The Right Way to Do the Wrong Thing

The Autonomist ^ | 2/14/04 | Reginald Firehammer

[DannyTN]

The republic, so what does that have to do with anything?

[DannyTN]

The republic, so what does that have to do with anything?

[William Terrell]

It is true that the constitutions bar the passage of state laws, but the characters of state constitutions are different that the national one.

The powers of a state and the national government differ as to the power of each in relation to the people. They are opposite to each other. Each state government exercises all powers against which it is not restrained by the Bill of Rights in the State constitution. The national government exercises only those powers which are contained in the provisions of the national constitution, the Bill of Rights therein being further limitations on that power.

There is nothing in any state constitution that guarantees the right to an abortion that I'm aware of.

After the 14th amendment, certain of the Bill of Rights can be applied at the state level. But there is no acknowledgment of a national right to an abortion there either.

You did read the Slaugheterhouse Cases? Then why don't you know what the police power is? It one of the bedrock cases about the polpow.

I did, -- The 'wrinkle' is having the capability of being born alive, -- being 'viable'.

Eh? Every growing fetus must be presumed to be capable of being born alive. That's no wrinkle. Better show me the statement in context.

You jumped back to a comment on police power? Why? Your posting behavior is getting weird.

Why? Because A) you don't understand it and B) under its doctrine is abortion limited in the state.

What's with the off the wall rhetoric in the middle of your post?

You mean when I asked how you could have an opinion when you don't understand the doctrines I had to detail for you? Just wondering, is all.

Not true, R v W says abortion can be regulated after the first trimester, and treated as a crime after viability. Try reading it.

All efforts to try to regulate abortion in the states has been struck down using Roe v Wade. Perhaps you misunderstood something.

[DannyTN]

"The Frothingham case seems to have focused on the lack of evidence for the claim. In fairness to the courts they have not had clear interpretations of the "neccesary and proper" and 'welfare" clauses by those we have elected to guide them."

I take it that SCOTUS has never had a case that resulted from a dispute between the branches where Congressional spending authority took center stage. With individuals lacking standing because of the indirectness of taxation, it would take the Executive branch refusing to implement a law on those grounds. Since the Executive wields veto power, and is not likely to further challenge the will of Congress if the veto is overruled, the only way I see that happening is if a change in administration results in a President who is willing to challenge continued spending on Constitutional authority grounds.

Got any candidates that bold???? That aren't complete mental cases!????

[DannyTN]

"That's the socialist spin. It simply didn't happen that way, or for that reason. "

Then why did every colonial state have poor laws prior to the constitution? Every single one of them had them. Why did Jefferson declare care of indigents was a "civil" duty?

[tacticalogic]

Come and get them.

[tacticalogic]

The republic, so what does that have to do with anything?

If you don't believe in preserving the republic and the autonomy of the States, and believe that pure democracy - a tyranny of the majority, is what the Founders intended, then nothing.

[tpaine]

At #191, I made some points which are not refuted in your last post:


--- A States police power is limited by our US Constitution/BOR's]


--- Prohibiting abortion is both politically & constitutionally impossible.

--- R v W says that abortion can be regulated by States after the first trimester, and treated as a crime after viability.

[tpaine]

-- my point is made by the fed mess we have now, vs the self policing, self sustaining poor farm approach that worked so well historically.

Except that it didn't work so well. The colonies started off leaving it to the local communities and they failed to perform their responsibility. So the states stepped in. Then the states failed so the Feds stepped in.

That's the socialist spin. It simply didn't happen that way, or for that reason.

Then why did every colonial state have poor laws prior to the constitution? Every single one of them had them. Why did Jefferson declare care of indigents was a "civil" duty?

You are trying to argue a point not at issue, in order to divert the issue. -- The issue being:

We abandoned a functioning locally run largely self sustaining county poor farm system [3 hots & a cot], -- for a massive state/federal system that gives away money.
Leaving the question. -- Why do you support such a mess?

[William Terrell]

Every single item on your list was refuted in my post to you.

[tpaine]

You wish.

[inquest]

Agreed, but if I understand what the court said in the 1923 Mellon case, is that the Constitution didn't give the Supreme court jurisdiction over Congress's spending unless there is a dispute between the branches or unless individual or state's rights are breached. They took the position that taxation is so indirectly linked to spending that an individual can't challenge spending on the basis of inappropriate Congressional spending.

Whether a given practice can be challenged in court under whatever rules the courts operate under, has no bearing on whether the practice is constitutional.

If memory serves me correctly, in the first one or two congresses a chariable bill came up on firewood and the discussion centered solely around wether Congress "should" as opposed to "could". I believe that one was defeated but I think the very next year a harsher winter resulted in overwelming support for firewood relief.

I still have to wonder about this, because I know that the interpretation of the general-welfare clause in the early Congresses was, at best, contentious. One of Hamilton's big ideas was to have Congress subsidize manufactures in the U.S., which Congress rejected. There was also this incident during the 4th Congress, described by David P. Currie in The Constitution in Congress: The Federalist Period (1789-1801). In the following passage, you may, if you wish, consult this link to the Annals of Congress, and type in the page numbers indicated (but only if you're curious; the passage itself explains pretty well what happened).

A fire that devastated the Georgia port city of Savannah presented a spectacular opportunity for Hamilton's disciples, for the idea of aiding the victims had obvious emotional appeal for Southern Representatives, many of whom were ideologically allergic to federal spending. [see p. 1696, Rep. William Smith proposing federal assistance] Supporters generally avoided the inflammatory term "general welfare," invoking the distinguishable precedent of aid to the refugees from St. Domingo [see pp. 1712, 1714, 1717] and muttering vaguely about restoring commerce, revenue,and defenses without clearly identifying the source of congressional authority [1716, 1719, 1721, 1726]. Tiptoeing cautiously around the general welfare clause, poor Abraham Baldwin (of Georgia!) repeated in the best Madisonian terms that Congress could spend only to pay the debts, to provide for the common defense, and for the other purposes listed in Article I, [Sect.] 8 and came perilously close to asking Congress to overlook the limitations on its power. [1721-2]

One has the sense that the wily Federalists were hoping to slip this one by on sympathy grounds, only to employ it mercilessly as a precedent later on. But the Republicans refused the bait. Macon [1717] and Nicholas [1723] flatly denied Congress's authority; Giles [1724] reminded Baldwin that Congress had no right to ignore the Constitution. Even some Members with an expansive view of federal power were unwilling to open the Treasury for this purpose; and the proposal, like the city itself, went down (up?) in flames. [The vote was 55-24]

So with SCOTUS excusing themselves, Congress acting from the very beginning as though they had this authority, Madison not withstanding, and the Executive, except for a couple of exceptions, agreeing to implement the law, it is for all practical purposes the law.

These things you mention, even if true, do not change the Constitution. The Constitution provides two methods by which it may be changed, and osmosis isn't one of them. And the Constitution is written pretty clearly as a document of limited powers. The "spending" part of the tax'n'spend clause you cited earlier is clearly secondary to the "taxing" part. That is, one can insert the phrase "in order" between "excises," and "to pay", and the meaning wouldn't change. That means it is not an independent grant of spending power, but a modification on the taxing power. Syntactically, there's simply no other way to read it that's coherent.

The fact is that if you look hard enough you can find a precedent for almost every type of excess of power you want. Most of these precedents will have been relatively innocuous and insignificant to overall policy, and therefore wouldn't have tended to excite much opposition or even notice at the time they were made. If we're going to use those little specks as seeds for massive grants of federal power that make a total mockery of the notion of constitutionally limited government, then there's no point in having a Constitution at all.

[tpaine]

"The fact is that if you look hard enough you can find a precedent for almost every type of excess of power you want.
Most of these precedents will have been relatively innocuous and insignificant to overall policy, and therefore wouldn't have tended to excite much opposition or even notice at the time they were made.
If we're going to use those little specks as seeds for massive grants of federal power that make a total mockery of the notion of constitutionally limited government, then there's no point in having a Constitution at all.
-inquest-

______________________________________


Very well said, and your point needs to be constantly repeated to FR's prohibition crowd..

They all seem to believe we can safely allow big brother to over-regulate or ban their favorite single issue activity, without it interfering with the rest of our liberties..
Such irrational thought is dangerous.

[tpaine]

Prohibitionism
Address:http://www.freerepublic.com/focus/f-news/1080685/posts

[DannyTN]

These things you mention, even if true, do not change the Constitution. The Constitution provides two methods by which it may be changed, and osmosis isn't one of them. And the Constitution is written pretty clearly as a document of limited powers. ...If we're going to use those little specks as seeds for massive grants of federal power that make a total mockery of the notion of constitutionally limited government, then there's no point in having a Constitution at all.

I think you are too pessimistic. The limits on rights have worked pretty well. It's still a model of limited government. It's just not as limited as you or I would like it to be or as limited as you think it should be based on your reading of the constitution.

The problem is that there is no check, no balance of power on Congressional spending short of the Executive branch which hasn't and probably will never rise to the job.

We still have ultimate control though, because we elect the legislature. Although I think SCOTUS has erred in not striking down some of the free speech issues associated with campaign finance reform.

[DannyTN]

"If you don't believe in preserving the republic and the autonomy of the States, and believe that pure democracy - a tyranny of the majority, is what the Founders intended, then nothing."

I do believe in preserving the republic and the autonomy of the states. I'm already on record having said that Federal schemes that use economic pressure such as matching funds to force federal mandates on states should be ruled unconstitutional.

[inquest]

It's still a model of limited government.

Not really. Yes, there are still vestiges of the Bill of Rights that Washington still feels compelled to obey at the moment, but its overbearing spending largely compensates for that. There's scarcely any aspect of human affairs that it doesn't have its fingers in. I note that you agree with me that the dependency that states and municipalities have on the federal government is a constitutional problem, but that's also true of the dependency that private institutions and individual persons have on it.

It's not simply that the business of appropriating federal money has been corrupted; it's that there's inherent corruption involved in making states and citizens wards of the federal government. That principle is instantly recognized whenever people give money to politicians. For some reason, however, few seem to bat an eye when it's the other way around.

It's just not as limited as you or I would like it to be or as limited as you think it should be based on your reading of the constitution.

The Constitution isn't a piece of abstract art that can be given different subjective interpretations. It is a body of law, which if it's to have any meaning as law, can admit of only one interpretation. I've given you the reason why the taxing clause can be read in only one particular way. If you have a different way of reading it that makes syntactical sense, I'd be interested in hearing it. Otherwise, it's not just "my" reading of the Constitution; it's what the Constitution actually says.

[tacticalogic]

I do believe in preserving the republic and the autonomy of the states.

So do you think the federal government's concern for the "general welfare" should be concerned with the general welfare of the republic, or the general population? How can they assume responsibility for the general welfare of the general population - and the powers required to carry out that responsibility, without being detrimental to the viability and health of the republic and the autonomy of the states?

[DannyTN]

"So do you think the federal government's concern for the "general welfare" should be concerned with the general welfare of the republic, or the general population?

The republic doesn't exist to promote it's own general welfare (regardless of what some bureacrats think) but to promote the general welfare of the general population.

"How can they assume responsibility for the general welfare of the general population - and the powers required to carry out that responsibility, without being detrimental to the viability and health of the republic and the autonomy of the states?"

The republic does not assume total responsibility for the general welfare of the general population but exists to "promote" the general welfare of the general population. If it tried to assume total responsibility it would indeed be detrimental. However I've never suggested that. That the republic assumes responsibility for a small segment of the general population, specifically helping the poor and disabled and disaster relief is not detrimental to society but rather helps the economy be more robust preventing the collapse of certain segments of the economy, returning individuals to productive states, and reducing the risks to the economy.

[DannyTN]

but that's also true of the dependency that private institutions and individual persons have on it.

No, that's different. In the vast majority of the cases private institutions and individual persons are not dependent and are not forced into federal mandates the way the states are.

Mostly what we are talking about are the care of the poor and disabled, which is either temporary and there is no dependency or permanent and the disabled would be dependent on the local community, the state or the federal government anyway. Unless we just let them die.

It's not a problem to me that they are dependent on the Feds instead of the states, in fact I view it as possitive. In fact, here in Tennessee, the state tried a generous alternative to Medicaid with the Feds permission. The end result was that we had tons of sick people moving in from out of state, because they weren't being cared for adequately in their own states. You need a level playing field and only the Feds can create that.

The Constitution isn't a piece of abstract art that can be given different subjective interpretations. It is a body of law, which if it's to have any meaning as law, can admit of only one interpretation.

Which is why the founders decided we needed a Supreme Court. I agree the Constitution is not a living document and the meaning shouldn't change over time. But I'm not sure it has. Either Congress exceeded it's authority from the very beginning and the Framers faild to put in an adequate check, or the words don't mean what you and Madison want them to mean. "it's that there's inherent corruption involved in making states and citizens wards of the federal government. "

There are people who are disabled who are going to be the wards of some governmental agency. There is nothing inherently corrupt about that. Nor is there anything corrupt about government temporarily helping individuals or sectors or regions of the economy to get back on their feet.

You are trying to make this into more than it is. It is not the subversion of the entire population that you claim it is. It's helping the poor and disabled and providing disaster relief. That is necessary and proper for the general welfare of us all.