Posted on 10/20/2010 5:18:19 AM PDT by publiusF27
The health bill contains findings in which they say they are regulating commerce. That’s not the same as SS, is it?
In the Sonzinsky decision, because the case before them involved the regulation of firearms, which at that time had not yet been usurped by the federal courts and which was still understood to be, as the court stated, "reserved to the states." Although that basic Constitutional principle has since been destroyed by a judicial expansion of the "substantive due process" doctrine, the now obviated distinction has no applicability to our discussion here, honored or not.
Think there's any chance at all of discussing the laws actually before us?
Oh? What does it say?
For example, the government was allowed to claim in Wickard v. Filburn that the growing of private grain materially affected interstate commerce, without any chance being given to challenge that assertion before a jury.
Other issues that need to be brought before juries include the reasonableness of searches, existence of probable cause, the appropriateness of punishments for particular criminal acts, etc. While it's good to have judges act as a first-line barrier against government abuse of such issues, a jury should act as a backstop. A judge generally won't throw out the results of a search unless it was patently unreasonable; a jury can and should apply a somewhat looser standard and disregard evidence if they find that the search was not reasonable (even if it's not so patently unreasonable that no honest person could find it reasonable).
To be sure, today's jurors often aren't the best and brightest, but it's pretty clear that the reason prosecutors and judges don't allow such matters to be brought before them is that they know they'd lose a lot of cases if jurors knew the truth.
Filburn wasn't a defendant.
It's the law that matters, as written. The Framers created a supreme national judiciary, unaccountable, whose opinions carry the same weight as Constitutional text, and from whom there is no appeal.If we lived in a glass bubble your statement would hold water, but it doesn't. There is no appeal and for good reason. According to your magical statement the appeals process would extend out indefinitely and nothing would ever get done. Round and round we would go. Someone has to have the final say. How is this supposed to work exactly according to your magic bean theory of better government? They are accountable. As mentioned in this very statement:
The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.But Congress always fails to act as it would not be in their best interest. It's not that the Constitution is "useless". It's the fact that corruption has been and always will be a major issue for every government. If anything the framers were extremely intelligent for introducing the Sholes Model (think QWERTY) into the process of checks and balances. This has kept the corruption at bay, for the most part.
The findings in which they say they are regulating commerce begin like this, so search your copy of the bill as passed for this text:
(a) FINDINGS.—Congress makes the following findings:
(1) INGENERAL.—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).
The framers did this because they believed--laughably--that the supreme court was to be the most reliable protector and guardian of individual rights and Constitutional law. Yeah, I know, it's a gut-buster. I think there's a good belly laugh in every paragraph of Hamilton's Federalist 78, on this very subject.
I think you are quite wrong to suggest that good behavior was understood to mean that any time a judge decided unpopularly--rightly or wrongly so---that he could be impeached. Unless you could prove that a decision was based upon a bribe or some other tangible form of corruption, you'd be claiming a right to impeach for poor judgement. That's not what it means. You will protest that you don't mean to say impeach a judge when a decision is unpopular. But impeachment is a political act, performed by elected bodies. You think they would impeach based upon a popular decision?
Under your scheme, every decision of the court becomes a political question--precisely what the framers sought to avoid. No decision would be safe until tested in the House. Which judges would be impeached? What judge would write a controversial opinion? Would Scalia have been impeached by a Democrat house? Thomas?
The framers wanted a judiciary that was free from the whims of the democratic branches. And in a way, they got it. Sitting judges needn't fear the other branches. They bring enough political baggage on their own.
My point, which is irrefutable, is that the SCOTUS has been anything BUT what the framers' thought it would be. 200 years of data is enough for me. Article 3, especially when combined with the flabby language and implied powers found elsewhere in the Constitution, is a fatal flaw. It will simply NEVER do what we want it do until it is fixed.
The 10th amendment should be scrapped, and replaced with the earlier version that failed to pass--the one that said those powers not EXPRESSLY DELEGATED to the US belonged to the states or the people.
The necessary and proper clause should be stricken.
The words "general welfare" should be removed. In fact, the entire preamble should be lined-out.
Obviously, the commerce clause has to go too.
Constitutional review should be totally re-worked.
Most of the Bill of Rights could be improved. The 1st, 2nd, and 4th amendments in particular could be clarified and simplified in a way that would render them more stable.
I mean, when you look at it honestly, the Constitution is a bloody mess. Full of errors, large and small.
Thanks. Commercial AND economic. That’s SEC. 1501(a)(1) of Subtitle F.
SEC. 1501(a)(2)(e) then goes on to provide a general welfare justification, “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.” (Amended later in the law to read 62% instead of half.)
Financial security. Sure sounds like the Social Security justifications.
SEC. 5000A then reaches taxation, “REQUIREMENT TO MAINTAIN MINIMUM ESSENTIAL COVERAGE 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.”
And under definitions and special rules, SEC. 4377 reinforces the tax component of the law, stating that, “TREATMENT AS TAX.—For purposes of subtitle F, the fees imposed by this subchapter shall be treated as if they were taxes.”
If Federal alcohol laws required an amendment (since repealed), what gives Congress the power to legislate about weed?
Wrong.
Congress wanted to preserve its liquor tax revenues and only yielded to Temperance forces when incumbents started losing their seats.
they recognized that they had no such power
Wrong.
"An amendment to the Constitution obviously appealed to temperance reformers more than a federal statute banning liquor. A simple congressional majority could adopt a statute but, with the shift of a relatively few votes, could likewise topple one. Drys feared that an ordinary law would be in constant danger of being overturned owing to pressure from liquor industry interests or the growing population of liquor-using immigrants." -- Repealing National Prohibition, David Kyvig, University of Chicago (1979)
You know what it means to say supreme court justices will serve during good behavior? It's the quaint old way of saying it's a lifetime appointment. And why were they given life tenure? To secure their independence from the other branches, and from the democratic will.The framing fathers were anything but naive. Good behaviour was always meant to be upholding civil conduct to the position while avoiding all high crimes and misdemeanors. It's one of those "self evident" terms, something purely analytical folks have troubles grasping. They try to attempt to embellish on it when it says what it means and means what it says. When we were 5 years old we were told by our mommies and Kindergarten teacher to be on our "best behavior". I believe we know this means: "don't do anything illegal or stupid". The framing fathers never put term limits on any position. They didn't say Congress couldn't limit terms either.
The 10th amendment should be scrapped, and replaced with the earlier version that failed to pass--the one that said those powers not EXPRESSLY DELEGATED to the US belonged to the states or the people.Why? The doctrine is plenty sufficient for all intents and purposes as it is. It sounds like you would like to see the states having more sovereign authority. If that's the case, you should be looking at Amendment XIV. It ultimately gave the federal regime more sovereign power as it ensured anything at the federal level was forced down the throats of the states, including the Bill of Rights, all tax structures, currency, and any other Constitutional statute limiting federal power prior to its ratification.
I asked about two cases. What about in the Sanchez case? Why distinguish a tax from a penalty in that one?
As far as I know, the GW clause has never been used as a stand-alone grant of power, but only in conjunction with enumerated powers. Everything a politician does can be said to be for the General Welfare.
Madison: “With respect to the two words ‘general welfare’, I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.”
Jefferson: “Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated.”
This is going to come down to the tax power or the commerce power, or if everyone suddenly decides to join Scalia, the necessary and proper clause. I think Congress ruled out the tax route, and the judges seem to at least think that is possible. If they completely agreed with me, I expect we would have seen summary judgment. If they agreed with you, we would have two dismissals.
Do you really think it will be the tax power in the end? Or are you just messing with me again? ;)
It is not for the Court to have the final say whether anything is Constitutional. It is penultimately to States and States and finally to the People. I learn that from the War between the States which was also the Civil War.
The Supreme Court in Dredd Scott made a atrocious ruling. Some of people (viz John Boown) attempted to overrule, but their efforts were futile. Out of the proper order.
It was the States who had to overrule first. And they did. The Southern States declared independence from an out of control Federal tyranny. We now had a War between the States.
But that *obviously* did not settle the matter or properly rebuke the Court. Instead it wasn’t until the PEOPLE came forward — some on one side of the decision, others on the opposing side, that the matter became settled. Up to ten percent of the southern people agreed that the Court’s ruling was wrong (see the Arkansas First Cavalry, and perhaps an equivalent percent of people in the north accepted the natural outcome of the court’s decision, for example see the New York Draft Riots.
In any case the issue was settled BY THE PEOPLE, with the blood and honor OF THE PEOPLE, so that government FOR THE PEOPLE, that is OUR AGENT, NEVER OUR MASTER, should not perish from this Earth.
The court said that a tax was valid even when it acted as a penalty designed to inhibit behavior.
It is obvious that § 2590, by imposing a severe burden on transfers to unregistered persons, implements the congressional purpose of restricting traffic in marihuana to accepted industrial and medicinal channels. Hence, the attack here rests on the regulatory character and prohibitive burden of the section, as well as the penal nature of the imposition. But, despite the regulatory effect and the close resemblance to a penalty, it does not follow that the levy is invalid.
If so, where is the relevance to this discussion?
Do you really think it will be the tax power in the end?
Inter alia.
It's clear from the last two paragraphs of your post that you favor the "living constitution." Because the "living constitution" doctrine is nothing more than a description of what happens when Article 3 powers meet implied powers.
As for the 14th, sure, throw it on the pile. Then light a match.
Mojave--Is your basic point that the health care mandate will survive SCOTUS review? That they will be hard-pressed to invalidate the health care mandate without touching SS/Medicare?
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