Below is my column in the Washington Post (Sunday) on our recent victory in the Sister Wives case. The column looks at the most significant aspect of the case — the rejection of morality codes that once controlled across the country in prohibiting everything from homosexuality to adultery to fornication. These morality laws were upheld in the decision in Reynolds in 1876 in a polygamy case out of Utah. The Brown decision returned us to the same question involving the same issue in the same state. Some 136 years later however the answer from this federal court was very different. We are a different country today and, despite what one hears from politicians like Rick Santorum, I believe that we are a better country today.
There does seem to be confusion about the ruling with some saying that polygamy is still not legal after the opinion. That is simply wrong. Polygamy is not the same a bigamy. One is the crime defined under cohabitation statutes of living as a plural family or with a person married to another person. The other is the crime of having two or more marriage licenses. The latter has nothing to do with the structure of your family and has almost exclusively involved people who hold themselves out (falsely) as monogamous. We always argued that the state could prosecute people who obtained more than one marriage license. Bigamy has not been an offense committed by polygamists who traditionally have one official marriage license and multiple spiritual licenses. Indeed, the law targeted polygamy with the cohabitation provision precisely because there is a difference between the two. The state fought for years to preserve this law because it reached beyond simple bigamy. Before this opinion, it was a crime for polygamists to live, as do the Browns, in a plural family. After the opinion, it is legal. This is precisely what occurred in Lawrence v. Texas where homosexual unions were a crime but then became legal when the Texas law was struck down. This decision legalizes tens of thousands of polygamous families who will no longer been viewed as criminal enterprises. They will be allowed to be open plural families. They are now legal relationships. Legality of polygamy is entirely different from recognition of plural marriages just as the legality of homosexual relations is different from the recognition of same-sex marriage.
There is also a lack of knowledge about the existence of such laws outside of Utah. This law does exist outside of Utah. Indeed, the very same language is found in the Canadian cohabitation law. I was called as a legal expert in the recent challenge to that law. However, the Canadian Supreme Court in British Columbia upheld the law. Putting these distinctions aside, the thrust of this article is how this decision is part of a larger trend toward the repeal or the striking down of morality codes, including the rejection of a cohabitation law in Virginia this year.
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The decision this month by a federal court striking down the criminalization of polygamy in Utah was met with a mix of rejoicing and rage. What was an emancipating decision for thousands of plural families was denounced as the final descent into a moral abyss by others.
Former senator Rick Santorum was among the social conservatives trying to claim the moral high ground. He tweeted on Sunday: “Some times I hate it when what I predict comes true” — referring to his 2003 claim that legalizing “consensual sex within your home” would lead to the legalization of polygamy and “undermine the fabric of our society.” (On Wednesday, with no apparent sense of self-contradiction, he expressed outrage over the removal of a Nativity scene at a South Carolina military base, tweeting: “Our Constitution protects free exercise of religion. No govt entity/official has the right to limit that.”)It’s true that the Utah ruling is one of the latest examples of a national trend away from laws that impose a moral code. There is a difference, however, between the demise of morality laws and the demise of morality. This distinction appears to escape social conservatives nostalgic for a time when the government dictated whom you could live with or sleep with. But the rejection of moral codes is no more a rejection of morality than the rejection of speech codes is a rejection of free speech. Our morality laws are falling, and we are a better nation for it.
In the Utah case, I was the lead counsel for the Browns, the polygamous family featured in the TLC reality program “Sister Wives.” They are members of the Apostolic United Brethren Church, and they have one marriage license and three “spiritual” marriages among them. After the first episode of “Sister Wives” aired, state prosecutors threatened to bring charges under a Utah law that made it a crime when a married person “purports to marry another person or cohabits with another person.” The Browns were under investigation for two years and were publicly called felons before they took prosecutors to court in a challenge to the constitutionality of the law.
The case was never about the recognition of multiple marriages or the acceptance of the religious values underlying this plural family. It was about the right of consenting adults to make decisions for themselves and their families. Judge Clark Waddoups, a conservative George W. Bush appointee,ruled that the criminalization of cohabitation clearly violated the due process clause and the free exercise clause of the United States Constitution.
In doing so, he departed from the prevailing precedent: the Supreme Court’s opinion inReynolds v. United States , which upheld a ban on polygamy in 1879. Waddoups wrote that courts today are “less inclined to allow majoritarian coercion of unpopular or disliked minority groups, especially when blatant racism . . . religious prejudice, or some other constitutionally suspect motivation, can be discovered behind such legislation.”
Indeed, in Reynolds, religious and racial prejudice were vividly on display. The court unleashed a tirade of indignation and condemnation, stating, “Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people.” Just a few years later, the Supreme Court also upheld the criminalization of mixed-race relations in Pace v. Alabama .
The idea that polygamy was a “barbarous practice” and contrary to democratic principles drove the demand in the late 1880s and ’90s that Utah outlaw it as a condition of statehood. And in Mormon Church v. United States (1890), the Supreme Court labeled polygamy as “abhorrent to the sentiments and feelings of the civilized world.”
The stigma attached to polygamy continued to distort legal analysis into this century. As recently as 2006, Utah Justice Ronald Nehring began his opinion in a ruling upholding the criminalization of polygamy by lamenting, “No matter how widely known the natural wonders of Utah may become, no matter the extent that our citizens earn acclaim for their achievements, in the public mind Utah will forever be shackled to the practice of polygamy.” Nehring frankly admitted that this hostility “has been present in my consciousness, and I suspect has been a brooding presence . . . in the minds of my colleagues, from the moment we opened the parties’ briefs.” Rather than overcome that prejudice, Nehring not only yielded to it but warned any Utah judge of the peril of being the first to recognize the rights of polygamists: “I have not been alone in speculating what the consequences might be were the highest court in the State of Utah the first in the nation to proclaim that polygamy enjoys constitutional protection.”
Well, it wasn’t. A federal judge in Utah assumed that burden. Gov. Gary Herbert objected to the court making “decisions on social issues.” (He has not yet announced an appeal.) Waddoups, however, was not dictating a decision on a social issue but rather saying that governments could not impose a single version of morality. He limited prosecution under Utah’s anti-polygamy law to cases of bigamy, where someone acquires more than one marriage license — which is an offense more common to monogamous couples, who care about state recognition, than polygamists, who care about spiritual recognition.
Across the country, the era of morality codes is coming to an inglorious end. This year, the Supreme Court struck down part of the Defense of Marriage Act barring the federal recognition of same-sex marriage. And this week, the New Mexico Supreme Court and another federal judge in Utah struck down the ban on same-sex marriage in those states — bringing the number to 18 states (plus the District of Columbia) where same-sex couples can marry. Meanwhile, Virginia recently repealed its 1877 cohabitation law and Colorado replealed a criminal adultery law from the 1850s — both relics of a time when states used their criminal codes to force citizens to comply with the religious values of their neighbors.
Most states have wisely turned away from absurd laws criminalizing masturbation and fornication. Obscenity laws have also been curtailed by the Supreme Court in deference to the First Amendment.
Still rightly on the books are laws against bestiality, which involves an obvious lack of consent as well as manifest harm. Likewise, incest bans are based on claims of medical, not moral, harm.
Once any crimes or abuses are stripped away in cases like the Browns’, what remains is religious animus. Yet, polygamy is widely practiced around the world by millions of families and was condoned by every major religion — from Judaism to Christianity to Islam — at one time. While plural families are called polygamists in our popular lexicon, “polygamy” actually refers to a broad array of plural relationships, from polygyny (one husband and multiple wives, like the Browns) to polyandry (a single wife and multiple husbands) to polyamory (couples who reject the exclusivity of sexual relations). The vast majority of these families are based on consenting relations among adults without abusive or criminal histories.
Critics often ignore these other plural relationships (and even polygynists like the Browns) in favor of a stereotype of “compound polygamists,” living in remote walled communities where women appear captive and molestation flourishes. It is Warren Jeffs, not Kody Brown, whom critics want to invoke in debating decriminalization — a sinister figure in a secluded compound where women wear prairie outfits and hairdos from the 19th century.
Obviously, there will always be abusers like Jeffs among polygamists — just as there are abusers among monogamists. However, it is no more persuasive to criminalize all plural relationships because of a small number of abusive individuals than it would be logical to outlaw monogamy based on the convicted spouse- and child-abusers in conventional marriages.
One of the great ironies about the focus on compound polygamists is the circular logic of criminalization. The government first declared polygamists felons and then pointed to their hiding as evidence of their guilt. But decriminalization will allow these families to be plural, open and law-abiding as they reintegrate into society.
In truth, 19th-century Americans were no more moral than we are today. It simply appeared that way with the imposition of official morals, including (as Santorum recalls so fondly) being told whom we could love in our own homes. It is not a single moral voice that is heard today but a chorus of voices. Each speaks to its own values but joins around a common article of faith: the belief that morality is better left to parents than to politicians.
Jonathan Turley is the Shapiro professor of public interest law at George Washington University and lead counsel in the “Sister Wives” polygamy case.
Washington Post (Sunday) December 22, 2013
In fact, it would probably be difficult to get cert unless is was some kind of new program you were challenging. Like the ACA. Which was ruled Constitutional by very sound reasoning even though I personally think it is a huge policy mistake. Just not for the reasons you probably do. “Constitutional”? Does not always equate to “wise”. In some ways, law is like science. Just because you can do something doesn’t always mean it’s a good idea.
I’ll also take this moment to remind you that the Constitution does no endorse explicitly any particular economic model. It is silent on the matter other than the GWC itself creates an implied case for a mixed economy if that is indeed in the public’s best interest and the programs otherwise pass Constitutional muster.
So yeah.
I’ll stick with my extremely well informed opinion on matters jurisprudential until someone can persuade me I am wrong.
What part of what I said when I said “the GWC isn’t carte blance” didn’t you grasp, David? Besides all of it.
Any exercise of the GWC must be otherwise Constitutional.
Seems like Madison is staying at my house to me. Skip is operating under the premise that the GWC is used in that manner when the jurisprudence does not indicate that has been the case. If you want to, say, challenge the validity of Social Security as a matter of Constitutionality? Be my guest. You’re highly unlikely to meet with success on that even with today’s Court of dubious composition.
Do you buy your straw for your straw men in bulk? You should. It’d save you a lot of money.
Oky,
You’ll find that the people with the greatest understanding of the law are those who argue all sides of an argument before making theirs. It both strengthens and may even materially inform their position.
Skip,
If you’d understood what I write, you’d see that I warn fairly consistently and constantly that systemic dysfunction leads eventually to social unrest, insurrection and rebellion.
Your problem is three-fold: 1) you don’t properly understand how government does and is supposed to work and 2) because of that and your ideology based on a totally fantasy understanding of human nature you often 3) misidentify causal connections (or grossly oversimplify them) and/or propose solutions that would actually make tyranny much worse.
You’re like a kid who has played Operation and now thinks he can really do a kidney transplant.
One other thing Gene,
I’m repeatedly reminded of why it was wise for me not to have become a lawyer.
That if I’m going to make an argument I had better be fully prepared to make the complete argument at any point & time.
Relaying on the dog ate my homework again is unlikely to humor the judge. 🙂
I’ll be back when I find the rest of my argument.
And all that being said?
As much as I despise the man, on rare occasions Scalia displays flashes of brilliance and does get something right. He is somewhat crippled though by his theist tendencies and his strict originalism. The Constitution is a living document. It was designed to be from the start to be adaptive. A certain amount of originalism is fine within that context, but Scalia takes it to the extreme.
Gene H. The Judiciary is the only one that can possibly break the abrogations of the Constitution by the Admin and Legislatures and they have chosen “not” to do so.
You see how they have given us socialists twittlely dees and fascist twittely dumbs as candidates. May have the spelling wrong there.
If the Justice system cannot stop them, then physical rebellion, which doesn’t solve the systemic social problem, results.
Not my idea of a cure to the systemic problem which is as many point out, the legalization of the initiation of force and coercion and it’s abuses by all three branches of government in collusion with the ruling oligrachy.
Also, to be clear, I’m not thrilled with Sotomayor or Kagan so far either. Their performance has been pretty lukewarm. The best sitting justices to my mind (as far as logic and legal reasoning and integrity go) are Breyer and Ginsberg.
Gene H wrote: “The best sitting justices to my mind (as far as logic and legal reasoning and integrity go) are Breyer and Ginsberg.”
Unbelievable. Ginsberg is the absolute WORST Justice on the Court. Scalia is the best. If everyone one the Court was like Scalia, we would be living in freedom and liberty.
Oky,
As much as I think the ACA is unwise policy for a variety of reasons, its legality is truly backed by sound logic and legal reasoning. The NSA deal though? Yeah. The courts are fumbling to be sure, but that ball is still in play. My issue is that ultimately I have no faith in the current composition of SCOTUS. Four of the justices are severely compromised in my opinion (and in the opinion of many others). Roberts, Alito, Scalia are flat out fascists. Thomas is not qualified for the job in the first place and he pretty much is a lapdog for Scalia and those in the political machine that employ his wife. Kennedy is kind of a mixed bag. Sometime he does the right thing, sometime he sides with the bad guys. Personally? I think SCOTUS terms ought to be long but limited to encourage churn and greater diversity (in every sense of the word from political to social).
Reading Professor Turley’s Blog I can see that likely many of these legal issues have likely had jurisprudence discussed at length.
That if I stop & research each now or wait & watch I’ll see them defined enough for me. I don’t wish to waste other’s time right now either.
The Preamble of the Bill of Rights/Rights there- in contained give us citizens the legal means to remedy flaws in the law/constitution.
IE: The correction of the poor compromises made in order to establish the original docs, that Blacks are 3/5ths human/Women/kids are chattel, suffrage, etc..
As with the case of Obamacare is the case with NSA illegally spying, clearly both are illegal & unconstitutional yet Federal Judges completely ignored those legal bounds & declared illegal govt actions legal. imo
In these type cases there is no need for new law/Amendment only a need to impeach/remove the offenders & establish what many of us believe should be the corrected jurisprudence.
Public pressure in recent years has grown dramatically for a correction of this current system.
I just hope the public becomes better informed of just what is the appropriate corrections need & all of the peaceful means of apply pressure to implement the changes & not the mess the French Revolution turned into.
I do not believe for a moment the General Welfare Clause, Commerce Clause, Supremacy Clause trump the Preamble of the Bill of Rights/Rights there- in contained.
That on in the extremist of cases, reasons fully exposed for public discernment, that the most limited exemptions be made.
I understand the tendencies for the legal community to roll over & submit to abuse of authority on treaties or as was the case when the US govt failed in their duties to enforce border security in Arizona.
As with the Arizona case I would have ruled in their favor, that the US had abandoned it’s responsibility thus giving the state/people every Right to assume that responsibility until the problem was reasonably addressed.
Courts have taken such action before, such as with prison overcrowding, etc…
Yeah, I know where Jefferson was during the Convention. Overly literal much? 🙄 The point was the Founders and Framers included the GWC and it was ratified.
“They are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose. To consider the latter phrase not as describing the purpose of the first, but as giving a distinct and independent power to do any act they please which may be good for the Union, would render all the preceding and subsequent enumerations of power completely useless. It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they please…. Certainly no such universal power was meant to be given them. It was intended to lace them up straightly within the enumerated powers and those without which, as means, these powers could not be carried into effect.” –Thomas Jefferson, Opinion on National Bank, 1791
And he was right. The problem here is your lack of integrated context. The GWC isn’t carte blanche. Whatever Congress puts into law must still pass Constitutional muster otherwise. If Congress decided tomorrow that for the good of the nation they’d mandate and pay for every man to be circumcised? It would run afoul of the 1st and 14th Amendments. Congress is not the sole judges of good and evil. They are checked in power by the judiciary. Who in turn checks them via the Constitution.
There is dysfunction in all branches at this point. That is part of why the Separation of Powers Doctrine and the checks and balances are breaking down. But hands down, the single greatest organelle of systemic malfunction?
Is the Legislative.
Followed by the ever expanding unitary Executive.
And in third, it’s judicial malfeasance.
I know you like to complain about “activist judges”. The problem is that the judiciary is truly the weakest branch. They can be overruled by Congress at any time so long as what Congress does passes Constitutional muster. Their power is narrow in scope ultimately: is or is not something Constitutional.
Gene H. wrote: Is the Legislative. Followed by the ever expanding unitary Executive. And in third, it’s judicial malfeasance.
I know you like to complain about “activist judges”. The problem is that the judiciary is truly the weakest branch. They can be overruled by Congress at any time so long as what Congress does passes Constitutional muster. Their power is narrow in scope ultimately: is or is not something Constitutional.”
I agreed 100% on your entire post Gene H. Go figure!!!
I’ve been arguing against my fellow libertarians on their use of political means to bring about an significant change. I’ve seen 35 years of no one, including libertarians using political means to accomplish anything.
Other than the ADA, what other benefits have the majority gained from the ruling oligarchy? Food Stamps?
The point is, the judiciary I believe are the only ones that can stop them. The legislature and admin are not supposed to be able to pass laws that are unconstitutional. I think the powers of the judiciary needs to be stronger and only a well informed Citizenry can put any pressure on the Judiciary to perform and we must stop the Judiciary from being a party to the corruption.
I don’t really care what the legislature does, half the laws they pass are unconstitutional but if the judiciary enforces them, the Citizens will continue to be screwed.
Gene I sure you see it all the time. It seems like the prosecutor and Judge are working in collusion to get a conviction in many suits especially dealing with various protections of rights.
Gene H wrote: ”
“They are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose. To consider the latter phrase not as describing the purpose of the first, but as giving a distinct and independent power to do any act they please which may be good for the Union, would render all the preceding and subsequent enumerations of power completely useless. It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they please…. Certainly no such universal power was meant to be given them. It was intended to lace them up straightly within the enumerated powers and those without which, as means, these powers could not be carried into effect.” –Thomas Jefferson, Opinion on National Bank, 1791
And he was right.”
Impressive back-peddling you got going on. You sound like you agree with Skip now.
Gene H wrote: “But hands down, the single greatest organelle of systemic malfunction? Is the Legislative.”
I agree with you here. This is caused by the excessive partisanship. Couple that with a dishonest President holding veto power over any legislation, and Congress is inept. Hopefully new guys like Ted Cruz will break up some of the grid lock.
Gene H.
One more thing, before I wish every one a great next year, including you.
Jefferson was in France during the Convention nor was in favor of the Constitution, preferring the Confederation. Primary reason was that there were “no” constraints on the Judiciary. How prophecy was that. lol
Thank you, Elaine.
David,
Ultimately, I think the point is that dollar for dollar, hour for hour, government provides a greater value than privatized companies providing the same service, even considering what you would call “wasteful” government pensions. One reason is because of the outsized profits taken by board members and management that provide very little, if any, real service.
There are certainly efficiencies that can be realized in government,, lessons that can be taken from private enterprise, but do you think for one minute that a private security firm can provide better protection for the cost we pay for governmental law enforcement? Or fire protection? I know Skip does. Fortunately, Ben Franklin and his 7x grandpa thought otherwise…and came along in history first.
RTC, no way. Almost everything near and dear to you, from your tooth brush to your home, are produced by private enterprise and they would be able to do any even better job if government(s) would get out of the way. There are even better ways to provide infrastructure and minimize crime. One way is to provide decent paying jobs by lowing individual taxation and less people would commit crime. Like I said before exempt the first $50K of income for everyone and you would see a boom in business and wages. Everyone would have the same exact tax break. Taxing the poor is a pathetic example of the quality of our democratic Republic.
Many fail to understand just how difficult it is to conduct business in this country and in most countries throughout the world. The multi-nationals must buy their way into foreign markets making it difficult for smaller business to compete.
During my research on Norway, some of the companies, as an example are getting their hands slapped for kickbacks and bribes. The problem, that is how the business must be done or the various governments won’t let you into their markets. Somewhat a Catch 22.
Skip,
I’m pretty sure I’ll continue to rely upon myself for what I do and do not know about the law.
The rest of what you say is your opinion which, sadly for you, I’m not impressed with. You’re entitled to it. I’m entitled to ignore it as poorly informed gibberish.
Gene H wrote to Skip: “I’m pretty sure I’ll continue to rely upon myself for what I do and do not know about the law. The rest of what you say is your opinion which, sadly for you, I’m not impressed with. You’re entitled to it. I’m entitled to ignore it as poorly informed gibberish.”
Actually, Skip is in the good company of President James Madison, one of the men who signed the Constitution and urged others to ratify it. Madison’s words basically agrees with Skip’s analysis and exposes Gene’s analysis as a misconstruction of the phrase.
In writing Federalist Paper No. 41, Madison answered the objection of those who fighting against ratification of the Constitution claimed that the General Welfare clause meant that Congress had broad powers to force the mixed economy that Gene wants for our country. Madison considered Gene’s current interpretation an absurdity and basically justifies Skip’s interpretation by pointing out the context of the General Welfare clause. Madison explains the meaning of “General Welfare” is enumerated in the words that follow it. The phrase should not be taken alone and out of context the way that Gene interprets it.
Following is Madison’s own words to the detractors who fought against the U.S. Constitution and falsely claimed that the General Welfare clause means what Gene H now claims for its meaning:
=======================================================
It has been urged and echoed, that the power “to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,” amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction. Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms “to raise money for the general welfare.
”But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars.
But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter. The objection here is the more extraordinary, as it appears that the language used by the convention is a copy from the articles of Confederation. The objects of the Union among the States, as described in article third, are “their common defense, security of their liberties, and mutual and general welfare. ” The terms of article eighth are still more identical: “All charges of war and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress, shall be defrayed out of a common treasury,” etc. A similar language again occurs in article ninth. Construe either of these articles by the rules which would justify the construction put on the new Constitution, and they vest in the existing Congress a power to legislate in all cases whatsoever.
But what would have been thought of that assembly, if, attaching themselves to these general expressions, and disregarding the specifications which ascertain and limit their import, they had exercised an unlimited power of providing for the common defense and general welfare? I appeal to the objectors themselves, whether they would in that case have employed the same reasoning in justification of Congress as they now make use of against the convention. How difficult it is for error to escape its own condemnation!
http://avalon.law.yale.edu/18th_century/fed41.asp
Oky,
The General Welfare Clause and the Supremacy Clause are pretty clear cut in the jurisprudence. Congress can legislate and fund programs for the general welfare. That’s been settled since the 30’s. The Supremacy Clause? Not a lot to argue about. If a state law conflicts with the Constitution, a treaty or Federal law, they trump state law. The biggest area of concern there is probably treaties. Federal law must pass constitutional muster, but treaties? Much harder to reign in. That’s what makes something like the Trans-Pacific Partnership Free Trade Agreement and NAFTA so dangerous. The Commerce Clause? Is kind of a mixed bag. Yeah, a lot of overreach happens in the name of the CC. But conversely, it has been used to extend Federal protections for citizens to the states by being applied as a basis for applying anti-discrimination laws. You really have to look at every single action almost in isolation as compared to the Bill of Rights and non-enumerated rights to determine if it is arbitrary or abusive. It’s not always a clear cut objective matter either as “arbitrary” and to some degree “abusive” have large subjective components to them. I’m sure there are some real hardcore racists out there that think it’s abusive that they can’t “lynch a darkie” without going to prison, but there you have it.
GeneH
General Welfare Clause, Commerce Clause, Supremacy Clause, where are their bounds & at what point do they become Arbitrary, Capricious & an abuse of Govt authority.
Those are 3 of the many points of contention.
I’m unsure of their bounds.
25 years ago I recall an ole mentor of mine repeatedly telling me the govt had no legal authority to stop me from in engaging in legal business activities.
(Yet they have many times & continue to do so)
I don’t remember what his legal argument was, but we/I have witnessed time & again over the decades Govt using it’s authority to destroy smaller competitive business in favor of larger business through the use of laws/regs.
Obamacare, the biggest yet, is just one thousands of type those Laws regardless of the Supreme Courts illegal ruling.
At the end of the day supremacy rests in the hands of the people if they choose to enforce it.
( I’m trying to get of here would a bit but I’m dragging again today. lol)
Skip,
I hate to break this to you, but Jefferson and crew approved the General Welfare Clause which is arguably an implicit endorsement for a mixed economy. It certainly isn’t an endorsement of “let the best capitalists make the rules no matter their cost to all”.
Gene H. Shame on you. You know that the general welfare and commerce clauses are the two most abused clauses in the entire Constitution. There’s only about 30 books on the subject and we argued about how it is impossible for politicians to know what is in the best interest of the majority. They lying to the Citizens Genie so they can continue to steal their money. Wake up dude. It’s a scam, just like the major religions.
Does the welfare clause trump the various enumeration of rights? No…. Isn’t a Constitutional Amendment supposed to be the lawful method of repealing an amendment? Yes….. Do the oligarchs and their Judicial punks/minions care ? No….obviously their sociopaths and could give two ***** about the average person….they’ll figure out how to survive or become collateral damage, ah Genie.
A mixed economic model, i.e. socialism and fascism do not work for very long periods of time and specially do not do what is in the best interest of the majority, as I and the others have pointed out numerous times. There are at least 180 examples right now on the planet and you know who benefits most. BAR members whom most often control all three branches of government. How is that for separation of powers. American BAR members has almost majority control in every State House in the Country.
Bad Gene!!!!! or gross incompetence, borderline _______________?
Even Keynes changed his beliefs on the issue of free markets vs mix-economic models as he aged and matured.
Gene H wrote: “Jefferson and crew approved the General Welfare Clause which is arguably an implicit endorsement for a mixed economy.”
Actually, Jefferson called the Constitutional Convention delegates an assembly of demigods, and he did not sign the Constitution.
If the General Welfare Clause meant supporting food stamps, education, building roads, bailing out businesses, establishing a minimum wage, social security, medicare, medicaid, and a national health care system, then why didn’t the federal government do any of those things from the very beginning? Clearly the modern corrupt politicians and judges have a different view of what is meant by “General Welfare” than did the architects of the Constitution.
I’m pretty sure there is a God & he has a mean sense of humor.
I think he enjoys causing me to make so many Typos:
….make fun of the other guy’s disgusting Man Boobs
hskiprob,
GeneH/others here know the proper way to present a capital case before the courts, I don’t.
But I do know they don’t just go of on endless rants of unrelated subjects.
They basically outline what the dispute is & then argue through a list of disagreements involving the dispute.
I suggest you don’t let others drag you off the topic of your dispute, but rather keep dragging them back on topic.
Argue the Facts, Argue the Law & if you can’t argue either of those Pound the Table & make fun of the other guy’s discussing Man Boobs. 🙂
I’ve got to run in a few minutes.