislation from 1914 right straight through 1969. And what was that model?

    It was called the Harrison Tax Act. You know, the drafters of the Harrison Act said very clearly on the floor of Congress what it was they wanted to achieve. They had two goals. They wanted to regulate the medical use of these drugs and they wanted to criminalize the non-medical use of these drugs. They had one problem. Look at the date — 1914. 1914 was probably the high water mark of the constitutional doctrine we today call “states’ rights” and, therefore, it was widely thought Congress did not have the power, number one, to regulate a particular profession, and number two, that Congress did not have the power to pass what was, and is still known, as a general criminal law. That’s why there were so few Federal Crimes until very recently.

    In the face of possible Constitutional opposition to what they wanted to do, the people in Congress who supported the Harrison Act came up with a novel idea. That is, they would masquerade this whole thing as though it were a tax. To show you how it worked, can I use some hypothetical figures to show you how this alleged tax worked?

    There were two taxes. The first (and again, these figures aren’t accurate but they will do to show the idea) tax was paid by doctors. It was a dollar a year and the doctors, in exchange for paying that one dollar tax, got a stamp from the Government that allowed them to prescribe these drugs for their patients so long as they followed the regulations in the statute. Do you see that by the payment of that one dollar tax, we have the doctors regulated? The doctors have to follow the regulations in the statute.

    And there was a second tax. (and again, these are hypothetical figures but they will show you how it worked.) was a tax of a thousand dollars of every single non-medical exchange of every one of these drugs. Well, since nobody was going to pay a thousand dollars in tax to exchange something which, in 1914, even in large quantities was worth about five dollars, the second tax wasn’t a tax either, it was a criminal prohibition. Now just to be sure you guys understand this, and I am sure you do, but just to make sure, let’s say that in 1915 somebody was found, let’s say, in possession of an ounce of cocaine out here on the street. What would be the Federal crime? Not possession of cocaine, or possession of a controlled substance. What was the crime? Tax evasion.

    And do you see what a wicked web that is going to be? As a quick preview, where then are we going to put the law enforcement arm for the criminalization of drugs for over forty years — in what department? The Treasury Department. Why, we are just out there collecting taxes and I will show you how that works in a minute.

    If you understand that taxing scheme then you understand why the national marijuana prohibition of 1937 was called the Marihuana Tax Act.”

    http://www.druglibrary.org/schaffer/history/whiteb1.htm

  92. Bob, Esq.:

    “There is no general penal power; just like there is no Easter Bunny. Thus the reason it all evolved out of Tax Acts in the early 1900′s.”

    *******************
    So, with respect to the whole penal code of the United States, whence arises the power to punish in cases not prescribed by the Constitution? All admit that the Government may legitimately punish any violation of its laws, and yet this is not among the enumerated powers of Congress. The right to enforce the observance of law by punishing its infraction might be denied with the more plausibility because it is expressly given in some cases.
    Congress is empowered “to provide for the punishment
    of counterfeiting the securities and current coin of the United States,” and “to define and punish piracies and felonies committed on the high seas, and offences against the law of nations.” The several powers of Congress may exist in a very imperfect State, to be sure, but they may exist and be carried into execution, although no punishment should be inflicted, in cases where the right to punish is not expressly given.

    Take, for example, the power “to establish post-offices and post-roads.” This power is executed by the single act of making the establishment. But from this has been inferred the power and duty of carrying the mail along the post road from one post office to another. And from this implied power has again been inferred the right to punish those who steal letters from the post office, or rob the mail. It may be said with some plausibility that the right to carry the mail, and to punish those who rob it, is not indispensably necessary to the establishment of a post office and post road. This right is indeed essential to the beneficial exercise of the power, but not indispensably necessary to its existence. So, of the punishment of the crimes of stealing or falsifying a record or process of a Court of the United States, or of perjury in such Court. To punish these offences is certainly conducive to the due administration of justice. But Courts may exist, and may decide the causes brought before them, though such crimes escape punishment.

    The baneful influence of this narrow construction on all the operations of the Government, and the absolute impracticability of maintaining it without rendering the Government incompetent to its great objects, might be illustrated by numerous examples drawn from the Constitution and from our laws. The good sense of the public has pronounced without hesitation that the power of punishment appertains to sovereignty, and may be exercised, whenever the sovereign has a right to act, as incidental to his Constitutional powers. It is a means for carrying into execution all sovereign powers, and may be used although not indispensably necessary. It is a right incidental to the power, and conducive to its beneficial exercise.

    McCulloch v. Maryland, 17 U.S. 316, 416-18 (1819)(Marshall, CJ)

    Looks like Chief Justice Marshall beat you to it.

  93. Bob, Esq.:

    “Goodnight Austin Texas; wherever you are!”

    I’m listening to stereo oldies and looking for kittehs.

  94. All that Marshall said was that the express powers of the constitution necessitate the existence of implied powers for implementing them.

    Accordingly, this:

    Congress is empowered “to provide for the punishment of counterfeiting the securities and current coin of the United States,” and “to define and punish piracies and felonies committed on the high seas, and offences against the law of nations.”

    does not give rise to a general power to promulgate and prosecute criminal laws as such power was reserved by the states.

  95. Nal,

    Since I don’t picture you as a Frank Zappa fan, I’ll venture a guess that you actually live in Austin Texas. And from what I hear about the music scene down there is really just a fantastic state of mind. ; )

  96. Bob,

    Here’s a link to Austin City Limits (PBS), the longest-running music series in American television history. I have been watching for years. If you have the Fusion PBS channel, you can DVR it.

  97. Bob,

    As a person that lived in Austin during the late 70s to mid 80s the music scene was and is every thing people say about it…… It was the best of times and some I don’t remember times…… The selections of foods is as splendid as the choices of music…… And most of it is reasonably priced….you should go……

  98. Bob,Esq:

    “… does not give rise to a general power to promulgate and prosecute criminal laws as such power was reserved by the states.”

    ***************

    No, Marshall says you’re wrong and that the power to prosecute for criminal offenses is implicit in the power to govern under the “necessary and proper” clause of the Constitution. That is the holding in the seminal case of McCulloch v. Maryland as I cited. He specifically rejected your argument that because the states ratified the Constitution they are sovereign* and also rejected your 10th Amendment claim as well.# He said the people ratified the Constitution and that they (and not their political subdivisions) are sovereign.

    That was in 1819 when many of the Founders were all alive to criticize it if they saw fit. They didn’t.

    You can argue with the foundation of the opinon but not the fact of its holdings.
    ____________________

    *”The government proceeds directly from the people; is “ordained and established” in the name of the people, and is declared to be ordained,
    in order to form a more perfect union, establish justice, insure domestic tranquillity, and secure the blessings of liberty to themselves and to their posterity.”

    “The assent of the States in their sovereign capacity is implied in calling a convention, and thus submitting that instrument to the people. But the people were at perfect liberty to accept or reject it, and their act was final. It required not the affirmance, and could not be negatived, by the State Governments. The Constitution, when thus adopted, was of complete obligation, and bound the State sovereignties.” 17 US at 402

    #”Even the 10th Amendment, which was framed for the purpose of quieting the excessive jealousies which had been excited, omits the word “expressly,” and declares only that the powers “not delegated to the United States, nor prohibited to the States, are reserved to the States or to the people,” thus leaving the question whether the particular power which may become the subject of contest has been delegated to the one Government, or prohibited to the other, to depend on a fair construction of the whole instrument. The men who drew and adopted this amendment had experienced the embarrassments resulting from the insertion of this word in the Articles of Confederation, and probably omitted it to avoid those embarrassments. A Constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American Constitution is not only to be inferred from the nature of the instrument, but from the language. Why else were some of the limitations found in the 9th section of the 1st article introduced? It is also in some degree warranted by their having omitted to use any restrictive term which might prevent its receiving a fair and just interpretation. In considering this question, then, we must never forget that it is a Constitution we are expounding.” 17 US at 406-7

  99. Bob, I go down every two or three months and am looking at homes there so if you want restaurant recommendations, I will send them to Blouise. Go before mid June though. I recommend a small old hotel called the Mansion at Judges Hill. It is convenient to campus and downtown.

  100. SwM,

    Austin is the only place in Texas I want to go. I did the Mission Walk in San Antonio one day and really liked it but otherwise … San Antonia, not so much.

  101. Blouise, It is the only place worth visiting. If you ever want to visit, I will certainly meet you.. I agree with you about San Antonio. DFW is the worst. I even prefer Houston. The only place i would retire to in Texas would be Austin and the summers are too hot but you can travel in the summer.

  102. Mark,

    So you’re claiming that McCulloch overruled the basic precept of Constitution, i.e. that the federal government is one of enumerated powers and does not possess a general police power?

    Didn’t the McCulloch court say that the enumeration of powers in the constitution limited the number of ends that the government could pursue and advised that it would not add “great substantive and independent powers” to that list? 17 U.S.316 @ 411

    Part and parcel to that whole necessary and proper to the effectuation of an enumerated power thingy?

    Speaking of the implied powers necessary and proper to the effectuation of an enumerated power, care to tell us what enumerated power gave rise to Federal Criminal laws? After all, if they didn’t evolve with a dubious pedigree out of Tax Acts, I’m sure you can clear this up for us.

    And per your Tenth Amendment remark, aren’t you looking over the fact that the Court relied heavily on same from the Civil War to 1937; guarding against the expansion of Federal power? Or are we to ignore that as well?

    Honestly Mark, do you really think your zeal for unlimited communist like power under Article I is any different from a fascist’s zeal for unlimited presidential power under Article II?

  103. Blouise, AY, SwM,

    I’ve only been to Texas once; Dallas for a Giants Cowboys game in 1991. Aside from finding the place incredibly flat, I had a wonderful time. As the song says “I went down to Deep Elum to have a little fun” and had a blast. Had an incredible dinner at some place called the Butcher Shop where you pick out your steak in a butcher counter in the lobby of the restaurant and they let you cook it at one of two open BBQ pits in the fine dining area. First time I had ‘Texas Toast” too.

    I’ve seen Austin City Limits off and on for the past 20 or so years and always wanted to visit that city if I ever got down there again. I’ve always anticipated it would place a close third to my second favorite American city — New Orleans. Number one being reserved for right here at home — New York.

    Like I said, I’ve only heard great things about Austin. I think the first thing I’d do would be to visit the statute they have in tribute to Stevie Ray Vaughn.

  104. Bob, Deep Ellum is undergoing a revitalization now but it is not Austin by any means. The statue of Stevie is on Town Lake. Why New Orleans?

  105. SwM,

    New Orleans is so unique and so genuine; it’s a culture unto itself. If you’ve never been there, you can get a taste of it in the HBO series “Treme.”

    Sitting on a friend’s front porch at dusk getting a buzz on while other people play “In The Pines” on their various instruments…walking to either Jazz Fest or down town to a Gin & Spin like Check Point Charlies…the cafe’s, the food, the atmosphere… it’s all so …genuine.

    It’s the antithesis to Las Vegas; truly an American treasure.

  106. I went to New orleans last year, Bob. Had not been since Katrina. Going again Memorial Day weekend. My daughter took a job there last summer and she is doing a split summer between there and DC this year. I was surprised how much she liked it. I watched Treme but not every episode. Frenchman’s seems to be a good place to hear music now. My daughter tells me all ages go there kind of like they do in Austin. I agree about Las Vegas and have always refused to go to Las Vegas.

  107. Bob,Esq;

    “Honestly Mark, do you really think your zeal for unlimited communist like power under Article I is any different from a fascist’s zeal for unlimited presidential power under Article II?”

    ******************

    I’m simply relating the law to you since you seem to think it is something new. You can characterize it as you see fit. The simple fact is that Jefferson’s narrow view of the “general welfare” clause is not the law of the land and Hamilton’s almost limitless and expansive view is most certainly the law of the land.

    We can haggle over McCulloch if you like on the side issue of the implicit power of the sovereign to enforce its democratically created policies by coercion, but the state of the law on that topic is really not up for debate. McCulloch, in my view, is just as important as Marbury v. Madison (probably more) but doesn’t get the same press. It’s a view shared by many. You, of course, make the William Brockenbrough/Spencer Roane counter-arguments on the limits of federal power but that debate has ended long ago between those antagonists and the law has conferred it’s blessing on Marshall’s analysis.

    I’m quite content to let the readers decide which of our arguments is best grounded on existing jurisprudence, but I’ll not spend an endless stream of rebuttals on what is a rather obvious (and settled) point of law.

  108. Bob and SwM (and Gene if he’s lurking),

    I was in New Orleans the summer before Katrina. I wanted to buy a small condo in the French Quarter but Tex refused to spend money on property that was below sea level and surrounded by water. Smart man as the following year was Katrina. Haven’t been back since.

    As to the people and the culture, yes, a real treasure and unique to American culture. No accents because it’s a port for immigration.

    I also like NYC. Spent a “season” there working in How to Succeed. Lived in the Village when the Village was real.

    Bob, I see the Deadhead lurking … ;)

  109. Bob,

    Austin is the gateway to many and various culturally diverse areas….. Kerrville is a great place…… Wanna get artsy fartsy…. Listen to music….. Drink good beer and get a contact high….. That’s were you need to go…..

    Want the feel of new Orleans with out the other stuff, great music,food libations and the prettiest women you’ll ever see…. That’s austin….6th/old pecan street….. Had a few good times there…. Stay at the Driscoll…… They will take real good care of you…..

    I saw SRV about 11 times….. 2 of them stand out….. The other 9….. Well that was Austin….. A guaranteed contact high….. Or not…… Your choice , just stay up wind….. Went to one or two willie Nelson jam sessions…. That’s all ill say there….. Saw john prine too…… JD Souther opened for him…. That’s about all I can say about it that……

    You have an area east of 35 that has good food and the blues….

    You have north austin not like the rest of the city…. And terrytown…. A wonderful area…..

    You’ll only have a bad day time in Austin if you want to….

    As many have said…. You can’t get much better…. SA I am going in June
    … It’s unlike Austin…..but what can you expect from a military grown city….. Riverwalk is an example of FDRs CCC…… At its finest…..

  110. mespo, your really have far more patience then deserved for someone who seems to begin or end every argument with some form of calling others a communist or fascist or both as their chief line of reasoning.

  111. js, i will have to reserve comment on just how much patience it takes in your case. however, if you think what you have been doing is putting out “crap for a long time” (even if meant only rhetorically and for purposes of quipping), I find nothing in that to be proud of. i can assure you (as if you didn’t already know), there is more then enough “crap” out there and far to little rational, informed, and fact based efforts toward solving problems rather then winning arguments.

    The nation has so far managed to survive a revolution, slavery, civil war, depression, dust bowls, a few world wars, Vietnam, the cold war, genocide, impeachment, resignation, judge Thomas, Ronald Regan, the NRA, an obesity pandemic driven by drive through edible cardboard, and 8 years of G.W.Bush. Somehow, I think freedom and individual liberty, or a reasonable facsimile of it given the low level of its actual reality in American History will manage to survive people actually having to contribute to the cost of services/benefits they consume so we all might live just a little better. Freedom as we know it will not come to an end, the sky will not fall, and America will manage to remain just as mindlessly unhealthy and narcissistic as it has been for so long.

    Oh, and by the way, behind every liberal is not a communist leaning fascist any more then behind every rightwing religious nut case is there a republican (even if it sure seems that way). And there’s some crap for you.

  112. junctiuonshamus:

    “he’s been putting up with my crap for a long time.”

    ************************

    Come on junction, who could criticize a man who reminded us of “The Zephyr Window” featuring Lord Frothybottom, and has a schnauzer named Lucy. It’s pleasure.

  113. Hello all,

    I have been reading the posts regrarding the ACA case before the Scotus. On it’s own the Mandate is undoubtedly ultra vires. The references to McCulloch are interesting but they do not seem to do anything but provide a tortured logic to justify its existence

  114. shano,

    Where ever you are … just got this from a friend whose husband brought it home from work:

    99% SPRING TRAINING: Volunteers may attend a 99% Spring Training that will take place at the Union Hall on Day, Date, Time. Training will be in non-violent direct action against social injustices. Everyone is welcome to join.”

    Too cool. A bunch of us have signed up. We don’t belong to the Union but we called the Union Hall just to make sure it was okay and the secretary told us it’s a come one, come all and that they’re getting an over-whelming response from members and non-members alike.

  115. In particular a number of references are made to Hamilton, suggesting it was his concepts we should follow. I find that troubling in that it is the people, speaking through their highest political capacity who ratified the Constitution. As anyone who has studied Constitutional history, i have a high reagrd for Hamilton, but his concepts were rejected at the Convention, his state pulled the delegates and he left for quite a feew weeks complaining to Washington that even more centralized power was needed to make the Copnstitution effective. Primary documents reveal he, despite his own beliefs, worked diligently for ratification. He did an outstanding job at the New York Ratifying Convention, and the Federal Papers testify for themselves. In both these efforts he worked to assuage the fears that the new Government would increase it’s own powers. Under that auspices ratification occured. He, as Secretary of the Treasury, pursued a well thought out financial path, but by necessity he changed course. He urged ratification under one set of principles, but applied the adminstration i=under different principles.

  116. bhoyo,

    That’s what I think but mespo and rafflaw both insist I’m mistaken though Bob insists I’m not mistaken. That’s the beauty of a legal blog.

  117. I am very curious about the implication that the findings of Helvering, that is the Story/Hamilton concept of the general welfare cluase shall prevail over the Madison concept as expressed in federalist 41. I have seen any number of quotes from Story’s Commentaries, hence I read it. The historical facts are not accurate, and although it was a standard for years at Academia it seems more a tribute to Marshall than an accurate history of the Founding. In Helvering they never explained why they chose Story/Hamilton’s defintion of the General Welfare, why, was it that it fit the objective of the decision, and one was one the stitches in time to save nine ??

  118. I am not one who believes liberals are all communists, that us hyperbulia of course. i have always thought the amazing change of formula in governanace at the Founding changed the world. The old formula was power would allow liberty, after Constitution was advanced the nnew formula was liberty shall grant power. Men have always aspired to liberty and justice, but how to do it baffled most attempts. The written Constitution granted powers, and organized the architectonics to keep sufficient energy in government, but keep it self in check. Thought became action and it worked. Through my friends ate the US Supreme Court Historical Society I have discovered we dont teach Constitutionl History, Sandra Day O’Connor is running around asking fro civics to be taught, Gordon Woods laments the change to cultural history over the teaching of the Founding era.

  119. I spend as much time as possible stdying Constitutional and Administrative Law, my studies in the Founding Era are almost exclusively in primary documents. I have concluded the Founders. especilly Madison, studied the failures of popular government to that time, and in the very structure of the Constitution was designed to assure liberty and self governance would prosper if the symmetry and balance of the Constitution were observed. Deviod of that study, why they did what they did, what Counsel can we avail ourselves of today ? Lincoln urged at Cooper Union that we should not follow the fathers in everything, that would keep us away from the benefits of experince, but we should never proceed where we know they understood the question better than we. Do we know better thsn they, if we dont study and reflect on what they knew ? today we pursue a type of normative social justice, which is proper, but Madison warned, ” Justice is the end of government. It is the end of civil society. I thas ever been and will be pursued until it is obtained or until liberty be lost in the pursuit.

  120. Although Hamilton was rejected at the Convention, it is important to remember that Hamilton argued for the expansive interpretation of general welfare after the Constitution had been ratified and that although it has had its ups and downs, the Hamiltonian view does dominate the case law and has since his days in public service. The Hamiltonian view has been especially prominent since Helvering v. Davis, 301 U.S. 619 (1937) conferred upon Congress the plenary power to impose taxes and to spend money for the general welfare subject almost entirely at its own discretion. I see the implications for Federalism and agree they are important, but I don’t think the mandate decision is ultimately going to hinge on the Federalism issue. I see it as a question of what is actually in the best interests of citizens and to my mind there is no justification for propping up health care insurance profits given their miserable track record to date of sacrificing lives for profits.

  121. As a newcomer I have used a lot of space, mea culpa. One last question. IN reviewing the Founding and comparing the current status of Adminstrative Law in America, the agencies, their structure, and impacts, the poltical distnce they have from the people. And recognizing the amazing new powers the ACA, manadate and all. Why arent liberals alarmed ?Iam not advocating dirty water, or air, I am wondering why comprehensive reform of a possible if not probable 4th and uncnistitutional branch doesnt alarm every liberal in America ??

  122. Some liberals are alarmed by the ACA, bhoyo, and around here have said as much from the start. True, we seem to be the minority with most thinking its a step in the right direction or better than nothing, but some of us think its a really bad idea that invites Constitutional challenge on its face when other solutions wouldn’t.

  123. I am alarmed which is what I have been trying to impart. I know Bob is alarmed because more liberals appear to be not alarmed.

    Gene,

    I hope bhoyo comes by again

  124. bhoyo:

    “I see it as a question of what is actually in the best interests of citizens and to my mind there is no justification for propping up health care insurance profits given their miserable track record to date of sacrificing lives for profits.”

    ******************

    In McCulloch , the Maryland Bank at issue was a private institution that made profits. While the decision naturally affected those profits in a positive way, that fact wasn’t the basis for the decision. Marshall understood, as should we all, what a failure the Articles of Confederation had been and was determined not to have a neutered federal government ever again. As you say, the Founders studied failed systems of government — including the one they initially created.

    Madison, Marshall, and Hamilton found out the great truth of governing which is that theory is much cleaner than practice. Thus Madison reversed his strong belief against a standing army and created the Navy; Marshall expanded Federal power in light of and response to the Whiskey Rebellion; and Hamilton came to understand that a nation functions as much on its finances as its reliance on ordered liberty.

    All great men who learned from experience tempered with principle.

  125. bhoyo:

    “And recognizing the amazing new powers the ACA, manadate and all. Why arent liberals alarmed ?”

    *******************

    I’m not alarmed because we can unmake anything we choose to make. If we limit ourselves only to things we know for certain will have no unintended consequences, we have quite a small box indeed. This is no attack on liberty but on the very real health care cost crisis that could bankrupt the nation. We can gripe about the insurers but they are here for the duration. Regulation won’t work in this polarized environment so what other solution do we have? Do nothing as the Republicans suggest, or try this path, flawed as it may be, to reach a solution. Those are the only choices on the board.

  126. I agree, mespo, and I just wonder if those that are opposed to giving the working poor with pre-exisitng conditions healthcare insurance because insurance is so evil are willing to protest the insurance companies and forego insurance themselves. I don’t care much for insurance companies, myself, but I certainly purchase it and don’t care to deny that ability to others.

  127. “I’m not alarmed because we can unmake anything we choose to make. If we limit ourselves only to things we know for certain will have no unintended consequences, we have quite a small box indeed.”

    Again we come to the crux of “can”, “should” and “will”. mespo, it is not the unintended consequences that bother me, but rather the rewarding of people who have made a lot of money by essentially practicing medicine without a license and sending people to early graves. If their weapon of choice wasn’t paperwork, large parts of the health care insurance industry would be considered prime facie criminal. Propping up their profits to maintain an inefficient systemic parasite that operates for profit is simply offensively venal. First, do no harm. Denying coverage so some executive jackass can meet a quota and get a bonus is inherently harmful.

  128. Gene H:

    Your logic and ethics are impeccable. My point is we have to do what circumstances allow. If we can get some controls on costs, then we can proceed to reign in the most eggergious abusers and the most inefficient. It’s a step-by-step approach that is ethically reprehensible but probably the best we can get with the power of the insurers in Congress.

    It was Roosevelt’s approach. He used the Sherman Anti-Trust Act to accomplish democratizing the economy and busting “bad trusts.” Incrementally, that led to the Clayton Amt-Trust Act and the Robinson-Patman Act.

  129. 1zb1:

    “mespo, your really have far more patience then deserved for someone who seems to begin or end every argument with some form of calling others a communist or fascist or both as their chief line of reasoning.”

    ***************************

    Bob & I are old hands at this little interplay. He calls me names and I cite him precedent. It’ s really a healthy relationship. I learn pejorative and he learns my leanings on the law. Symbiotic, don’t you see. :)

  130. Mespo, I certainly get the game of it. On the other hand he doesn’t really care about your leanings (after all its not much different from the HS debating team) and you really have nothing needs learning about being pejorative other then there’s a lot of it around and people use it when thats all they got. As such it is not really symbiotic. More like the giant sucking sound that accompanies a waste of time. Then again, whatever flips your switch. For what its worth you won.

  131. Good evening,

    I am delighted at the level of the responses here, yet on a Constitutionsl basis the question of whether or not the mandate is ultra vires seems unanswered. The participants here are more aware of the historical background, that is the Madison/Hamilton debate than in many places I have visited. The quodlibet produced regarding the ACA, still seems to center around political leanings of the poster, which although anticipated, is still troubling. Pragmatism aside for a second, the whole design of our written constitution begins with ‘We the People of the United States’, and suggests the Constituion is designed to be unifying, not invidious. I am not unaare of the consequences of elections, but have laong lamented the inability we have in reaching a basic agreement as to the extent of national powers.

  132. Mark: “Hamilton’s almost limitless and expansive view is most certainly the law of the land.”

    Mark,

    McCulloch is not a license for unlimited power; it merely states that there exists implied powers ‘necessary and proper’ to the effectuation of an enumerated power. Or, the enumerated powers NECESSITATE the existence of implied powers to carry them out.

    The test for validity today is whether congress might reasonably find that the act relates to one of the federal powers. U.S. v. Ardoin, 19 F.3d 177, 188 n.37 (5th Cir 1994) Cert denied 115 S.Ct. 327 (1994)

    The individual mandate is ultra vires because it is not reasonably related to any enumerated power.

    Thus this exchange during oral arguments:

    “At one point, Justice Stephen Breyer (who may well have the broadest conception of the Commerce Clause power of anyone alive), asserted that “the national bank . . . was created out of nothing, to create other commerce out of nothing.” Paul Clement, representing the 26 states who filed suit against Obamacare, replied, “What, of course, the Court didn’t say [in McCulloch] . . . is . . . we are not just going to have the bank . . . we are going to force the citizenry to put all of their money in the bank.” Clement added, “I think the framers would have identified the difference between those two scenarios, and I don’t think that the great chief justice would have said that forcing people to put their deposits in the Bank of the United States was necessary and proper.”

    The harsh reality, as you’re so fond of referring to, is that Justice Kennedy will most likely hold that the individual mandate decimates the concept of federalism and specifically enumerated powers and it will be struck down.

  133. Is the question as simple as this, we want nationhealthcare so we need to find a rational basis for Constitutional footing ? Sympathy demands a recognition of the problem, everyone agrees there.With medicare and SS in place is this just the logical next step ?

    Madison and Hamilton’s debate is still ongoing. We seem to forget, or maybe the secondary histories have a significant role here, that the policies Hamilton pursued were to the advantage of the wealthy, the bank was mentioned, and the Banks largest advocate in the House was Fisher Ames. Ames also became a director of the firts bank. When Hamilton proposed ‘non discrimination’ of the debt good it be assumed the soldier who had alienated his Pierce’s Note out of necessity benefitted ? Did the assumption of state debts benefit the average agrarian of the 18th Century ?

    Today we face different challenges, in a significantly different environment. The Dems of today can trace their lineage to Madison, who advocated strict construction of Constitutional powers.Mid 20th Century logic concluded we could attain Jeffersonian ( Madison included ) ends with Hamiltonian means. To a large extent social progress owes it success to that change of means and ends. If the trend continues, despite the gains, will we create a totally non responsive national government ? A budget seems out of the question, the debt is at the moment beyond control. Is there a time when we need to say, this far and no further ? Not to be mean spirited nor regressive, but to take time to evaluate comprehensive reform that centers on the dual goal of social justice, and preservation of the liberty I know my liberal friends value.

  134. As a small reminder about Lopez

    1 the channels of interstate commerce,
    2 the instrumentalities of interstate commerce, or persons or things in interstate commerce, and
    3. activities that substantially affect or substantially relate to interstate commerce.

    In particular:

    1.Whether the activity was non-economic as opposed to economic activity;
    2.Jurisdictional element: whether the gun had moved in interstate commerce.
    3.Whether there had been Congressional findings of an economic link between guns and education.
    4.How attenuated the link was between the regulated activity and interstate commerce.

    PS. Actually, the national bank was funded by the taxpayers (in other words we were forced to put money in the bank).

  135. bhoyo:

    “yet on a Constitutionsl basis the question of whether or not the mandate is ultra vires seems unanswered.”

    (…)

    “If the trend continues, despite the gains, will we create a totally non responsive national government ? A budget seems out of the question, the debt is at the moment beyond control. Is there a time when we need to say, this far and no further ? Not to be mean spirited nor regressive, but to take time to evaluate comprehensive reform that centers on the dual goal of social justice, and preservation of the liberty I know my liberal friends value.”

    *****************

    We won’t know that until SCOTUS rules on the issue. In the meantime, we have set up the intellectual poles within which the answer is likely to come. I think the debate about the powers of the federal government is a useful exercise. The answers to those questions are never static and much like a railroad fireman they require our constant tending.

    Your lament about a stagnation of the political process is valid but history tends to show this is most always followed by a bursting forth of progressive legislation designed to cure or ameliorate the degeneration in the body politic that the stagnation wrought. It’s all very cyclical in my view. In 1884 a young Woodrow Wilson wrote about the Congress “which lay foundering in a confusion of warring committees.” Less than twenty-five years later we had a fountainhead of progressive ideas through Congress led by trust-busting Teddy Roosevelt.

    In the 1950s, Congress bottled-up all civil rights legislation requiring the House to modify its Rules. The Senate remained a graveyard for the legislation and Congress was again said to be in deadlock. Twenty years later an outpouring of sentiment led by leaders of the Civil Rights Movement catapulted the legislation in the center ring of American politics and we had the greatest expansion of civil rights for minorities and women in our history.

    Conservatives are always so gloomy. Read some history and cheer up. Things usually do work out.

  136. Bob,Esq:

    “McCulloch is not a license for unlimited power; it merely states that there exists implied powers ‘necessary and proper’ to the effectuation of an enumerated power. Or, the enumerated powers NECESSITATE the existence of implied powers to carry them out.”

    *******************************

    You are certainly right about McCulloch, Marshall was a federalist not a tyrant. Hover, the current view of the “General Welfare Clause” is not found in McCulloch but found in two more recent cases: Helvering v. Davis, 301 U.S. 619 (1937)(which held that Social Security enactments did not violate the 10th Amendment and was a valid exercise of Congressional power under the General Welfare Clause and South Dakota v. Dole, 483 U.S. 203 (1987)(where the Court found constitutional under the General Welfare Clause, Congress’ power to punish states by withholding highway funds for failure to comply with the National Minimum Drinking Age Act,)

    I think Justice Owen Roberts in US v. Butler, 297 US 1 (1936) sets forth the debate about the meaning of the clause and correctly identifies the advocates for each position as well as stating the current school of thought about the clause:

    Since the foundation of the Nation, sharp differences of opinion have persisted as to the true interpretation of the phrase. Madison asserted it amounted to no more than a reference to the other powers enumerated in the subsequent clauses of the same section; that, as the United States is a government of limited and enumerated powers, the grant of power to tax and spend for the general national welfare must be confined to the enumerated legislative fields committed to the Congress. In this view, the phrase is mere tautology, for taxation and appropriation are, or may be, necessary incidents of the exercise of any of the enumerated legislative powers. Hamilton, on the other hand, maintained the clause confers a power separate and distinct from those later enumerated, is not restricted in meaning by the grant of them, and Congress consequently has a substantive power to tax and to appropriate, limited only by the requirement that it shall be exercised to provide for the general welfare of the United States. Each contention has had the support of those whose views are entitled to weight. This court has noticed the question, but has never found it necessary to decide which is the true construction. Mr. Justice Story, in his Commentaries, espouses the Hamiltonian position. We shall not review the writings of public men and commentators or discuss the legislative practice. Study of all these leads us to conclude that the reading advocated by Mr. Justice Story is the correct one.

  137. Hi all,

    I have read a little history, as well as Butler and Helvering. In the history reading, I now rely on primary documents. In regard to the general welfare Clause I can find very litttle to substantiate the claims advanced in either Butler of Helevering, that is within the corpus of extant documents of the Ratifying Conventions. The only references I can find of a pliant or broad reading are from Hamilton and the Federalists members, afer Hamilton made the assertion. As we all are aware Fed 41 denies such a power was designed into the clause. I have found reference to Hamilton and Madison adamantly agreeing the Anti federalist Brutus had to be responded to, they fealt his ideas were sophistry, a major point of Brutus was that the General Welfare Clause would be interpreted as we do now. Apparently Publius thought that was wrong then, but changed half it’s mind later when the Cod Bounties were needed. Although I may be mistaken I thin Madison repeated the denial of power when the Cod Bounties were debated on floor of the House.

  138. bhoyo:

    You are correct that Madison reiterated the denial of power in the Cod Bounties debate:

    Mr. MADISON. It is supposed, by some gentlemen, that Congress have authority not only to grant bounties in the sense here used, merely as a commutation for drawback, but even to grant them under a power by virtue of which they may do any thing which they may think conducive to the general welfare! This, sir, in my mind, raises the important and fundamental question, whether the general terms which have been cited are {428} to be considered as a sort of caption, or general description of the specified powers; and as having no further meaning, and giving no further powers, than what is found in that specification, or as an abstract and indefinite delegation of power extending to all cases whatever — to all such, at least, as will admit the application of money — which is giving as much latitude as any government could well desire.

    I, sir, have always conceived — I believe those who proposed the Constitution conceived — it is still more fully known, and more material to observe, that those who ratified the Constitution conceived — that this is not an indefinite government, deriving its powers from the general terms prefixed to the specified powers — but a limited government, tied down to the specified powers, which explain and define the general terms.

    It is to be recollected that the terms “common defence and general welfare,” as here used, are not novel terms, first introduced into this Constitution. They are terms familiar in their construction, and well known to the people of America. They are repeatedly found in the old Articles of Confederation, where, although they are susceptible of as great a latitude as can be given them by the context here, it was never supposed or pretended that they conveyed any such power as is now assigned to them. On the contrary, it was always considered clear and certain that the old Congress was limited to the enumerated powers, and that the enumeration limited and explained the general terms. I ask the gentlemen themselves, whether it was ever supposed or suspected that the old Congress could give away the money of the states to bounties to encourage agriculture, or for any other purpose they pleased. If such a power had been possessed by that body, it would have been much less impotent, or have borne a very different character from that universally ascribed to it.

    The novel idea now annexed to those terms, and never before entertained by the friends or enemies of the government, will have a further consequence, which cannot have been taken into the view of the gentlemen. Their construction would not only give Congress the complete legislative power I have stated, — it would do more; it would supersede all the restrictions understood at present to lie, in their power with respect to a judiciary. It would put it in the power of Congress to establish courts throughout the United States, with cognizance of suits between citizen and citizen, and in all cases whatsoever.

    This, sir, seems to be demonstrable; for if the clause in question really authorizes Congress to do whatever they think fit, provided it be for the general welfare, of which they are to judge, and money can be applied to it, Congress must have power to create and support a judiciary establishment, with a jurisdiction extending to all cases favorable, in their opinion, to the general welfare, in the same manner as they have power to pass laws, and apply money providing in any other way for the general welfare. I shall be reminded, perhaps, that, according to the terms of the Constitution, the judicial power is to extend to certain cases only, not to all cases. But this circumstance can have no effect in the argument, it being presupposed by the gentlemen, that the specification of certain objects does not limit the import of the general terms. Taking these terms as an abstract and indefinite grant of power, they comprise all the objectsof legislative regulations — as well such as fall under the judiciary article in the Constitution as those falling immediately under the legislative article; and if the partial enumeration of objects in the legislative article does not, as these gentlemen contend, limit the general power, neither will it be limited by the partial enumeration of objects in the judiciary article.

    {429} There are consequences, sir, still more extensive, which, as they follow dearly from the doctrine combated, must either be admitted, or the doctrine must be given up. If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their Own hands; they may a point teachers in every state, county, and parish, and pay them out of their public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may assume the provision for the poor; they may undertake the regulation of all roads other than post-roads; in short, every thing, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress; for every object I have mentioned would admit of the application of money, and might be called, if Congress pleased, provisions for the general welfare.

    The language held in various discussions of this house is a proof that the doctrine in question was never entertained by this body. Arguments, wherever the subject would permit, have constantly been drawn from the peculiar nature of this government, as limited to certain enumerated powers, instead of extending, like other governments, to all cases not particularly excepted. In a very late instance — I mean the debate on the representation bill — it must be remembered that an argument much used, particularly by gentlemen from Massachusetts, against the ratio of 1 for 30,000, was, that this government was unlike the state governments, which had an indefinite variety of objects within their power; that it had a small number of objects only to attend to; and therefore, that a smaller number of representatives would be sufficient to administer it.

    Arguments have been advanced to show that because, in the regulation of trade, indirect and eventual encouragement is given to manufactures, therefore Congress have power to give money in direct bounties, or to grant it in any other way that would answer the same purpose. But surely, sir, there is a great and obvious difference, which it cannot be necessary to enlarge upon. A duty laid on imported implements of husbandry would, in its operation, be an indirect tax on exported produce; but will any one say that, by virtue of a mere power to lay duties on imports, Congress might go directly to the produce or implements of agriculture, or to the articles exported? It is true, duties on exports are expressly prohibited; but if there were no article forbidding them, a power directly to tax exports could never be deduced from a power to tax imports, although such a power might indirectly and incidentally affect exports.

    In short, sir, without going farther into the subject. Which I should not have here touched at all but for the reasons already mentioned, I venture to declare it as my opinion, that, were the power of Congress to be established in the latitude contended for, it would subvert the very foundations, and transmute the very nature of the limited government established by the people of America; and what inferences might be drawn, or what consequences ensue, from such a step, it is incumbent on us all to consider.

    Robert’s point in Butler is that this view did not prevail in the SCOTUS.

  139. “What, of course, the Court didn’t say [in McCulloch] . . . is . . . we are not just going to have the bank . . . we are going to force the citizenry to put all of their money in the bank.” Clement added, . . . “I don’t think that the great chief justice would have said that forcing people to put their deposits in the Bank of the United States was necessary and proper.”

    Bob, It seems to me that this argument breaks down once you recognize that the ACA does not require someone who already has insurance to replace that with USA sponsored insurance. Quite the opposite, in fact.

    Moreover, for those who literally have no deposits, deposits will be provided on a State level within a consortium of pre-existing banks/insurance companies.

    By the way, it is all well and good to revile the insurance “providers”, but consider the task of replacing them wholesale. Talk about income transfer, lost jobs and government beauracracy.

    I think the incremental approach is preferable here. First, let the insurance behemouths sort out how to survive under the “no pre-existing condition left behind” rule. That should reduce their numbers substantially. Then let them figure out how they continue to reap ridiculous profits when they have become quasi-governmental wards a la Fannie Mae. By which more pressure is applied. Then let them come screaming for help.

    pbh

  140. By the way, I thought about putting quotes around the words “deposits” and “banks” as substitutes for “premium”s and “insurance providers”, but the fact is that with the past two decades of deregulation, they are, for most purposes, one and the same.

    pbh

  141. Given Citizens United, I think it is very fair to say that the Roberts Court appears to have very little caution in the realm of unintended consequences.

    Let us imagine what could happen should the USSC strike down the mandate, but nothing else. After all, there is nothing that I can see that prevents Congress from requiring national insurance carriers to forego “pre-existing conditions” as an underwriting discipline. Should that survive, and I think it could even if the mandate is disallowed, what then?

    Chaos is what. Vaporization of all but a very few, maybe only one, insurance company.

    And then, when those very few surviving insurance behemoths understand that they cannot survive merely on the backs of those who can afford their regulated premiums, what do they pay their lobbyists to do?

    Single payer anyone?

    pbh

  142. HI,

    I have a lot of questions regarding Story’s Commentaries, at one point I purcahsed a copy. While I was reading through it I digressed into review ing some one elses analysis of the use of the Federis Essays by the Court. During the Story/ Marshall time I found one reference to a Hamiltonian essay, but nothing else. I have concluded Story attempted a new Fed Papers, and one that expressed the Federalis Party concepts. the Commentaries. Itt dominated a least Harvard Law School for years. Interesing was the praises for the Fed Essaya from all over the world, the trouble for the Court is the body of the Fed Papers disavowed a pliant interpretaion.

  143. I have found the Federalist Papers, Blackstones Coemmnetaries, Sr George Tuckers Commentaries, Wilson Commentaries to a largw degree these treatises followed the Fed papers. One De Toqueville mad a comment about the exent of National Power I found interesting: I HAVE already pointed out the distinction between a centralized government and a centralized administration. The former exists in America, but the latter is nearly unknown there. If the directing power of the American communities had both these instruments of government at is disposal and united the habit of executing its commands to the right of commanding; if, after having established the general principles of government, it descended to the details of their application; and if, having regulated the great interests of the country, it could descend to the circle of individual interests, freedom would soon be banished from the New World.

  144. Hi

    Just in case anyone missed Madison;s concerns regarding the broad use of the General Welfare, this out take might be prescient: If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their Own hands; they may a point teachers in every state, county, and parish, and pay them out of their public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may assume the provision for the poor; they may undertake the regulation of all roads other than post-roads; in short, every thing, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress; for every object I have mentioned would admit of the application of money, and might be called, if Congress pleased, provisions for the general welfare.

  145. Pbh: “Bob, It seems to me that this argument breaks down once you recognize that the ACA does not require someone who already has insurance to replace that with USA sponsored insurance. Quite the opposite, in fact.”

    Pbh,

    The issue is does the law exercise a power not granted; it matters not whether the law affects only certain people.

    Pbh: “Moreover, for those who literally have no deposits, deposits will be provided on a State level within a consortium of pre-existing banks/insurance companies.”

    And that pre-existing system would be Medicaid/Medicare; which I’ve been saying all along is the only proper pathway to solid, sound health care reform. Just like most of the other civilized nations of the world we should have a single payer form of health care that doesn’t leave Americans out in the cold to die.

    It is not the ends that I object to here but the means which effectively shred the concept of specifically enumerated powers.

    Recall what bhoyo wrote earlier:

    bhoyo: “Much attention is given to Madison’s comment in fed 44, where he states if the ends are required the ends are expected. What is ignored is Madison qualifying that in fed 40 where he states that “where the several parts cannot be made to coincide, the less important should give way to the more important part; the means should be sacrificed to the end, rather than the end to the means.”

    If anything I welcome an expansion on FDR’s social policies, but not like this.

    I’ll go out on a limb here and say that posters like bhoyo, Blouise & I, among others, find a certain harmony in preserving the limits of constitutional power and that the threat of disregarding such rules and limits sounds more like a cacophony. To quote our dear friend Millhouse once again, “It used to be about the music man” and it still should be.

    Again, I want what you want; just not like this.

  146. Bob,

    I think the exact quote is “You’ve changed man, It used to be about the music.”

    As to the following: “I’ll go out on a limb here and say that posters like bhoyo, Blouise & I, among others, find a certain harmony in preserving the limits of constitutional power and that the threat of disregarding such rules and limits sounds more like a cacophony.”

    Yep (Eloquence R Me)

  147. The hour is late, and I still have one question I would like to pose, Does the National Government have General Police Powers ???

  148. bhoyo:

    “The hour is late, and I still have one question I would like to pose, Does the National Government have General Police Powers ???”

    ***********************

    From US v. Lopez, 514 U.S. 549 (1995):

    But, so long as Congress’ authority is
    limited to those powers enumerated in the Constitution, and
    so long as those enumerated powers are interpreted as having
    judicially enforceable outer limits, congressional legislation
    under the Commerce Clause always will engender “legal
    uncertainty.” Post, at 630. As Chief Justice Marshall
    stated in McCulloch v. Maryland, 4 Wheat. 316 (1819):
    “Th[e] [federal] government is acknowledged by all to
    be one of enumerated powers. The principle, that it can
    exercise only the powers granted to it . . . is now universally
    admitted. But the question respecting the extent
    of the powers actually granted, is perpetually arising,
    and will probably continue to arise, as long as our system
    shall exist.” Id., at 405.
    See also Gibbons v. Ogden, 9 Wheat., at 195 (“The enumeration
    presupposes something not enumerated”). The Constitution
    mandates this uncertainty by withholding from Congress
    a plenary police power that would authorize enactment
    of every type of legislation. See Art. I, § 8.
    Congress has
    operated within this framework of legal uncertainty ever
    since this Court determined that it was the Judiciary’s duty
    “to say what the law is.” Marbury v. Madison, 1 Cranch
    137, 177 (1803) (Marshall, C. J.). Any possible benefit from
    eliminating this “legal uncertainty” would be at the expense
    of the Constitution’s system of enumerated powers.

    So the answer is “it depends.” If you are talking interstate commerce or enumerated powers or the necessary and proper implied powers, the answer is “yes.” Anything else and the answer is probably “no.”

  149. bhoyo,

    Are you suggesting “a taking” as in a statute enacted pursuant to the police power? I know that is usually if a state statute is found unconstitutional due to deprivation of life, liberty, or property (under police power). Or is this somehow working towards the Commerce Clause reasoning and “cross-state lines” justification?

  150. The analysis of federal police power always starts with McCulloch and works forward through the case law about the particular enactment in question and whether it can be pigeon-holed in one of the enumerated powers or any implied enabling “necessary and proper” power. There is little support for the concept of plenary police powers.

  151. The search for true meaning and original intent is a fools errand for some and a clever diversion for others. The writers and signers were some of the smartest people of the day. if they wanted to be clear in their meaning and intent they were quite capable of doing so (at least to the extent any written word can be unambiguous and beyond debate).

    No, rather what they intended was to be as vague as possible so each could see in it enough of what they wanted and not too much of what they did not as needed to get 39 people to agree at least enough on what they thought it said – or could claim it said – to sign it.

    The Federalist Papers, while useful were still only the notions of a few out of the whole. The Constitution was only barely ratified and largely due to better marketing and organization. To say there was a clear and singular intent (beyond that described above) is nonsensical.

    However, the Anti-Federalists are instructive about the intent by what they feared went too far. In their view there was way way TOOOOO much power vested in the federalism!. If we accept them at their word then should we not also accept the Constitution provided more power then less when trying to draw the lines today? Today, they confuse the world they wanted with the world as it actually came to be.

    We do know this much: The Articles were a disaster and nearly everyone agreed something more was needed. Getting States with so profound and deeply run differences – slave holders to non slave, for example – to agree was I suppose the real genius of the authors. But to do so meant taking nearly every problem that vexed the nation then and kicking it down the road. Hence, a vague document open to endless interpretation.

    The same arguments over the same issues are still unresolved except by the periodic shifts in views demonstrated by Civil War and the voters. And that was probably exactly what they wanted (excluding the part about the Civil War which demonstrates the obvious failure of their approach).

    But, if we must argue over the absurd – meaning the intent of a few slave owning misogynists who gave eloquent speeches on the dignity, rights, and freedom of man — I have to say mespo has won hands down.

  152. Hi all,

    Again it seems the secondary histories are driving our current perceptions,as the post supra indicates. I still remember Gordon Wood telling me ‘oroginal meaning’ is a fools errand. Maybe the sequacious will be more able to respond to the question re stated as ‘what didnt the Founders intend ‘? Can we deny Lincoln’s warning that we sould never supplant the Founders logic when we know they understood the question better than we do ?
    Reducing the founders to a few a slave owning misogynists sounds pretty ‘cosmopolitan;, but to dismiss the Founding as an anachronism seems fatuous. They, despite the flawed world they lived in changed the formual of governance forever, no longer would power allow liberty, liberty now would grant power. A written constitution in a compound republic, one which provided checks and balances on the energy of government while keeping the essential liberty alive, was their goal. The vagueness of the Constitution is due to our ignoring the History of the time. We do not teach early American History after the 8th grade,one point I am in agreement with Gordon Wood about we do not teach civics, as the efforts of Sandra O;connor testify. law schools do not teach any history of the Constitution, just case law. The architectonics of the Constitution came about in a conscious effort to not only control the people, but also to have government controlled.
    So did the founders intend plenary powers to the Congress ? Did the founders ratify Judicial Supremacy ? Did the Founders intend we could be mandated to buy anything?
    Our history, extant documents, is there, it is ours. It i s neither vague nor confusing. It is there for all who earnestly wish to view our heritage, and are nor predisposed to contempt prior to investigation. It also requires study.

    Is it Burke who stated that all that is necessary for evil to triumph is for good men to do nothing ?

  153. Is it Burke who stated that all that is necessary for evil to triumph is for good men to do nothing ?
    ********************

    Burke never said that. He said:

    “When bad men combine, the good must associate; else they will fall one by one, an unpitied sacrifice in a contemptible struggle.”

    ~Thoughts on the Cause of Present Discontents (1770).

    Tolstoy’s narrator said it in a movie adaptation of War & Peace.

  154. “So did the founders intend plenary powers to the Congress ? Did the founders ratify Judicial Supremacy ? Did the Founders intend we could be mandated to buy anything?”

    ******************

    The simple truth of a democracy is that it is a form of government that belongs exclusively to the living — not the dead. It is passed from generation to generation but each may do with it what they will.

    We may consider each generation as a distinct nation, with a right, by the will of its majority, to bind themselves, but none to bind the succeeding generation, more than the inhabitants of another country.

    ~Thomas Jefferson

  155. mespo,

    Isn’t that the crux of this discussion … what this generation is doing with it?

    (referenced “It is passed from generation to generation but each may do with it what they will.” [mespo])

  156. The simple truth of a democracy is that it is a form of government that belongs exclusively to the living — not the dead. It is passed from generation to generation but each may do with it what they will.

    We may consider each generation as a distinct nation, with a right, by the will of its majority, to bind themselves, but none to bind the succeeding generation, more than the inhabitants of another country.

    Hi all,

    Quoting Jefferson regarding pliant Constitutional Construction is akin to quoting Maher on piety or decorum. Jefferson did make that comment, and Madison asked all the valid questions ? What of the advancements inherited, when does a generation begin or end. Are we a democracy ? Or are we a compound Constitutional Republic ?

  157. We’re technically a corporatist oligarchy declining into corporatist fascism, but we’re working to right that wrong.

    I mean, since we’re talking actuals versus aspirationals.

  158. We may consider each generation as a distinct nation, with a right, by the will of its majority, to bind themselves, but none to bind the succeeding generation, more than the inhabitants of another country.

    If we applythe quote to one circumstance we seem to be able to change Constitutional powers in an extra constitutional way, that is derivative law, can trump organic law, or at least that seems to be the implication. If that be so, can those born this evening claim exemption from the debt of the two previous adminstrations? Are they compelled to pay an Income tax ? Will they be mandated to purchase the insurance mandated in the ACA ? The issues with Jefferson’s statement go on and on.

  159. Hi all,

    I have one issue to emphasize, no other. I am not bound by party or ideology. I view the Constitution as a Social Compact, I also see it as a legal document, In that scenario it seems that in order to change or magnify the powers of the National Government, we are bound to employ Article V. Have we obviated that in the past yes. Is that a prudent course to maintain, I think not. What I find a tad upsetting is that all of us know why !!!!

  160. The further afield the comments have gone in the argument the sillier they have become (or as some might say, the more fatuous they are). The issue at hand is not the mechanism for modification of the Constitution as in the A3 but what the existing document says and means. If you don’t like the Commerce Clause as it is then by all means go out and seek to Amend it. In the meantime stop complaining it does what “you” complained it would do when it was written and signed.

  161. Bhoyo:

    Izb1 is undoubted correct that the Constitution was left purposefully vague to permit the kind of flexibility needed to address our modern problems. How could the Founders be expected to know about Internet commerce or patenting life forms? How about weapons of mass destruction in the hands of terrorists? No rational person can surmise that they would know more about our situation that we do ourselves.

    These men were lawyers and damn good ones. They understood the formal amendment process would be cumbersome and rightfully so. They also understood after Marbury v. Madison that the court would have final say in legislative enactments as they applied to the Constitution. Judges have “made” law for centuries even as they dressed it up as mere “discovery” of the actual will of the legislature or the ruler. They also knew that Federal Power would grow especially in response to war or other national crisis.

    All in all, we have quite a bit of right to apply Jefferson’s interpretation to the purpose of the pliant Constitution. We can also apply no less a legal mind than John Marshall in McCulloch::

    [The Constitution is] “intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.To have prescribed the means by which Government should, in all future time, execute its powers would have been to change entirely the character of the instrument and give it the properties of a legal code. It would have been an unwise attempt to provide by immutable rules for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur. To have declared that the best means shall not be used, but those alone without which the power given would be nugatory, would have been to deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances.

  162. bhoyo:

    ” I am not bound by party or ideology. I view the Constitution as a Social Compact, I also see it as a legal document, In that scenario it seems that in order to change or magnify the powers of the National Government, we are bound to employ Article V.”

    ******************

    Your statement leads one to the inevitable conclusion that you are a strict constructionist. I find the law more adaptable and fluid to fulfill the intended purpose of serving us and not the other way around.

    “A strict observance of the written laws is doubtless one of the
    high duties of a good citizen, but it is not the highest. The
    laws of necessity, of self-preservation, of saving our country
    when in danger, are of higher obligation. To lose our country
    by a scrupulous adherence to written law would be to lose the law
    itself, with life, liberty, property, and all those who are
    enjoying them with us; thus absurdly sacrificing the end to the
    means.”

    –Thomas Jefferson to John Colvin, 1810.

  163. I would reiterate that it was also vague as a matter of necessity to get enough agreement on what was a unquestionably a compromise.

    I suspect if you could bring back all 39 of them and asked how they intended the CC to apply to the healthcare law requirement you would have 39 different responses, and about a million more if you asked everyone who voted for adoption.

    Parsing the meaning of the word “Commerce”, “Trade” and the like is likely to elicit similar differences, especially when we add in the reality of the 21st century. Though, I do suspect those who are inclined to this intent nonsense actually are living in the 18th century..

  164. Pbh: “Let us imagine what could happen should the USSC strike down the mandate, but nothing else. After all, there is nothing that I can see that prevents Congress from requiring national insurance carriers to forego “pre-existing conditions” as an underwriting discipline. Should that survive, and I think it could even if the mandate is disallowed, what then?

    Chaos is what. Vaporization of all but a very few, maybe only one, insurance company.

    And then, when those very few surviving insurance behemoths understand that they cannot survive merely on the backs of those who can afford their regulated premiums, what do they pay their lobbyists to do?

    Single payer anyone?”

    Pbh,

    I’ve been thinking about this comment of yours today. Are you implying that such an implosion of the insurance market would hasten us down the road to a single payer system? If so, then call me Captain Chaos.

  165. bhoyo,

    I too think that any increases in enumerated power require amendment by ARticle V else the article, and the structure of the document is rendered meaningless.

    One need not be an epistemic whiz to appreciate that the exigenceis of the present will always seem greater to those of the past. Accordingly appealing to the immediacty of the present is bereft of any guiding legal principle whatsoever and is merely an invitation to reactionary lawlessness.

  166. Appealing to the immediacy of the present as justification for treating the constitution as so fluid and adaptable so as to remove all restrictions is tantamount to turning constitutional law into a game of Fizzbin.

    To wit:

  167. Fizbin, what a perfect metaphor for the hollowness of those arguments. Jumping back and forth through the make believe time of a fictional world playing a pointless non exitent game in search of absolute truths that never existed in the first place.

  168. 1zb1:

    ” Though, I do suspect those who are inclined to this intent nonsense actually are living in the 18th century..”

    ******************

    If one expects to find the true “original intent” of the writers and enactors of the US Constitution, to bastardize Jefferson, he expects to find “what never was and never will be.”

  169. These men were lawyers and damn good ones.

    Izb1 is undoubted correct that the Constitution was left purposefully vague to permit the kind of flexibility needed to address our modern problems.

    Hi all,

    The architect of the Constitution, the Randolph Plan, namely Madison was not a lawyer. The auhor of the Bill of Rights, who also singlehandedly ushered it through a recalictrant First Session of the First Congress was Madison as well.

    I have read most of the Bio’s of Marshall, the extent of his legal education in all of them is measured in weeks not months. He once commented that if he spent his time studying, he would be as ignorant as those who do. If I am not mistaken his law practice was in real estate.

    The idea that the Constitution is vague is niether novel nor accurate. If my reading of the plethora of Federlaist and Anti Federalist writings, the Resolutions that accompanied the ratification of the States, and the papers of those were either directly or indirectly involved, indicates they explored every power. There were those uncomfortable with the Constituion even after ratification. What they appreneded is a loose construction of the powers,

    I WONT POST IT BUT, IF YOU ARE CURIOUS GOOGLE THE PREAMBLE TO THE BILL OF RIGHTS. IT IS INFORMATIVE.

  170. bhoyo,

    Thank you for the suggestion for in doing so I also was reminded of George Mason and able to refresh my memory on his contributions especially his authorship of the Virginia Declaration of Rights and his objection to the Constitution … “It has no declaration of rights,”. A view which prevailed.

    He was not a lawyer.

  171. bhoyo:

    “The architect of the Constitution, the Randolph Plan, namely Madison was not a lawyer.”

    **********************

    That’s a tad disingenuous as if to suggest he was mere planter or gentleman. Madison read the law and suggested a list of readings in the law that would have easily qualified him for admission to the bar. He never opted to join the profession but he was well versed in areas like torts, modes of government, and suits. There was no institutional approach to the practice of law then. Patrick Henry read law for just six weeks before being admitted to the bar. Chief Justice John Marshall spent only three months in legal studies with George Wythe before his admission. Madison read law for at least two years. Madison never sought admission to the bar, but his writings evince a lawyer’s attention to detail and a logical analysis identical to legal analysis. Madison was what Professor Mary Bilder of Boston University calls a “demi-lawyer.”

  172. Bhoyo:

    “The idea that the Constitution is vague is niether novel nor accurate.”

    *****************

    How’s this for precision and comprehensive language.

    “To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.”

  173. “We may consider each generation as a distinct nation” [Jefferson]

    “The issues with Jefferson’s statement go on and on.” [bhoyo]

    Jefferson was duplicitous in the extreme. He said and wrote a lot of crap that was directly intended to deceive, deflect and delude the Congress and public, not to mention historians.

    pbh

    PS: What’s with that tag, b/t/w?

  174. “I’ve been thinking about this comment of yours today. Are you implying that such an implosion of the insurance market would hasten us down the road to a single payer system? If so, then call me Captain Chaos.”

    Bob, The market is the market. Water finds it’s own level.

    Insurance companies exist to SELECT PREFERRED CLIENTS from the riff raff. They will undersell each other in order to gain market share on the assumption that monopoly over those PREFERRED CLIENTS will guarantee profits. Healthcare insurance cannot work within this paradigm once Redlining, ie: pre-exisiting conditions, is outlawed unless everyone plays by the same rules.

    So, go ahead, disallow the mandate, which ALONE (and by which I mean, no other solution is imaginable) could afford the income necessary to pay for the requirement to cover pre-existing conditions, which requirement is entirely Constitutional.

    AND watch those regulated companies desert the resulting Hugely UNProfitable market.

    As for “Captain Chaos”, I hope you have a house in Maine, with a well stocked larder and several thousand rounds. The Insurance business is 1/6th of the entire economy, 2nd only to the U.S. Gov (including the military) and is growing all the time.

    Go ahead, shut it down. That’s a plan.

    pbh

  175. pbh51:

    “Jefferson was duplicitous in the extreme. He said and wrote a lot of crap that was directly intended to deceive, deflect and delude the Congress and public, not to mention historians.”

    *********************

    Well, that’s a novel idea. Most folks think him one of the greatest Founders and his likeness was carved into Mount Rushmore. President Kennedy once said to a group of Nobel Prize winners assembled at the White House: “I think this is the most extraordinary collection of talent, of human knowledge, that has ever been gathered together at the White House, with the possible exception of when Thomas Jefferson dined alone.”

    Dumas Malone, who spent a lifetime studying Jefferson and writing : “Jefferson and His Times”, said “The boldness of his mind was sheathed in a scabbard of politeness.” His work earned him a Presidential Medal of Freedom form conservative darling, Ronald Reagan.

    Well you do have Katherine Harris in your camp. The Republican of Florida who presided over the Bush-Gore recount says Jefferson was a liar, too. Course Kathy had her own problems with the truth in the MZM affair, lying about political contributions, and even about her own inheritance.

    Who to believe? You and Katherine Harris or JFK, Dumas Malone and Ronald Reagan? Yep, you’ve got quite an imagination there pbh.

  176. Wow,

    The diversity of the partisanship still astounds me. Alas

    The knowledge of Jefferson’s tendency to dramatic eloquence at moments is known to all historains, Madison is the perfect counterpart to Jefferson, their 50 years friendship a testimony to the workability of profound genius, in the latter, and studied critical thinking statesman in the former. Hence using Jeffersonian expressions to describe or explain Madisonian constitutional constructions is a better description of disengenous than Mesbo offered us above. meesbo did adaquately decribe Madison’s curriculum vitae as of the most profound of the Framers, and his capacity for critcal thinking, aided by long experience as a legislator at the State and National levels, placed Madison in his unique role as of being of the major forces behind the Constitution and the Bill of Rights.
    Throughout history men have aspired to liberty and freedom, the issue was how to convert that idea into a workable government of self governance. The constitution is that achievement. In it’s design are partitions of power, checks and balnces, they were placed there by design not chance. There presence assured all the liberty desired with enough energy in government to attain efficacy and liberty. When I ask questions about defying the partitions of power, or the balance and symmetry of constitional checks and balances the retorts are always general. when the question is specific.
    I do not ascribe the ‘whiggish’ interpretation of history, the profound changes to Constitutional power are not teleological, but rather the product of multi layered compromises, the idea that increases of national power are the result of obstacles, breakthough, and apotheosis is puerile, if the focus does not ask what are the impacts to our Constitution. Spatchcocking reasons or out of context quotes to explain such changes are poltically soothing, but dont answer the question of what will be the impacts on future governance.

  177. Pbh,

    I didn’t mean bad chaos; I meant good chaos as in having the threat of impending financial doom light a fire under congress to pass single payer reform before a financial collapse and the institution of a Thunder Dome.

  178. bhoyo,

    It almost sounds like Mespo is lining himself up to be the next Neversleep in the Pbh mythology.

    Remember the Smoot Hawley/WWII debates?

  179. Gee, I wonder if Thomas Jefferson would have bought into extending the legal fiction of endowing corporations with the right to alter the outcome of elections with their money being categorized as ‘speech.’

    Rights retained by the people vs. legal fictions bestowed upon corporations…

    Hmm…

  180. Mespo:

    “How could the Founders be expected to know about Internet commerce or patenting life forms?”

    They didnt need to. Roads, Canals, Highways or the Internet commerce is commerce. Magazine, Book or Internet speech is speech. A patent for a screwdriver or a new species of corn is the same principle.

    The founders were using principles because they could not predict the future and wanted a way to deal with all instances of a particular problem.

    For example I am an engineer and to design a beam I use certain principles of mechanics. They are general principles which apply to every beam ever made or yet to be made of any material or any length of beam.

    That is what the Constitution is to be used for. You apply a specific set of principles to an existing condition. You dont change the principles to match the condition. That would be chaos in engineering and as we are seeing it is also chaos in society when you try and modify principles to match specific cases.

    The principles of our founding were limited government and individual rights, the 2 are complimentary. That is what all law should devolve to in a free society. Are the rights of the individual maintained and is government being limited. If the answer is no, then something is wrong with the law.

  181. Henry Sumner Maine

    Didnt he define a fiction of the law as to conceal or attempt to conceal the fact that altough the letter of the law is unchanged the effect of the law has been profoundly changed?

    Soon we may all be like the lead characters in Fiddler on the Roof, imparting our eisegesis under the cover of the, “as the Bible ( constitution on our part ), says”

  182. Has our society, technology, infrastructure, and general education level evolved to the point that medical care (healthcare) is one of the rights that should be included in the Constitution? Is it something the government should be charged with making possible for all the citizens as medicare is for citizens 65 years and older?

    I’m simply trying to get back to the basics here that were presented at the beginning of this thread “Did the Founding Fathers Back …”

    Understanding intent, purpose etc. is important when deciding whether or not such a huge task should be allotted to the government. But just as important is the manner in which we give government that sort of control and responsibility. Understanding how it was done so successfully 200 years ago is a help in guiding us today if this is the path we have chosen.

    We are a nation firmly established on a legal document, the Constitution. Whether or not the mandate rests comfortably with the bounds of that legal document is the matter up for discussion.

  183. As to Jefferson … when considering all of his contributions I also consider his actions during the war. Jefferson ran into the woods to evade capture by the British when they invaded Virginia which in and of itself was a wise move, but then he abandoned his leadership as Governor of Virginia by fleeing with his family and remaining gone. When he couldn’t be found, Nelson took over and led the state and its militia till the end of the war. Jefferson then left for France and spent the last few years of the war enjoying the brothels therein. Jefferson was rightly accused of cowardice for the rest of his life. Another reason Martha didn’t allow him to come to her husband’s funeral.

    Jefferson’s brilliance will always be colored by his cowardice.

  184. bhoyo:

    “The knowledge of Jefferson’s tendency to dramatic eloquence at moments is known to all historains, ”

    ******************

    That used to be a compliment but it seems you equate it with “duplicity” — which is not known to “all historians.” Your prose is awfully dense as if to pass into obscuantism. For example:

    I do not ascribe the ‘whiggish’ interpretation of history, the profound changes to Constitutional power are not teleological, but rather the product of multi layered compromises, the idea that increases of national power are the result of obstacles, breakthough, and apotheosis is puerile…

    This statement isn’t axiomatic. Tell that to the stout folks who migrated West and created a civilization out of little more than desert and hard pan. It’s merely your opinion and based on not much more than the haughty “I said so” defense. We all can cobble together polysyllabic nonsense upon command. Problem is, t doesn’t help in the dialog. Also your lament that:

    Spatchcocking reasons or out of context quotes to explain such changes are poltically soothing, but dont answer the question of what will be the impacts on future governance.

    Pray tell how we should predict the future unless we look long and hard at the wisdom of the past before we say. At the risk of “spatchcocking” I’ll refer you to an author who had quite a good record of predicting the future –especailly the realpolitik of his age:

    “The longer you can look back, the farther you can look forward. This is not a philosophical or political argument. —any oculist will tell you this is true.”

    ~Winston Churchill

    You want certainty where there is none and likely never was. You want answers to questions better men have strived to answer for centuries. You want the future without experiencing or knowing the influences upon it of the present.

    Good luck.

  185. “Understanding how it was done so successfully 200 years ago is a help in guiding us today if this is the path we have chosen.”

    If it were actually done “so successfully 200 years ago” we would not have had continuous debates over every last letter, syllabol, word, and paragraph from the very moment the constitution was signed ; a civil war; the need for thousands of USSC decisions, some of which contradict or repudiate previous decision; and the current argument.

    Flowery historical quotes on the nature of liberty and the rights of man; commentaries of various and often conflicting views by founders; and sweeping statements on the history, nature, intention related to the constitution and its authorship will not resolve the question.

    I suspect if I could bring all the signers before you and they said, “of course we intended health insurance to be considered commerce; and of course the decision to pay or not pay for a service which you are, with near certainty, to use and others will bear the cost if you do is commerce. You may have the right to get sick, but you do not have the right to stick everyone else with the bill”, many of you would continue to disagree.

    Who knows, they might even cite the 3rd Amendment: which mandates you must quarter soldiers in time of war in a manner prescribed by law. I suspect they might say, “Dear God, are you crazy, the nation is at war! Its eating itself to death and bankrupting the country in the process Do something about it. Just because we gave you the right to be stupid doesn’t mean you have to exercise it all the time.”

  186. Wow,
    I consider myself scolded, lol. I post Jefferson was a genius prone to democratic eloquence and I imply duplicity. I post Madison wasn’t a lawyer, and I am scolded because it might have implied he was just a farmer. mesbo posts Madison’s speech on the House floor warning about a broad interpretation of the General Welfare Clause, a point I have made a few times, challenging Story’s description, and the findings of Butler and Helvering, and I am hunting fro certainty where there either is none or maybe cant be found.

    Pray tell how we should predict the future unless we look long and hard at the wisdom of the past.

    THANK YOU FOR MAKING MY POINT.

    Do you know what ‘whiggish history’ is and what it references ?

  187. 1zb1,

    If it were actually done “so successfully 200 years ago” we would not have had continuous debates over every last letter, syllabol, word, and paragraph

    It is there, they went throught the Constitution line by line, the History of the Ratification is there, but you ahve to read it.

  188. THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution.

    The Preamble to the Bill of Rights

    Madison wrote that ninth amendment was to guard against a latitude of construction, the tenth amendment excludes from the national any source of power not specified.

  189. mespo,

    That used to be a compliment but it seems you equate it with “duplicity”

    No, as a matter of fact, NO !

    PBH is not Bhoyo

    One cannot be a devoted Madisonian w/o acquiring a deep appreciation of Jefferson. their letters which I have and love to read, reveal as much if not more about Madison and Jefferson than Dumas Malone’s excellent work, which I have also read, albeit ten years ago or better.

  190. Tooo bad one of the powers “delegated to the United States” was the power “To regulate Commerce…among the several States,” and the power
    “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers”.

    Gee, gosh, the 9th sure cleared everything up. How much clearer can you get!

    But of course, you mean to say if we all read it line by line and each and every one of us saw what you saw the world would be all milk and honey. Tooo bad people smarter and more knowledgable then all of us have been doing that since it was signed and most all of them have come up with something different in one way or another from each other.

  191. Mespo.

    “Who to believe? You and Katherine Harris or JFK, Dumas Malone and Ronald Reagan? Yep, you’ve got quite an imagination there pbh.”

    I have long wondered at the cult of personality that surrounds Jefferson. The man who first advocated secession, created the partisan divide that haunts our politics to this day and whose solution to the issue of slavery was to advocate introducing it into the Western Territories.

    Dumas was a Southern partisan, Reagan toed the company line. As for JFK, not the best character witness, imho.

    pbh

  192. Bob,

    “I didn’t mean bad chaos; I meant good chaos as in having the threat of impending financial doom light a fire under congress to pass single payer reform before a financial collapse and the institution of a Thunder Dome.”

    What if the GOP wants a Thunder Dome?

    pbh

  193. Bob,

    “I wonder if Thomas Jefferson would have bought into extending the legal fiction of endowing corporations with the right to alter the outcome of elections with their money being categorized as ‘speech.’ ”

    Jefferson was implacably opposed to corporations, or at least he was until he was in charge of them.

    pbh

  194. Not those who promote unnecessary accumulations of the debt of the Union,

    instead of the best means of discharging it as fast as possible; thereby

    encreasing the causes of corruption in the government, and the pretexts for

    new taxes under its authority, the former undermining the confidence, the

    latter alienating the affection of the people.

    Not those who study, by arbitrary interpretations and insidious precedents,

    to pervert the limited government of the Union, into a government of

    unlimited discretion, contrary to the will and subversive of the authority

    of the people.

    In a series of Articles published by Madison in the Gazette, 1792, Madison published this particular essay, it;s title TheUnion; who are it’s friends.

  195. Here is another from the same series, this exert discusses the role of parties:
    In every political society, parties are unavoidable. A difference of interests, real or supposed, is the most natural and fruitful source of them. The great object should be to combat the evil: 1. By establishing a political equality among all. 2. By withholding unnecessary opportunities from a few, to increase the inequality of property, by an immoderate, and especially an unmerited, accumulation of riches. 3. By the silent operation of laws, which, without violating the rights of property, reduce extreme wealth towards a state of mediocrity, and raise extreme indigence towards a state of comfort. 4. By abstaining from measures which operate differently on different interests, and particularly such as favor one interest at the expence of another. 5. By making one party a check on the other, so far as the existence of parties cannot be prevented, nor their views accommodated. If this is not the language of reason, it is that of republicanism.

  196. I realized this is NOT novel. (but then, neither is the “requirement”.)

    The debate is increasingly religious in tone and substance. The constitution is the holy scriptures of democracy as the bible is to Christianity. For some believers both are sacrosanct. Each comes from the hand of God – or in the case of the Constitution, the founders with God like capacities of intellect.

    To be true every word and passage must be literarily true and absolute. To think otherwise would be to question the infallibility of God, and since each is the foundation upon which all other things have followed, any chink in its perfection would bring the house of cards tumbling down. (how is it do we keep forgetting slavery was a common theme through both)

    Such believers find it necessary to divine the meaning and intent of “God’s” words, written hundreds or thousands of years ago in different languages. from today. Many have amassed great riches preaching and explaining the meaning to the unwashed masses. The notion that God – or in the case of the god-like-founders – was too stupid to make their meaning and intent clear and unequivocal to all or needed middlemen to explain themselves seems to have eluded the thinking of the devout literalists.

    Others, realizing the great and obvious vagaries, inconsistences and improbabilities within both holy scriptures have come to take a more metaphorical approach. For them it is not so much what was exactly said but rather what was the original intent, which they seek to discern through reading the tea leaves of history and the minds of dead people. Once again we have the notion that God – or in the case of the god-like-founders – was too stupid to make their meaning and intent clear and unequivocal to all, or needed middlemen to explain themselves. To that we add the further notion that God and the God-likes worked in their mysterious ways to give us free will.

    As a practical matter both the literalists and the original intenders have found it necessary to treat certain aspects of their holly scriptures as literal while other portions are considered only metaphorical. Both share this obsessive need to find bits and pieces of historical fact to support their propositions as if one single fact that happens to coincide with their position – no matter how remotely – would make all the rest of the 99% that doesn’t somehow irrelevant. Ah ha, we found the place where Jesus was buried ergo the entire bible is the work of god. Or “*”The government proceeds directly from the people; is “ordained and established” ergo, the “mandate” violates the commerce clause. Also common to both groups is the notion the meaning of the bible and the constitution are clear to the true believe who have “come to Jesus” and everyone else will burn in hell.

    (this is by no means a scientific observation but it does seem the above views on both holy scriptures are common to many of the same people)

    Then, of course there is another group, which I will call the “dreamers”. For them neither holy scripture was from the hand of god or god-likes. Both are works of men – very very smart men to be sure – trying as best they could in the times they lived to make for a better world as they hoped it might be. If they spoke in parables or vagaries it was a requirement of the times. Each broke new ground and overcame great challenges to do so. It seems to me if they knew the people of today were trying to live by the past instead of making a better world for the future they would have thought themselves a failure.

    For sure Jesus would be appaled at the riches of the churches that bear his name,and Madison would be wondering how anyone thinks states are enlightened enough to run anything.

  197. Hi all,

    Just thought I would show you a power never delegated by anyone, at any time under our form of government.

    at least he was until he was in charge of them.
    See the post supra from PBH>>> maybe he just misspoke ?

  198. pbh:

    “I have long wondered at the cult of personality that surrounds Jefferson. The man who first advocated secession, created the partisan divide that haunts our politics to this day and whose solution to the issue of slavery was to advocate introducing it into the Western Territories.”

    ************************

    That makes two of us wondering then, though I wonder more about the cult of those who accomplish little in their lifetimes only to criticize and defame those who accomplish so much more. Jefferson was neither perfect nor divine. He was however more than enough to overcome his critics — then and now.

  199. bhoyo:

    “Pray tell how we should predict the future unless we look long and hard at the wisdom of the past.

    THANK YOU FOR MAKING MY POINT.”

    **********************

    Had you simply said it that way (instead of laden with modifiers and equivocations galore), your point would not have been lost on me.

  200. pbh:

    With all due respect you have no idea what you are talking about. Jefferson was never “put in charge of corporations.” He was President not czar. Dumas Malone earned a Pulitzer Prize because he was not a “Southern partisan” but the quintessential historian. Critics of Malone seem to concentrate on his ‘fawning” approach to the Jefferson legacy. That criticism seems to correspond rather well with critics of Jefferson himself who view Malone as an antagonistic. As for Reagan, he was many things but surely not a “toe the line” kind of guy.

  201. Mespo

    “I wonder more about the cult of those who accomplish little in their lifetimes only to criticize and defame those who accomplish so much more. ”

    I should stand silent before this God-like creature? This monument?

    Moreover, what do you know of my life’s accomplishments, or I of yours?

    I think you are treading quite close to ad hominem.

    I took you for better than that.

    pbh

  202. bhoyo

    “maybe he just misspoke ?”

    I think you know that I am referring to the Bank of the United States. Jefferson opposed it until he understood that it could help finance his administration just as well as any other. Was he in charge of it? There’s no doubt he could have shut it down if he had wanted to. And his original opposition was based on an anti-corporate argument. Yet, somehow, once he had mastery of it, it was acceptable.

    pbh

  203. mespo,

    Had you simply said it that way (instead of laden with modifiers and equivocations galore), your point would not have been lost on me.

    The point was not lost among modifiers, nor was it equivoval. I expressed the idea that extant documents, or what are designated primary documents, are the best source of establishing the ideas that were accfepted as the powers granted to the national government at ratifying. You, in your apparent devotion to Jefferson posted a justification for a pliant reading of constitutional authority is to be found in Jeffersons idea of the Earth Belongs to the Living concept.. Which is fine. You are entiled to that opinion. I still believe that Madison, is the source for fully comprehending the design of the Constitution, why because he was there, while Jefferson was in Paris for the Constitutional Convention, the defense of the Constitution ( the Fed Essays which Jefferson praised often, and unequivovally by the way ), the Rtafication in the States, the Convening of the First Congress, which included Madison writing and ushering the Bill of Rights through a reticent Congress. Altough I am remote from my libraries and research at the moment I can think of two times Jefferson urged Madison to take up his pen, and combat the Hamiltonian view, once if memory serves me specified that Madison alone could exchange lists with Hamilton. If my readings of their communications is accurate, and I have the three part series of their letters in house, they despised the pliant view of Constitutional powers advocated by Hamilton. Those letters are extant documents by the way, as are what are referred to as Farrands Records, which by the way the major contributor is madison and his notes from the Convention.

  204. An amusing game of amature ping-pong, but just how attenuated a link do you want to go from the question at hand to prove or disprove the point? this has gone way beyond the school yard.

    And Ad hominem? What does that make calling disagreers fascists and communists? (unless the person was intending to talk about themself)

  205. bhoyo, If you are trying to prove there was considerable disagreement among the parties and therefore arriving at a clear meaning and intent is a fools errand, you have succeeded. Thanks!

  206. Mespo

    “Critics of Malone seem to concentrate on his ‘fawning” approach to the Jefferson legacy. That criticism seems to correspond rather well with critics of Jefferson himself who view Malone as an antagonistic.”

    Count me among the critics. Appeals to higher authority (Pulitzer, etc.) don’t quite cut it for me. As for any correspondence between antagonism toward Jefferson and criticism of Malone, I imagine that is in no way remarkable. You insist that he is not partisan and then defend him in the most partisan way.

    “As for Reagan, he was many things but surely not a “toe the line” kind of guy.”

    Well, let’s put it this way, he wasn’t my kind of guy either.

    pbh

  207. I am a Madisonian Scholar, not a Jefferson Scholar, but I do aprreciate Jefferson. I read Dumas Malone, then who hasn’t in the field, that is 101 stuff. I spent enpough time reading Jefferson to remember his being resipiscent about his writings concerning the enslaved Africans, in his Notes on Virginia, when he received a book, ‘The Literature of the Negro’, from Henty Degregiore ( I am not sure on the title or the friend who sent it to Jeff ), his response telling.
    What I don’t know about Jefferson is a very long list as well, but what I can say with assurity is when the Progressives ( herbert croly ?) adopted the mantra to “achieve Jeffersonian ends with Hamiltonian means’, he rolled over twice in his grave.

  208. Izb1,

    bhoyo, If you are trying to prove there was considerable disagreement among the parties and therefore arriving at a clear meaning and intent is a fools errand, you have succeeded. Thanks!

    Lol
    remarkable, a captious scientist.

  209. 1zb1

    “And Ad hominem? What does that make calling disagreers fascists and communists? (unless the person was intending to talk about themself)”

    I don’t recall doing any of that. If I did, I will immediately apologize.

    pbh

  210. pbh, my apology to you. I was not meaning to suggest YOU, but they are terms others here have routinely brandished here and I do not recall you suggesting they were inappropriate. The comments you suggested were verging on ad hominem paled in comparison at best (actually I considered it not at all) .

  211. Pbh,

    1zb1 is referring to two posts of mine.

    Here they are in their gruesome entirety with the allegedly ad hominem remarks emphasized…

    Bob, Esq. 1, April 15, 2012 at 11:51 am

    1zb1: “And just where does it say the CC can not make you buy something… please show me those words in the CC.”

    And there it is; the dark side of liberal thinking rears its ugly head yet again.

    So now we go from a system of specifically enumerated powers to the exact opposite–according to you, the Fed has unlimited powers explicitly excluded.
    Didn’t Hamilton warn about people like you in Fed 84?

    From a previous post:

    Simply because a person receives health care it does not necessarily follow that it is also part of commerce. A person may come into this world with the free help of a midwife and leave this world with the aid of a charitable hospice.

    The fact remains that the health care legislation commandeers the individual by forcing him to purchase a service as a condition precedent for merely residing lawfully in the United States.

    Let’s be clear, the activity here is not health care, it’s the participation in an insurance pool that profits corporations; rather than simply reimbursing the government.

    I grew up believing that liberals were the good guys; that so long as your intentions are good you can’t be wrong. How wrong I was. The road to hell is paved with good intentions. The dark side of liberal thinking comes into play when the liberal deludes himself into believing that so long as the intention is good, then the rules MUST bend to provide the means. This type of thinking left unchecked would leave us without an exclusionary rule or rules of criminal procedure since the liberal will always ‘know’ in a vigilante way who the guilty really are. Taken to the extreme, this type of thinking leads us down the path to communism and Stalinist like regimes.

    The law is not a search for truth, but a search for process. Contrary to liberal thinking here, we do not treat the constitution like a urinal puck simply because we feel we’re on the side of the angels.

    Congress has all the power it needs to achieve the same ends for health care reform by adjusting the tax rolls and medicare/medicaid rules toward a single payer system.

    The word is federalism! Please make a note of it and adjust your thinking accordingly.

    =====

    And this:

    Bob, Esq. 1, April 17, 2012 at 5:24 pm

    Mark,

    So you’re claiming that McCulloch overruled the basic precept of Constitution, i.e. that the federal government is one of enumerated powers and does not possess a general police power?

    Didn’t the McCulloch court say that the enumeration of powers in the constitution limited the number of ends that the government could pursue and advised that it would not add “great substantive and independent powers” to that list? 17 U.S.316 @ 411

    Part and parcel to that whole necessary and proper to the effectuation of an enumerated power thingy?

    Speaking of the implied powers necessary and proper to the effectuation of an enumerated power, care to tell us what enumerated power gave rise to Federal Criminal laws? After all, if they didn’t evolve with a dubious pedigree out of Tax Acts, I’m sure you can clear this up for us.

    And per your Tenth Amendment remark, aren’t you looking over the fact that the Court relied heavily on same from the Civil War to 1937; guarding against the expansion of Federal power? Or are we to ignore that as well?

    Honestly Mark, do you really think your zeal for unlimited communist like power under Article I is any different from a fascist’s zeal for unlimited presidential power under Article II?

  212. Pbh: “What if the GOP wants a Thunder Dome?”

    Then there will be plenty of votes available to defeat any philibuster after the next election.

  213. pbh:

    “Appeals to higher authority (Pulitzer, etc.) don’t quite cut it for me.”

    *******************************

    As I tire of explaining on the blog,the logical fallacy of an appeal to authority only applies if the cited source isn’t an authority on the topic in the first place or if there is no consensus on the assertion. Dumas Malone is undoubtedly a recognized authority on Jefferson and the Pulitzer Prize Committee is undoubtedly a recognized “authority” on achievement in historical literature. There is more than a consensus for both propositions. Maybe you should consider the opinions of authorities — not me of course — just those generally recognized as such. Your disagreement doesn’t make you wrong, of course, just decidedly outside the main stream and thus requiring of substantial proof to to ground your rather unorthodox assertion.

  214. Pbh: “Jefferson was implacably opposed to corporations, or at least he was until he was in charge of them.”

    Pbh,

    Putting your disdain for Jefferson aside, do you really think he or Madison or even Hamilton would have accepted the holding in Citizen’s United?

  215. Mespo

    “Your disagreement doesn’t make you wrong, of course, just decidedly outside the main stream and thus requiring of substantial proof to to ground your rather unorthodox assertion.”

    I have made four factual assertions which you have yet to contest:

    1. That Jefferson was the first to call for secession;

    2. That Jefferson was the first in U.S. history to create a partisan political party to oppose the standing, elected, government , of which he himself was a part;

    3. That Jefferson advocated spreading slavery into the Western Territories;

    4. That Jefferson was a total hypocrite when it came to the Bank of the United States.

    Rather than contest these facts, you spend all your time telling me that I should kneel in front hallowed opinion.

    I don’t see you offering “substantial proof”. I don’t see you dealing with the substantial, historic and factual issues I have raised. Instead, you appear to wallow in hero worship, received wisdom and hagiography. I am hoping for something more substantial from you.

    Perhaps you don’t think me worthy of the effort. But then, why the persistent posts asserting my lack of orthodoxy? Is that the best you can do?

    pbh

  216. Bob,

    “1zb1 is referring to two posts of mine.”

    With all due respect to 1zb1, your comments did not cross the ad hominem line as they did not make a personal attack, merely characterized behavior or potential behavior.

    On the other hand, when my criticism of Jefferson causes me to be very nearly lumped into “the cult of those who accomplish little in their lifetimes”, then I feel it is fair to point out the danger of a near infraction.

    pbh

  217. Bob,

    “Putting your disdain for Jefferson aside, do you really think he or Madison or even Hamilton would have accepted the holding in Citizen’s United?”

    First of all, Citizens United doesn’t work without Santa Clara v. Union Pacific and that doesn’t work without the 14th Amendment and that doesn’t happen without the Civil War. So, I kinda think the whole thing would have been a stretch for any of them to contemplate.

    That said, I think Jefferson would have opposed it until he learned to use it to his advantage. Madison would have opposed it, even as he may have had to learn to live with it. Hamilton would probably have been willing to accept corporate speech subject to regulation of some kind. Adams, one you did not mention, might well have moved to impeach the Court (I’m thinking Alien & Sedition here).

    I think the notion of corporate “personhood” would have been out of bounds for all of them. Excepting always Jefferson, who would oppose anything until he figured out how to use it to advance his interests.

    pbh

  218. 1zb1

    “talk about tortured logic.”

    ad ho·mi·nem [ad hom-uh-nuhm ‐nem] adjective
    1. appealing to one’s prejudices, emotions, or special interests rather than to one’s intellect or reason.
    2. attacking an opponent’s character rather than answering his argument.

    There is a substantial difference between asserting that a person’s arguments or beliefs resemble or might tend toward “X” and asserting that a person is “X”.

    Nothing tortured about it.

    pbh

  219. Bob, Esq.

    Mespo,

    Exactly why are Pbh’s comments about Jefferson worthy of your scolding but not Blouise’s?

    ======================================

    Stop trying to get me in trouble. Mespo knows I am a great admirer of Adams and he is waiting for old age to come unto me thus ensuring an acceptance, even friendship with Jefferson.

    If only John Adams had had President Franklin Roosevelt on his side ..

    I am in awe of Madison. Always have been, always will be.

  220. pgh: by what other means but “tortured logic” could you arrive at the notion:

    “Honestly Mark, do you really think your zeal for unlimited communist like power under Article I is any different from a fascist’s zeal for unlimited presidential power under Article II?” is not an AH attack (ie., appealing to one’s prejudices, emotions, or special interests rather than to one’s intellect or reason. and 2. attacking an opponent’s character rather than answering his argument.

    but,

    “That makes two of us wondering then, though I wonder more about….” arises to what you call “very nearly lumped …to a near infraction.” is an AH

    and, of course by your reasoning of…

    “There is a substantial difference between asserting that a person’s arguments or beliefs resemble or might tend toward “X” and asserting that a person is “X”.”

    …you would not be the least offened if I said your arguments resemble the same ones put forth by hitler in mein kampf (I am not in any way suggesting they do but merely underscoring the tortured nature of your logic).

    I personally thought saying “tortured logic” was a much more polite and respectful way of saying “full of crap”.

    But more important, let me say, the discussion of “Did The Founding Fathers Back Health Insurance Mandates?” has become so attenuated from the issue it is now painfully more absurd then even the notion of deciphering the “original intent” of a document signed by 39 individuals who disagreed on most everything, not to mention those who left without signing.

    Then again, I have harped enough on that subject.

  221. 1zb1

    I make a distinction between characterizing thought and/or action versus characterizing a specific person. This, it seems to me, is the definition of ad hominem. Thus, I can assert that a person’s ideas resemble those that are “Communist”, “Facist”, “Republican” or “Democratic” without making a personal statement.

    Therefore, I would not be personally offended if you asserted that my arguments resembled those advanced by Hitler, Mao or Ghengis Khan, I would simply ask you to prove your claim, case by case.

    There is a difference between insult and dialogue. Call me a “bad thing” and I am offended. Assert that I am proposing a “bad thing” and I will offer to hear your side of the issue.

    I cannot say how this dicussion veered off the original topic, if it indeed has. I can only suppose that we are all getting to know each other.

    pbh

  222. pbh:

    The problem here is that we’ve discussed these issues ad nauseum on the blog and I don’t feel the need retrace old ground. A summary might do, however. Jefferson maintained that states could secede but certainly didn’t call for that. He advocated the right of states to declare acts of Congress unconstitutional. Jefferson’s approach was repudiated in the Civil War and the question has remained decided since that day.

    Your second assertion is just not accurate There was no “party” at the time of the founding but most considered themselves Federalists.There were anti-federalist to be sure but it was not a cohesive unit. Hamilton created the Federalist Party in 1790. Jefferson and Madison disagreed with Hamilton’s strong central government plan so they founded an opposing party, the Democratic-Republicans.

    Jefferson was ambivalent on slavery considering it an evil that would reap a stern punishment on the nation but refusing to end it and emancipate the slaves.In the 1784 Congress, Jefferson proposed federal legislation banning slavery in the New Territories of the Northwest, but it was not passed. In March 1807, Jefferson signed a bill ending the importation of slaves into the United States. He also criticized the Missouri Compromise and believed northern meddling in Southern economic matters, including slavery, was wrong.

    You assertion that Jefferson was a hypocrite on the issue of the National Bank is not a factual assertion but merely your rather unlettered and simplistic opinion. I have no obligation to educate or correct you on that.

  223. Bob, Esq:

    Blouise and I have had this discussion before and agree that Adams was a great man, too. We disagree on Jefferson but I know she is no conservative seeking to overturn the separation between church and state as most Jefferson critics try endlessly to do.

  224. You assertion that Jefferson was a hypocrite on the issue of the National Bank is not a factual assertion but merely your rather unlettered and simplistic opinion. I have no obligation to educate or correct you on that.

    wow,

    True, very true. That is one I have not heard before, if I remember correctly the Banks Charter continued through the Jefferson Adminstration, and Jeff did do all he could to reduce the debt..

  225. Now … is the mandate Constitutional? In other words, what do you all think of the argument put forward by Einer Elhauge that Nal (David Drumm) included in his article that begins this thread.

  226. Mespo

    “Jefferson maintained that states could secede but certainly didn’t call for that.”

    Eh? The first and former Secretary of State clandestinely publishes this opinion and it is, what, a mere flight of fancy? And his henchman Madison repeates this treason? Just talking?

    “He advocated the right of states to declare acts of Congress unconstitutional.”

    Yeah, we can cut him some small slack on the basis that the Republic was “young” and that Jefferson had yet to comprehend (ie:command) it.

    “Jefferson’s approach was repudiated in the Civil War”

    Oh yes, and what a wonderful bequest from the “great man”. In My Humble Opinion, without Jefferson the Civil War would not have been necessary.

    “and the question has remained decided since that day.”

    By force of arms against tyranny.

    As for whether or not I was present for your eariler discussion of theses issues, well, please forgive me.

    pbh

  227. bhoyo:

    Jefferson kept the National Bank to aid in reducing the national debt. He limited its scope however.

  228. pbh:

    “In My Humble Opinion, without Jefferson the Civil War would not have been necessary.”

    *********************

    “You know my subscription to it’s [Tucker’s pamphlet] doctrines, and as to the mode of emancipation, I am satisfied that that must be a matter of compromise between the passions the prejudices, and the real difficulties which will each have their weight in that operation. Perhaps the first chapter of this history, which has begun in St. Domingo, and the next succeeding ones which will recount how all the whites were driven from all the other islands, may prepare our minds for a peaceable accomodation [sic] between justice, policy and necessity, and furnish an answer to the difficult question Whither shall the coloured emigrants go? And the sooner we put some plan under way, the greater hope there is that it may be permitted to proceed peaceably to it’s ultimate effect. But if something is not done, and soon done, we shall be the murderers of our own children. The Murmura, venturos nautis prodentia ventos has already reached us; the revolutionary storm now sweeping the globe will be upon us, and happy if we make timely provision to give it an easy passage over our land.

    ~Thos. Jefferson to St. George Tucker, 1797

    Quite the lover of war, don’t you think?

    You don’t need a blog. You need a history book.

  229. Mespo

    “Hamilton created the Federalist Party in 1790.”

    Really? Seriously? Do you have a contemporary citation for that?

    “Jefferson and Madison disagreed with Hamilton’s strong central government plan so they founded an opposing party, the Democratic-Republicans.”

    Well, that is at least semi-factual. Except for the “opposing party” part vis a vis Hamilton and Washington’s non partisan expectations of non partisanship.

    pbh

  230. Mespo,

    “Whither shall the coloured emigrants go?”

    Seriously, do I actually have to go toe to toe with you about Jefferson’s advocacy of slavery?

    Are you completely unaware of this fact?

    pbh

  231. pbh,
    “I make a distinction between characterizing thought and/or action versus characterizing a specific person”; “I can assert that a person’s ideas resemble…. without making a personal statement.”; “Therefore, I would not be personally offended if you asserted that my arguments resembled those advanced by Hitler,…I would simply ask you to prove your claim, case by case.”; “There is a difference between insult and dialogue. Call me a “bad thing” and I am offended. Assert that I am proposing a “bad thing” and I will offer to hear your side of the issue.

    your argument resembles a narcissistic spock-data from one of those evil altered ego episodes. the proof is in your argument.

    the fact that your argument personalized it about YOU rather then the impact on others – the subject of the attack and the observers – points to the type of argument a narcissist would use. the fact your argument ignores the emotional effect – a key component of AH – makes it resemble the kind of argument a cold hearted, emotionless green blooded vulcan or an android without an emotion chip would use.

    the fact your argument ignored a key element of AH even after you listed it – “appealing to one’s prejudices, emotions, or special interests rather than to one’s intellect or reason.” – also suggests basic fault in the argument not unlike what Data might experience when his circuits go haywire and he becomes his evil twin.

    now, of course I would not expect you to be offended by any of that because I am not attacking you personally but just your arguments and how they resemble certain fictional chrachters.

    FYI: AH is both an adj, and adv. current usage now also accepts it as a noun.

    In the meantime, I would still prefer we return to the discussion at hand. While I suppose your reasoning for why it has gone adrift might be correct, I think it has more to do with the notion that as arguments are shown to be weaker and weaker – the argument that The Founding Fathers WOULD NOT Back Health Insurance Mandates* (or more relevently, the argument the commerce clause does not permit the “requirement”) – they are compelled to go farther and father afield, and less and less relevant.

    To the extent we now debate Jefferson and the differences among the founders only underscores the absurdity of original intent without also asking “the intent of whom”?

    *Another reminder: the healthcare law does not mandate health insurance. there is a requirement to either have health insurance or pay a penalty.

  232. Mespo: “Blouise and I have had this discussion before and agree that Adams was a great man, too. We disagree on Jefferson but I know she is no conservative seeking to overturn the separation between church and state as most Jefferson critics try endlessly to do.”

    Mark,

    Your attacks against Pbh were unprincipled, ill mannered and childish. Pbh called Jefferson duplicitous while backing it up with an argument, i.e. reason giving, and you did nothing but denigrate him including categorizing him as someone “who accomplish[ed] little in their lifetimes only to criticize and defame those who accomplish so much more.”

    But when Blouise payed Jefferson the ultimate insult, i.e calling him a coward, you said nothing.

    Now I can tell you that Pbh, like Blouise, is also not a “conservative seeking to overturn the separation between church and state.” In fact, there is nothing in his posts to remotely suggest otherwise. Yet you imply he is in your post above to me.

    So someone calls Jefferson duplicitous, points out reasons for making that characterization, and your response it to call him an unlettered man who has accomplished little in his lifetime? How much more ad hominem can you get? What’s more, the basis of your attack is wholly unprincipled since an even greater insult to Jefferson’s honor went completely unchallenged. And you call me thin-skinned?

    It seems you’re far less interested in defending the honor of Jefferson and more interested in kicking sand in the face of anyone who dare challenge your hold over a particular corner of the sand box.

    And one final thought on the issue of duplicity, I’ve got two words for you:

    Louisiana Purchase.

    Grow up and get over it.

  233. pbh:

    “Seriously, do I actually have to go toe to toe with you about Jefferson’s advocacy of slavery?

    Are you completely unaware of this fact?”

    ***********************
    I am keenly aware that he beat a slave, kept slaves for economic reasons, felt slaves were intellectually inferior to whites, and felt emancipation could only be accomplished with forced deportation. I am also aware that he called slavery, “an abominable crime,” a “moral depravity,” a “hideous blot,” and a “fatal stain” that deformed “what nature had bestowed on us of her fairest gifts.” Jefferson also proposed legislation outlawing the slave trade, banning slavery in the Northwest territories, and permitting gradual emancipation with payment to the owners from government funds.

    That’s dictionary definition of ambivalent as I characterized him in my previous posts. Add a dictionary to that book buying list I suggested.

    On a stylistic note, arguing with you is like arguing with a child — it’s all black or white. No nuance. No realization of the internal conflicts, both moral and economic, that haunt us all.Not even an acknowledgement of conflicting authority totally disproving your points. It’s all or nothing in your false dichotomy world and likely by design in service to some rightist agenda.

    I don’t have time to clean up every spewing torrent of your ignorant or intentional B.S.

  234. 1zb1: “And just where does it say the CC can not make you buy something… please show me those words in the CC.”

    So now we go from a system of specifically enumerated powers to the exact opposite–according to you, the Fed has unlimited powers explicitly excluded.
    Didn’t Hamilton warn about people like you in Fed 84?

    Nuff said.

  235. Bob,Esq.

    “Your attacks against Pbh were unprincipled, ill mannered and childish.”

    ********************

    Thanks, Bob. I put you down as the moral authority on the blog along with our resident Kant zealot and master of non-sequiturs. The reason I pointed out pbh’s foolishness is precisely because he is foolish and, in the main, factually wrong. You want to climb up on that bandwagon, hop on. You can be just as irrelevant as he is compared to Jefferson.

  236. Mespo: “It’s all or nothing in your false dichotomy world and likely by design in service to some rightist agenda.”

    Mark,

    You’re so blinded by your emotions right now that you have no idea what you’re saying.

    You need to take a step back and take stock of your thought process by which you’ve concluded that Pbh is following some “rightist agenda.”

    I will tell you you’ll feel quite foolish when you learn the truth of who you’re arguing against.

  237. Hi all,

    Again being remote from my research I am being cautious as to certain things I might offfer. If my memory serves the world in the 1790s had somewhere in the neighborhood of 750 million people, those living under arbitrary governance out numbered the freemen by 23 to 1 or thereabouts.
    No apologist for slavery can find any solid ground to be on, so the recital of facts is futile.
    As far as manumission I know Madison just did not know what do. He thought sale of the Western Territories could be used to free the slaves by compensating the owners. Then where were they to go, their color betrayed theirprevious status and antipathy would be felt on both sides. Many of the Indian Tribes were less than fond of the unfortunate Africans, hence a settlement, even if remote from their previous owners left them at odds.
    Re-patrioting them to Africa was attempted as we all know, yet the fear of the voyage, and the uncertainty there, left many offered freedom to reject that idea.

    Tis like holding a wolf by both ears, one cannot hold on nor let go.

    jefferson also knew enough to Fear the existence of a Just God when considering slavery.

    Madison hated the practice, and tried to escape it on a personal level, and a poltical level which in the latter case, by trying to finacially compensate the previous holders was a road packed with frustration.

    Slavery was as barbaric as it gets, by 1790 it had become a Gordian Knot denied the sword to loosen itself. The bondsman of justice would exact, as Lincoln suggested, a harsh price for every tear and stroke of the lash. The countless lives denied the very liberty America stood for, and hipocrsy of the all men are created equal principle, would deny any leniency made to that bondsman of justice.

  238. Mespo: “Thanks, Bob. I put you down as the moral authority on the blog along with our resident Kant zealot and master of non-sequiturs.”

    This coming from a man who’s keen acumen and impeccable reasoning skills led him to believe that an FDR Democrat was following some “rightist agenda?”

    Thanks, but I’ll pass.

  239. Bob,Esq:

    I couldn’t care less who I am arguing against. pbh is the type of commenter who throws out half-truths in an attempt to tarnish someone who can’t defend themselves. That’s the Atwater school of argumentation. To that extent he’s rightist, regardless of his political leanings. I am not arguing from emotion simply the manifest facts of the mans’ life. Unlike pbh and you, I will acknowledge the conflicting evidence. That’s the hallmark of rational argument, not throwing red meat that you may finding intellectually appetizing to prop up nonsense.

  240. Mespo: “Unlike pbh and you, I will acknowledge the conflicting evidence.”

    Seems to me that implying I’m part of this argument constitutes a ‘half-truth’ — seeing all I did was direct your attention to a little land purchase universally acknowledged as, how shall we say, philosophically conflicting.

  241. Bob,Esq.:

    “that an FDR Democrat was following some “rightist agenda?”

    ********************

    Have no idea if any of that is true about pbh. He could be a member of the Khmer Rouge for all I know. He’s got a funny way of mimicking Roosevelt though. FDR was an unabashed admirer of Jefferson and commissioned his memorial in DC during his Administration. Maybe FDR was ambivalent, too.

    You guys are like Laurel and Hardy. Is there any history you know? Let’s try Greco-Roman next.

  242. Mark,

    So in order to be an FDR Democrat, one must admire Jefferson to the same degree that FDR did?

    Wow, so don’t you dare applaud or support the policies and principles of the FDR administration unless you also show your unquestioned love for Jefferson as well?

    You’re funny. Unprincipled and ridiculous; but funny.

  243. Mespo,

    I must have missed that because I thought that was why FDR suggested expanding the number appointed on the Sct…… Because he could not get social policy through…..

  244. Bob,Esq,:

    Unlike many folks today, Jefferson was no zealot since he didn’t have the luxury they enjoy of having absolutely no responsibility for the good of the nation. He tolerated both the National Bank and approved the Louisiana Purchase despite his doubts about their constitutionality. That, of course, precisely proves my original point that governing is much messier than philosophy and won’t fit into the rigid boxes that the “enumerated powers” crowd wants to put it in.

    The paramount constitutional requirement is serving the nation’s well-being and that trumps all. Do the ends justify the means? If the ends are big enough, they do. That’s the lesson of Jefferson.

  245. AY:

    You’re right of course. Bob is trying to prop up pbh’s argument by suggesting Bob knows more than anyone else — with the possible exception of pbh. It’s argument by the “I’ve got a secret” method.

    pbh is obviously correct and not a “rightist” despite his tactics ’cause he’s a FDR democrat according to Bob, or so the argument goes.

  246. bhoyo:

    “Again being remote from my research I am being cautious as to certain things I might offfer.”

    ****************

    Why so cautious? What you are saying is solid historical fact and applies with as much force to Jefferson as it does to Madison. Both “kicked the can down the road” in an effort to get passage of the US Constitution.

  247. bob. esq

    its a beautiful day. going to run a few miles. and then have a great healthy breakfast. at 65 i can tell you for a long time my health insurance premiums have been going to subsidize a lot of obese people who can’t control what goes into their mouth any more then what comes out of it (think newt, rush, darth vader who just got a heart transplant, Santorum, Christie, and a lot of other obese anti healthcare hypocrites – and let me include the Romney’s who are now the poster child for woman’s issues for the republican party).

    but I don’t mind at all.

    what does bug me are rich fat people giving themselves tax cuts while sending others off to war and telling other people to pay for it.

    may not have much to do with CC but I’ll get back to you on 84 aft wards.

    ps: cc A1-S8 enumerates the regulation of interstate commerce and enumerates “all Laws which shall be necessary and proper …. I looked and looked but did not see the qualifier in there… did they change the meaning of “all” when I wasn’t looking? maybe they intended it to mean “not all”. maybe they intended to mean just fishing but not grain when they said commerce, maybe the meant horse and buggy but not jet planes.

  248. Mespo: “Bob is trying to prop up pbh’s argument by suggesting Bob knows more than anyone else — with the possible exception of pbh. It’s argument by the “I’ve got a secret” method.”

    Mark,

    That is an intentionally false statement. I am neither part of the argument nor I do I care about the argument between you and Pbh. I have only remarked on the unprincipled and childish manner in which you’ve been acting; evidenced by your ad hominems directed towards Pbh for calling Jefferson ‘duplicitous’ while remaining silent when Blouise called him a coward.

    Furthermore, lashing out at someone who dare voice their opinion of Jefferson, as if you’d been personally affronted, smacks of childish behavior known as hero worship.

    Dear Radar,

    It’s time to grow up. Hawkeye, like Jefferson, is just a man; not an idol. And you’re too old for a Teddy Bear as well.

  249. Hi all,

    The ongoing dispute about Jefferson is amusing, one side stressing the flaws, the other his massive qualities, and accomplisments.In exagerating either, we lose the truth history offers all of us.

  250. “Dear Radar,

    It’s time to grow up. Hawkeye, like Jefferson, is just a man; not an idol. And you’re too old for a Teddy Bear as well.’

    *******************

    Like I said, “master of non-sequiturs.”

  251. People can say many good things as well as awful things about Jefferson….. But one particular his legacy lives today and that is the automatic stay in bankruptcy initial filings…..

    It seems that Jefferson was quite the land speculator, a note came due…. He couldn’t perform and Monticello was seized as a collateralized loan…. The note holder would not turn Monticello back over to the family even though others agreed to pay the note and extra demand….. If I recall correctly Jefferson died shortly after….. This important legacy still lives today and is one of the most important aspects of bankruptcy filings that creditors must obey…..

  252. bhoyo:

    At least my admiration takes into full account all of his warts. Does the opposition make any concession to his manifest greatness?

  253. Mespo: “Like I said, “master of non-sequiturs.”

    Actually, the Radar comment follows directly, as illustration, from the observation per your childish habit of hero worship.

    One of the few episodes of MASH worth remembering:

    “Fallen Idol” September 27, 1977

    Radar is wounded while traveling to Seoul on Hawkeye’s advice. Col. Potter has to check Radar over, since Hawkeye is shocked to see that it is Radar. Hawkeye, feeling guilty, insists on operating on Radar. He follows the operating session with an all-night drinking binge and shows up to surgery the next day hung over and having to step away. Radar is shocked that Hawkeye, who he idolized, could have such a failing. The two have a major argument, but eventually reconcile, realizing that they both are only human.

  254. 1bz1,

    Your posts concerning the interstate commerce clause are accurate. In that you are a scientist I know that long hours of study are required in that field, it is a rigorous discipline. I am asking that we collectively review the reasons for the architectonics of the Constitution, coupled with a candid examination of what the Ratifiers of the Constitution agreed upon. By admission I know the subject is tedious for some. I am aware as anyone times have changed. it boils down to the idea Francis Bacon posed when asking why does one read? is to confute and make argument, or is to take for granted, or the latter reason, to which he asserted his whole life, to weigh and consider ?
    My entire drive is the latter, to weigh and consider. No one can deny the excrescent nature of the national powers in the last 60 years or maybe longer, coupled with that growth is an entire new field of law, namely Adminstrative Law. Within the agencies formed under the ACA, all three powers of government are included in each agency formed. The executive power to enforce and fine, the lgislative to make formal and informal rules, and lastly the Judicial power, which is separate from Article 3 power. I am advocating dirty water or air, but I do believe the time has arrived for comprehensive review of these new powers.
    Under the Articles each state was a svoeriegn, hence a state could and did impose taxes on goods moving through their boundaries that had arrived at a port outside of their jurisdiction. The state that had the port also exacted a tax on the goods. That was the incentive to regulalte interstate commerce. That power now includes intra state commerce as well, under Wickard any commerce activity that can in the aggregate have an impact on interstate commerce is granted by the Court. if you read Wickard and look at his position, what he did on his own land, the implications are of the type I always believed a classic liberal would be alarmed at.

  255. mespo.

    At least my admiration takes into full account all of his warts. Does the opposition make any concession to his manifest greatness?

    I could not fill his or Madison’s shoes. I may well be spelling the name wrong, but Annette Gordon Reid ( ? )
    wrote a book on the Sally Hemmings issue, I read the book one weekend, but also watched her on CSPAN, She is an African American woman, so she could justify antipathy on the grounds of misoginyand slavery. Instead he studies lead her to a recognition of his greatness while recognizing his flaws, flaws which are the burden of all men and women. I admired her for her stance it revealed a spirit of moderation which lead her to an admirable expression of discretion. As one noted person stated discretion is the first of virtues.

  256. I have been on this blog for approx. 3 years and have gotten used to lawyers’ and academic’s love of argument.

    I read everyone’s response but ignore the pejoratives and go for the kernels of knowledge and insight about the matter being discussed.

    I admire Adams for many reasons but I don’t ignore the Alien and Sedition Acts and to myself wonder, “What in the world were you thinking?” When I say that I am assuming that students of history know that the threat of war from France played a role.

    Jefferson defended his actions in abandoning his position of leadership when the British invaded Virginia and his explanation was accepted. I suspect the “movement” did not want to lose his obvious skills and sent him to France where he would be out of the public eye at home and over time would be rehabilitated. To a certain extent that worked though the charge of cowardice dogged him the rest of his life much as the Alien and Sedition Acts dogged Adams.

    Madison’s scholarship is undeniable and his practical application of that scholarship in the creation of the Constitution is beyond remarkable. Yet I have read that he spent his later years rewriting many of his papers as he realized that he was now a great figure of history and would himself be studied for centuries to come. Ah, vanity.

    I rather like the terminology that one of the posters used, “kicked the can down the road”. It’s not exactly elegant and I suspect the only one who would have smiled at that description of their efforts would be Franklin, but there is a large kernel of truth in it.

    Now, please, for just a bit, can we get around to our very own Gordian Knot … Medical Coverage/Healthcare. How does one solve this problem using the legal document that is our supreme law, the Constitution? Surely we are not going to have to fight another Civil War.

  257. bhoyo,

    I have no problem with wickard. In fact it emphasizes one of the fundamental libertarian fallacies that we exist in isolation from each other. Everything we have is in whole or part the result of actions, and sacrifices by others – whether the collective acts of people through government or the individual acts of others past and present. as long as we get to share the highway of life with others our speeding, reckless driving, or even going too slow impacts on others. this is not open to debate. what we can debate is how many levels removed from direct impacts are we going to accept as proximate cause so as to allow a distinction between individual freedoms and consideration of their impacts on others. (if wickard was pumping out pollutants for his own consumption of energy instead of corn would that be okay)

    but let us not pretend if a person grows corn for his own consumption it does not alter the amount of corn in the total market either individually or in the aggregate of many growing corn for their own consumption. likewise that if a person does not buy insurance for a service he is all but guaranteed to use, it does not alter the entire market either individually or in the aggregate of many who do not buy insurance for service they are all but guaranteed to use.

  258. Blouise,

    Yet I have read that he spent his later years rewriting many of his papers as he realized that he was now a great figure of history and would himself be studied for centuries to come. Ah, vanity.

    My reading of the Madison Papers does not seem to concede the point you made. In the years Madison took to review his Papers he reached out to many and asked for verification. His recordings of the Constitutional Convention were not published till after his death, but others had published their recollections. One of the topics was the authorship of certain of the Federalist Essays which became a point of controversy for years, finally solved by Doug Adair. Of the traits Madison exhibited was humility, he was not vain in the common defintion. What he was was a stickler for accuracy, and one idea that was imbedded in his mind was the consent of the governed, he more than any other founder believed in the capacity of self governance, while having a prudent caution about the passions man always exhibits. As he stated there are characteristics we have that require circumspection, but also man has the opposite capacities as well. hence the design of the Constitution, it’s checks and balances, and the ability of people to change the organic powers with Article V. This was a design to keep liberty and energy in the proper balance and symmetry, it was intentional not accidental.
    When hsorians visited madison in his retirement it prompted one vistor to state he never saw so much mind in so little matter. of all the Founders, it can be said of madison that the Constitution became his life for so many years. If you get a chance google Drew McCoy and his excellent book on Madison’s retirement.

    One idea that I hve never seen fully developed to date, although I know one is in the works, is Madison’s hunt for the ‘Consent of the Governed’, in the quodlibets he initiated that point was always considered as a prime value. When Ingersoll called Madison the Father of the Constitution, ( which included the Bill of Rights of course ) Madison’s humble nature denied the title, and went to mention many heads and many hands.

  259. Blouise,

    I was merely pointing out that Mespo’s behavior was over the top and wholly uncalled for.

    Per the mandate, making mere existence as a citizen a condition precedent for invoking the commerce clause power renders the clause and the doctrine of specifically enumerated powers completely meaningless.

    Forcing an individual to purchase a service as a condition precedent for merely residing lawfully in the United States is not what the founders had in mind when they ratified the constitution.

  260. 1bz1

    I have no problem with wickard. In fact it emphasizes one of the fundamental libertarian fallacies that we exist in isolation from each other. Everything we have is in whole or part the result of actions, and sacrifices by others – whether the collective acts of people through government or the individual acts of others past and present. as long as we get to share the highway of life with others our speeding, reckless driving, or even going too slow impacts on others. this is not open to debate. what we can debate is how many levels removed from direct impacts are we going to accept as proximate cause so as to allow a distinction between individual freedoms and consideration of their impacts on others. (if wickard was pumping out pollutants for his own consumption of energy instead of corn would that be okay)

    I of course can agree that the no man is island theme you offer is valid. And that you have no problem with Wickard is your right, of course. I still have not seen a distinction in your offerings, which highlight the diference between a constitutionally protected opinion, and an opinion that is constitutional. You did develop a pretty good syllogism, that I concede, and in that I do not agree with all libertarian ideas we are in agreement there. I do not think it Constitutionally sound to condemn evry idea that seems to have found even a tiny resonance, within a group I dont agree.
    is it your proposition that we are stuck with the melancholy choice of deciding that if we are to escape the state of nature, and form a society, even a Constitutional republic with a written Constittion, that we concede all of our individual autonomy that can be dteremined to even remot;ey threaten the recognition of our inter dependence ? Did we not agree that there certain rights we do not surrender under the Social Compact ? is there not a un constituional conditions doctrine ? The issue remains unanswered in your post, how do you propose to insure individual liberty if you dont limit the powers of the National government ?

  261. “I was merely pointing out that Mespo’s behavior was over the top and wholly uncalled for.” (Bob)

    I know :)

    “Per the mandate, making mere existence as a citizen a condition precedent for invoking the commerce clause power renders the clause and the doctrine of specifically enumerated powers completely meaningless.

    Forcing an individual to purchase a service as a condition precedent for merely residing lawfully in the United States is not what the founders had in mind when they ratified the constitution.” (Bob)

    I agree in that to do so would require an amendment to that legal document otherwise it ceases to be the legal document upon which we base our existence as a federal constitutional republic.

  262. Blouise: “I agree in that to do so would require an amendment to that legal document otherwise it ceases to be the legal document upon which we base our existence as a federal constitutional republic.”

    Exactly. And besides, the Federal government has all the power and precedent it needs to implement single payer health care reform through the general tax rolls and a simple expansion of Medicare/Medicaid.

  263. Bob,

    I hope I’m not being too simplistic here but the discussion seems to veer of course when the subject of how to protect the insurance industry is introduced.

    Do you recall the break up of AT&T?

  264. Blouise,

    Aside from the scenario that Pbh raised, i.e. having to fund policies with the no pre-existing condition law still in place without a mandate, I see no problem with letting the insurance companies adjust their businesses accordingly.

    To do that, they’ll have to strike down the entire health care act, or as Pbh illustrated, we’d be headed for Thunder Dome.

  265. To do that, they’ll have to strike down the entire health care act, or as Pbh illustrated, we’d be headed for Thunder Dome.

    I think the mandate is stricken, and the unfunded medicaid Mandates to the States as well.

  266. bhoyo,

    I believe I picked up that bit of opinion on Madison’s editing efforts from one of the recently published “all-inclusive foundings” books but bow to your greater knowledge of the man. I remember it simply because the opinion seemed so far removed from other material I had read about Madison.

    One of my favorites is “James Madison: A Biography” by Ralph Louis Ketcham

  267. One of my favorites is “James Madison: A Biography” by Ralph Louis Ketcham

    it is the best single volume Bio available,for a multi Volume irving Brant’s work is the best, Drew McCoy did excellent work, as did Lance Banning, Gary Rosen. But the best source remains the Papers of James Madison.

  268. Mespo:

    “Bob knows more than anyone else”

    From what I can tell, that is a pretty accurate statement within the cofines of the regulars on this blog.

  269. “Per the mandate, making mere existence as a citizen a condition precedent for invoking the commerce clause power renders the clause and the doctrine of specifically enumerated powers completely meaningless.

    Forcing an individual to purchase a service as a condition precedent for merely residing lawfully in the United States is not what the founders had in mind when they ratified the constitution.”

    Yep. But given the current composition of SCOTUS, do you really think this will the hook upon which they hang their reasoning? I agree, it should be in part or in whole, but I suspect it won’t be.

  270. bhoyo “is there not a un constitutional conditions doctrine ?”

    its seems we have been through all this and now chasing our tail.

    the real question, if i may remind you, began with is the “requirement-to-have-insurance-or-pay-a-fine constitutional’ (my more accurate rephrasing of the original question).

    we might argue whether it was good policy, or the best methods of achieving a particular goal, or whether it was the only means given political and other realities.

    but those are really other arguments.

    you have taken the barnett, end of the world as we know it approach (which I usually reserve for the notion of Romney and the republicans getting elected): if they can make us buy insurance they can make us eat broccoli. at the very least making you buy a product is not the same as making you use it. In too many countless ways we are already made to buy and pay for products we might not like but are forced to do anyway. and we are already even forced to use many of them (or denied the opportunity to use others).

    the bounds of CC have been drawn in lopez so to say there are no bounds misstates the facts. and there is always the simple fact that if the day comes when they try and pass a law that makes you buy broccoli AND actually eat it there will be some case on it to decide how closely related to interstate commerce it is and how necessary and proper.

    besides that we seem to be going around in circles.

    btw: if we take Fed 84 at its argument in opposition to the BR (more particularly the need for the BR),

    “I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?”

    we must conclude that is an argument clearly lost by virtue of the presence of the BR as amendments. it then it stands to reason, there being no provision granting individuals the right to not have insurance or pay a fine and given CC is an enumerated power i see nothing that helps by 84 for the opposition to the healthcare law.

  271. “But the best source remains the Papers of James Madison.” (bhoyo)

    Then I could write my own book! ;)

  272. Bron, either you unintentionally took the comment out of context or you are willfully being dishonest.

    “Mespo:

    “Bob knows more than anyone else”

    From what I can tell, that is a pretty accurate statement within the cofines of the regulars on this blog.”

    In either case a correction is in order. thanks

  273. “Yep. But given the current composition of SCOTUS, do you really think this will the hook upon which they hang their reasoning? I agree, it should be in part or in whole, but I suspect it won’t be.” (Gene)

    And sadly, we all know why.

  274. “But the best source remains the Papers of James Madison.” (bhoyo)

    Then I could write my own book!
    Lol,

    Well you have to read what he wrote, then read what he read. Then you have to go through American memory and get all the inputs, then study the ratifying conventions, and after that the resolutions the states wrote. The papers of the others have to be read….

    It is a good first step though>>>>

  275. 1bz1,

    the real question, if i may remind you, began with is the “requirement-to-have-insurance-or-pay-a-fine constitutional’ (my more accurate rephrasing of the original question).

    Ok, No !!!! It is ultra vires> Next

  276. bhoyo, you seem to have had a bit of a misspelling there: intra vires

    as for Blouise, i have seen enough that god help me if i should ever be considered a regular in this click, but thank you for reminding me of that. (there are, of course, a few exceptions).

    as for something of interest, Randy Barnett and his “The Original Meaning of the Commerce Clause” http://www.bu.edu/rbarnett/Original.htm#IIA4

    is a true work of irony considering how absolute HIS meaning suggested by the title; and his long list of supposed contextual references to support his claim but which are matched only by the number of linquistic qualifiers he uses. so much for certainty.

  277. Mespo

    “Jefferson also proposed legislation outlawing the slave trade, banning slavery in the Northwest territories, and permitting gradual emancipation with payment to the owners from government funds.”

    I am so chastised.

    “Jefferson claimed in 1777 and 1778 to have authored bills that would have emancipated slaves, liberated the children of slaves, and deported them from the colonies. Jefferson claimed to have withdrawn the legislation and said the “public mind” would not be able to accept emancipation at this time. But, there is no evidence from Jefferson’s collective writings that he authored such legislation.”

    http://en.wikipedia.org/wiki/Thomas_Jefferson_and_slavery#Challenges_to_Jefferson_as_anti-slavery_advocate

    “I don’t have time to clean up every spewing torrent of your ignorant or intentional B.S.”

    There you go again (my favorite Reagan quote).

    I made four specific charges against Jefferson and your single response is a demonstrable falsehood. And then you go Ad Hominem all over again.

    pbh

  278. bhoyo

    “As far as manumission I know Madison just did not know what do. He thought sale of the Western Territories could be used to free the slaves by compensating the owners. Then where were they to go, their color betrayed theirprevious status and antipathy would be felt on both sides. . . .

    Tis like holding a wolf by both ears, one cannot hold on nor let go.”

    Oh yeah, we’ve had such a terrible time dealing with “them” ever since they’ve been freed. All of the arguments put forth by slaveholders are, pardon my french, merde.

    pbh

  279. mespo

    “Unlike many folks today, Jefferson was no zealot . . . ”

    Jefferson was no zealot? Are you kidding? His purge of the Federalists notwithstanding?

    “The paramount constitutional requirement is serving the nation’s well-being and that trumps all. Do the ends justify the means? If the ends are big enough, they do. That’s the lesson of Jefferson.”

    OMG. OMG. This is a pimer for tyranny. OMG.

    If the ends are big enough they justify the means? Wha? Yo, I need to have a hole in the ground dug out for my cistern. Could you please spend your time doing that rather than on the very deep grave you are currently digging?

    pbh

  280. Oh yeah, we’ve had such a terrible time dealing with “them” ever since they’ve been freed. All of the arguments put forth by slaveholders are, pardon my french, merde.

    So now we can add the post civil war era to the histories PBH has not read, this list is getting long………….

  281. 1bz1,

    bhoyo, you seem to have had a bit of a misspelling there: intra vires

    Well I meant and stated ultra vires. it the libs who believe inter is intra, or public use and public purpose are all part of the coterminous language of progressive ‘fictions of the law’.

  282. Bob

    “Aside from the scenario that Pbh raised, i.e. having to fund policies with the no pre-existing condition law still in place without a mandate, I see no problem with letting the insurance companies adjust their businesses accordingly.

    To do that, they’ll have to strike down the entire health care act, or as Pbh illustrated, we’d be headed for Thunder Dome.”

    The fact is that the GOP wants to erect the Thunder Dome ASAP.

    They hate the New Deal. They hate Social Security. They hate Medicare. They hate unions. They hate homosexuals. They hate freedom of choice. They hate pigment.

    They worship wealth. Period.

    How do insurance companies survive after the mandate is repudiated? They withdraw. They wait it out. They lobby for complete repeal. They prevaricate. They subjigate. They enslave.

    It’s all good.

    pbh

  283. bhoyo

    “So now we can add the post civil war era to the histories PBH has not read, this list is getting long………….”

    Uh, well, I lived part of it, but hey. My point was that the “terrors” that your boy Madison and my good friend Jefferson claimed to fear from “manumission” were entirely, forgive me for using this word in their hallowed presence, STUPID.

    And/Or CRIMINAL.

    And MAYBE just a little self serving.

    Being that their entire careers were funded by slaves.

    pbh

  284. 1zb1

    “the real question, if i may remind you, began with is the “requirement-to-have-insurance-or-pay-a-fine constitutional’ (my more accurate rephrasing of the original question).”

    First, there is no “fine”. There is no “penalty”. For those who cannot afford it, it will be provided. For those whose employers provide it, there is no change. For those in between, ie: those with no job and with no insurance but who can afford it, the mandate takes a deduction. That group could be fairly described as the 1%.

    Second, yes it is constitutional. The 1790 Congress confirmed that.

    pbh

  285. PBH,

    Going backwards from Jim Crow history shows you wrong, they suffered tremendously, there was incrediable antipathy they and the previous owners felt, and held on to for decades, some remains today. re patriotiate was tried, and you are aware of that. Although Madison did inherit his fathers estate after Ambrose died, he managed to support himself outside of slavery, borrowing money at times to make ends meet.

  286. bhoyo: you maybe missing the laugh chip… of course i knew it was no spelling error. however, if you don’t like what the law says you are free to try and change it.

    pbh: i thought stating the exceptions and exemptions – including others in addition to those you mentioned – was stating the obvious given I posted the whole of the relevant provisions above. (can it really be that with all the opinions given here on the law that few have actually read the law? hmmmm)

    but in this crowd you are right for me not to presume. i should be saying that not only are we NOT forced to eat the broccoli, many of us for one reason or another – including poverty and conscience – don’t have to pay for it either.

    let me restate the question a bit more completely:

    whether the “requirement-to-have-insurance-or-pay-a-penalty-except-for-those-exempted” is constitutional

    “fine” is very close in meaning to “penalty” but I should have used the term of the provision. I stand corrected.

  287. bhoyo,

    I just want to make myself clear. To say, as Madison and Jefferson did, that freeing the slaves would lead to terrible consequences (my paraphrase for their unending equivocations) is small beans to the actual event (ie: the civil war) and hyperbolic excess over the result, ie: Civil Rights.

    In fact, they were indisputably wrong on both counts.

    And when you say that Madison borrowed to support himself, may I ask what equity he offered as collateral?

    pbh

  288. Pbh,

    In fact, they were indisputably wrong on both counts.

    Actually they were right on all counts.

    madison borrowed against the future payments he migh receive from the Continental Congress.

  289. 1zb1

    “I should be saying that not only are we NOT forced to eat the broccoli, many of us for one reason or another – including poverty and conscience – don’t have to pay for it either.”

    I am not going to go so far as to suggest that those of us who don’t eat broccoli necessarily imperil those of us who do. Healthcare, on the other hand is a slightly different matter. This is because we have both a vegetable act (ie: Medicare) and a bowl of rice act (ie: Social Security).

    Justice Thomas is on record as hoping to dispose of both the bowl of rice and the vegetables.

    The sole question is whether or not the other carnivores on the Court are prepared to join him in tossing out the baby, the bath water, the bassinet, reproductive rights and whatever else anyone could ever somehow imagine “forces” them to eat broccoli.

    pbh

  290. 1bz1,

    a fine is a penalty but a penalty is not always a fine. of course fine may not always be a penalty either

    Alright you did get A CHUCKLE OUT OF ME on that one.

    I remember the Popeye Movie where the tax guy just invented a reason as he ran into you.

  291. bhoyo

    “Actually they were right on all counts.”

    What the? Jefferson and Madison believed that the two races could not live in freedom together. They wrote about this continuously. This fiction was in their blood.

    They also “foresaw” that freeing the slaves would result in conflagration. Which is to say that there would be some kind of war between the freedmen and their former owners.

    Neither of which happened. Jesus. Bald Headed. Keyrist.

    “madison borrowed against the future payments he migh receive from the Continental Congress.”

    Madison’s wife had to sell slaves in order to pay his debts. Same with that so and so Jefferson. These are facts. Why do you temporize and prevaricate?

    pbh

  292. “Lol,

    Well you have to read what he wrote, then read what he read. Then you have to go through American memory and get all the inputs, then study the ratifying conventions, and after that the resolutions the states wrote. The papers of the others have to be read….

    It is a good first step though>>>>” (bhoyo)

    Ah, you are suggesting I should write a good book. I have the required interest but not, I fear, the discipline.

    “On second thought … let’s not go to Camelot.” (Monty Python and the Holy Grail) :)

  293. pbh,

    I take it that you are demanding a little more honesty when it comes to the flaws of the framers and by framers I mean the whole kit and caboodle … Declaration, War, Constitution.

    Are you also asking for something more? (I generalized so as not to be guilty of putting words into your mouth.)

  294. PBH,

    Why do you temporize and prevaricate?

    I dont, and your implication that I do is chimerical as they would have said. Tension and fighting between previous slaves is part of our history, madison and Jefferson’s descendants did have to sell slaves and acreage to survive, true, Jefferson sold his library, Madison the records of the Constitutional Convention.

    I was not of the generation that inherited slavery, and all of it’s ineluctable consequences, postponable yes, aviodable no. As far as the races living together Lincoln felt the same way, he was errant as well. It is easy to project our contemporary feelings on to previous generations, that we all know. Slavery is a blight, Toqueville described the disgustng and obvious visible distinctions on either side of a river, if the Cotton Gin failed maybe slavery would have died before the war.
    It is obvious you have read some history or a fairly well written secondary history, maybe Wills or MacDonald. I applaud that effort, and your revulsion for slavery is admirable indeed. By the time our Founders got to writing a Constitution the barbaric practice was so imbedded it needed a war to remove it. The southern states refused to let it go, they meant it. The whole thing is a mess, true. Nothing runs a chill up my spine as much as having a young African American ask me, during a presentation of the federalist papers, to discuss slavery. And that i mean from my soul, it is a legacy that even resipiscence is inadaquate to resolve.

    i am not willing to throw out the baby with the bath water, I lament slavery is part of the Constitution, but in that it was the most significant change in the formula of governance changing the formula of, power allowing liberty, to liberty granting power, I dont think it prudent. That you dont like jefferson is fine, it is your right, and I support that. was he flawed yes he was flawed. because he was flawed should we reject the Constituion ? That is not a tough question.

  295. blouise,

    Ah, you are suggesting I should write a good book. I have the required interest but not, I fear, the discipline.

    My original plan to write a book concerning Madison and the Founding involved a 5 year plan, that deadline came and went 12 years ago. More extant documents surfaced, easier access, huge changes in law, both in Constitutional law and Adminstrative Law created a two year digression just for those two topics alone, a year of study in Con law made a year of studying Adminstrative law necessary. While I have been studying topics related to Madison and Constitutional law we have had an Impeachment, BVG, the Patriot Act, Tenth Amedment resolution efforts by the States, and the election of the most iconic figure to hit the White House since washington himself. Just when i think i have it all figured out the mail arrives and The Legal process by Hart and Sacks arrives, and the thought process of breyer is handed to me in a neat compact 1300 page book, which lead me to Breyers book. Obama appoints Paul verkuil to head the re establsihed ACUS, and his works need review, including Regulation and De regualtion which he co authored has to be studied, and wouldnt you know it he references breyer, who then decided to write Active Liberty, which piised me off beacuse I like him so much but dont agree with him.
    All I have to do is condense all this into 320 pages after editing and revisions… LOL
    Not discipline, a tendency towards self inflicted bondage is necessary. By the way I love it all, and wouldnt trade a minute.

  296. pbh: i think we are in general agreement if the folks in black robes overturned the health care law it would be a monstorous thing. it would be wrong as to the constituion; wrong in the spirit of politics on which it would be almost certainly decided; and wrong as a matter of humanity.

    it was my expressed wish all those who vote to overturn should suffer in ways similar to those who loose their healthcare as a result which caused such offense to prof barnett in our exchange. however, i stood by that sentiment just as I do toward any judicial body that hides behind the veneer of law to destroy people’s lives. when mindless politicians speak of death panels it will be those in black robes they should be speaking of.

  297. bhoyo,

    So then, I will read the Madison papers, write a pamphlet, and bring it to you in Camelot. Bob can bring the mead. You need the break. ;)

  298. pbh:

    “I just want to make myself clear. To say, as Madison and Jefferson did, that freeing the slaves would lead to terrible consequences (my paraphrase for their unending equivocations) is small beans to the actual event (ie: the civil war) and hyperbolic excess over the result, ie: Civil Rights.

    In fact, they were indisputably wrong on both counts.”

    *************************

    Contradict yourself much:

    A & B clam C will occur if D happens.

    D happens.

    C occurs in spades.

    pbh says A & B are wrong.

    Well with such authoritative sources as Wikipedia at your disposal, your assertion must be true. I suggest you read more before you get into arguments with folks who demonstrably know quite a bit more than you do..

  299. barnett goes through a lengthy investigation of meaning and intent to dissect the word “commerce” in the constitution. his thesis generally is courts have used the term wider then intended based on meaning on the actual meaning and usage of the time. the correct interpretation according to barnett is much narrower and in support of thomas.

    according to him, “commerce” is a subset rather then all encompassing as generally used today, and he sites many examples of its usage next to words such as agriculture, manufacture, and art as proof. (note, while he does an exhaustive review of appearances of the word ‘commerce’ used throughout the convention – over 80 examples – his own work includes too many equivocating modifiers to bother counting)

    it is thus a tacit admission by barnett the precedent of the court widely supports upholding the health law while the original meaning and intent (according to him and thomas) should overturn it. so the choice for barnett is which will prevail: the meaning and intent of the word “commerce” in the constitution at the time based on his analysis to overturn or Stare Decisis to uphold it.

    now it occurs to me the founders were about as knowledgeable a group of their day as any. well read and versed in history. it seems to me they would have a good sense that over time the meaning of words change and the intent is subject to interpretation. also, clear is their sense of both the past , present, and future (“…secure the Blessings of Liberty to ourselves and our Posterity”).

    with this in mind how is it they did not present a clear, and precise meaning to their words for future generations to know both the meaning and intent? why did they not say – on so fundamental issue – we expect this constitution and the meaning of these words to be construed for all time in a particular manner with a particular meaning and intent? how is it they gave so little guidance? were in the constitution does it enumerate the constitution should be interpreted in the future by the meaning and intentions of the day.

    the federalists, while providing ample opportunity to expound in detail and with clarity on these questions is really of little help. sure, it gives some general flavor in broad strokes, but the problem of meaning and intent – especially for future generations can not be resolved by broad strokes.

    i submit all of this was done with intentional vagueness, both for the necessity of passage and the imperative to adapt to future generations (to suggest these men who reinvented their world wanted the future to be bound entirely by their world seems absurd on its face).

    i find nothing in the constitution or the dialogue of the day that supports the notion we should slavishly attempt to divine original meaning, intention, and from that, solely base our actions based on the pas without regard for the present and the future.

  300. one other point: even if “commerce” was in those days used to indicate part of the subset rather then the whole, it would be impossible to engage in any of the other activities – ie agriculture, manufacturing, or arts, – without also engaging in commerce.

  301. i now some will point to the adaptability provided by the amendment process but for reasons i will address later this does not resolve the ambiguities or provide what they would have considered adequate means.

  302. i now some will point to the adaptability provided by the amendment process but for reasons i will address later this does not resolve the ambiguities or provide what they would have considered adequate means.

    I am anxiously waiting, and will alert the media. LOL

  303. Gene: “Yep. But given the current composition of SCOTUS, do you really think this will the hook upon which they hang their reasoning? I agree, it should be in part or in whole, but I suspect it won’t be.”

    Gene,

    Yes I do; at least Kennedy and Scalia..

  304. Mespo: “The paramount constitutional requirement is serving the nation’s well-being and that trumps all. Do the ends justify the means? If the ends are big enough, they do. That’s the lesson of Jefferson.”

    Pbh: “OMG. OMG. This is a pimer for tyranny. OMG.

    If the ends are big enough they justify the means? Wha? Yo, I need to have a hole in the ground dug out for my cistern. Could you please spend your time doing that rather than on the very deep grave you are currently digging?”

    Pbh,

    So if bhoyo and I said that it’s this type of thinking that the doctrine of specifically enumerated powers keeps in check, would you finally understand the reasons for our objections?

  305. Bob,

    Thank you. And I would like to add:

    It is always wise to look closely at the means when attempting to reach a satisfactory end. ( Marchiavelli’s view on power of the state aside.)

  306. Bob, Esq:

    “So if bhoyo and I said that it’s this type of thinking that the doctrine of specifically enumerated powers keeps in check, would you finally understand the reasons for our objections?”

    *******************

    No, had your view held sway Louisiana would belong to France. Slavery would exist from the Virginia to Texas if they were states at all and Hitler would have won the war. You’re a purist Bob, Esq., and every instance I cited contains a clear example where a President exceeded the founder’s notions of enumerated powers to buy land, oppose secession, and engage in Lend-Lease or even maintian a standing army and navy. In each case, the President’s decision kept us free or secure or together as a nation. Damn those compromisers.

  307. No, had your view held sway Louisiana would belong to France

    Throghout all of our discussions one element is ignored, and I think it is a key one to examine. When is enough, enough ??
    The growth of the National Powers in the last 70 years should alarm those who claim the liberal mantra, yet it doesn’t seem to bother them. The Federal gov’t is invloved in so many areas they Dont belong in, Agnecies are a mess, even Obama conceded that recently, yet we keep granting more and more power.I know it is the pursuit og mormative social justice, but if we lose liberty in that pursuit, then what ?

  308. bhoyo:

    “The growth of the National Powers in the last 70 years should alarm those who claim the liberal mantra, yet it doesn’t seem to bother them. The Federal gov’t is invloved in so many areas they Dont belong in, Agnecies are a mess, even Obama conceded that recently, yet we keep granting more and more power.”

    **************************

    Do you think your liberty moire secure with more power accorded to the individual states? Are you happy with the hodgepodge of differing laws on abortion (vaginal probes and all), self-defense (stand your ground) or immigration policy (show me your papers). We have as much to fear from right-wing extremism in small venues as we do in larger ones, but the larger ones contain more moderating influences.

    We are a nation thrust by WW2 into the status of a global power and a strong central government is a prerequisite. There are no counter-examples from history where a loose confederation of states survived in a leadership role. The Greeks were fierce and refined but gave way through their own divisiveness to the Romans. Now if we want to abdicate our role as leader of the Western democracies we can retreat from the world into isolationism, regain our small government roots, and watch our standard of living recede along with our security to the aggressively nationalistic nations of the world like China and Iran. It’s really our choice, but I think I know where most Americans would come down.

  309. Blouise:

    “Marchiavelli’s view on power of the state aside.”

    *********************

    Machiavelli was no advocate, merely a keen observer of the statecraft in play both then and now. The first law is survival.

    “I deem it is best to stick to practical truth of things rather than to fancies. Many men have imagined republics and principalities that never existed at all. Yet the way men live is so far removed from the way they ought to live that anyone who abandons what is for what should be pursues his downfall rather than his preservation.” [emphasis mine].

    (Donno, 7)

  310. mespo: well said.

    states rights: the right to enslave. when it comes to abuse and corruption states make the feds look like saints.

    right to work states: right to exploit workers.

    right to assemble: not if you are in a union.

    lincoln: “government of the people by the people for the people,”

    regan: “Government is not a solution to our problem, government is the problem.” and republicans have been doing their very best ever since to make that so and then complaining when they succeed at it.

    bush2: go shop till you drop and give tax cuts for the wealthy while sending young men and woman off to war. can anything be more reprehensible.

    romney (another republican draft dodging chicken hawk): more tax cuts for the wealthy and corporations (apparently his 15% is not low enough) while beating the drums to send more young men and woman off to war.

    rightwing banner: one nation under god and corporations.

    rightwing/liberterian notion of individual rights: the right to be as ignorant as you want and make everyone else live that way.

  311. Hi all,

    Although I do plea for responses not tinctured with partisanship,I still get that type of response. As someone once said public measures are rarely discussed with the spirit of moderation necessary to obtain a just estimate of their capacity to advance or obsrhcg the public good.

  312. rightwing/liberterian notion of individual rights: the right to be as ignorant as you want and make everyone else live that way.

    Remarkable !

    if the partisan zeal could be replaced with a temprament that allowed an honest or candid exchange, the difference here. and nationally would be so much more productive.

    I ask the question again, is the excrescent growth of the national government a cause for alarm. ?

    Is there a reliable limit to national power under either the Necesaary and Proper Clause, the General Welfare Clause combined with the Commerce Clause if the ACA mandate is allowed. I dont think Lopez is sufficient ammunition based on history.

    Stare decisis is a remarkable tool for continuity in law, it counsels previous errors, it does not provide a justification for new ones.

  313. mespo,

    We have as much to fear from right-wing extremism in small venues as we do in larger ones, but the larger ones contain more moderating influences.

    I see you believe that only the national is capable of governance. I do not share that view. If i remember right the national is comprised of states, the states of people. This vaginal probe stuff is over the top, and you know it when you post it. No one is ever going to reverse Roe calm down, and where are your papers ? mespo I know you know that is over the top, or you have not read the Arizona Law, which is it ?
    ,

  314. bhoyo:

    “I see you believe that only the national is capable of governance.”

    *********************

    That’s precisely what I carefully didn’t say. I said that a global power is only governable with a strong central government as history has shown. We have the choice to accept or reject that role, but not to escape the consequences of either choice. That’s what I said.

    You can be governed by local and state government, but the whole will suffer because of the divergence of interests. As you well know, Madison understood that the problem with democracies is factionalism. That’s the dynamic to overcome in your scenario. The dynamic in my scenario is too much amalgamation of power in a central source with no sensitivity for regional or local differences.

    The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States. A religious sect may degenerate into a political faction in a part of the Confederacy; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source. (Madison, Federalist 10)

    It’s the age old problem we solved with both a federal and national constitution. I think my analysis very Madisonian. Wouldn’t you agree?

  315. bhoyo:

    “I ask the question again, is the excrescent growth of the national government a cause for alarm. ?”

    *****************

    Certainly it is but you’ve assured that answer in the way you ask the question. Excrescent means superfluous, abnormal or excessive growth. The real question is: Is the national government’s accretion of power excrescent, that is to say, is it’s growth superfluous, abnormal,or excessive ? Most would agree that it is not superfluous given our standing in the world;not abnormal given the examples of history; and the question of whether it’s excessive is a matter of personal preference. When the hurricane or tornado hits my neighborhood, I want the feds at my doorstep in an “excessive” display of power. When the Twin Towers are attacked, i want the national government to track down the killers and bring them to justice in an excessive way. “Excessive” is in the eye of the beholder.

  316. bhoyo:

    “This vaginal probe stuff is over the top, and you know it when you post it. No one is ever going to reverse Roe calm down, and where are your papers ? mespo I know you know that is over the top, or you have not read the Arizona Law, which is it ?”

    ******************

    It’s not and It’s neither.

    Virginia was two votes shy of requiring women who wanted abortions to undergo invasive vaginal ultrasounds. After a national outcry the governor pulled his support.

    The US Department of Justice (DOJ) recently filed a lawsuit against South Carolina, challenging the state’s strict immigration law. The DOJ has now challenged the constitutionality of three state immigration laws: Arizona, Alabama, and South Carolina. Critics of these laws call them “racial profiling” laws or, more aptly, “show me your papers” laws because they require all immigrants to carry their documents with them at all times for production on demand by state law enforcement officers.

    Maybe you need to get away from just reading original sources and check out the newspaper sometime.

  317. mespo,

    “Machiavelli was no advocate, merely a keen observer of the statecraft in play ”

    I know. I worded that sentence carefully, purposely choosing the word “view”, considered the word “observations” but chose view because it was shorter. I put the sentence in parenthesis as a “sub” thought which was to be put aside if one thought I was referencing Machiavelli.

    Good lord, mespo … this is a bit ridiculous.

  318. Mespo,

    I read your posts and do understand some of your points. Yet what is still un responded to, is the question I keep asking. Can we in the pursuit of justice, eradicate the liberty we all cherish? You did carefully avoid the specific idea of saying the national alone is capable of governance, agreed. Yet on oyr current trajectory we are headed there despite your carful wording. Have you digested the rule making that os going on with either Dodd Frank or ACA ? If we carefully ignore massive governement growth by careful wording does that assure liberty ? In the ACA’s huindred of pages of statutes, is the seed for more explicit rule making by agencies, whose pages are going to beyond the hundreds. Are you actually suggesting anyone can monitor all of this ?
    Your idea that I assure the answer, with the question, maybe accurate in the regard that it is a threat to l;iberty if we allow the government to change it’s powers without our consent the formula is there for abuse.

  319. mespo,

    Arizona, Alabama, and South Carolina. Critics of these laws call them “racial profiling” laws or, more aptly, “show me your papers” laws because they require all immigrants to carry their documents with them at all times for production on demand by state law enforcement officers.

    More aptly, of course ! Is there a way to avoid racially profiling illegal immigration in Arizona from Mexico for instance, without developing a profile that doesnt suggest an exxagerated view of racial profiling ?? This is one baffles me, and hence the point is lost. It also seems you are conceding you havent read the Arizona Law.

  320. bhoyo:

    You raised the Arizona law. I didn’t. I have read excepts of the law and commentaries on it, but not the actual statute. Thus I have no comment on it. As to your first question (“Can we in the pursuit of justice, eradicate the liberty we all cherish?) more time than I have today is required. I’ll reply tonight.

  321. bhoyo

    “That you dont like jefferson is fine, it is your right, and I support that. was he flawed yes he was flawed. because he was flawed should we reject the Constituion ? That is not a tough question.”

    Oh yeah, I really want to throw out the Constitution. Because Jefferson, who did not write it, took unfair and illegal advantage of it.

    I repeat: Screw that guy.

    pbh

  322. Mespo,

    “A & B clam C will occur if D happens.”

    Well, I don’t think anybody other than a clam would worry about that.

    Further, your appreciation for the alphabet fails after the first two letters.

    The Civil War did not occur because the slaves were freed. It occurred precisely because they were *not* freed.

    Jefferson and Madison and all of their ilk “feared” that the freed slaves would turn on their former masters. In fact, it was the slavers who attacked the free northern states whose duty it was to defend the nation. The slaves were essentially bystanders at the outset. Sometime later, many of them, as many as 100,000, joined forces with the defenders of the union to repel the Southern usurpers and simultaneously secure their own freedom.

    Once freed, the former slaves lived in peace. And do to this day, more or less, the way the rest of us do.

    Jefferson, Madison, Monroe, etc. They were all wrong. Very, very wrong.

    And thank you so much for your condescension. It makes my day.

    Sincerely,

    pbh

  323. Mespo,

    “every instance I cited contains a clear example where a President exceeded the founder’s notions of enumerated powers to buy land, oppose secession, and engage in Lend-Lease or even maintian a standing army and navy.”

    For somebody who “clams” to be so well read, harumph. You appear to know your histrionics better than your history.

    FDR had an Act of Congress to engage in Lend Lease. Lincoln had an Act of Congress to defend the Nation. And, seriously, you are “clamming” that some President created both an army and a navy all on his own? By fiat? And the elected, national Congress just sat there?

    Please, please give me your reading list.

    But, you are right on one count, Jefferson engaged in an unauthorized extension of Executive power when he agreed to the Purchase. He would have called for Hamilton’s head if the first Secretary of the Treasury proposed it. Which proves my point about Jefferson.

    pbh

  324. Mespo,

    “The Greeks were fierce and refined but gave way through their own divisiveness to the Romans.”

    God forgive me.

    pbh

  325. Hi all,

    The 2009 edition of the Code of Federal Regulations was the largest ever, encompassing 163,333 pages in 226 individual books

  326. Bhoyo,

    “I ask the question again, is the excrescent growth of the national government a cause for alarm. ?”

    All of these fears about the growth of the Federal Government seem direly misplaced to me. It is not the government that threatens me, it is the unbridled power of corporate greed that has stolen my livelihood and that threatens my future. These are the facts on the ground, as far as I am concerned.

    The sole defense against this massive, concentrated power is the very government that you seem to fear. And I wonder why you fear it so very much. The Government is you. It is me. It is us.

    The corporations are the slaveholders. Truely.

    And now you are going to tell me, oh no, the corporations are merely the benign result of “job creation”. And I’m gonna say “nuh.” Not benign, not job creators and not the result. They are the purpose. And their purpose is theft. And if you doubt that, if you doubt that, then explain Blackwater. Explain Goldman Sachs. Explain the prison industry.

    pbh

  327. pbh,

    I am no ignoring the powers of major corporations to influence the government, when I posted the Madison article of the Use of Poltical Parties it included the concept tha Madison thought one of the benefits of parties, to stem the power of advancing moneyed interestts over the peoples, not to invite in to the Adminstration. I did that to highlight the idea that the government is to be a neutral arbiter of such disputes. he mentioned it in his leter to Washington a year before the Convention, thinking government should e a disineresed and dispassionate umpire in such disputes. He mentioned the theme often ut really developed it in his Report on the Alien and Sedition Acts. The idea is simple, and one tha shook his relationship with Hamilton. As he saw it, moneyed interests and popular interests were om equal footing. Although i know it will aggrevate your Hamilton side that is what pi__ ed of Madison over Discrimination, and when Madison finally figured out how many holders of Securities were in Congress, and how that would work on the National bank he had a ‘kitten’. When Fisher Ames took the position at the First Bank, Madison went into a slow boil. Christopher Gore be damned LOL.
    Now does that mean I advocate bad air, or dirty water ? No, is regualion necessary, yes to a degree. Does it need comprehensive reform, yes it does, why ? Because we have arrived at a stage where Government is changing it’s own power, and by that I dont mean they are diminshing it. The Federal Register and the Code of Federal Regulations testify to that fact. In addition we can take a look at just Dodd frank and the ACA, the authority statutes, are now being converted into Agency Rules. In that process lobbyists are having a field day, and are consulted in that practice as the lobbyists represent the industrys affected. Guess what the results are too often, a tit for tat compromise. In many instances ‘capture’ occurs, that is when the industry concerns are allowed to outweigh the broader pblic concerns the Agency was designed to serve. Is reform necessary at that juncture, yes of course, are we there ?
    In the strange and obscure world of rule making as it exists the following has occured. Interest groups bid for recognition, it is not blatant, but it is easily hidden from public view by campaign conributions, often a cartel style combination exerts force that a single industry member could not.

  328. PBH,
    trying to correct all of this is not new, nor is it always partisan, remember Ted Kennedy and Breyer on the Airline Deregualtion ?
    A few years ago in the Chevron decision the Court decided there were justifications for allowing agencies to interpret the authorizing statutes. Then there arrived a two step process for the possibility of Due process if you were caught in this mess, hen cass sunstein came up wih his infamous zero step, ( academia has to chime in), now Sotomayor wrote an artcile advocating it would alright for an Agency head to do so, but not a lesser grade agency employer. For a second put that aside, and my question is, can the Court delgate interpretaion of an authorizing statute to an agency who wrote the rule that came from that statute. 1bz1 thought I am at times humorless, well I can be for the following reason. Two Article 3 ALJ’s were expressing frustration over their capacity to comprhend the ttechnical language of a claim for due process in the middle of case. One siad to the other let’s Chevron the whole thing. LOL ?
    each agency has all three powers in House, executive, to enforce, quasi legislative in the formal and informal rule making conversion of authorizing stautes, but also a quasi judicial power in the ALJ’s and AJ’s. All of this has the power of federal law. So we have a combination of all three powers under one roof, which defies the seperation of powers doctrine. We have legislative power where the Constitution clearly states all legislative power is vested in Congress, ALJ’s who are statutorily exempt from review ( really ).
    I cant find sven people in a row who know all branches of government and who their Congressman is, never mind asking about Agency Governance. So this enormous power, their are more ALJ’s than Artcile 3 Judges for example, is being conducted by a relatively unknown and largely unnaccoutable 4th Branch.

  329. PBH,

    Congress is a mess trying to ignore this one, why? They have to spend an enormous amount of time campaigning and raising money. Well remember the previous point I made about how and why industries make contributions to polticians ? GE for example gave millions to New York City for the benefit of education, noble ? Well Rangel had a lot of that money applied to his dirtict, at the time he held a powerful position, coincidence ? Is it all the liberal dems, of course not. I still advocate members of Congress wearing NASCAR style jackets with the sponsors on them, and the Republicans are as bad if not worse.
    all of us can cite a number of areas where the national is too big and too remote to be involved, Education is certainly one. I was part of the Katrina clean up, we did the work as a sub, guess what we couldnt get paid for 120 days, although the major contractors we subbed from had been paid in 45. Some of the big boys, the Brown and Roots love the idea of increased national response to hurricanes or tornadoes, ever wonder why ?? What I got paid per ton to load and haul debris was less than 58% of what the prime contractor got, and he had two girls in an office checking my invoices, he didnt move a twig, anyhere for any reason.. WOW

  330. PBH,

    In all of this I see an excrescent change in National Power, most disturbing is that the people have not given their consent. That is at the heart of my question, not whether or not I can google a few quotes and give a good response. I dont subscribe in the Common Law practice of using precdent to justify new, especially very expanded powers to the National. I also know, for example that what stopped the invasive vaginal probes was public opinion in Virginia, and by the way men were especially outraged. Enlightened ideas can be practiced a a state level, and I think the swing will occur that the states will have to assume back so many of the powers the national has usurped. Do I think it will be as poltically correct at the state level, candidly no. The one most divisive issue is abortion, by and large. I have heard the rights arguments, and of course concur with a lot of that idea, but there are a number of people that truly believe killing a baby in the womb is bad. I dont think they are trying to go back to back alley abortions, or to control a woman, too many of them are woman, and they trult believe it is an awful practice, especially late term or the partial birth abortions. When Roe came about it came on the heels od griswold, which did not bother many people, the birth control laws ahd fallen into desuetude long before Griswold. hence no majority was impacted, Roe on the other hand did fly in the face of many states beliefs in that area, it is and remains a durable gripe.

  331. bhoyo 1, April 24, 2012 at 8:23 pm

    “I still advocate members of Congress wearing NASCAR style jackets with the sponsors on them, and the Republicans are as bad if not worse.”

    Oh, they are definitely worse. Infinitely worse. Worse in a superstring, quantum kind of way.

    In a metaphysical, super religious, . . . (sorry, nevermind, my bad).

    But at least I got you stirred up.

    Yeah, there are issues with agnecies and plenary powers. The INS, the FBI, the NSA, Guantanamo and so on. I am not exactly worried about the EPA or Dodd Frank however (talk about a boneless bill). I long for the days of Pecora, Frank (ie: Ferdie).

    Ah, those hallowed liberals of yesteryear.

    pbh

  332. pbh:

    “FDR had an Act of Congress to engage in Lend Lease. Lincoln had an Act of Congress to defend the Nation. And, seriously, you are “clamming” that some President created both an army and a navy all on his own? By fiat? And the elected, national Congress just sat there?

    Please, please give me your reading list.”

    ***************************

    You should be an archery target at the school for the blind since you miss so many points or they sail over your head. We were talking about enumerated powers which Bob,Esq seems to hold sacrosanct in spite of McCullough v. Maryland. My point was not that the cited Presidents didn’t have Congressional backing; it was simply that they acted clearly outside of the enumerated powers and thus according to your crowd, unconstitutionally, the backing of Congress or lack thereof notwithstanding,

    The reference to the standing army/navy was a reference to Madison who opposed the idea but relented in view of the War of 1812. And yes, Hamilton did create the Federalist Party as any school boy knows. Here’s the cite since you apparently missed that day:

    http://books.google.com/books?id=oyFpDS8p33sC&pg=PA268&lpg=PA268&dq=founder+federalist+party&source=bl&ots=MSz0nyk4hw&sig=FYk8_2AepP6uUHuCgdh3a6gc87I&hl=en&sa=X&ei=20yXT7_dKrP06AGxmMC2Dg&ved=0CFoQ6AEwBjge#v=onepage&q=founder%20federalist%20party&f=false

    Do you want to send me tuition installments for Poly-sci 101 or do I have to give you a scholarship. How’s your 40 time?

    BTW thanks for the typo correction. Nitpicking is the province of small minds, you know.

  333. bhoyo:

    “In all of this I see an excrescent change in National Power, most disturbing is that the people have not given their consent.”

    ********************

    They give their consent every time they don’t oppose it at the ballot box. The legal maxim is qui tacet consentire videtur ubi loqui debuit ac potuit — He who is silent when he ought to have spoken gives consent.

  334. bhoyo:

    Well pbh and I agree on something. We are becoming a corporate oligarchy. If you think the states can resist corporate money and promises of jobs you are sadly mistaken. You do not fight a mega-power with 50 disjointed, weak and jealous mini-powers. As Teddy Roosevelt proved, it takes a national government to mold a consensus to take on interstate corporations and bring them to heel. You’re living in the past if you think state governments can control multi-nationals. Why do you think the corporations are leading the charge for states rights?

  335. bhoyo

    “ . . . most disturbing is that the people have not given their consent.”

    You mean voters don’t vote anymore? Or they don’t count the votes (BvG notwithstanding)? Or don’t “they” let them vote?

    Heeeeellllllloooooooooo Wisconsin!!!!!!!!!!

    And Georgia. And Indiana. And Michigan. And Alabama.

    “The one most divisive issue is abortion”

    The cure for which is Lawrence v. Texas.

    pbh

  336. Hi all,

    Well, so the answer is silence at the ballot box. That is the complicated answer you were to post this evening ? I wonder how people are to know about Governanace ? We dont teach Constiutional History anymore, we dont teach civics.
    In the idea of a ‘living constitution’ people are lead to believe it can change without them, no one ever stresses the use of Article V, as the truly unique feature of the American epic. So I am living in the past, well my apologies for offending you, I thought my idea that we should use the Founding as counsel not as explict direction, was a rather good one.

    You promised a detailed expalnation as to the question I posed, all things considered, DONT.

    You have provided a number of non sequiturs, pointed out a number of distinctions that dont make a difference, brought up a lot of quotes from outside the American Constitution, misused Jefferson. Somehow pointing out the current conditions of Administrative Law, many of which are in Paul Verkuils text, regulation and Deregulaion, have suggested that the idea that states will have to assume some of the usurped powers is carte blanche for the national to handle corporations by assuming more powers. At the moment the National is up their ears in back room poltics, GE is a prime example, yet it is okay because it is the national who has more oppurtuniities to veil the abuse.
    I am not sure what you do for a living, but thank he Common Father of Man you are not an attorney.

  337. mespo

    “Hamilton did create the Federalist Party as any school boy knows. Here’s the cite since you apparently missed that day”

    Congratulations, you actually found some other reductivist who claims that Hamilton founded the “Federalist Party”. Not.

    The “Federalists” were the Government. The Democratic-Republicans were organized by Jefferson and Madison in order to oppose the policies of the Government, of which Jefferson was Secretary of State and Washington the President. There were no political parties, none, until Jefferson and Madison organized the D/Rs in opposition to the Government led by George Washington, the hero of the nation.

    “My point was not that the cited Presidents didn’t have Congressional backing; it was simply that they acted clearly outside of the enumerated powers”

    Yeah. They must have done something like that. After Congress enacted laws in support of them. I leave it to you to explain how FDR, Lincoln and Madison acted outside Congressional and/or Constitutional authority subsequent to Congressional Acts in support of their policies.

    As for Jefferson . . . nuff said.

    pbh

  338. Hi

    Did Hmailton create the party, or did it evolve around him ? Bingham, Craigies that crowd, seemed to instincetively bond together and knew how to use the new government to aid their investments, If I rmember right Morris was out trying to capture the whole of the debt a good year before Ratification. Hamilton liked the Neckar Concepts if memory serves me, and that would have dovetailed with Morris, Bingham, Craigie, Christopher Gore, who were up to their ears trying to keep the market in American securities coem to fruition. I maybe mistaken the loosley assembled finabce group here, sort of just ended up supporting Hmailton, and like most who knew him observed his intellectual prowess, and tendency to trade worked for them. He may have named them, but…. they were there before he assumed the Treasury at the end of the First Session of the First Congress. Craigie was so driven to know how the debt was going to be handled, he took a room in the same rooming house with 6 or 7 (cant remember which ) Congressman. Didnt Hamilton get the job after some one else turned it down ??

  339. Didnt Hamilton work for Craigie ? I though he was the attorney for Craigie regarding the Duer Issues ?? That would have been December 1788 or thereabouts

  340. PBH,

    I read, although years ago, Adams book on the British Constitution. I know Adams and Hamilton agreed there, yet I dont think Adams was quite as investment savvy, or prone as Hamilton. I do know Abigail bought public securities

  341. pbh:

    ““Hamilton did create the Federalist Party as any school boy knows. Here’s the cite since you apparently missed that day”

    Congratulations, you actually found some other reductivist who claims that Hamilton founded the “Federalist Party”. Not.”

    (…)

    “Yeah. They must have done something like that. After Congress enacted laws in support of them. I leave it to you to explain how FDR, Lincoln and Madison acted outside Congressional and/or Constitutional authority subsequent to Congressional Acts in support of their policies.”

    ******************

    Ok, I’ll use your authoritative source Wikipedia — from the article “Federalist Party”:

    ” The party was formed by Alexander Hamilton, who, during George Washington’s first term, built a network of supporters, largely urban bankers and businessmen, to support his fiscal policies.”

    As to your second contention, an act of Congress sanctifying a law doesn’t necessarily confer constitutionality merely congressional authorization. Only the Supreme Court can decide constitutionality. Here’s a list of 158 Acts of Congress signed by the President that were declared unconstitutional in whole or in part. Note the dates.

    http://www.gpo.gov/fdsys/pkg/GPO-CONAN-2002/pdf/GPO-CONAN-2002-10.pdf.

    You keep asking. I’ll keep answering.

  342. bhoyo:

    “I am not sure what you do for a living, but thank he Common Father of Man you are not an attorney.”

    Well, bhoyo your “Sky Daddy” let you down again!

  343. bhoyo:

    “You have provided a number of non sequiturs, pointed out a number of distinctions that dont make a difference, brought up a lot of quotes from outside the American Constitution, misused Jefferson.”

    *****************

    Thanks for your opinion and for freeing me from my burden from answering another of your esoteric questions that history and circumstance have already answered. I am happy to let the readers decide who provided the manifest facts and who didn’t.

  344. mespo: you won. facts, reason, and sanity have triumphed. too bad that won’t keep people from voting with their butt (or their bible)..

    a minor point: i would say an act of congress signed into law by the president is presumed (or at least accepted) as constitutional until some one must first contest it and the supreme court rules otherwise.

  345. Mespo: “We were talking about enumerated powers which Bob,Esq seems to hold sacrosanct in spite of McCullough v. Maryland.”

    “We start with first principles. The Constitution creates a Federal Government of enumerated powers. See Art. I, § 8. As James Madison wrote: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” The Federalist No. 45, pp. 292-293 (C. Rossiter ed. 1961). This constitutionally mandated division of authority “was adopted by the Framers to ensure protection of our fundamental liberties.” Gregory v. Ashcroft, 501 U. S. 452, 458 (1991) (internal quotation marks omitted). “Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in anyone branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.” United States v. Lopez – 514 U.S. 549 (1995) @552

    Mark,

    The problem I have with your reasoning is that it betrays your obsession with control masked as a concern for the country.

    to wit:

    Mespo: “I think where many of us take issue with you is in your absolutist view of civil rights. No Founder, including Jefferson and Madison, ever took that view. Civil rights, and specifically those articulated in the first ten amendments to the US Constitution, were always balanced against the government’s need to maintain order and protect the citizenry from enemies foreign and domestic.”

    What the court referred to as ‘first principles’ above you see merely as quaint distractions that interfere with your control paradigm which you constantly justify under the theme of more protection against the threat of terrorism.

    Particularly interesting is how you’re always so keen to point out the dangers of terrorism when arguing in favor of permitting the Fed to exercise more power than it was ever delegated; either under Article I or Article II. Yet when we parse out your arguments per the threat of danger as related to a citizen’s need to react accordingly to such danger, e.g. approving of the Executive exercising powers never granted or in direct conflict with the dictates of the constitution, there’s simply no integrity; just caprice.

    “The sovereign is called a tyrant who knows no laws but his caprice.” —
    Voltaire

    According to you Mark, a citizen with a 5 in 100,000 chance of facing an attacker is irrational for desiring to carry a gun while a citizen with a 1 in 20 million chance of being killed by a terrorist has EVERY REASON to forfeit his civil liberties in the name of being protected by the likes of you.

    “This and no other is the root from which a tyrant springs; when he first appears he is a protector.” — Plato

    And the way you always conclude your arguments with the assurance that somewhere down the line wiser heads will prevail and all will balance out in the end, you remind me of Timothy Leary creating what Hunter S. Thompson called “a generation of permanent cripples.”

    H.S. Thompson: “What Leary took down with him was the central illusion of a whole life-style that he helped create… a generation of permanent cripples, failed seekers, who never understood the essential old-mystic fallacy of the Acid Culture: the desperate assumption that somebody… or at least some force – is tending the light at the end of the tunnel.”

    So yes Mark, I do hold the separation of powers sacrosanct, as you say, because I’d rather have it protecting me from the likes of you than some empty promise about the powers that be assuring me that all is well because someone down the line will be tending a light at the end of the tunnel.

  346. i suppose all that might make sense, bob, except in your world apparently even when the powers of the federal government are enumerated – i.e. commerce and n&p – they don’t actually have any power.

    you neglected to mention the 4th branch of government – the people – and their right to vote out and override the other 3 (including the judicial through impeachment by their elected body). it is fair to say the founders were a bit obsessive-compulsive about checks and balances as they were about a stronger fed. they were so successful at it in fact, that now we are completely dysfunctional, though not as dysfunctional as their great failure leading to the civil war and 200 years of arguing over the same issues. boy, were they terrific.

    i’m wondering how old you are, bob. the way you quote plato, voltaire, thompson and others to try and prove a point on the constitution and the nature of life as if you just took acid for the first time and saw the flowery rainbow of “Liberty, equality, fraternity’ thinking only you are the first to see them seems a child like diversion from the issues at hand.

    one other minor point: a person with a gun has the potential to kill a few people; while a person with a loaded jet plane has the ability to kill thousands; and a person with a nuclear device… well, you get the point.

    then again George Bush #2’s solution was pretty clever: shop till you drop, give a tax cut to the rich while sending our young men and woman off to 10 years of war while we invade the wrong country, deregulate everything, run up giant deficits, tank the economy, enrich china, and pat you down. nothing like a little national sacrifice. in fact, it worked so well Romney, Republican/Tparty, and most libertarians want to try doing just about the same thing all over again including that bit about more religion and states rights. isn’t it great.

  347. bhoyo,

    One of the books in my library, ” ‘The king of the Alley’ William Duer by Robert F Jones, is a fascinating study of that time frame. Duer went into debtors prison in March of 1792 I believe, after the “correction” in the markets during the bankomania bubble of late 1791 to early 1792. As Secy of Treas. Hamilton certainly acted at that time but I don’t believed it was on behalf of Craigie.

    If Hamilton acted at all for Craigie in 1788 it might have been for navigation rights up the Mississippi with Spain.

  348. Full title:

    ” ‘The king of the Alley’ William Duer – Politician, Entrepreneur, Speculator ”

    “King of the alley” is a phrase Jefferson used to describe Duer

  349. Bob,

    “i’m wondering how old you are, bob. the way you quote plato, voltaire, thompson and others to try and prove a point on the constitution and the nature of life as if you just took acid for the first time and saw the flowery rainbow of “Liberty, equality, fraternity’ thinking only you are the first to see them seems a child like diversion from the issues at hand.” (1zb1)

    ROFLOL … please Bob, just let that one hang out there blowin’ in the breeze

  350. too bad you could not take your own advice.

    “I read everyone’s response but ignore the pejoratives and go for the kernels of knowledge and insight about the matter being discussed.”

    i can not speak to the last 3 years but as to this particular argument (hardly a debate or discussion) it does seem your comments are near universally devoid of any useful insight, purpose, value, meaning, or intent.

    however, i did notice there were a few exceptions when you said:

    – “I [meaning blousie] was in New Orleans the summer before Katrina.”
    – “I rather like the terminology that one of the posters used, “kicked the can down the road”. It’s not exactly elegant and I suspect the only one who would have smiled at that description of their efforts would be Franklin, but there is a large kernel of truth in it.”

    Someone once referred to me as a “gadfly” intending it as an insult. Recalling the term was coined by Socrates referring to himself, I took it as a badge of honor, notwithstanding the intention. Likewise anyone who cares an offhanded insult by comparing me to Franklin in even the most remote sense I will take as a badge of honor, notwithstanding the source.

    btw: how big is kernel of truth or is that too much of a cliché to say.

    (p.s. is this the ROFLOL part?)

  351. oh my gosh, and here i thought i was paying you a compliment. i guess it was the kind only franklin would understand.

  352. bhoyo,

    “Didnt Hamilton get the job after some one else turned it down ??”

    What is this, a catechism? He turned it down because he had his hands full with the talent agency. Oh, wait, that was that other Morris. Not the not Governor, the guy from the cigarettes. Or, wait, was it the guy with the car? I get all confused.

    Whatever, I know he immediately recomended my boy, Alex.

    Meanwhile, how come you left out the part about the “fast ships”?

    pbh

  353. mespo:

    “Ok, I’ll use your authoritative source Wikipedia.”

    I know a little bit about Wikipedia; it is not a perfect tool. So, where was the first “Federalist” meeting? The nominating convention, where was that? Tampa? Miami?

    Those who claim that Hamilton created a political party do so from a Jeffersonian perspective. Which is to say, Jefferson claimed that his party was merely a response to one that already existed. But, Jefferson was a liar.

    What existed was the government. To a person in 1788, a “Federalist” was a member or supporter of the Federal Government. There was no “party”. That was Jefferson’s invention.

    “As to your second contention, an act of Congress sanctifying a law doesn’t necessarily confer constitutionality merely congressional authorization.”

    Thank you Justice Marshall. Imagine my surprise: the examples you previously gave of ultra vires acts, Lend Lease, Defense of the Nation, creation of a standing army and navy, are not included in your list of the unConstitutional acts of Congress.

    pbh

  354. Blouise,

    I have a copy of King of The Alley, somewhere LOl, just couldnt find it if I had to. As far as Hamilton working for Craigie, I am sure it was not concenrning navigation. I secured a copy of the contract between Hmailton and Craigie, from the American Antiquarian Society in Worcester Mass. The Papers of William Craigie are there, the contract id also on Brant’s work on Madison. A few years ago I read brookhisers book on Hamilton, and in his defense of Hamilton reagrding Duer’s specualting openly in the public securities, Brookhiser mentioned Hmailton probably didnt know the extent of it. remembering the contract I did get a copy. The task Hamilton accpeted was in regard to the finacial dealings of Duer, and others regarding the specualtion in public securities. Duer had a few issues to deal with when Hamilton brought him on board at the Treasury. I dont know if you ever read Power of the Purse, but that is a great read, and very well researched. I went through Ferguson’s footnotes and re read some of his asseertions. He did make MacDonalds defense of Hamilton look pretty unfounded.

  355. The founder of the Federalists. In 1788 that was one set of people, while in the spring of 1790, that was a different group. Moneyed interests liked the idea of a Convention, the Annapolis Convention that proceeded the CC, wanted to deal with the debt, it was shameful to be in the spot they were in, they were borrowing money to pay the interest on the debt. At the beginning of the 20th Cnetury Beard wrote ” An economic Interpretaion of the Constitution’, it raised a lot of eyebrows due to it’s implication that moeny trumped the ideals of liberty, democracy. About the same time Croly penned Progressive Democracy. The entire History world had all sorts of fresh topics to write about. The historical treatments are granted enormous relevance when you read the Legal Process by Hart and Sacks who had painstakingly chronicled the cahnges in the Court, while these social issues were being discussed by the people, and the legal academics. It is a great read in combination, and well worth the time. A new era came about with the bicentennial celebrations, and the books that came from that period are tremendous. despite the efforts of many to employ the Whiggish History’ method, that is to say the current undersandings of the Constitution are the natural teleological results of an evolving and maturing society, when the events are closely examined the process is quite different.

  356. That they we have been quibbling about how to interpret the Constitution since 1789 is true. I am not one to condemn Chemerinsky beacuse I don’t see things his way, a appreciate his work. The same thing can be said about how I feel about Marshall and Hamilton. The over the top, take sides attitude is to me , a distraction.

  357. The issue remains, can we an earnest attempt to advance a ‘normative’ social justice destroy the liberty we all cherish in that pursuit ? I fear it is possible, if not probable on the current trajectory. When for example Marshall took the time to express a rather pliant hermenuetics regarding constitutional powers, the question seems to me, is can the Court, who receives all of it’s authority from the Constitution, modify the source of it’s own powers ? The Congress, he stated has to follow the Constitution, doesn’t he as well? Isnt he, or the Court, even more obliged ?

  358. Three years ago an Osprey couple adopted a hammerhead boom tip on a crane for it’s nest. Business was slow so the new family went unnoticed, till it came time to move the crane and the barge. From peronal experience I can tell you it was absolutley silly to watch the state and national agencies who could claim jurisdiction, express themselves. No less than 5 groups, three state and two federal agencies howed up. Each had a differnet idea, all sorts of fines were possible. Bowing to the supremacy clause the Fed’s took the lead. I was involved, and as a member of SOAR, save our american raptors, I wanted compliance as well as doing evrything to recognize the responsibility we all have to the environmant, and it’s amazing members.
    The fed group had us rent a huge new man lift and all sorts of people went to save a few eggs, and move the nest. The fed group was about 140 feet of the gorund when the radio went off anouncing they didnt bring a box for either the eggs or the nest \. I wish this was an isolated instance but it is not. The local Audobon group took over and saved the day. The state group had no idea how to do it, but were very ready to try anyhting that suited the interests of the birds and the eggs.

  359. bhoyo,

    I do have a copy of Power of the Press. My copy is dedicated to Louise (without the B) :)

    I read it years ago and I believe it was the first time I’d finally understood the term “fiat money”. It seems to me that I remember more about Morris in that book but now that you mention it, I should reread some of the chapters.

    Regarding the Mississippi … I was thinking about the English Spain confrontation that was Jefferson’s first big event as Secy of State wherein everyone agreed to a policy of neutrality, but Jefferson wanted Spain to open navigation of the Mississippi as a price for our remaining neutral. I think it was Craigie who told Hamilton that he’d heard Spain had agreed but that would have been more like 1790 than 1788 so my confusion there.

  360. pbh,

    As a small assist, which you don’t really need, the Democratic-Republican party was also referred to as the Jeffersonian Republicans party and was formed for many reasons, one being because the members agreed that the Executive branch of the new government was, in the words of Jefferson: “ … already too strong for the republican parts of the Constitution; …” (I won’t even mention the opinions of the Jeffersonians about Washington’s administration favoring the British in foreign policy over the French, and, of course, viewing the establishment of a national bank (BUS) as a usurpation of powers that rightfully belonged to the states.)

  361. So, what is my point LOL.
    The American saga, has been a model to the world, over 3/4s of the Constitutions existing today were written after WW2, the examples of those using ours as reference abound. When Breyer heads to Europe in the Summer time he has stated the idea of the rule of law is gaining tremenous traction in contries where they had never thought of using that government power to the extent that we do.

    At the heart of the American system is a written Constitution, defining the powers the people have delgated to government. Britian does not have a written Constitution. Self governance is the goal, and we recognize that he font of the power is the people, the source for us was of course Hobbes and Locke the idea of a social compact. How is the big question, and in the design of the compund American Republic to specify powers, and spread them amongst states and a national government. The partitions of power were well discussed, debated, and altough a variety of opinions were expressed, a conclusion was reached. The Founders knew that the compelling vortex of power lead all governments to want to extend their powers. They also knew that it was up to future generations to perfect and develop the orginal system, and to that end Article V was placed for such purposes.
    Artcile V puts new powers up for approval, and the idea is that if the problem is recognized enough, the remedy would find agreement in this process. It compels a definite reconition of the problem and makes us agree as to the remedy. Is there anywhere in the Constitution a source of power granted to the courts to side step this process, and justify interstitial legisaltion, or stating that new powers of government are of the same just source of powers, as the consent of the governed as Article v was determined to be ?

  362. Louise,

    wow, thank you for affirming mt belief we are out there, that is to say although many protest, the history is there, an it does so much to inform us when contemplating contemporary problems, you made my day, Thank you.
    I agree with many of Hmailton’s ideas, I do. I like Marshall despite his aversion to study, many say he was to convivial, I admit that. I have a depp respect for Jefferson. All of that aside, the real question in our system is what is the consent of the governed ?

    The ballot box response is a tortured response, for it is applicable to derivative law, not organic law. Organic Law derives it’s just powers from the consent of the governed. We have modified the system tremendously, and in so doing opened the door for government to change itself. in the fed essays madison wrote
    ” the important distinction so well understood in America between a Constitution estalished by the prople and unalterable by the government, and a law established by the government and alterable by the government, seems to have been little understaood and less observed in any other country.”

    This is a fundemental of our Constitutional thinking, and some how it has been lost.

  363. It seems only necessary to recognise certain principles, supposed to have been long and well established, to decide it.

    That the people have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority from which they proceed, is supreme, and can seldom act, they are designed to be permanent.

    Some have used McCulloch as grounds for exapnsive reading of national powers, to the precise extent that is true is no the issue at the moment, what is at issue is the organic law, and how it sits in our system. Aboe is Marshall in Marbury, it seems he was in agreement with madison in a decision bearing Madison’s name..
    The idea of certain principles which were long and well established is what Marshall is assreting here, is there were many ideas that were not vague, and they were in organic law, not derivative law. He concludes they were designed to be permanent..

    What do you think ??

  364. bhoyo,

    Have you ever been to a League of Women Voters meeting? Want to meet a lot of knowledgeable students of history who fervently believe in applying their knowledge to present day events, attend a few. They know the Constitution!
    :)

  365. 1zb1

    “even when the powers of the federal government are enumerated – i.e. commerce and n&p – they don’t actually have any power.”

    I get your conceptual position, but the reality is a little different. By way of example, may I suggest one of the final scenes in “The Gangs of New York” when the U.S. Navy fires on the Five Points from the East River. All them violent Irish gangstas gettin’ blown away by some serious Federale hardware. Something like a teaching moment.

    “it is fair to say the founders were a bit obsessive-compulsive about checks and balances as they were about a stronger fed. they were so successful at it in fact, that now we are completely dysfunctional, though not as dysfunctional as their great failure leading to the civil war and 200 years of arguing over the same issues. boy, were they terrific.”

    Uh, no. We are currently dysfunctional as a result of the filibuster. Which is not at all mentioned in the Constitution, but sneaks in by way of the “they can make up their own rules” provision. Mitch (destroy Obama at any and all costs) McDonnell and his cohort of sleazeballs have invoked the filibuster about 900 billion, quadrillion, septillion, google zillion times to 1 compared to the entire history of the Senate before 2008. Including, obviously, the run up to the “War-Between-the-States”.

    I am of the belief that we would be better off without the Senate altogether.

    I get that the poor, unfortunate super ranchers in Wyoming deserve to be represented in Congress. But, when I look out my window on the corner of Nassau and Beekman, I can immediately see more people than inhabit the arid wastes of John Ford’s back yard. And not all of those fools are German tourists.

    So why does Wyoming, with no greater population than what could fill Yankee Stadium for a four day dogfight with the Red Sox, get to have two freaking filibuster ass Senators?

    “Splain” that to me, Jeff Sessions.

    The fact is that this institution is a hold over from the days of Jefferson and Madison who desperately feared that the more energetic Northern population would overwhelm them (which they did, bitches, and God bless them for it). It served its purpose to bind the nation, as did the 3/5ths rule. But it is high time we got rid of the former as we justly did the latter.

    Madison, by the way, never served in the Senate (bhoyo anyone)? He thought the Congreff was the highest calling.

    Even after the Presidency was “forced upon” him.

    pbh

  366. bhoyo:

    “When for example Marshall took the time to express a rather pliant hermenuetics regarding constitutional powers, the question seems to me, is can the Court, who receives all of it’s authority from the Constitution, modify the source of it’s own powers ?”

    ****************

    What sort of blather is this? I notice you truly enjoy expounding as though you know something about what your talking about, but the words you use prove otherwise.

    Can a court modify the Constitution?

    Answer: No. A court may interpret a law and determine if it conflicts with the Constitution. It may also interpret the Constitution itself as to the meanings of its terms. That is not “modifying” the Constitution. I don’t see where anyone suggested otherwise. So setting up a straw man argument to proclaim your intelligence proves nothing more to me than you are a literate blowhard who likes to see himself in print.

    Here’s another beaut from you: “The Congress, he [Marshall] stated has to follow the Constitution, doesn’t he as well? Isnt he, or the Court, even more obliged ?”

    Answer: What? The Congress must adhere to the Constitution and may initiate the process to change the Constitution. Madison himself in Federalist 53 specifically says Congress may not alter the form of government. You quoted his line yourself in your next comment. The Courts have the right to interpret the Constitution and laws challenging it as they see fit since Marbury v. Madison. Pretty basic stuff for most people to understand there , Professor. Where do you get off concluding that a working and workable process enshrined since 1803 as as pillar of our democracy is unconstitutional. In Marshall’s view he was following the Constitution by determining the scope of power accorded to Congress from the great document to fulfill it’s constitutional purposes. Do you really question the concept of judicial review?

    And finally this beauty:

    The ballot box response is a tortured response, for it is applicable to derivative law, not organic law. Organic Law derives it’s just powers from the consent of the governed.

    Pray tell how any law in a representative democracy doesn’t derive from the consent of the governed and hence the ballot box. The Constitution itself was voted on and ratified by representatives elected by the state legislatures. The ballot box is the official will of the people. How else will you measure public will? Opinion polls?

    Your questions smack of the arrogance of someone who has read a lot and understands very little. Maybe you should talk to a lawyer before spouting this preposterous sounding nonsense about the Constitution. Courts don’t have the luxury to delve into these strabismic inquiries. They operate in the real world where decisions matter to people not born in the 17th or 18th Century or to governments trying to do their best to govern a population of 300+ million persons. To you “up” may mean “down,” because you say it does and everything quite ordinary may be very mysterious to the rather limited understanding you display, but for those of us who deal with these issues on a regular basis you sound quite silly indeed.

  367. pbh:

    Madison, by the way, never served in the Senate (bhoyo anyone)? He thought the Congreff was the highest calling.

    *********************

    What are you talking about? The Senate is within the Congress! So did Madison think the Congress, including the Senate, was the highest calling or not? Should I consult Wikipedia? ‘Cause it says we have a bicameral legislature consisting of a Senate and a House of Representatives. That’s what Article 1, Sec 1 says, too, but I’m sure I’ve misstated it in some reductionist way.

  368. bhoyo

    “When for example Marshall took the time to express a rather pliant hermenuetics regarding constitutional powers, the question seems to me, is can the Court, who receives all of it’s authority from the Constitution, modify the source of it’s own powers ?”

    Yeah, tha’s a good one.

    On the other hand, Jus Chase comes to mind.

    And there’s that MoFo Jeff again. That chump just don’t quit.

    pbh

  369. bhoyo

    “Three years ago an Osprey couple adopted a hammerhead boom tip on a crane for it’s nest.”

    Y’know, everybody has got some story about how the Fed f****up. It’s a frickin cottage industry.

    “An Osprey couple”? Are you trying to talk some USAF stuff? Because that gets in my backyard, bhoyo.

    Millions are educated, the Nation is defended, Social Security keeps Gandma in her house, Medicare treats her cancer/heart disease/whatever, and you still gotta complain.

    Oh yeah, and the Roads, and the Dams and the Bridges and the what?

    You want to have all that privatized? The Government is the enemy, so let’s just hand over everything that your taxes made free for you to the corporate lovers of “you”? Who will thereafter charge you HBO rates to watch TV?

    Jesus.

    pbh

  370. mespo

    “The Senate is within the Congress!”

    You know, you are just trying to pick a fight or win some very small point, regardless of substance.

    Maybe we could learn to be friends. But, you gotta show me more than this.

    pbh

  371. Blouise,

    You egg me on. You should be ashamed.

    “formed for many reasons”?

    No. Formed for one reason.

    Jefferson.

    The most despicable and hypocritical person in the history of the nation.

    Jefferson loved the French because he had such a good time over there. As far as he was concerned, Paris was the original Fun City. He hated the English because he hated Hamilton, who wanted to make peace with and trade with them, and who was his superior in every imaginable way.

    pbh

  372. Hi,,

    Still having issues with my network locally. I am hoping three posts dont show up saying that Madison was dneied a senate seat by Patrick Henry, who was then governor.

  373. mespo,

    Lol wow. I should talk to a Constitutional Lawyer. That was so cute I copied and pasted that to three I deal with. Tey got a big charge out of that one, thanks for the chuckle.

    I was tempted to respond to the rest of your post, but.. why ? lets face it, this just isnt your field, you google well, that I concede. The truly comical response to the ballot box post I made is the best one of yours so far. Maybe because the ongoing Constitutional Convention you imply with voting in Constitutional power changes is so far off base

  374. mespo,

    At any rate my freind, you have provided an excellent example of one of Holmes funniest quips, the capacity of Lawyers to shovel smoke. Be well, but dont post to me any longer, 1bz1, is your kind of guy, post to him, OK ?

  375. mespo

    “Your questions smack of the arrogance of someone who has read a lot and understands very little.”

    OMG. OMFG. OMMFG. OMMFNEG.

    What is the point of these calumnies?

    pbh

  376. I have a pretty obvious brooklyn accent – which probably comes through in how i write… (you can take the boy out of brooklyn but not brooklyn out of the boy) so I know its usually not nice to make fun of how people speak. Still I have to wonder if you, bhoyo, actually speak that way. I’ve always felt such bombastic grandiosity is a sure sign of someone who doesn’t have a clue what they are actually talking about.

    So, after all the quips, barbs, and insults on madison, hamilton, jefferson, the constitution, meaning, intention, each other, and all the rest, what have we arrived at besides if this was an actual debate all would have lost (though some clearly more then others)?

    Here’s a few things I got: There was a lot of disagreement; our godlike founders didn’t like each other and weren’t so godlike; there were many conflicting interests; no one will admit anything, and no one can definitively agree or prove anything except there was a lot of disagreement on everything (which actually proves exactly my point).

    But I have to say its nice to know, according to some, the root of all evil is the filibuster (which was to them created out of thin air), matched only by the right to vote and the senate as the source of the nations wows.

    Anyone still for original intent?

    ps, as to filibuster someone might want to check out Art 1Sec 3 Par 2;

  377. bhoyo:

    Please return to your constitutional Never-Never Land where you and your three constitutional lawyers friends can amuse yourselves with half-baked questions (Such as this Yoda-ish classic: ““The Congress, he [Marshall] stated has to follow the Constitution, doesn’t he as well? Isnt he, or the Court, even more obliged?”) and lament the power of the federal government.They may find you an authority. I don’t.

    BTW I’ll post to whomever I please. Nothing makes you read or respond, except maybe that bruised ego of yours looking for cover.

    Tootles.

  378. 1zb1:

    Please don’t trifle our purple prose spewing friend with anything like logic, history, or direct cites to the Constitution. Extravagant language is the mark of someone seeking attention and often used to mask not knowing a damn thing about what you’re talking about. I’m sure he’d respond to your observations, but in his words, “but.. why ?”

  379. pbh:

    I’m sure we could be fast friends but we’d have to agree not to argue about the Constitution. Nothing personal but this is a lawyer’s blog, in the main. You have to support your contentions with more than OMG,OMFG, et seq.

  380. pbh,

    Egging you on is better than egging you. ;)

    Your total irreverence towards Jefferson is refreshing. I have spent more than a few evenings in discussions with friends and/or acquaintances concerning Jefferson’s actions that began so soon after Washington took office. After all, the Jeffersonian-Republican party was fully operational by 1793 when Jefferson handed it over to Madison and “retired”.

    The Federalist party was up and going in time for the 1796 elections. with John Adams as the de facto presidential candidate.

    Jefferson’s opinion of the Federalists is succinctly expressed in a letter from him to Philip Mazzei: “an Anglican monarchical, and aristocratical party”. The letter was published in a May 1797 edition of the New York Minerva. Federalists offered the letter as evidence of the vice president’s demagoguery. (remember that at that time Adams was President having beaten Jefferson who was serving as Vice-President.)

  381. Jefferson was embarrassed by the publication of that letter but not to the point that he decided to stop his attacks on the President. Instead he decided to go “stealth”, working well behind the scenes for the rest of his term as Vice-President towards the goal of winning the Presidency for himself. He succeeded … barely.

    Interestingly enough, he went all “monarchical” on us when, as President, he decided to do the Louisianan purchase. I’m not criticizing the purchase, just chuckling at the irony.

  382. Mespo: “Nothing personal but this is a lawyer’s blog, in the main. You have to support your contentions with more than OMG,OMFG, et seq.”

    Oh, it’s a lawyer’s blog is it?

    So you were being ‘lawyerly’ when you wrote:

    Mespo: “The paramount constitutional requirement is serving the nation’s well-being and that trumps all. Do the ends justify the means? If the ends are big enough, they do. That’s the lesson of Jefferson.”

    And Pbh spoke out of turn when he wrote:

    “OMG. OMG. This is a pimer for tyranny. OMG.”

    Again, what the Lopez Court referred to as ‘first principles’ you see merely as quaint distractions that interfere with your control paradigm.

    Accordingly, I hereby affirm under penalty of perjury that you’re as full of crap as a Christmas goose.

  383. Bob,Esq.:

    “Mespo: “The paramount constitutional requirement is serving the nation’s well-being and that trumps all. Do the ends justify the means? If the ends are big enough, they do. That’s the lesson of Jefferson.”

    Bob,Esq.: Accordingly, I hereby affirm under penalty of perjury that you’re as full of crap as a Christmas goose.”

    ***************************
    The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.
    337 U.S. at 36.
    ~Justice Robert Jackson, Terminiello v. City of Chicago, 337 U.S. 1 (in dissent, 1949)

    Well, I’m in good company with the chief US prosecutor at the Nuremberg Trials and Associate Justice of the SCOTUS. You recognize no limits on your doctrinaire approach to governance even in event of national emergency. The goal is to preserve the nation, not let it go to ruin based blind adhereance to a dogma. Lincoln said much the same thing as Jackson. Like Jefferson, he’s on Mt. Rushmore, too. Full of crap? Maybe? But towering over us all literally and figuratively.

  384. Mark:

    This is a lawyer’s blog, eh? “Your honor, I submit to you Mt. Rushmore.” LOL What’s next, letters addressed to Santa care of Macy’s?

    Anyway, so, according to you, Jackson’s dissent in Terminiello is all the license you need to ignore “first principles.”

    How did the Court in Lopez put it?

    “We start with first principles. The Constitution creates a Federal Government of enumerated powers. See Art. I, § 8. As James Madison wrote: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” The Federalist No. 45, pp. 292-293 (C. Rossiter ed. 1961). This constitutionally mandated division of authority “was adopted by the Framers to ensure protection of our fundamental liberties.” Gregory v. Ashcroft, 501 U. S. 452, 458 (1991) (internal quotation marks omitted). “Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in anyone branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.” United States v. Lopez – 514 U.S. 549 (1995) @552

    Now, Terminiello, that was a free speech case, right? Hmm, now what was it that Douglas wrote that could put a control freak’s panties in a twist?

    Something like this?

    “Accordingly a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, Chaplinsky v. New Hampshire, supra, 315 U.S. at pages 571-572, 62 S.Ct. at page 769, is nevertheless protected against censorship or punishment, unless shown likely to roduce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. See Bridges v. California, 314 U.S. 252, 262 , 193, 159 A.L.R. 1346; Craig v. Harney, 331 U.S. 367, 373 , 1253. There is no room under our Constitution for a more restrictive view. For the alternative would lead to STANDARDIZATION OF IDEAS [337 U.S. 1 , 5] either by legislatures, courts, or dominant political or community groups. (emphasis mine)

    The ‘practical wisdom’ at work here, Mark, is that liberty should be sacrificed to satiate yours, and Jackson’s, desire for control. The standardization of ideas is all fine and well so long as they’re yours.

    And once again you’ve betrayed your obsession with control masked with your alleged concern for the country by the lack of integrity in your reasoning.

    Mespo: “The goal is to preserve the nation, not let it go to ruin based [on] blind [adherence] to a dogma.”

    Is it Mark? How is it that you, a supporter of the Citizens United decision, could quote a man like Jackson in a Free Speech case when he wrote:

    “There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”

    I have a “doctrinaire approach to governance”? Gee, what would your buddy Jackson say about your support for Citizens United?

    Perhaps the reason there’s so little integrity to your thought process can be found in your over reliance on quotes taken out of context and presented as axioms. Like that quote from Jackson you attempted to use axiomatically as justification for ignoring the doctrine of enumerated powers when you see fit. Yet you know that within the same 1st Amendment context, Jackson would be screaming for your head for even suggesting that corporations have an equal say in the franchise as citizens and that ‘practical wisdom’ would dictate the opposite outcome in Citizens United.

    Where else do we find lack of integrity in your arguments?

    Here’s a good argument by you against carrying a concealed weapon

    Matt: “Criminals are everywhere, and I’m sorry that I don’t want to be one of their statistics.”
    *****************
    Mespo: “According to Ohio crime stats for 2008 (the most recent I could find), your chances of being subjected to deadly force by an unlawful attacker in Ohio is 5 in 100,000. That’s a blistering .00005% chance overall. Assuming you are Caucasian your chances of being a victim fall to a mere 34% of that figure or a scary .000017%. That’s 1.7 in 100,000. According to the National Safety Council, your odds of dying from exposure to smoke, fi[1]re, and fumes are 1 in 1,344 AWAY from your job. I suggest you leave your gun at home and keep your fire suit on all the time to really be safe. Also avoid getting charged with capital murder too since your odds for execution are just slightly worse than for getting shot by an attacker — 1 in 111,779. So what is it Matt? It sure isn’t rational fear of homicide in Ohio. So, yes my uncle and I think carrying a gun doesn’t make you a man; it makes you a paranoid.”

    Now, as a gun owner, I happen to agree with you. If you can’t venture out into the world with a 5 in 100,000 chance of facing an attacker without a hand gun, you’re a sad paranoid man with no grasp of the concept of risk.

    But here comes your lack of integrity again, because while you argue that a citizen with a 5 in 100,000 chance of facing an attacker is irrational for desiring to carry you ALSO argue that a citizen with a 1 in 20 million chance of being killed by a terrorist has EVERY REASON to forfeit his civil liberties in the name of being protected by the likes of you.

    It bears repeating to a control freak…

    “This and no other is the root from which a tyrant springs; when he first appears he is a protector.” — Plato

    Lack of integrity in one’s reasoning is no reasoning at all, it’s just whim and caprice focused by a particular pathology; in your case control. Quoting all the greats in American history may serve to mask your intent and the stench of your arguments, but to convince yourself that those greats would agree with your insatiable desire for control is simply delusional.

  385. Bob, Esq.:

    Survival is the first principle or hadn’t you noticed.Here’s one guy who understood that and was actually burdened with the duty to preserve the nation with some un- or extra- constitutional means:

    Executive Mansion,
    Washington, April 4, 1864.

    A.G. Hodges, Esq
    Frankfort, Ky.

    My dear Sir: You ask me to put in writing the substance of what I verbally said the other day, in your presence, to Governor Bramlette and Senator Dixon. It was about as follows:

    “I am naturally anti-slavery. If slavery is not wrong, nothing is wrong. I can not remember when I did not so think, and feel. And yet I have never understood that the Presidency conferred upon me an unrestricted right to act officially upon this judgment and feeling. It was in the oath I took that I would, to the best of my ability, preserve, protect, and defend the Constitution of the United States. I could not take the office without taking the oath. Nor was it my view that I might take an oath to get power, and break the oath in using the power. I understood, too, that in ordinary civil administration this oath even forbade me to practically indulge my primary abstract judgment on the moral question of slavery. I had publicly declared this many times, and in many ways. And I aver that, to this day, I have done no official act in mere deference to my abstract judgment and feeling on slavery. I did understand however, that my oath to preserve the constitution to the best of my ability, imposed upon me the duty of preserving, by every indispensabale means, that government — that nation — of which that constitution was the organic law. Was it possible to lose the nation, and yet preserve the constitution? By general law life and limb must be protected; yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb. I felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the constitution, through the preservation of the nation. Right or wrong, I assumed this ground, and now avow it. I could not feel that, to the best of my ability, I had even tried to preserve the constitution, if, to save slavery, or any minor matter, I should permit the wreck of government, country, and Constitution all together. When, early in the war, Gen. Fremont attempted military emancipation, I forbade it, because I did not then think it an indispensable necessity. When a little later, Gen. Cameron, then Secretary of War, suggested the arming of the blacks, I objected, because I did not yet think it an indispensable necessity. When, still later, Gen. Hunter attempted military emancipation, I again forbade it, because I did not yet think the indispensable necessity had come. When, in March, and May, and July 1862 I made earnest, and successive appeals to the border states to favor compensated emancipation, I believed the indispensable necessity for military emancipation, and arming the blacks would come, unless averted by that measure. They declined the proposition; and I was, in my best judgment, driven to the alternative of either surrendering the Union, and with it, the Constitution, or of laying strong hand upon the colored element. I chose the latter. In choosing it, I hoped for greater gain than loss; but of this, I was not entirely confident. More than a year of trial now shows no loss by it in our foreign relations, none in our home popular sentiment, none in our white military force, — no loss by it any how or any where. On the contrary, it shows a gain of quite a hundred and thirty thousand soldiers, seamen, and laborers. These are palpable facts, about which, as facts, there can be no cavilling. We have the men; and we could not have had them without the measure.

    [“]And now let any Union man who complains of the measure, test himself by writing down in one line that he is for subduing the rebellion by force of arms; and in the next, that he is for taking these hundred and thirty thousand men from the Union side, and placing them where they would be but for the measure he condemns. If he can not face his case so stated, it is only because he can not face the truth.[“]

    I add a word which was not in the verbal conversation. In telling this tale I attempt no compliment to my own sagacity. I claim not to have controlled events, but confess plainly that events have controlled me. Now, at the end of three years struggle the nation’s condition is not what either party, or any man devised, or expected. God alone can claim it. Whither it is tending seems plain. If God now wills the removal of a great wrong, and wills also that we of the North as well as you of the South, shall pay fairly for our complicity in that wrong, impartial history will find therein new cause to attest and revere the justice and goodness of God. Yours truly,

    ~A. Lincoln

    You and bhoyo woould do well together in the pristine world you’ve created. Sadly it doesn’t exist.

  386. mespo

    “Extravagant language is the mark of someone seeking attention and often used to mask not knowing a damn thing about what you’re talking about.”

    Of all the people on this board, you spend the most time hurling insults. I would venture to say that it has become the rare post from you that does not offer to insult someone.

    While I have expressed some justifiable astonishment at this behavior, and have rewarded it with a fair amount of well earned mockery, even I have not gone so far as to belittle your intelligence, which is something that you do regularly to every other correspondent here.

    Which is to say that you demonstrate very poor manners. My mother would ask you to leave the table.

    I hope that you do not imagine that this attitude bolsters any of your arguments. In my view, it undermines them almost immediately.

    pbh

  387. if it is question of hurling insults, i submit your mother would ask everyone here to leave the table, you included.

  388. 1zb1

    “I have to wonder if you, bhoyo, actually speak that way.”

    Yeah, he kinda does. His misspellings aside, which are purely accidental, I assure you, he can be a bit of a Constitutional nerd. This is because he spends a lot, I mean a whole freaking lot of time reading original documents from the late 18th Century. Such as the complete correspondence of Madison, of whom he is even more enamoured than I am of Hamilton. His curiosity in this realm is endless, and you will find that he will often defer offering an opinion until he has had the opportunity to fully research the question, which inevitably takes him down multiple paths of diligent, intense study. In other words, it is not enough for him to read Madison, over and over, but he must read the all correspondence of all of those who ever corresponded with him, and, to take it a step further, all the correspondence of all of those who ever corresponded with anyone who ever corresponded with Madison. And he remembers it all! And so he writes and talks in a way that seems a little anachronistic to you or me, because he has all of that 225+ year old correspondence running around in his head all the damn time.

    And I may add, he is a very charming guy, very deferential, very helpful to those who wish to learn. You would have to jab a stick in him to get him to say anything unpleasant.

    “ps, as to filibuster someone might want to check out Art 1Sec 3 Par 2;”

    So, is that a typo? Don’t you really mean Sec. 5? And isn’t that what I already said?

    You might want to check out Barney Frank’s interview in last week’s New York Magazine. When he was asked, “Are there structural reforms that you think need to take place?” His answer was: “Get rid of the filibuster in the Senate.” The interviewer, apparently surprised at his moderation, asked: “Is that the only one?” And Barney said: “That’s the only one.”

    It’s on page 110.

    pbh

  389. 1zb1

    “if it is question of hurling insults,”

    I think this goes back to our earlier discussion regarding ad hominem remarks. My point to you was that it is not ad hominem to say that someone is using a flawed arguement, but it is ad hominem to say that they themselves are flawed.

    And, I don’t think you got the distinction. In response to which, I could call you a questionable name, or I could propose, sometimes with a “bit” of “humor”, that you rethink the question.

    pbh

  390. believe me, i got the distinction. but what you don’t get is there really is no distinction. wrapping insults up in a nice package with a bow on top doesn’t change the fact it still smells.

    if you don’t get that saying someones ideas are like a nazi is insulting then your thinking processes – not you, but your thinking proceses – are completely disconnected from reality.

    i’m affraid to say in your analysis you neglected (again) to consider the full meaning of ad homeniem. (but just because you keep making the same mistake and your reasoning is faulty please don’t take that as a personal attack on you, only on your way of thinking and what you have to say on the subject.

    1. directed against a person rather than against his arguments
    2. based on or appealing to emotion rather than reason Compare

  391. i’m thinking its time to bring this schoolyard brawl to an end. would someone please write a new article on an interesting subject we can shout, scream, and kick about. how about something interesting (or at least diverting) such as what was god’s original intent when he handed the 10 commandments to moses and why did god keep saying the same thing over again according to george carlin? and if jesus was conceived by immaculate conception between god and mary does that make god a rapist under the law? or does god have a speaking disorder such that god needed jerry falwell to explain god?

    i’m sure you bright people can come up with something.
    .

  392. Blouise 1

    “Jefferson’s opinion of the Federalists is succinctly expressed in a letter from him to Philip Mazzei: “an Anglican monarchical, and aristocratical party”. ”

    Please, I just ate.

    Jefferson calling Hamilton “aristocratic”. Jeff, born to elite status, owner of human beings and profiting from their labor all the days of his miserable, delusional life.

    Hamilton, born in poverty, without a father to help raise him, educates himself, immigrates to to New York, becomes a lawyer, becomes the confidant of Washington, fights for his adopted country while Jeff is hiding in the woods, helps write the Federalist Papers which turns the tide for the new Constitution, becomes Secretary of the Treasury, saves the national treasury, restores confidence in the dollar, etc., etc., etc.

    Did you ever see the movie “The Aristocrats”? That is Jefferson.

    pbh

  393. Hi all,

    Well a few hours away, and a lot happens. For the record 1bz1 yes I do use that language, and it people like Turley, Rosen, Rakove, and Madison that taught me to employ it. Is it bombastic ? If you think it is offensive, then I regret your offense to it. My poor spelling results from an eye injury, and the want of a spell checker. Combine the two on a screen that uses light blue leters and I am a mess. The one concept I do object to is that I am offering my opinion as a rational to justify using a ‘strict constructionist’ view of the Constitution. I have spent a lot of time, apparently not clarifying the idea that it is not my opinion that matters. The opninions of those that darfted and ratified the document are the sources I am advocating. You seemed to object to the use of checks and balances in the Constitution.

  394. 1zb1

    “believe me, i got the distinction.”

    No, you didn’t. And you are still missing it. I am offering you the very definition that you quote and you still don’t get it.

    “1. directed against a person rather than against his arguments”

    Which is to say, asserting someone is less intelligent, which mespo does all day long. I think he does it in his sleep.

    “2. based on or appealing to emotion rather than reason”

    Which means indulging in invective. Which again, is a theme with you know who.

    As for what Bob did, he asserted that an idea, an argument, a political position had similarities, likenesses, and/or parallels to the ideas, arguments and politics of some not very popular, discredited political groups. You have to bend over backward and insert your head in an unlikely place in order to claim that is a personal attack.

    pbh

  395. 1zb1:

    I agree. I’ve had to teach poly sci enough here today with very little in the way of rebuttal You’ve got the logic end of the curriculum and had to explain that an ad hominem attack is not the same as insults which have flown about freely. I’ll move on since the match seems over and the grounds crew is turning out the lights.

  396. In contrast I am a fan of checks and balances, not out preference articular to my leanings, but rather because after long reading, I understand why they are there.

  397. Gene H. 1

    “It’s amazing how many people don’t get that distinction.”

    Let me put it this way: I could call you a fool, or I could call your argument foolish. Still can’t see the distinction?

    pbh

  398. mespo

    “to explain that an ad hominem attack is not the same as insults which have flown about freely.”

    You are the one throwing the AH bombs.

    “1. directed against a person rather than against his arguments”

    Which is to say, You assert that I am not the equal of a lawyer, without knowing anything about my education and/or professional status.

    “2. based on or appealing to emotion rather than reason”

    In which you assert that I lack intelligence equal to yours.

    In opposition, I assert that your arguments lack substance, evidence or credibility.

    So, who is getting personal and/or emotional here?

    pbh

  399. Gene H. 1

    “You’ve mistaken me for someone who doesn’t know the difference already.”

    My bad. We’ll get it sorted out eventually. If you stick around. ;)

    pbh

  400. My computer made one of those typos it is noted for – it wasn’t me… i have chastised it appropriately – section 5 it is (obviously)…. i also have a bit of an eye problem that makes it difficult to see the faded keys – not from age but from use.

    pbh, its nice you have come to explain the full breath, scope and unprecedented depth of bhoyo’s knowledge on the constitution. my god, “he has all of that 225+ year old correspondence running around in his head all the damn time.” That is absolutely extraordinary.

    You know when you put it that way I can’t help but think of those savants who can tell you what happened on any date, or play the piano like Mozart, or calculate numbers better then any accountant. Then, again I can’t help but think not a one of them has any clue what any of it means.

    I might say the same for any person of religion who has the bible and every related moment in history committed to memory who then claims they KNOW the will of good.

    No I have no reason to believe bhoyo, you or anyone else here is anything other then a fine, decent, honorable, person. (Mistaken, and misguide certainly on many accounts, but not a bad person).

    But when someone tells me the garbage coming out of their mouth – and i don’t care if they have read every word ever written in the history of humanity and have it committed to memory that their opinion on what those words – or the events of the times – mean is not his opinion but fact I find that idea to be laughable, idiotic, stupid, naive, silly, noxious, foolish, naive, and you get the rest. (please Note, i am not attacking anyone personally, I’m just calling their ideas stupid). To underscore the point, will bhoyo please show where I “seemed to object to the use of checks and balances in the Constitution.” (I won’t presume to speak for mespo, but find where he suggests that either)

    Since others have used reference to popular culture let me do the same: that scene in MIB

    “Edwards: Why the big secret? People are smart. They can handle it.
    Kay: A person is smart. People are dumb, panicky dangerous animals and you know it. Fifteen hundred years ago everybody knew the Earth was the center of the universe. Five hundred years ago, everybody knew the Earth was flat, and fifteen minutes ago, you knew that humans were alone on this planet. Imagine what you’ll know tomorrow.”

    I wonder what bhoyo, you and the rest will know tomorrow in your very small and limited world of absolutes? Anybody for newtonian physcis? how about relativity? Quantum theory? String and Unified, anyone.

    as to filibuster, funny how people are often against it while they are in power and for it when they are our of power… and as for barnie (who I admire for he congressional service), they never do anything about changing it when they have the chance. in any event how can you be against it if you believe in original intent – wasn’t the intent to have lots of checks and balances?

    one last time: I get YOUR distinction, but clearly you don’t get THE distinction.

  401. the difference between knowing “stuff” and knowing what the “stuff” actually means:

    “…researchers, Ara Norenzayan and Will Gervais of the University of British Columbia in Canada, showed in a series of clever studies, that at least one factor consistently appears to decrease the strength of people’s religious belief: analytic thinking.”

    Read more: http://healthland.time.com/2012/04/27/losing-your-religion-analytic-thinking-weakens-religious-belief/#ixzz1tFRksCeO

  402. So Mark,

    “Perhaps the reason there’s so little integrity to your thought process can be found in your over reliance on quotes taken out of context and presented as axioms. Like that quote from [Lincoln] you attempted to use axiomatically as justification for ignoring the doctrine of enumerated powers when you see fit.

    Dejavu?

    You’d actually walk into court and attempt to persuade a judge that the nation is now under the same threat of collapse as it was during the time of Lincoln? And that’s why we should ignore the enumerated powers doctrine as well as the separation of powers doctrine?

    Mespo: “Your honor, I submit to you this letter from Abraham Lincoln to show why we should ignore the enumerated powers doctrine as well as the separation of powers doctrine. We are at war with terror and our nation is at stake sir.”

    Court: “So you’re saying that your alleged war with a tactic wherein an American faces a 1 in 20 million chance of being attacked is on par with the American Civil War?”

    Mespo: “Absolutely sir, the name of the game is survival.”

    Court: “Seems a tad alarmist; don’t you think?

    Mespo: “Not at all your honor.”

    Court: “Okay then, perhaps we should convert this proceeding into an Article 81 to determine the mental competency of counsel.”

    You need help Mark.

  403. if this was actually about enumerated powers there is simply no question congress has the enumerated power to regulate interstate commerce and to make all laws necessery and proper.

    but that isn’t really the question, now is it.

  404. Bob,Esq.:

    “You need help Mark.”

    ******************

    Yeah and I usually get it from the case law I cited.

    As 1zb1 says, the question really isn’t enumerated powers, is it?

  405. Mark,

    With you it’s always the same theme; the more control you want the more you sound the alarm bells in your head–somehow justifying your using quotes from great Americans in contrary contexts to hide the stench of your reasoning.

    As per the question currently at bar, here’s your swing vote by a Court that will stick with “first principles” as espoused in Lopez:

    BOND v. UNITED STATES
    No. 09–1227. Argued February 22, 2011—Decided June 16, 2011

    Justice Kennedy:

    “Federalism has more than one dynamic. It is true that the federal structure serves to grant and delimit the prerogatives and responsibilities of the States and the National Government vis-à-vis one another. The allocation of powers in our federal system preserves the integrity, dignity, and residual sovereignty of the States. The federal balance is, in part, an end in itself, to ensure that States function as political entities in their own right.

    But that is not its exclusive sphere of operation. Federalism is more than an exercise in setting the boundary between different institutions of government for their ownintegrity. “State sovereignty is not just an end in itself: ‘Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.’” New York v. United States, 505 U. S. 144, 181 (1992) (quoting Coleman v. Thompson, 501 U. S. 722, 759 (1991) (Blackmun, J., dissenting)).

    Some of these liberties are of a political character. The federal structure allows local policies “more sensitive tothe diverse needs of a heterogeneous society,” permits“innovation and experimentation,” enables greater citizen “involvement in democratic processes,” and makes government “more responsive by putting the States in competition for a mobile citizenry.” Gregory v. Ashcroft, 501
    U. S. 452, 458 (1991). Federalism secures the freedom of the individual. It allows States to respond, through theenactment of positive law, to the initiative of those who seek a voice in shaping the destiny of their own times without having to rely solely upon the political processes that control a remote central power. True, of course, these objects cannot be vindicated by the Judiciary in the absence of a proper case or controversy; but the individual liberty secured by federalism is not simply derivative of the rights of the States.

    Federalism also protects the liberty of all persons within a State by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions. See ibid. By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawfulpowers, that liberty is at stake.”

    http://www.supremecourt.gov/opinions/10pdf/09-1227.pdf

  406. Bob,Esq:

    “With you it’s always the same theme; the more control you want the more you sound the alarm bells in your head–somehow justifying your using quotes from great Americans in contrary contexts to hide the stench of your reasoning.”

    ***************
    I know about 3000+ New Yorkers who defied the odds of being killed by a terrorist attack and who wished for more alarm bells in the War on Terror. On that day the odds of being killed the way they were was 100,000 to 1. Guess what there odds were at noon.

    You may be willing to risk all of our security in deference to some purist ideal of enumerated powers that even the Founders didn’t subscribe to as evidenced by their actions, but thankfully people in positions of or power aren’t so extravagant or capricious. From Washington and Jefferson to Lincoln and FDR and now to Obama most every President, knew or knows the “organic law” of all nations is The Law of Survival.

  407. Mark,

    All the tools necessary to deal with terrorism exist without your need to dismantle the constitution. And the rules of exigent circumstances will always excuse those agencies that needed to go ‘the extra mile’ to accomplish their objective.

    Fear mongering and peddling a catastrophe in order to ignore the document that forms our way of life is terrorism par excellance. That is what you do Mark; terrorize your audience with the hope of achieving your aim of dismantling that document that gets in the way of your control paradigm.

    1 in 20 million…

    You’re more paranoid than the gun toting idiot.

  408. 1zb1 @ bhoyo — bhoyo, its time for your friends to do an intervention for you. nobody wants to find you in a bathtub.

    That’s a sick comment even by 1zb1’s ignoble standards.

  409. Hi,

    I just went back and reviewed some of the postings here. I guess I have lost the basic question of this site. Did the Founding Farhers back healthcare mandates. Some how you would think that Founders would have been cited here, what they discussed, and how the ‘people’ viewed the proposed powers of the constitution. I know this is a lawyers site and all, but dang why is it all bad to cite what they said. It has been suggested that I am a ‘Rain man’ kind of guy for using language that is reflected in the time frame, or that studying as much as I have is to be condemned, it is too much about the topic, which the overall subject of this site is supposed to be.. In that it is my field I thought I was being thoroughnd in candor I do love the topic.
    When one studies what the Constiution was designed to do, and how the Constitution was designed to fulfill those goals, you end up with a depp ans abiding appreciation of the time. I have never stated tha we should abondon all lights of experience, in stead I believe, as Lincoln said we should follow their lead especially in matters wher we know they understood the question better than we do. Hiow would you know ? It involves research.

  410. i don’t know about that. it seemed to fit. according to one it even set a new standard. your divine insight into the knowledge, meaning, intent, application of the constitution and the thoughts of founders to then and now is truly godlike. to paraphrase the immortal words of dirty harry, “you’re a true god in your own delusion.”. i do think anyone as taken with themself as you really is at great risk of doing harm to themself (and others) when they finally wake up to the fact they are mere ordinary fool like everyone else – only a bit more pompous about it then most.

    but let me divert a little. i suppose what i find among the most offensive in the gist of your position (and the manner of presenting it) and the rest of your self proclaimed standard bearers of individual rights, liberty, and the American way, is the notion anyone who does not live in the past and sees your view of the constitution (or any scripture) as the spoken word of god is a nazi, communist, heretic, infidel, non-beleiver, and every other totalitarian notion of anti-freedom you can conjure. You fall into that same band of idiotic thinking that goes with the likes of: America, right or wrong; love it or leave it, if you are not for it your against it; if your against the war you’re against our troops. You live in some twisted world of absolutes: as in absolutely your way or no way, no matter how idiotic a way it is.

    like the idiot savant with numbers and dates, no matter how much you recite bits and pieces out of history (and usually out of relevancy), your ability to string them together in coherent ways relevant to the subject at hand is non existent. Colloquially we call that connecting the dots, something you might not be familiar with since you live and speak in past lives. by your own reason – ie kennedy’s comments on federalism, where then is the boundary between too much federalism and too little.

    you see in the real world where big people and grown ups live the argument isn’t over federalism or anti-federalism. that argument was settled by the constitution itself (or we would still have the articles). The issue is where the line is drawn and should be drawn. I realize that is a distinction difficult for you to grasp (given the position of some on ad homonyms), but do try. except the notion that all here are deeply interested in the rights of man (and for some of us, woman, children, gays, people of color, different, age, religion, and so on and so on, too.) So, the time has come for you to get of your high arse; come back into the 21st century and put some of the history books aside long enough to think with some other parts of your body.

    personally, i think if the founders had to contend with your way of thinking back then they would have said, “from off of what plow did that ass escape from.”, and never mind what they would have thought about it coming from someone living in the 21st century.

    ps: i trust you will take none of this personal. it was all merely directed at your ideas and way of thinkin and not you personally.

  411. 1zb1

    “as to filibuster, funny how people are often against it while they are in power and for it when they are our of power… and as for barnie (who I admire for he congressional service), they never do anything about changing it when they have the chance. in any event how can you be against it if you believe in original intent – wasn’t the intent to have lots of checks and balances?”

    The issue with the filibuster is the simple fact the the GOP minority has used it relentlessly since 2006 when the Democratic Party gained “control” of the House and Senate. Imagine, a 59% majority being insufficient to pass a piece of legislation. Not quite what the Framers had in mind.

    And don’t forget, the Framers built in certain unfair advantages for the Southern States, the 3/5ths rule being the most significant, but the Senate itself grants an advantage to states with smaller populations than those with larger populations. Which is to say that a group of states with less than 30% of the total population can control the Senate. Which is the situation we have today.

    And worse, the filibuster can now be employed by a single Senator to block any legitimate Presidential appointment or any single piece of legislation.

    This was not always the case. Once upon a time, a filibuster required that the individual Senator get all Jimmy Stewart, take over the floor, and talk like a mad man in order to prevent a given vote. Not anymore. A Senator can filibuster without ever having to take the floor and explain himself and, if he does it within his caucus, without even admitting that he is the problem.

    If you simply count the number of filibusters over the previous fifty years, you will see that we have an unprecedented situation.

    Do we need the Senate? I don’t think so. If it has to survive, then let it become the House of Lords.

    pbh

  412. 1zb1

    “like the idiot savant”

    I guess you didn’t appreciate me asserting that Mespo was in the leadership role when it came to insults.

    You are catching up, I’ll give you that.

    pbh

  413. mespo

    “I know about 3000+ New Yorkers who defied the odds of being killed by a terrorist attack and who wished for more alarm bells in the War on Terror.”

    Well, you don’t actually know them. You never did. I personally knew about 20 people who died and about 200 who survived. I also “knew” by extension of insuring many of the companies in those buildings, about 500 more. I underwrote Cantor Fitzgerald before and after the disaster. I underwrote Morgan Stanley. I did a lot of business with Aon and Marsh, which together lost about 500 people that day. I used to work for both of those companies. I was on the 100th floor on 9/6/01. I’ve still got that ID card. That could have been me.

    I don’t know where you live, but I live two blocks from the WTC. Not that that makes me special. But, one thing I really detest is when someone tries to make an argument based on the lives lost that day. Especially someone who appears to speak casually about “3,000+” and so on.

    What I find as a general rule is that those who live further away from the WTC seem to take the event with greater shock than those of us who live here. New Yorkers tend to be a get-over-it-get-on-with-it breed. I really don’t want to hear about this from the hinterlands.

    Who knows, you might be a New Yorker. 1zb1 says he lives in Brooklyn, so you could too, possibly. You might even be my neighbor.

    But there is no reason, none, to give up civil rights just because a maniac pulled off a stunt that, imho, could have been prevented.

    What I most regret about the post 9/11 world is the constant body checks, just going to work in the morning. It is all so unnecessary. Like the Army showing up on 9/12. What possible good did that do?

    And now Bloomberg has installed “See Something Say Something” in yellow banners on the very steps of every subway. Fear. Fear. Fear. That’s all they got.

    That seems to be all you got.

    pbh

  414. 1bz1:

    Ever think we are surrounded by a confederacy of dunces? As in Swift’s “… that when a great genius appears in the world the dunces are all in confederacy against him.” Not any genius on our part, of course, but that of men like Jefferson and Lincoln, whom the entire nation reveres except our resident “original sources” guy, an insurance agent/ constitutional law expert who thinks the Senate is definitiely not a part of the Congress and went to great lengths to tell us why Madison wouldn’t join it (and who apparently can’t distinguish between the phrases”I know about 3000+ New Yorkers” from “I know 3000+ New Yorkers”); and Bob, Esq who thinks whenever anyone suggests something opposed to his opinion and provides the historical backup it’s a direct attack on Bob and his democracy and composed of mere “stench” or “idiocy.”

    Ah, well at least we’ve leave them pondering the obvious question: If we’re so hopelessly and unalterably wrong, why are they deperately and relentlessly trying to convince us otherwise? Last word, maybe?

    Einstein’s definition of insanity is the more likely answer.

  415. Knowing that I have little credence with those assmebled here I have no idea why I am making this plea, but will risk it never the less. I Am asking for at least we attempt some civility here. The mocking snide remarks are certainly not of the type I expected here.

  416. pbh, gee wiz, i don’t get your problem… i wasn’t talking about bhoyo being an “idiot savant”, i was only talking about his way of thinking on a particular subject…

    ps. I did not say i live in brooklyn… i grew up in brooklyn… i also lived in manhattan… I now live in neither place but i dare say i know more about the wtc then the very very very vast majority of people short of those who were actually there on that day or part of the clean-up. (if you can’t get right what i said a few lines up how can i beleive anything you say about 200 years ago)

    in any event your notion that only you have the right to talk about it is absurd on its face.

    fear (and greed) are obvious weapons used to gain power (next time tell us something we don’t know). the real issue is distinguishing legitimate reasons to be concerned and arrive at rational, effective methods of protection.

    the chance the woman in columbia was a spy may be slim but that doesn’t mean you take her back to your hotel.

    sure, having you searched when you get on a plane is an invasion of your rights, but its an invasion of my rights for you not to be search if i;m on the same plane.

    stop talking in absolutes. start thinking like a grown up and talk about where lines should be drawn to deal with the real world as it is that protects individual rights AND other peoples rights in a world as it is instead of the fairy tale we all wish it to be.

    bhoyo, i don’t believe anyone here should or needs to answer everything others say, but if you are going to bother to answer, at least say something that sounds intelligable. surely in those “225+ year old correspondence running around in [your] head all the damn time.” there was something better then that to say.

  417. if you mean by civility not calling others (or their ideas) nazis, communists or other pejoratives for disagreeing or having a different view from you i would certainly agree.

    minor note: communist/communisim is the kind of word that has taken on a mostly pejorative meaning in amercia largely due to the concerted efforts of capitalists. the fact that it is associated with the crimes against humanity in russian and china to define it (though having nothing or little to do with actual communisim, and used by rupert murdock, fear mongers on the right, and libertarians to marginalize democrats, liberals, progressives, socialists, unions and just about any group of 2 or more people gathered in room (unless they are there for church service) should remind us the use of fear goes much deeper then a pat down at the air port.

    note: this is not an endorsement or preference of the concept. however, to suggest that ‘capitalism won’ or is the best form of economics; or that our form of government and constitution is the end all or be all of how humans can best behave or govern in a civilized, just, and equitable world would be a sorrowful position.

    isn’t it ironic that when many people think of an idealized world “startrek’ is at or near the top of popular culture.

  418. “isn’t it ironic that when many people think of an idealized world “startrek’ is at or near the top of popular culture.”

    Not really. The Star Trek universe is one of the very few depictions of a eudaemonic society anywhere in science fiction let alone the rest of the arts. Of course, most people gloss over the part about that society being one without scarcity of energy and/or resources (between anti-matter and replicator technologies), but that people find attractive a world where there is no economic pressure upon them and that their goals in life are defined by personal happiness and fulfillment is not surprising. They don’t even have money in the 23rd Century and however they manage their economies (which is always kind of vague) it isn’t by any model we as a species use or have used. In that respect, Star Trek is as much fantasy as it is science fiction.

  419. sorry gene, by popular culture i did not mean to suggest it is a model for other creative expressions, but rather it is popular with the public (to put it simply). apparently i was also not clear that beyond the idyllic quality to it you described, i was particularly focusing on the social/political structure. ie semi military, benign dictatorship (you rarely see anyone give orders other then kirk or the doctor demanding a 23rd century scalpel). to put it more succinctly in most aspects startrek it is the antithesis of democracy.

    it is more of a reference to the propensity of people under stress to seek out saviors. as in the fed 1:

    “It will be forgotten, on the one hand, that jealousy is the usual concomitant of love, and that the noble enthusiasm of liberty is apt to be infected with a spirit of narrow and illiberal distrust. On the other hand, it will be equally forgotten that the vigor of government is essential to the security of liberty; that, in the contemplation of a sound and well-informed judgment, their interest can never be separated; and that a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government. History will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants.

    hmmmm, what do you think they meant by that, bhoyo?

  420. 1zb1,

    A friend of mine who now teaches poli sci on the East coast used to argue that the Federation were fascists. :D

  421. post ww1 depression era germany is indeed a prime example of people essentially democratically voting in a dictatorship under stress. rome is another.

    btw; the checks and balances were not just intended to keep government in check, it was also to keep the people in check (the 4th branch of government)

  422. fed 10: “The latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society. A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good.”

  423. ‘1BZ1′,

    if you mean by civility not calling others (or their ideas) nazis, communists or other pejoratives for disagreeing or having a different view from you i would certainly agree.

    I never have made that style comment. I did post here awhile ago I thought that misplaced. Liberalism is not a word I hold in disdain, so to refer to those so inclined as nazis, or communists, etc just to try to degrade them by using such labels. I do tend to ignore those comments, so if you somehow tought I endorsed that it is on you no myself. This iste seemed to infer the question of What the Founders think regarding a helathcare mandate. When I told some people in the mid to late 90s the mandate as proposed by Gingrich was ultra vires the conseravtoves attacked me. in 2012 mu studies bear out the idea that THEY not me, would still be of the same mind the liberals are upset. My oipinion to use a phrase doesnt mean s-it. The question is what did the Founding generation think, my view of that comes from the sources I mentioned, but sepecially Madison.

  424. Jiust reviewed my last post, man I have to get better glasses, the typos are terrible.

    I do not apologize for my studies of the Founding era, nor am I going to. I keep repeating the ideas that can be readily distilled from the extant documents I have studied. I like secondary histories, and to be candid I spend as much time examing the foornotes there in order to see if I have overlooked a letter or document I should be aware of, but a secondary history often contains inferences that migt not have been made if the author was aware of certian other relevant facts. It happens. But despite the respect I might have for an author, and his excellent work, if other information exists I consider that as well.
    I mentioned Jefferson’s genius often lead him to some democratic eloquence he might have regretted, Mespo responded althoug that was at one time a compliment, it isnt now >> ? That is PBH Not Me.
    I respect Jefferson , as well as PBH’s right to have a different opinion, even if it is wrong. But … and this is where the wheels come off the wagon for some people using Jefferson’s earth belongs to the living idea as a basis for expanded powers leaves about 10 years of his agreement with Madison on strict construction ignored.

    Liberals are not commies, or nazis, nor are their opinions to be used as a catalyst for more invidious discourse, we have enough of that already.

  425. Liberal vs Conservative,
    AS a benefit I get with certain memberships, I have gone to a number of syposiums. Of my favorites is exchanges between Scalia and Breyer when they have been the speakers. If ever twp people varied in philosophy over certain aspects of the law, it is those two. Scalia almost always stern and straightfaced, his occiasonal attempts at humor few, although notable. Breyer is affable, avuncular, he always makes his comments in a teachers style of clealry drawn syllogisms. I like Breyer, alot. Before and after the talks they show a remarkable admiratiom for each other. Scalia’s close friend on the Court is Ginsberg, opera and food the common bond between their respective households, Scalia had a close relationship with Wiilian Brennan as well.

  426. bhoyo:

    “I respect Jefferson , as well as PBH’s right to have a different opinion, even if it is wrong. But … and this is where the wheels come off the wagon for some people using Jefferson’s earth belongs to the living idea as a basis for expanded powers leaves about 10 years of his agreement with Madison on strict construction ignored.”

    *********************

    Now that’s fertile ground for civil discussion. Thank you, bhoyo. Jefferson was like all living things and his sentiments evolved over time. His thoughts about the life belonging to the living were written in 1813-14 after his Presidency (1801-1809). Clearly by then he had seen governance close up and understood that no Constitution can be deemed perfect for all exigencies or sufficient to insure life, liberty and the pursuit of happiness.

    Compare Jefferson’s letter to David Humphrey in 1789 where he said:

    It is the tendency of all governments to encroach on the rights of the people. Limited constitutions protect those rights, and serve as a line of defense against government intrusion. Rights that are not specifically identified for protection are not assumed to be under the jurisdiction of government, however; they are retained by the people and are
    exercised as an element of their individual self-governance. in their sovereign capacity.”

    To his remarks in 1810 to James Colvin:

    “A strict observation of the written laws is doubtless one of the
    high duties of a good citizen, but it is not the highest. The laws
    of necessity, of self-preservation, of saving our country when in
    danger, are of higher obligation. To lose our country by a
    scrupulous adherence to written law, would be to lost the law
    itself, with life, liberty, property, and all those who are
    enjoying them with us; thus absurdly sacrificing the end to the
    means.”
    [emphasis mine].

    That is wisdom based on experience.

  427. bhoy; at the worst you are the very periphery of some harsh language by word or innuendo as for example, “I am not one who believes liberals are all communists, that us hyperbulia of course.” (only some of them are I suppose.) but i will consider the matter settled by your comment:

    “Liberals are not commies, or nazis, nor are their opinions to be used as a catalyst for more invidious discourse, we have enough of that already.”

    otherwise, for now we can agree to disagree on many aspects of what the constitution means, was intended, and how it does and should relate to the present.

    all the flowery founders prose on the rights of man will not change the fact that for every prose on one side of the proposition there is another prose (often by the same person) on the other side; that the CC and the NP are enumerated powers; the federalists won on the constitution and the anti-feds won on the BR but that does not change the CC and the NP.

    ps: might go and see the hunger games tonight (my bi-annual movie)- you might say its a vision of your worst nightmare except your mighmare has been reality since before you were born.

  428. Mespo,

    Although I am aware of the letter you mentioned in the 18 teens, regarding the Earth Belongs to the Living, if my memory is right Jefferson first wrote of that to Madison in the fall of 1789, I think just prior to his leaving Paris to return home for his daughters wedding, He had no intention at that point of remaining in the Colonies, just a visit, again I think I have the time line correct. Madison reponded to the letter after his return, and I have never seen a response by Jefferson. Madison did seem to disgaree with some aspects, in that we inherit a world with the advnaces provided by the previous generation,

  429. Didnt Jefferson get the idea from a Dr ? a Richard Gem ?? Was any of the directed at the perpetuation of the debt ??

  430. bhoyo:

    There is a letter to Madison to that effect. September 6, 1789 to be exact. It seems to be Jefferson’s first inquiry into the topic. It begins:

    “I sit down to write to you without knowing by what occasion I shall send my letter. I do it because a subject comes into my head which I would wish to develope a little more than is practicable in the hurry of the moment of making up general despatches.

    The question Whether one generation of men has a right to bind another, seems never to have been started either on this or our side of the water. Yet it is a question of such consequences as not only to merit decision, but place also, among the fundamental principles of every government.”

  431. bhoyo:

    Jefferson uses the French Debt to describe the problem and the doctor you refer to was indeed English radical, Dr. Richard Gem, who “taught” Jefferson. Jefferson was wrong about the topic never being raised however. Thomas Paine has discussed the issue in Dissertations on Government, the Affairs of the Bank, and Paper-Money.

    Paine said:

    “As we are not to live forever ourselves, and other generations are to follow us, we have neither the power nor the right to govern them, or to say how they shall govern themselves. It is the summit of human vanity, and shews a covetousness of power beyond the grave, to be dictating to the world to come.”

  432. When the Federalist Essays were written Madison admitted that there were people who were predisposed to censure and predetermined to condemn ( the Constitution ) as there were others of betrays an opposite predetermination….
    In that same paragraph that the papers ( the Fed Essays ) were not aimed at either.. they solicit the attention of those only, who add to sincere zeal for a happiness of their country, a temper favorable to a just means of promoting it.
    After 200 plus years one can hope, all though in vain I guess, that we might have evolved into the last group madison spoke of, and to whom he adressed in the Essays. I am not pointing dircetly to anyone here, but to the larger national discusiion on poltics, Limbaugh to Mr Ed.

  433. 1zb1

    “i dare say i know more about the wtc then the very very very vast majority of people short of those who were actually there on that day or part of the clean-up.”

    Now, that is a bold claim. Because, I was there that day and I don’t make any such claim. As for the clean up, I wasn’t actually out there sweeping up the dust, as I had a regular job, but I have friends who did. I know a little bit about what went on myself.

    How is it that you, who evidently cannot claim to have been there that day know so much more than the rest of the hoi polloi?

    “in any event your notion that only you have the right to talk about it is absurd on its face.”

    That’s not quite what I said. I said that I “detest” it “when someone tries to make an argument based on the lives lost that day. Especially someone who appears to speak casually about “3,000+” and so on.”

    Unlike yourself, I do not claim to be an authority on that part of recent history. I merely resent the appropriation of that history to advance a flawed argument.

    pbh

  434. mespo

    “I know about 3000+ New Yorkers” from “I know 3000+ New Yorkers”

    Sure, you meant to say “I know “of” “approximately” 3000, instead of “I know “approximately” 3000.”

    And that disctinction was clear from your very careful use of the language.

    Either way, the claim is crass.

    pbh

  435. Wow, pbh! You are more insecure than I thought. Why don’t you get some coverage for that and brag to your friends about it. It’ll salve that immense, but oh so tender, ego of yours.

    I hate arguing with non-lawyers. it’s always so personal.

  436. pbh:

    Last night when I came home from another “why did I waste my time and money on that” movie and saw your comments on 911 I penned a reply. As luck or divine intervention would have it my computer completely hung just before I was about to post it. Rather then a restart of both the computer or the reply I went to sleep which gave the benefit of a few hours reflection.

    911 is one of those rare events in life shared by everyone to some degree. Everyone alive at the time knows where they were when they heard the news of the attack on Pearl Harbor; everyone knows where they were when Kennedy was shot; everyone knows where they were when mankind landed on the moon; and everyone knows where they were on 911.

    Nearly every American watched it unfold in real time – over 300 million people; almost every person around the world who could also watched it happen. The images are seared in our collective minds like perhaps no other event in our life time or even history.

    No one can know the horror of that day who was not directly present; no one can know first hand what it is to jump to their death from a high tower because the alternative is so much worse; no one can know the fear of walking down nearly a hundred stories in the dark; no one can know what it is to be enveloped in a cloud of debris so thick it chokes the life out of you unless they were there; and no one can know the minds of the heroic men charging into those buildings while everyone else is running out.

    None of us can know those things first hand unless we were physically the ones there just as certainly as we can not know the heart or mind of soldiers on the battlefield or those involved in any tragic event, whether they live or not.

    But more then perhaps any event effecting this nation or the world, 911 stands unique in the fact it was seen by so many in real time; effected so many so deep and profoundly whether as participant, witness, or in its consequences.

    911 is deep in its effects, profound in its emotional impact; widespread in its aftermath, and lasting in its consequences as much or more as any event in our lifetime. Personally, I believe the nation and its people suffered a collective form of PTSD. Perhaps as a reflection of excatly that George W Bushes finest hour was when he stood on the rubble of the WTC to rally the nation; but his worst moment was when he told us to shop in response and gave tax cuts to the wealthy as he sent soldiers off to war.

    I could go on about 911 and the deep emotional impacts but we should leave that for another time. Lets just say in this simple way, every person has a right to speak of those events. I know you understand that in your heart and soul even if at the moment your words speak otherwise.

    I trust upon reflection you will see this in a different light.

  437. 1zb1

    “Lets just say in this simple way, every person has a right to speak of those events. I know you understand that in your heart and soul even if at the moment your words speak otherwise.”

    A very pretty sermon. Meanwhile, you continue to talk past me, not to me.

    I never said Mespo does not have a right to speak on the subject of 9/11, I said that I “detested” what he had to say. That is me exercising my free speech in reponse to his.

    And, I further gave my reason, which I will reiterate, that I believe he was making an unjustifiable and ultimately crass appeal to emotion in order to advance his argument for suspending civil rights.

    And, as usual, you attempt to put words in my mouth and then go off on some sermon in response to something I did not say.

    But, I would like to go back to my last question? What makes you think you know so much more than the average Joe about 9/11?

    pbh

  438. mespo

    “You are more insecure than I thought. Why don’t you get some coverage for that and brag to your friends about it. It’ll salve that immense, but oh so tender, ego of yours.

    “I hate arguing with non-lawyers. it’s always so personal.”

    Everything you said in the above post is a direct, personal attack.

    What I said about your 3000+ was not personal, it was a response to something you said that I found offensive.

    You have no idea whether or not I am a lawyer. There are lots and lots of people working in the insurance business, doing what I used to do, who are lawyers. They work for insurance companies because they get paid better and don’t have to work as hard.

    But, I have to say, of all the other lawyers with whom I’ve ever corresponded, you write the least like a lawyer.

    pbh

  439. Mespo,

    Keeping in mind I admittedy have not spent enough time studying Jefferson, amongst a number of refernces I have of his agreement with Madison regarding strict constitutional construction, the one regarding Jefferson’s objection to the Bank Bill, is one I have given a lot of weight to.

    “It is an established rule of construction, where a phrase
    will bear either of two meanings, to give it that which will allow some meaning to the other parts of the instrument, and not that which will render all the others useless. Certainly no such universal power was meant to be given them. It was intended to lacethem up straitly within the enumerated powers; and those without which, as means, those powers could not be carried into effect ”

    The quote above deals with his objecion to the latitude of construction needed for the general welfare clause to be a justification the Bank Bill. I have always thought this in line with the ideas that dominated peoples understandings of the clause itself. It lt dove tails with Madison’s explanation in Federalist 41, and his expressed concern of how the phrase could be distorted when he discussed it in reference to the Cod Bounty issue.

    As Jefferson pointed out if the General Welfare Clause received a level of authority necessary to justify the bank bill for example, it would defy the limits of the context it was in. To enumerate certain powers, and then negate the limting aspect of the list by using the clause that way isnt consistent with the idea of limited powers, as the old phrase those not delegated were retained demonstrated. The latter idea codified in The Tenth Amendment.

  440. Mespo,

    In that same letter to Washington mentioned above, he did deal with the necessary and proper clause as well. He did of course object to the idea that necessary also included convenient or needful, but after that he went on to explain.

    “If such a latitude of construction be allowed to this phrase as to give
    any non enumerated power, it will go to every one; for there is not one, which ingenuity
    may not torture into a convenience, in some way or other, to some one of so long a list of enumerated powers: it would swallow up all the delegated powers, and reduce the whole to one phrase, as before observed. Therefore it was that the constitution restrained them to the necessary means; that is to say, to those means, without which the grant of the power would be nugatory.

  441. Of the traits PBH mentioned i have one is accurate. All the compliments he implied, altough I am thankful, I probably dont deserve most of them, but that i have absorbed maybe too much of the 18th Century use of language. I used the word tortured, which in the context used, describes a distortion of language, or pervert a meaning.

  442. bhoyo

    “If such a latitude of construction be allowed to this phrase as to give
    any non enumerated power, it will go to every one; for there is not one, which ingenuity may not torture into a convenience, in some way or other, to some one of so long a list of enumerated powers: it would swallow up all the delegated powers, and reduce the whole to one phrase, as before observed.”

    And the response to this very self serving argument of Jefferson’s was finally McCulloch, with Marshall channelling Hamilton. You might wish to assert that Marshall was equally self serving, but he was writing from the bench with a unanimous decision, while Jefferson was arguing a political position against Hamilton.

    Which brings us back to the original question, “Would the Framers have supported the ACA?” And that goes to straight to Article 1., Section 8., p. 1 & 19.

    And I guess we can argue the interpretation of these clauses all day long, but quoting Jefferson in one context without recognizing his behavior in a separate context seems to me to do less than support your argument.

    You could throw Madison out there, I suppose, but he followed in Jefferson’s footsteps more often than not post ratification.

    Which is to say that, in my opinion, there certainly were Framers and/or Founders who could have supported the ACA, and they may have been in the majority if they understood the need. Their support for the Shipowner’s mandate suggests as much.

    pbh

  443. bhoyo

    “So I take it the civilty reques is tabled for the moment, maybe tomorrow ?”

    Jane, you ignorant slut.

    pbh

  444. pbh:

    “You have no idea whether or not I am a lawyer.”

    **********************

    I know lawyers. Known them all my life. I may not know your credentials, but I know you’re no lawyer — at least not one worth knowing.

    Regards. Like 1zb1 I’m tiring of stroking your little ego.

  445. Hello,

    In quoting Jefferson in his letter to Washington regarding the Bank I was highlighting the agreement between Jeff and Jemmy on the topic of construction of Constitutional Powers. After reading the coorespondence between the two, I dont really see Madison following Jeff’s lead except in the fact it was a doyian system. I know when Hamilton started using the press, Jefferson more than once urged Madison o pick up his pen, and with good reason, Jefferson once commened that Madison was only one who could exchange lists with him. Jefferson was the genius of the pair, no doubt, Madison had to engage in study, which he was prone to anyway. As far as Marshall channeling Hamilton, i do remember a refernce to Marshall stating his admiration for Hamilton, he is a noon day sun to our rush tapers.
    I see a lot founders having opinions that may lead us to believe they would support the ACA, true. As far as the mandate for the seaman insurance I have to admit that there I am lacking the background. I know of the rigors for a crew, and they were tough. I had began a study of the impact of impressment, and the size of the Navy we had at different times. I was then and remain curious as to the extent the National had to employ independent ships due to the size of the Navy, but I havent found all the sources I thought necessary, or the time. I was astonished to find out how much we paid to the rascals like the Barbary Pirates for a number of years, which we had to because we didnt have British size fleet to protec our shipping..

  446. I still go back to the Ratifying Conventions and what was the agreement rteached. Broad Constitutional interpretation of powers certainly was a topic, the Federalist group denied the idea credence, the anti’s stressed it could be used. In the Resoultions of a number of the States which accompanied ratification it is clear that was not the terms they accepted. So I keep returning to tat idea, what did the People agree to ?

  447. bhoyo,

    Well, we know for sure they didn’t agree to “No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.” and it took over 200 years to get it ratified. ;)

    You wrote: “In the Resoultions of a number of the States which accompanied ratification it is clear that was not the terms they accepted.”

    By terms did you mean as defined by the Federalist or Antifederalists?

    Is it safe, from a historical standpoint, to opine that the framers and ratifiers expected the Constitution to be amended frequently?

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