It’s not as if this thread is providing any railment as is. Still waiting for you to explain your position.
Agree. I let my emotions get to me. Let’s consider it eradicated. :o
Just as well… the firearm laws in Australia are actually enacted at State level anyway, not Commonwealth. All the States got together back in '96 and agreed to implement more or less the same laws on the subject in response to a certain unstable person shooting up a well-known Tasmanian tourist attraction.
I’m not sure I understand exactly the angle you’re arguing here. You say that “the congress clearly has power to tax anything it wants, as long as the tax power is used for the general welfare”. The implication to me here is that Congress can spend money on whatever it wants if it is used for the general welfare, and is effectively carte blanche to grant itself powers.
But you also say that “No one is saying Congress can do anything they want as long as it’s for the general welfare.”, which seems contradictory to me, so I must misunderstand your point. Are you saying that congress has the power to tax and spend for the general welfare, but does not have the ability to create laws otherwise for the general welfare? Is this an issue of appropriations vs other types of law?
As I conceded, particular laws will be struck down because they violate explicitly parts of the constitution - especially if it’s part of the bill of rights. My point was the issue of what part of the constitution the power to pass a given law derives from is never discussed when debating a law. The idea of need a part of the constitution to enumerate the power under which they are attempt to pass a law is a completely foreign concept to modern politicians.
I thought I’ve been clear on this, but I’ll try to restate my argument in this thread.
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The purpose of the federal constitution is to specifically limit the federal government to the powers specifically enumerated in the document - along with a logistical blueprint for actually running that government.
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Article 1, section 8 specifically grants specific, enumerated powers to congress concerning its ability to pass laws.
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Most modern laws do not derive from a power specifically enumerated by the constitution, and hence, are unconstitutional. I acknowledge that obviously this is the way it is - that we’ve all essentially agreed that the constitution will not give us the government that we as a society want, so we’ve decided to ignore the parts that restrict us in ways we don’t want to be restricted. I say this both in the sense that politicians always look to increase their own power, and that the ideas modern society has about government are clearly different than they were during the time of the writing of the constitution.
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For those who wish to give lip service to the idea that we’re still following the constitution, they tend to use either the “general welfare” wording or the commerce clause as evidence that congress essentially has no limitations in the type of laws they create, except perhaps those which specifically violate part of one of the popular amendments to the constitution. I reject the idea that the writers of the constitution wrote a document specifically to enumerate and limit the powers of the federal government, but then essentially undid it and rendered it meaningless by granting congress carte blanche through “general welfare” and the commerce clause. Especially when many of them specifically said that this was not the purpose of those words, like the Jefferson quotes above.
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For the purposes of this thread, I stated that I found it silly that occasionally people go “OMG BUT THAT’S UNCONSTITUTIONAL” as if that were something new and unusual, when in my view almost all recent laws are unconstitutional. Aside from the logistical stuff about how to run government, we’ve largely discarded the use of the constitution, especially given the original intent in regards to restrictions on federal power. So fine - I’m not happy about it, but this is the reality of the situation. But it still bothers me when people act as if we were still following the constitution, and that some law violates a cherry picked part of the document that they actually like provokes their outrage.
Yep.
The rules for defining government authority are the polar opposite of the rules for defining individual rights. An individual can do anything he/she wants as long as it’s not illegal. By contrast, the government is not allowed to do anything unless it is prescribed by law.
So if the Constitution creates the Supreme Court, which rules that the Commerce Clause applies to all and sundry government powers, you have no problem? Where is the unconstitutionality?
Finally. Let’s take a look:
ETA: SenorBeef, please don’t skim this, I’ve tried to make it as concise as possible, and show you where our actual disagreement is. I’ve even reverted myself to GQ rules. Hopefully, it will make for a better starting point.
Congress is granted the power to tax and spend. The power to tax and spend is what is modified by the general welfare clause. Congress cannot grant itself powers. The general welfare, btw, really means that the federal government can’t selectively tax states.
So the Feds have the enumerated power “to tax and spend for the general welfare”. They can’t make laws about how much you should cook your brisket or about how long skirts should be for the general welfare. The general welfare clause only applies to the power to tax and spend.
This is exactly what the general welfare clause does. It is, I suppose, an issue of appropriations, but it’s really just because the general welfare clause only deals with the tax-and-spend power, not with any other power.
Here is where I disagree entirely. It is true that there is no statement in each bill or law that says “Congress hereby exercises it’s power to build a Navy by doing X”. The reason we don’t do that is because most congressmen are lawyers and know the landmarks of the terrain, if you will.
If we see a bill about military pay raises, that’s fine. Any tax bills are fine. We see congress pass laws to conform with a treaty, that’s fine. We understand without needing to be told what power congress is using. Furthermore, all bills with a hope of passing are researched by legislators or their staff before they are voted in. All jokes aside, these aren’t dumb people; they know the established law. The reason no one talks about what power congress is using is because everyone pretty much knows.
Granted and Granted.
Again, I have to disagree here. It’s obvious in most cases what power congress is using. But, most laws are based in the commerce clause. Now, I fully understand and condone an argument that the commerce clause has been used sweepingly and that someone could disagree with the way the courts have interpreted the commerce clause. But we’re looking at basically one sentence that just says “Congress can regulate commerce among the states”. The meanings of “Regulate”, “Commerce”, and “Among” have been litigated many times. You might disagree with the interpretation we’ve settled on/gotten so far, but the question is not “What power gives you the authority to do X?” but “How far does that power go?”
And here is another problem. As I explained above, general welfare only applies to taxes and spending. The commerce clause is, however, very broadly interpreted. It is a valid argument (though one I think is wrong in most cases) to say it is overbroadly interpreted. But it is not valid to say that congress has, or thinks it has, unlimited powers or that congress doesn’t think about which power they are using. They might test the boundaries of a power, but that’s different than your claim, and should be acceptable, especially if you grant that the court may review laws for constitutionality.
And your final point would be sort of valid if your premises were valid. But here you’re faced with a dilemma: either the courts have gotten it wrong for the last 100+ years and all of the jurisprudence is facially bad, otherwise your real argument is that “I disagree with the boundries the court has set upon the enumerated powers”, which is much more subtle than “All these laws are unconstitutional.” I think you are actually saying the second thing.
If you have an idea that the Federal powers should be much more limited in their extent, then you can make that argument. But it’s a slightly different argument to make, and one that is a lot more intellectually honest than simply claiming congress doesn’t understand it has limited powers, especially with things like Lopez getting struck, cases like Wickard and Raich, and the civil rights cases, all of which discuss the allowable extent of the commerce clause – but in all but Lopez found that the commerce clause was powerful enough.
(Legal theory time)
I guess my main point is that you are kind of conflating two ideas about constitutionality. There is the realist/positivist kind, which is “Court says X is constitutional [therefore it is]”. (The bracketed part is what we were making fun of Bricker for saying.)
The other kind is, I guess, normative constitutionality. That’s: “Law X is unconstitutional because it violates section Y [and the court got it wrong]”.
That’s fine too, though if you include the brackets, it’s only fine if you and the listener sort of implicitly understand that it’s only unconstitutional in the sense that you disagree with the court, but understand that your interpretation isn’t the law of the land.
It’s like if someone came into my office and said “The cops trespassed onto my property and took my weed plants that weren’t visible from outside the property, is that constitutional?”
I would have to say “Yes it is, but I disagree” or “No, it isn’t, but the court disagrees.”
What you are doing with your “All laws are unconstitutional” bit is blurring the difference between the normative and the positive. You are saying “Law X is unconstitutional because it violates section Y” without acknowledging that there is plenty of room to disagree with your view and that a lot of reasonable people, including the ones in charge, do disagree.
But I think rather than just throwing up your hands at the whole system, you need to start at the specific and work your way to the general – that’s how our system works: the law is made by one case at a time.
OK, coming back to this, since I really made an ass of myself in the OP.
I don’t care if a given program is “Constitutional” in the sense of, “in line with the Founders’ intentions,” or not. I do actually believe in some constitutional restraints. I don’t believe that the Founders were magic, or smarter than us, or perfect.
So when I said, “I don’t really care if it’s Constitutional or not!” what I actually meant was, I don’t care what the Founders thought or said. They were wrong about some things. They were wrong on slavery, they were wrong on states’ rights, they were wrong on equality & social welfare, they were wrong on sustainable economics, they were wrong on conservation. They were ignorant of some things, they were in error sometimes, they were sometimes misled by their own selfishness or had to compromise with those worse than themselves. That’s OK, we are all imperfect. But let’s not mistake their imperfection for perfection.
Constitution? Fine.
Written c. 1790 & fixed then? Absolutely not.
But it’s not fixed. It can be amended, and ought to be if its provisions are unworkable today. Between 1865 and 1933 several amendments that fundamentally changed society and government were passed. Amendment is how the Constitution is supposed to evolve to meet new realities. But only comparitively trivial amendments have been passed since the repeal of Prohibition. The problem stems in two ways from the Supreme Court: First, since the New Deal it has been politically cheaper and easier to seek constitutional change by court ruling. And secondly, because of expansive Supreme Court rulings, people are now leery of enacting amendments because of the fear that what they thought they were agreeing to might not be what the Court will end up interpreting the amendment to mean. That’s what sunk the Equal Rights Amendment- the fear that it would lend constitutional power to a boundless progressive mandate of unforseen consequences.
When people argue that proposed laws or particular interpretations are unconstitutional, usually it is not being claimed that there is a fixed and immutible principle handed down to us by our sage elders that must remain unchanged forever. The complaint is that 50.5% majorities are trying to overturn things that are supposed to require 75% majorities.
I wonder if there should be an amendment lowering the supermajority threshold for further amendments? Say, ratification by a flat majority of the states instead of 3/4?
So when the lawyers read your will after you die, they are allowed to interpret it any way they want? If there is any uncertainly about what you wanted, they should not try and figure out what your original intention was? Your will should be a “living document” and completely open for creative interpretation?
Actually, wills are not interpreted, usually, with respect to what the decedent meant. They are bound by the language of the will.
James Madison’s last will and testament? Yeah, it should be taken strictly.
James Madison’s instructions for the upkeep of Montpelier? I suspect he’d approve of reading it with the idea that fire prevention, pest control, air conditioning, etc., have improved since 1831.
The Constitution is not the FF’s last will and testament; it’s their guidelines on how to run a government that preserves liberty and the rule of law. And that means you read it as a framework for effective government and the protection of rights, not a static table of how do do things according to 1790 conditions.
I think there’s value in a constitution, but the ultimate power has to lie with the people. The Constitution is merely a projection of the people’s general will, so the idea of a gradually changing Constitution is the only sensible view of it. But the motivations and personal inclinations of the writers of the Constitution are quite inapposite. Who cares what they thought? If they had good arguments, then the arguments have intrinsic value, but not because they came out of the FFs’ mouths.
As to the OP, I don’t think that the recent trend of conservatives declaring this or that government action to be unconstitutional even approaches the real debate of how the Constitution ought to be conceived. It’s just shorthand for “I don’t like this, but need to mask naked opinion with a veneer of legitimacy.” Note that, when pressed, they either don’t know what portion of the Constitution is being violated, or spout a wildly idiosyncratic interpretation of it.
However, if there is any ambiguity in the will and the executor/administrator can’t determine what the plain meaning is then they will file a suit for aid and direction in which case, the court will interpret what the will says.
The Constitution has absolutely nothing to do with a will.
When you write your will, you get to choose everything that does and doesn’t appear in it. It doesn’t belong to anyone else.
The Constitution (or any piece of legislation) is completely different. Words and phrases that do not appear in legislation that do appear in the writing or speeches of its backers fail to make it in for a reason - because the other legislators voting on it may oppose it based on that language.
Looking at outside sources for the original intent of a piece of legislation allows bill writers to slip concepts into legislation that they couldn’t get in through the front door. Legislatures vote on the text of a bill and its amendments, not on editorials written by its sponsors.
If you write a bill and your intent is not clear from the text of the bill after it gets passed, tough - you should have written a better bill.
If you couldn’t make your intent clearer and still have your bill passed, tough - that’s how a legislature works.
Let us suppose that Senator Frank introduces a healthcare bill tomorrow which does not include the “public option”. The bill is debated in committee, amended, and so on. Senator Frank makes a bunch of speeches about how the public option is an important part of his bill, even though it isn’t actually mentioned. The bill is passed as amended. The executive then creates a public health insurance option, citing vague provisions of the new legislation and using funds appropriate to enact said provisions. A taxpayer sues, and the case goes before SCOTUS. The Solicitor General points to Senator Frank’s speeches, all of which clearly indicate that Senator Frank intended to create a public health insurance option.
How pissed would you be if the Supreme Court agreed, and threw out the suit?