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Dave

Dave is a part-time blogger that writes about whatever suits him at the time.

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  1. Avatar mike farmer
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    The Constitution is best interpretated by a full understanding of its philosophical foundation, The Decalaration of Independence.Report

  2. Avatar Robert Stacy McCain
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    says:

    Thanks for the linkage, Dave. However, that post was written by my constitutionalist co-blogger, Smitty.

    My own enthusiasm for the 10th amendment is notorious, if widely misunderstood. For some reason, the phrase “states’ rights” has an unusual effect upon some listeners, when the phrase is delivered with a Southern accent. I do not dwell in the past, but find that liberals frequently demand that I discuss 19th-century American history . . . on their terms, of course.Report

    • Avatar Jaybird in reply to Robert Stacy McCain
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      says:

      For some reason

      I have a theory that the “unusual effect upon some listeners” has much to do with the “some reason” being summarily waved away.Report

    • Avatar Dave in reply to Robert Stacy McCain
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      says:

      Thank you Stacy. I made the correction above. My apologies to Smitty.

      You are making we wonder whether or not that unusual behavior includes repetitive chants of “race to the bottom…race to the bottom…”

      😉Report

    • Avatar Zach in reply to Robert Stacy McCain
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      says:

      I think I found the reason!

      Then and now, most Americans remember little about [George Wallace’s] inaugural address beyond the famous line, “Segregation now! Segregation tomorrow! Segregation forever!” That amnesia has allowed Wallace to insist that his defense of segregation was a symbolic issue; his struggle was to preserve states’ rights against the overweening power of the federal government. As he said on several occasions in attempting to dismiss the significance of that speech, he should have said, “States’ rights now! States’ rights tomorrow! States’ rights forever!” He was never against black people; his oratory had nothing to do with race.

      That was the 19th century; right?Report

  3. Avatar Jaybird
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    says:

    The Ninth Amendment is one of my favorites. I’ve narrowed my reading of it, however.

    I used to think that it came out and said “THERE ARE TONS OF RIGHTS!”

    Since then, I’ve calmed down a hair and merely argue that it states that nobody, *ESPECIALLY GOVERNMENT TYPES*, gets to say “Well, I don’t see where the right to (whatever) is in here” as supporting evidence for why gays can’t get married or people can’t drink booze or what have you.

    In my youth, I argued that I had the right to, for example, plant a seed in my backyard, water it, tend it, then cultivate the leaves and make tea from the peppermint plant I had grown. People who point out that they don’t see a right to farm in the Bill of Rights do, I suppose, have a point. Farming isn’t in there.

    But so is the Ninth. If one would like to argue that I don’t have the right to grow peppermint, one needs to find something other than the Constitution not talking about it as justification.

    To date, I have not had someone point to the 10th and say that anything not explicitly given to the Feds is left up to the states and the state passed a law against peppermint, so there. I have stopped looking forward to that day.Report

    • Avatar Dave in reply to Jaybird
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      says:

      I thought the Ninth Amendment was an inkblot. Am I missing something?Report

      • Avatar Jaybird in reply to Dave
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        says:

        It’s like when you read “Congress shall make no law” and then there’s, like, words that say “abridging the freedom of speech, or of the press”.

        Does that mean that they can’t pass laws banning movies or digital content?

        We just don’t know.

        Better to give the government the power to do so.

        For The Children.Report

  4. Avatar Zach
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    says:

    The language in Butler drew support from Story’s Commentaries and noted that the question had not been definitively answered, right? What level of support could’ve been generated for either answer in Butler that would satisfy you? If the general welfare interpretation was so controversial in Butler, why didn’t anyone file a partial dissent making the opposite case? Did the anti-New-Deal justices who wrote the Butler opinion not know what they were doing?

    Certainly the Federal government exceeded its enumerated powers before the New Deal without carving out new responsibilities by amendment.Report

  5. Avatar Ryan
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    says:

    I take the Tenthers’ side on this one. If Texas wants to secede, I say adios. If Pawlenty wants to try to get the people of Minnesota to agree to secession, he’s more than welcome to try. He’ll fail spectacularly, which is good, because I would miss Minnesota a heck of a lot more than I’d miss Texas.Report

  6. Avatar MKS
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    says:

    Would it not be nice if the federal government’s powers were indeed specifically enumerated in writing somewhere – and those powers truly not expanded without amendment? The Constitution would seem to be the logical place to do this.

    In fact, it would be nice if every state and local government specifically enumerated its powers in writing as well. Written limitations on any government accomplish two worthwhile goals: (1) They protect the civil rights of the individuals governed, and (2) they impart a clear purpose and mission to the government which so enumerates its powers.

    Governments fail so badly now because they are trying to be all things to all voters. It would be nice for them to be able to say to their citizens, “Oh, so you all want new Ferraris – sorry, not our responsibility! It says so right here. If you want Ferrari-providing to be the responsibility of this government, you must amend our constitution.”

    If states and local governments did this, it would give a great deal of choice to people to move to states or counties where they could obtain their preferred position on the equality-liberty spectrum, while still enjoying the privilege of US citizenship.

    Is health care indeed a basic human right – to be guaranteed and provided by government? It is an important resource, and can be a life-or-death matter.

    Some people need organ donation, and it is wonderful that there are organ donors willing to provide this gift on a voluntary basis. But since organ donation can be a life-or-death matter, should the government provide it? Should there be a national database of blood types and tissue samples, so that if a person needs a kidney, the government can say to another individual, “You have been determined an optimal match; please report to this hospital on this date at this time. You have two healthy kidneys and the intended recipient has none, and so in the interest of social justice, redistribution of your kidneys is indicated. Do not defer under penalty of law. ”

    Should this kind of thing be the function of any government? Does the mere fact that a resource is needed badly justify the government controlling it?Report

    • Avatar Ryan in reply to MKS
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      says:

      “Would it not be nice if the federal government’s powers were indeed specifically enumerated in writing somewhere – and those powers truly not expanded without amendment?”

      No.

      “Does the mere fact that a resource is needed badly justify the government controlling it?”

      Controlling it, no. Ensuring the provision of it, sure.Report

  7. Avatar EngineerScotty
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    says:

    I’ll see your Tenth Amendment, and I’ll raise you a General Welfare clause. And I’ve got a Commerce Clause in the hole. 🙂

    Seriously, the Constitutional questions regarding much of the healthcare debate have long been answered. Medicare, Medicaid, and numerous other flavors of federal social insurance have been found over the years to be perfectly constitutional; the suggestion that provision of healthcare is outside the scope of Federal power has been answered in the negative. Now “tenthers” might argue that result, but it is what it is–I doubt the current court will deviate much from current practice on this question of separation of powers, and one of the consequences of Obama’s election is that future nominees are probably not going to be activist on this point.

    Now, certain flavors of health care reform which have been proposed over the years, might run afoul of the Constitution. An attempt to impose a system like the British NHS, wherein private medical practice is severly restricted, might not pass muster. (OTOH, voluntary socialized medicine such as the VA system is apparently OK). Some commentators have expressed concern regarding the individual mandate at the Federal level. Single-payer might also raise a few issues. (State governments are perfectly free to require insurance, and routinely do for motorists and numerous professionals). But things like health care cooperatives, and a voluntary public option, seem to fall well within the scope of Congress’ power; again, as currently construed by the Court, not by states-rights absolutists.Report

    • Avatar Jaybird in reply to EngineerScotty
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      says:

      Jim Crow laws were found to be perfectly Constitutional… until they weren’t.Report

      • Avatar EngineerScotty in reply to Jaybird
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        says:

        If your point is that the Constitution means only what the SC says it means–that tends to be true in US jurisprudence.

        OTOH, this is another example of something trumping “states rights”. The legal doctrine under which much of Jim Crow was justified before the federal courts was none other than the 10th Amendment–eventually, the Court found that other things (equal protection) trumped the 10th. In the post Civil Rights era, the Court has also found thinks like the 1964 Act, the Fair Housing Act, and numerous other restrictions on discriminatory behavior, to be kosher. At any rate, civil rights is not an area in which to butress arguments for a stronger reading of the 10th–unless you think that folks in South Carolina and elsewhere ought to be able to practice legal discrimination in the public sphere, and to prevent them from doing so constitutes an abridgement of their rights–and one greater than the harm suffered by victims of discrimination when systematically excluded from wide areas of public life.

        If you are citing prior support for Jim Crow (ie. Plessy v Ferguson) as evidence that the court lacks any moral authority–true, but so what? No institution in US politics infallable, as all of them are staffed by humans. Even today, the Court produces rulings that I dislike, and some which I think are obnoxious. I’m not arguing that the court is morally perfect; it’s not.Report

        • Avatar Jaybird in reply to EngineerScotty
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          says:

          It seems to me that if the Constitution says something to the effect of “Congress shall make no law abridging X” and there are 5 of 9 Supreme Court justices who are willing to say that X is a nebulous concept in the first place, and we really need to understand that “that was then, this is now”, and so on, and so forth, and to be sure…

          Well, the Constitution still says “Congress shall make no law abridging X”.

          What should one do in the face of X being abridged by a (well-intentioned, surely) law passed by Congress, signed by the Executive, and waved off by the Judiciary?Report

          • Avatar EngineerScotty in reply to Jaybird
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            says:

            Which X are you talking about? The 10th doesn’t say anything about abridging anything; it simply notes that those powers not delegated to the Federal government are reserved for the states. Debate on the proper interpretation of the 10th doesn’t really attempt to parse the language of the Tenth itself, instead it considers just exactly what powers ARE delegated by somewhat ambiguous clauses such as the General Welfare clause and the Commerce Clause.

            The GW clauses, as noted by some, could conceivably mean anything not otherwise prohibited, prompting some states-rights advocates (using construction arguments) to suggest that it really means nothing–that it’s simply an exhortation to Congress to do good, but not a grant of any specific power. The Commerce Clause is a bit more concrete–there is ample evidence that the Framers intended to give Congress broad power to ensure free and fair trade among the States–but what are (or should be) the limits to its reach?

            Not to be rude–but you seem to be employing a tactic I’ve often observed among Libertarians: Many Libs like to be note that nothing (in the Constitution itself) prevents the Court from reaching a absurd conclusion, however hypothetical, and from that point argue that the Court is not, or should not be, the correct arbiter of these questions–at which point “original intent” is frequently dragged into the debate. At which point, an attempt is made to cast the Framers as libertarians in the modern sense, and to claim that the Constitution was intended to enshrine Libertarian principles, and only through decades of statist jurisprudence and political interference has it been polluted into how it is generally interpreted today. Finally, it is suggested that this Libertarian institution of the Constitution (in which, for example, the takings clause is interpreted as a broad restriction on police and regulatory power rather than a restriction on the power of eminent domain) is the only proper intepretation, and any judge or politician who says otherwise is not only wrong, but illegitimate.

            If you’re not making such an argument, my apologies–I’ve seen it many times before, however. If you ARE making such an argument–that dog simply won’t hunt. While many of the Founders were men of the Enlightenment, and suspicious of excessive state power, they produced a document which nonetheless enshrined slavery and permitted the States to trample the rights of man in pretty much any way they saw fit.Report

            • Avatar Jaybird in reply to EngineerScotty
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              says:

              I’m fine with, for example, the court coming to the conclusion that, for example, the Constitution allows for Congress to make a law abridging the right to Free Speech.

              The problem is that the Constitution still says that Congress shouldn’t.

              I don’t mind abandoning the Constitution for a more realist, “living”, interpretation. I’d just like the Constitution to be replaced by a document that accurately represents what the rules really are.Report

              • Avatar EngineerScotty in reply to Jaybird
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                says:

                It sounds like what you want is a Constitution with magical powers, a la in Harry Potter, that will cast a curse upon all legislators who defy it–painting their noses bright purple on the first offense, running them up the nearest flagpole by their beltloops on subsequent breaches. 🙂

                It would be nice, but in the absence of magic, the best we can do are passive paper (or electronic) documents, enforced by institutions composed of men and women–many of whom are fallable in various ways (ignorance, greed, what have you).

                And while there is considerable disagreements on the margins–may obscenity be regulated; when is a search or seizure “unreasonable”, when does an action affect interstate commerce sufficiently to admit Federal oversight, when does punishment become cruel or unusual–the core of the thing still is observed.

                The trouble is, that many folk, including libertarians–and liberals–and right-wingers of a more moralistic point of view–seem to claim divine or otherwise superior knowledge over just what the thing ought to mean. The reason the Constitution may seem not to represent “what the rules really are” is that there is substantial disagreement over just WHAT the rules really are–or should be. You have your opinions, and I have mine; mine are reasonably informed but probably less so than many (including the current Pres, who is a scholar in this stuff).

                Many attempts by Congress to regulate free speech in recent years, have been shot down by the Court. (The Communications Decency Act comes to mind). Other laws which impact speech (things from the no-call list to McCain-Feingold) have not; in both of the latter cases there were additional factors at play. On the other hand, nothing like the Alien and Sedition Acts have been seriously proposed (if at all) in a great long while.Report

              • Avatar Jaybird in reply to EngineerScotty
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                says:

                How about the 2nd Amendment? The 4th? 5th? 8th?

                If we had a Constitution that accurately reflected the limits on government, on state government, and so on and so forth… what would it look like? Would it look *ANYTHING* like the document we have now?

                If the answer is “maybe, but probably not”, then I think we should get rid of the Constitution and replace it with the document that accurately reflects how stuff actually works.

                When it stops being accurate, we can get rid of that one too.Report

              • Avatar JosephFM in reply to Jaybird
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                says:

                Except…that would put us on a vector you like even less than the current one.

                Ahem.Report

              • Avatar Jaybird in reply to JosephFM
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                says:

                I don’t know that it would, necessarily.

                If we had a document that came out and said “this is what’s going on”, we might actually say “hey, we should have a different document… you know, one that says that Congress shouldn’t mess with free speech, or the press, or all kinds of junk.”

                Rather than something like the Nicene Creed.Report

      • Avatar Zach in reply to Jaybird
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        says:

        No sitting Supreme Court justice would agree that the bills currently debated are unconstitutional… or that bills going much further would be. Scalia is strictly Hamiltonian on this point:

        In a 1997 speech at the Manhattan Institute in New York, Scalia claimed that the Constitution does not protect the right of parents to raise their Children as they choose. Edward Crane, the founder and president of Cato, asked “if the Tenth Amendment didn’t cover that since nowhere in the enumerated powers of Congress was control over how we raise our kids given to the federal government.” In response, Scalia said “there is such a thing as the General Welfare Clause,” to which Crane replied “that none other that James Madison had said an expansive view of the General Welfare Clause would make the Constitution incoherent.” Scalia then answered, “That was then, this is now.”

        So yeah, in that the tenthers think they’re making a valid argument that has any chance of holding sway in any important way in the near future, they’re crazy. Even Plessy had one dissent, and it took half a century for that view to wane.Report

  8. Avatar Michael Drew
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    says:

    Is it me or is this post a choice example of “To-be-clear-I-don’t-believe-anything-I-am-about-to-vehemently-declaim”-ism:

    While I may share Millhiser’s disdain for this…</i

    Also…

    many of his attacks on the “Tenthers” and conservative constitutional theories, are nothing more hack partisan hit jobs.

    Fair enough, that is your view of this person’s arguments. But you don’t take a position of your own per se on those theories separately from your attacks on Milhiser’s methods. It leaves us fluttering in the breeze as to what we, per you, ought to think of these questions on the merits. That leaves this piece as little more than a personal-seeming intra-legal-community squabble (I’ll stop short of your “hit jobs”).

    Are we ultimately to conclude that you think we should accept the nouveau-conservative broad legal theories of the 9th and 10th Amendments, or is there a by-your-lights more responsible case against them that you are eliding? And where ultimately would you come down on those (per you) better-constructed arguments? These questions clearly assert themselves by the focus of your attack on a particular version of such arguments you find illegitimate. Come clean.Report

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