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llotter
04-07-2012, 12:01 PM
This Obamacare debate has brought into focus something I haven’t really thought of previously. As a conservative, I have always waved the Enumerated Powers in the face of those who believe that the people themselves are not capable of being free and responsible citizens and for the sake of protecting the stupid, the Nanny State is essential for the greater good. ‘Even if the intelligentsia were up to the task of controlling everyone’s lives and they are not, the Constitution does not give them the authority’, I would confidently inform them.

What I was totally ignorant of is how the Court has interpreted the taxing and commerce clauses of Art I, Sec 8. Totally ignored are what I always thought were the explicit limits on their power. The power to tax and regulate commerce are considered the ends themselves rather then the means to an end. The Entitlement programs have skated through constitutional muster under the power to tax, not a non-existent power to provide retirement or healhcare. And, as the argument goes in the case at hand, if only they had called the penalty a tax, even this may have skated through under the power to tax.

So, no attention is paid to how those tax monies are spent or the ends of regulations imposed as long as the Congress passed and the President signed it, the Court has deferred to their wisdom as to what is appropriate. This seems to fall directly under the label of ‘tyranny of the majority’ and blatantly incompatible with a free society. It has become all too obvious that the Courts that are, after all, a branch of the federal government, should not be relied upon to define the limits on their own powers or protect our liberty.

Soflasnapper
04-07-2012, 12:25 PM
True, but only true as of the changes in the high court's rulings around the earlier FDR days, under his considerable pressure by appealing to the people, and not that subtle of threats to the court.

We have seen a little bit of retreat from the furthest reaches of these commerce clause acceptance rulings, as when the high court said gun control laws restricting the possession of firearms within x feet of schoolyards was a stretch too far (and those were therefore struck down). Mainly because it couldn't be shown any real interstate commerce was involved. And there were a couple more that this one as well.

But yes, as the last 60 years of the 20th century saw the precedents and rulings, you've described it correctly, that fully rolling back to the pre-FDR interpretation would require ignoring all those precedents, ignoring stare decisis (a conservative little 'c' principle), and frankly, radicalism on the court.

Basically, now the Constitution is being treated as a corporate charter's language, that in addition to whatever is named as its chief purpose, it's also pre-commissioned to perform any lawful purpose that may later arise, which are appealing as a new business purpose to the board, and which the board passes in its own lawful procedures. By reference to its (the COTUS's) 'necessary and proper' clause.

llotter
04-07-2012, 03:26 PM
thanks for your thoughtful comments. As a conservative who supports the founding principles of limited government as they intended, I am for the Founders revolutionary means as well. When the Tea Party folks express their need to 'take their country back', my impression is they want to dismantle the Nanny State entirely and let the chips fall where they may.

Soflasnapper
04-07-2012, 05:34 PM
I was just reading at the Volokh Conspiracy, a blog run by lawyers, where someone made the point that the Federalist Papers were written by professional propagandists and politicians, who by those job descriptions were likely prone to... uh, spinning things a bit when doing their advocacy.

They also mentioned that the behavior of some once having gained office was quite different from what they said they favored, or what the language of the COTUS actually meant, in the arguments prior to its passage. To the point of a lot of dispute amongst Hamilton, Jefferson, and Monroe, falling along then-firmed up party lines, Federalist v Repubican-Democrat.

Jefferson thought the national bank an abuse and a violation, and then performed the LA purchase, also said by many (rightfully, probably) to be an abuse and a violation.

So there are all these distinctions: what the COTUS was SAID to mean (ahead of time), what the ratifying state conventions THOUGHT would be the case based on what advocates were saying, what the Founders themselves MADE the case once they got into office (disputed one with another of equal FF standing), and then lastly, how all of that was run through the distillation of the courts, after they butted in and grabbed their own piece of the sky in Marbury v. Madison.

Mainly, most argue from one or another of these corners of the discussion, and ignore the rest, which is ahistorical.

LWW
04-08-2012, 06:03 AM
<div class="ubbcode-block"><div class="ubbcode-header">Originally Posted By: Soflasnapper</div><div class="ubbcode-body">True, but only true as of the changes in the high court's rulings around the earlier FDR days, under his considerable pressure by appealing to the people, and not that subtle of threats to the court.

We have seen a little bit of retreat from the furthest reaches of these commerce clause acceptance rulings, as when the high court said gun control laws restricting the possession of firearms within x feet of schoolyards was a stretch too far (and those were therefore struck down). Mainly because it couldn't be shown any real interstate commerce was involved. And there were a couple more that this one as well.

But yes, as the last 60 years of the 20th century saw the precedents and rulings, you've described it correctly, that fully rolling back to the pre-FDR interpretation would require ignoring all those precedents, ignoring stare decisis (a conservative little 'c' principle), and frankly, radicalism on the court.

Basically, now the Constitution is being treated as a corporate charter's language, that in addition to whatever is named as its chief purpose, it's also pre-commissioned to perform any lawful purpose that may later arise, which are appealing as a new business purpose to the board, and which the board passes in its own lawful procedures. By reference to its (the COTUS's) 'necessary and proper' clause.

</div></div>

Thank you for finally realizing that FDR was a a thug and a fascist.

Soflasnapper
04-08-2012, 10:26 AM
I know what you're referring to, but I'd characterize it slightly more mildly as being a populist demagogue.

It's sometimes hard to notice things that are not there, and I must say it did escape my attention that nowhere in the COTUS is the membership of the SCOTUS set at 9 members. Making his 'court-packing' bid not so much an untoward abuse of power as an attempted reform, if a radical one. (Any extra justices would have had to meet Senate confirmation, for example.)

Of course, given the extreme situation he came into, and then the second world war, FDR did exercise unusual power that seemed near-dictatorial to many, because of the long national emergencies seen over his 3 terms fully served.