Posted on 08/31/2012 10:31:57 AM PDT by Kaslin
I wish the Republican Platform was binding.
Why? Because the GOP, for all intents and purposes, has just proposed to eliminate the Department of Education, the Department of Housing and Urban Development, the Department of Energy, the Department of Agriculture, the Department of Transportation, the Department of Health and Human Services, along with a host of other government programs, agencies, and departments.
More specifically, they endorsed the 10th Amendment to the U.S. Constitution, which means they put themselves on record in favor of getting rid of all federal spending and intervention that is inconsistent with the Founding Fathers’ vision of a limited central government.
Here’s some of the story, as reported by The Hill,
All federal spending should be reviewed to ensure powers reserved for the states are not given to the federal government, according to the GOP platform approved Tuesday. The platform language is meant to ensure all federal spending meets the requirements of the 10th amendment, which prohibits state powers from being given to the feds. “We support the review and examination of all federal agencies to eliminate wasteful spending, operational inefficiencies, or abuse of power to determine whether they are performing functions that are better performed by the States,” the platform reads. “These functions, as appropriate, should be returned to the States in accordance with the Tenth Amendment of the United States Constitution.”
For those of you who don’t have your Cato Institute picket Constitutions handy, here’s what the 10th Amendment says.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
In other words, the 10th Amendment is basically a back-up plan to re-emphasize that the federal government was prohibited from exercising power in any area other than what is specified in the enumerated powers section of Article I, Section VIII.
And if you look at those enumerated powers, that pretty much invalidates much of what happens in Washington.
That’s the good news. The bad news is that the Republican platform will have less impact on a potential Romney presidency than this blog. In other words, Republicans don’t intend to live up to this promise. Heck, they don’t even know that they have such a position. That’s why I included the asterisk in the title and must draw your attention to this fine print.
But I suppose it’s good that they included this language in the platform, even if it’s merely empty political rhetoric
P.S. If they did abide by the 10th Amendment, it means that Obamacare also would be repealed.
P.P.S. Yes, this implies limits on democracy. Our Founding Fathers, contrary to E.J. Dionne’s superficial analysis, were opposed to untrammeled majoritarianism and wanted to make sure 51 percent of the people couldn’t vote to rape and pillage 49 percent of the people.
Not only are specified powers constitutional but all the means to implement those specified powers (unless expressly forbidden by or contrary to the spirit of the constitution) are constitutional as well.
The most profound discussion of constitutionality is in Hamilton’s essay on the constitutionality of the National Bank. He was not only the greatest lawyer in the nation but on the Constitutional Convention and the principle author of the Federalist papers which explain what the constitution means.
Anyone concerned with the constitution should closely study this essay.
I’ll have the first bills ready to be voted upon by the time the next Congress is seated.
And if you did manage to attract the attention of more than a bare handful of progressive politicians you would be a dead corpse.
And the states that have huge tracts of federally owned land will change from poor to prosperous.
I wasn’t specifically thinking about the Shreveport Rate Case. There are plenty enough instances of the feds lording it over the railroads for me to bypass specific instances. And in Houston E & WT Railroad Co. I think they might have relied on the necessary and proper clause (as in controlling intrastate rates was necessary to prevent the bogey of “predatory pricing “ on the interstate level). Perhaps without Gibbons they never would have dared use necessary and proper in that manner. We’ll never know.
Overturn Wickard v Filburn!
##
Spot on! In the mean time turn it against the left.
Wickard v Filburn allows the federal government to overturn many state laws the left loves. We should start by overturning California’s laws requiring boutique gasoline blends. We could lower gasoline prices by $1.00 per gallon overnight by doing away with all custom blends and mandate one refinery blend be used nationally.
Put that bill up and see how many congresscritters want to go on record as voting against lowering the price of gas by $1.00 per gallon.
Tea Party Endorses Platform Language to Dismantle Most of the Republican Party.
Fixed
Shreveport strikes me as reasonable. What they were doing seems to fall into the category of ‘contrivance’. Madison anticipated that.
Because of this he believed the Bill of Rights was unnecessary. He wrote:
"I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the constitution ought not to be charged with the absurdity of providing against the abuse of an authority, which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it, was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights."
Obviously, even Hamilton didn’t believe that the central government that the States were creating had any power not specifically enumerated in that document. According to him, those who would later argue that the central government had powers not specifically enumerated in the Constitution were “men disposed to usurp”. For far too long those disposed to usurp have held power.
No, not all the unspecified means. You are under the spell of Marshall and Hamilton, who had a mania for implied powers. Do you honestly think something so big as a central bank could be hiding between the lines of the Constitution, and that it just slipped the Framers’ minds? No.
Unspecified means of implementing expressed powers must pass the necessary and proper test. Marshall fixed the game for the Bank of the US by pretending “necessary” means not that it couldn’t live without it, but more along the lines of “helpful” or “convenient.” In this he had a modicum of justification, since at some point the Constitution contains the phrase “absolutely necessary.” If it was necessary to add the word “absolutely” in that passage, then “necessary” on its own can’t very mean without it whatever’s at issue will die.
Okay, but isn’t there ground between merely helpful and absolutely necessary that “necessary” falls? Is a central bank necessary enough to handle public debt for it to pass the bar of not being in the Constitution? Hell no. There’s a reason we conservatives abide the principle of “strict construction.” Because when you must construe constitutional language, and no matter how clear it is often you must, the endless temptation is to keep adding. Oh, are there implied powers? Well, what about the powers implied by the implied powers? And the powers implied by them? You see the point.
This works the other way, too. People are prone to construe away legitimate powers. But in the balance, and especially according to SCOTUS, extra unspecified powers have swamped the original plan. There’s no way I’d believe in a million years the Framers’d leave something so big as a central bank to implication. There’s no way a central bank is “necessary” to running the treasury or handling the state debt assumed by the fess (yet another extraconstitutional Hamiltonian move) .
Seems like a bad idea. You can't effectively argue to end an abuse you're complicit in. It just makes you look like a hypocrite.
Hamilton himself was a man disposed to usurp. I ‘d like you to point to me where the Constitution delegates the power to assume state debts or create a central bank, to name just a couple of Hamilton pet projects.
You turn their abuses against them and you get a good portion of them joining the call to end it.
It just makes you look like a hypocrite.
I don't care what I look like to the leftists. I just want to beat them. If that takes turning their laws and court cases against them so be it.
I agree. I was just pointing out that it wasn’t just the patriots who believed in a very limited central government.
That surprises me, coming from an enemy of Wickard. It may not be the first instance, but I think the Shreveport Rate Case was the major forerunner of Wickard’s expansion of the commerce clause to include things that affect interstate commerce, rather than interstate commerce itself. Now, in this case what was affecting interstate commerce was itself commerce, but soon it wouldn’t have to be commerce at all.
Let me see if I can break down the feds’ case. This was in the progressive era, when through fear of Big Business and the illusion that the more complicated and closer together society becomes the more laws we need. Born out of the crucible of leftist reformers, greedy businessmen themselves, and a misinterpretation of economic equilibrium theory was what high school history textbooks call trustbusting. One trust squarely in the crosshairs was Big Railroad, partly because it most obviously resembled the Robber Barons of old, with its supposedly unilateral power to choke off or open traffic to its own and no one else’s benefit.
The government never could nor never had to prove price discrimination in rates for different loads and on different lines was economically unjustified. Whether something was “in restraint of trade” was pro-forma and could easily apply to an action that lowered prices for consumers and caused traffic to boom. Not that you don’t know all this. I’m writing it for my own edification.
Anyway, here was the government’s interest: it wished to control rates on interstate lines. Left to be proved is whether price control constitutes “regulation” as originally conceived. But nevermind. It is interstate, it is commerce, and however economically wrongheaded it is Constitutional. Hold on! Once trains have crossed state borders on the same trip they can be on lines that run entirely within a single state. So Big Railroad can still offer “predatory pricing” and discriminatory rates for portions of an interstate trip.
Doesn’t this run afoul of the feds’ legitimate power to regulate interstate commerce? No. It interferes with the feds’ wishes of controlling rates on trips from state to state, but not its legitimate powers. SCOTUS held regulation of intrastate rates to be necessary for control of interstate rates, and so far so good. But it forgot about the proper part of “necessary and proper.” It is improper for the feds to regulate intrastate commerce because the Constitution does not delegate such power. It’s irrelevant that intrastate rates affect interstate rates. Commerce that affects interstate commerce id not itself interstate commerce, and as such is not regulstable.
Much like how planting wheat for your own consumption which if everyone did it would affect interstate commerce is not itself interstate commerce. But that’s another case.
Yeah, I saw the asterisk. BUMP for the thread, the thought, the ideas, the future, our children/grandchildren, freedom.
DEFUND
DEPOPULATE
DISMANTLE
live - free - republic (set the example, again)
Wickard cited Shreveport as precendent, but IMHO, they turned it upside down.
The Shreveport decision states :
by reason of its control over the interstate carrier in all matters having such a close and substantial relation to interstate commerce that it is necessary or appropriate to exercise the control for the effective government of that commerce.
In other words, what is relevant is that they are registered carriers of interstate commerce. Whether there was any incidental effect on intrastate commerce was irrelevant.
In Wickard, they turned that application upside down. Whether Roscoe Filburn was a registered carrier of interstate commerce became irrelevant, that there had been some effect on intrastate commerce was presented as the relevant effect of the decision.
What was declare to be irrelevant in one case was cited a relevant precedent in another. What was explicitly declared to be the relevant issue in the first case was completely ignored in the second.
Social Security was ruled by the Supreme Court to be nothing more than a social insurance scheme in 1960.
See the SCOTUS case “Flemming v. Nestor.”
There is no property right in Social Security.
http://scholar.google.com/scholar_case?case=5373695872604515216&hl=en&as_sdt=2&as_vis=1&oi=scholarr
No, the charge is based on GDP.
The thing to realize is that, in the long term (over decades since WWII), the average tax revenues the federal government can and does collect are about 18.mumble%. If the Feds can collect more, it’s only for a few years.
That chart shows the projected growth of those welfare programs vs. expected GDP (and therefore, projected 18% of GDP) for decades into the future. Typical CBO projections of GDP growth are about 2.4% per annum, so run those out into the future, put the tax revenues at about 18% of the GDP for that year and then project the expenses...
And you get a chart like that one up above.
Whatever functions of the government are not in the preamble, or can be better handled by the states, counties, cities, families, businesses or churches, ought to be taken from the Feds.
“Whether there was any incidental effect on intrastate commerce was irrelevant”
You have it backwards here, and I’ll tell you why. It’s not that the law had a sideffect on intrastate commerce. The feds wanted to control prices on interstate commerce but realized that the railroads got around this by charging different rates for travel within the states. So in furtherance of the goal of controlling interstate rates they extended their power to apply to intrastate rates. This was not “incidental;” it was a deliberate extension of power to a realm it had been in before (though it was inspired in my opinion by Gibbons, as I said).
Now not only would interstate commerce be regulatable, but commerce that directly affected interstate commerce would be, too. It’s a hop and not even a skip and a jump from there to non-commercial activity which substantially affects interstate commerce being regulatable. Wickard didn’t turn the Shreveport Rate Cases upsidedown; it merely extended the logic a bit.
Them being registered federal carriers is a red herring, by the way. Just because they carry passengers and freight across state lines does nit mean you write whatever laws you want covering their intrastate activities. You couldn’t have, for instance, mandated they offer so and so dollars an hour to their employees any more than you can order them to charge a certain rate on intrastate lines.
Notice how cleverly your bold faced quote specifies how “necessary” regulating rates on lines substantially relating to interstate lines is to the interstate regulatory scheme as a whole. Perhaps, but then again what if the regulatory scheme they have in mind is unconstitutional? Regulating prices intrastate is not necessary to regulate prices interstate. Regulating prices intrastate may be necessary to regulate interstate trips the whole way. But who said the feds can do that?
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.