The Libertarian Heritage: The American Revolution and Classical Liberalism

Ludwig von Mises Institute ^ | May 13, 2006 | Murray N. Rothbard

[tacticalogic]

I wasn't referring to any specific case, but I can supply some quotes from cases, and possibly some from public speeches if you like. You claim to be familiar enough with his work to find some of his arguments "compelling", I though you might be able to give some examples that you find less so, and explain why.

[tpaine]

Explain, in your own words, exactly what due process of law is---

I'll let Justice Harlan's words explain:

     "[T]he full scope of the liberty guaranteed by the Due Process Clause `cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution.
This `liberty´ is not a series of isolated points pricked out in terms of the taking of property;
the freedom of speech, press, and religion;
the right to keep and bear arms;
the freedom from unreasonable searches and seizures; and so on. 
It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . .

[steve-b]

Facts show that there was more alcohol consumption after the repeal of prohibition than during prohibition.

Actually, most contemporary sources claim the opposite (or admit that the answer cannot be definitively determined, given the obvious fact that illegal acts are less likely to become publicly known). The claim that prohibition actually "worked" in the sense of decreasing alcohol use (as opposed to shifting consumption patterns toward more concentrated, and thus more easily concealed, forms) seems to be a strand of historical revisionism dating from the 1980s.

[tacticalogic]

From Gonzales v Raisch:

"The majority’s rewriting of the Commerce Clause seems to be rooted in the belief that, unless the Commerce Clause covers the entire web of human activity, Congress will be left powerless to regulate the national economy effectively. Ante, at 15—16; Lopez, 514 U.S., at 573—574 (Kennedy, J., concurring). The interconnectedness of economic activity is not a modern phenomenon unfamiliar to the Framers. Id., at 590—593 (Thomas, J., concurring); Letter from J. Madison to S. Roane (Sept. 2, 1819), in 3 The Founders’ Constitution 259—260 (P. Kurland & R. Lerner eds. 1987). Moreover, the Framers understood what the majority does not appear to fully appreciate: There is a danger to concentrating too much, as well as too little, power in the Federal Government. This Court has carefully avoided stripping Congress of its ability to regulate interstate commerce, but it has casually allowed the Federal Government to strip States of their ability to regulate intrastate commerce–not to mention a host of local activities, like mere drug possession, that are not commercial."

Can you tell me where Justice Thomas has erred in his examination of the evidence, or in his appication of it and how your principles provide a correct interpretation?

[Lucky Dog]

Sorry kid, but to change it you must amend it.[the Constitution]

First, the Constitution has been amended 27 times, a fact you seem to keep overlooking. Second, you also seem to keep ignoring the document itself. To wit:

US Constitution Article VI

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. [Note: emphasis added.]

There is no amendment to allow prohibitions on life, liberty, or property. - Enacting & enforcing such prohibitions violate due process of law. [see the 14th]

No amendment is necessary.

US Constitution Article I

Section 8. The Congress shall have power…

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof. [Note: emphasis added.]

It's "execrable" to say there is no amendment to allow prohibitions on life, liberty, or property. - And that enacting & enforcing such prohibitions violate due process of law?

No amendment is necessary. You will note that the laws of the United States shall be the supreme law of the land and Congress has the powerTo make all laws .

You have yet to concede that any opinion other than your own may have merit.

Why should I "concede" that prohibitions are Constitutional?

Reality…

In a society, benefits often take the form of protected liberty and obligations take the form of limitations on liberty. The dilemma is that liberty must be limited in order to protect liberty. If there were no limitations on my liberty, I could go around killing people. But if I'm going around killing people, your right to life--a fundamental liberty--is in serious jeopardy. Therefore, in order to protect your liberty (the right to life), my liberty (the freedom to go around killing people) must be limited. If there were no limitations on liberty in a society, one would have no obligations to the society and could do whatever one wanted. That would bring back all of the problems that plagued the state of nature. In short, liberty must sometimes be sacrificed for order because liberty cannot be protected in a state of disorder.

SELECTED PHILOSOPHY TOPICS THAT ARISE FREQUENTLY IN LINCOLN-DOUGLAS DEBATE, David M. Shapiro

Beyond me, all of judges and Congressmen you have directly and indirectly accused of disloyality and perfidy in office have sworn an oath to support and defend the Constitution.

I've made that point many times. Why do they, and you, insist that prohibitions on life, liberty, or property are Constitutional; - when enacting & enforcing such prohibitions violate due process of law? -- It's an irrational position on the road to serfdom.

I see, everybody else is wrong and only you are right. Is it lonely in that phone booth you live in?

[tpaine]

It's "execrable" to say there is no amendment to allow prohibitions on life, liberty, or property. - And that enacting & enforcing such prohibitions violate due process of law? That's a new one..

No amendment is necessary. You will note that the laws of the United States shall be the supreme law of the land and Congress has the powerTo make all laws .

Congress does not have a power to make laws repugnant to the Constitution. [see Marbury]

You have yet to concede that any opinion other than your own may have merit.

Why should I "concede" that prohibitions are Constitutional?

Reality…
If there were no limitations on my liberty, I could go around killing people.
SELECTED PHILOSOPHY TOPICS THAT ARISE FREQUENTLY IN LINCOLN-DOUGLAS DEBATE, David M. Shapiro

Idiotic argument. -- If there were no limitations on your liberty, and you went around killing people, you would be killed by your peers in short order. That's reality.

Beyond me, all of judges and Congressmen you have directly and indirectly accused of disloyality and perfidy in office have sworn an oath to support and defend the Constitution.

I've made that point many times. Why do they, and you, insist that prohibitions on life, liberty, or property are Constitutional; - when enacting & enforcing such prohibitions violate due process of law? -- It's an irrational position on the road to serfdom.

I see, everybody else is wrong and only you are right. Is it lonely in that phone booth you live in?

There you go again. Unable to rationally respond to the issue, you troll.

While some are certainly guilty of violating their oath, your accusations tar all.

As you just said; 'if the shoe fits' ---

It is you who dishonor and degrade the Constitution by attempting to smear those who honorably attempt to "support and defend" it through offices the Constitution entitles them to hold and administer.

They smear themselves by enacting & enforcing acts repugnant to the Constitution they've sworn to honor.

[Lucky Dog]

Explain, in your own words, exactly what due process of law is---

I'll let Justice Harlan's words explain:

First, Justice Harlan’s words are not your own. Second, the quote you provided is not an explanation of due process of law.

Try again.

[tpaine]

Explain, in your own words,

You have the quaint delusion that your commands must be obeyed.

the quote you provided is not an explanation of due process of law.

You can't, or won't, dispute it, -- so you reject it. -- Quite typical of your 'debate' methods.

-- Try again.

[Lucky Dog]

Unable to counter, you revert to 'the rant'.. -- How typical.

[tpaine]

Whatever.

[Lucky Dog]

Can you tell me where Justice Thomas has erred in his examination of the evidence, or in his appication of it and how your principles provide a correct interpretation?

The Controlled Substances Act was intended to stop illegal traffic in prescription drugs. The law derives its authority from the interstate commerce clause in the U.S. Constitution. Regulating commerce among the several states is one of the enumerated powers the original states gave to the federal government in 1787.

In Gonzalez v. Raich the Court struck down California's medical marijuana law as interfering with the Controlled Substance Act. The state had an extremely difficult argument because Congress has specifically enacted a law listing marijuana as a schedule I substance.

For over a century, since the Interstate Commerce Act in 1887, 24 Stat. 379, and the Sherman Antitrust Act in 1890, 26 Stat. 209, as amended, 15 U. S. C. §2 et seq.27. . Congress has regulated interstate commerce under three general categories: First, Congress can regulate the channels of interstate commerce. Perez v. United States, 402 U. S. 146, 150 (1971). Second, Congress has authority to regulate and protect the instrumentalities of interstate commerce, and persons or things in interstate commerce. Ibid. Third, Congress has the power to regulate activities that substantially affect interstate commerce.

The court’s majority ruled that under the Congress’s power to regulate activities that substantially affect interstate commerce, it could, in fact, regulate through the Controlled Substances Act.

Has the above sufficiently explained my position?

[tpaine]

Regulating commerce among the several states is one of the enumerated powers the original states gave to the federal government in 1787.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~


"--- the power of Congress to "well-regulate" commerce among the states does not include the power to forbid or prohibit commerce.
---"
-Barnett-


The power to regulate v. the power to prohibit
Address:http://www.freerepublic.com/focus/f-news/1419654/posts

[Lucky Dog]

Whatever.

[tacticalogic]

Has the above sufficiently explained my position?

No. I asked if you could explain the differences between your principles and Justice Thomas' and explain where yours are correct and his are in error, rather than simply relying on "because the other justices said so", yet that seems to be all you can muster.

You claim to want "well reasoned and factually based public debate", but your contribution is little more than "Whatever a majority of the Supreme Court said last, because they said so."

Once again, Can you tell me, in your own words, why Thomas' opinions on our use of the commerce power are wrong where they differ with your principles?

[tpaine]

Regulating commerce among the several states is one of the enumerated powers the original states gave to the federal government in 1787.

"--- the power of Congress to "well-regulate" commerce among the states does not include the power to forbid or prohibit commerce. ---"
-Barnett-

The power to regulate v. the power to prohibit
Address:http://www.freerepublic.com/focus/f-news/1419654/posts

Lucky Dog wrote:
Whatever.

Unable to refute Barnett, LD gives up.

[Lucky Dog]

Unable to refute Barnett, LD gives up.

On the contrary see post #290

Unable to refute LD, tpaine gives up.

[tpaine]

Lucky Dog:

Explain, in your own words, exactly what due process of law is---

I'll let Justice Harlan's words explain:

     "[T]he full scope of the liberty guaranteed by the Due Process Clause `cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution.
This `liberty´ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. 
It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . .

First, Justice Harlan's words are not your own. Second, the quote you provided is not an explanation of due process of law. Try again.

You have the quaint delusion that your commands must be obeyed.

the quote you provided is not an explanation of due process of law.

You can't, or won't, dispute it, -- so you reject it. -- Quite typical of your 'debate' methods. -- Try again.

Unable to counter, you revert to 'the rant'.. -- How typical.
289 Lucky Dog

Whatever. [there is nothing to counter at 289]
-290-

Once again Lucky, --- context destroys your bizarre claims.

[Lucky Dog]

Once again Lucky, --- context destroys your bizarre claims.

#290 was your post...

Can't stand your own medicine?

[tpaine]

Lucky Dog:

Explain, in your own words, exactly what due process of law is---

I'll let Justice Harlan's words explain:

     "[T]he full scope of the liberty guaranteed by the Due Process Clause `cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution.
This `liberty´ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. 
It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . .

First, Justice Harlan's words are not your own. Second, the quote you provided is not an explanation of due process of law. Try again.

You have the quaint delusion that your commands must be obeyed.

the quote you provided is not an explanation of due process of law.

You can't, or won't, dispute it, -- so you reject it. -- Quite typical of your 'debate' methods. -- Try again.

Unable to counter, you revert to 'the rant'.. -- How typical.
289 Lucky Dog

Whatever. [there is nothing to counter at #289]
-290- tpaine

Once again Lucky, --- context destroys your bizarre claims.

#290 was your post...
Can't stand your own medicine?

You're getting weirder by the minute my boy.. Is the 'medicine' bottle out?

[Lucky Dog]

Since you are too lazy, or too contrary, to provide a definition of due process of law, I guess I'll provide an overview of it for you:

US Constitution Amedment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Annotations

• Indictment by Grand Jury
• Double Jeopardy
• Development and Scope
• Reprosecution Following Mistrial
• Reprosecution Following Acquittal
o Acquittal by Jury
o Acquittal by the Trial Judge
o Trial Court Rulings Terminating Trial Before Verdict
• Reprosecution Following Conviction
o Reprosecution After Reversal on Defendant's Appeal
o Sentence Increases
• ''For the Same Offence''
o Legislative Discretion as to Multiple Sentences
o Successive Prosecutions for ''The Same Offense''
o The ''Same Transaction'' Problem
• Self-Incrimination
• Development and Scope
• The Power to Compel Testimony and Disclosure
o Immunity
o Required Records Doctrine
o Reporting and Disclosure
• Confessions: Police Interrogation, Due Process, and Self-Incrimination
o The Common Law Rule
o McNabb-Mallory Doctrine
o State Confession Cases
o From the Voluntariness Standard to Miranda
o Miranda v. Arizona
• The Operation of the Exclusionary Rule
o Supreme Court Review
o Procedure in the Trial Courts
• Due Process
• History and Scope
o Scope of the Guaravnty
• Procedural Due Process
o Generally
o Administrative Proceedings: A Fair Hearing
o Aliens: Entry and Deportation
o Judicial Review of Administrative Proceedings
• Substantive Due Process
o Discrimination
o Congressional Police Measures
o Congressional Regulation of Public Utilities
o Congressional Regulation of Railroads
o Taxation
o Retroactive Taxes
o Deprivation of Property: Retroactive Legislation
o Bankruptcy Legislation
o Right to Sue the Government
o Congressional Power to Abolish Common Law Judicial Actions
o Deprivation of Liberty: Economic Legislation
• National Eminent Domain Power
o Overview
o Public Use
o Just Compensation
 Interest
 Rights for Which Compensation Must Be Made
 Consequential Damages
 Enforcement of Right to Compensation
o When Property Is Taken
 Government Activity Not Directed at the Property
 Navigable Waters
 Regulatory Takings http://caselaw.lp.findlaw.com/data/constitution/amendment05/

You will note that there is quite a bit more to due process of law than your quote of Justice Harlan.