The Thread To Name The Unconstitutional

[dayman]

TARP was not unconstitutional. Maybe the auto bailout.

Edited November 7, 2012 by TheNewBills

[blzrul]

Anyone reading the "who whines more" thread will appreciate this one.

[Rob's House]

TARP was not unconstitutional. Maybe the auto bailout.

Kind of quasi-constitutional. I'm not sure exactly what provision you'd point to for the basis of authority. I'd put it in the category of extra-constitutional actions like the Louisiana Purchase. Probably something that was for the best, but kind of outside the law.

[dayman]

Kind of quasi-constitutional. I'm not sure exactly what provision you'd point to for the basis of authority. I'd put it in the category of extra-constitutional actions like the Louisiana Purchase. Probably something that was for the best, but kind of outside the law.

 

TARP? I haven't really thought about it a lot but it's Congress appropriating funds. Tax and Spend. Pretty simple stuff. The only challenge I can think of is non-delegation doctrine. Weak challenge never work anymore. Every bit as much intelligible principle there as EPA for instance.

 

I mean...what is so quasi-constitutional about it? The imaginary constitution that exists if Ron Paul was the one man supreme court for 200+ years maybe but the actual constitution as interpreted in what we call history...it's fairly straightforward. Plus...there's the whole emergency angle and close calls always slide in circumstances where "emergency" kicks in

[Rob's House]

 

 

TARP? I haven't really thought about it a lot but it's Congress appropriating funds. Tax and Spend. Pretty simple stuff. The only challenge I can think of is non-delegation doctrine. Weak challenge never work anymore. Every bit as much intelligible principle there as EPA for instance.

 

I mean...what is so quasi-constitutional about it? The imaginary constitution that exists if Ron Paul was the one man supreme court for 200+ years maybe but the actual constitution as interpreted in what we call history...it's fairly straightforward. Plus...there's the whole emergency angle and close calls always slide in circumstances where "emergency" kicks in

I realize that nowadays it's pretty much a moot point, but the tax & spend power is limited. I'm not sure which provision of Article 1 it would fall under.

[TakeYouToTasker]

The US Constitution has become a blank document. It origionally had a fixed point meaning, which is easily understood to be very specific parameters governing exactly what each branch of our federal government was specifically permitted to do.

 

The advent of the living document, combined with the forward thinking interpretation that the document allows all things not specifically forbiden; makes all permissable. Nothing is unConstitutional.

[Duck_dodgers007]

The US Constitution has become a blank document. It origionally had a fixed point meaning, which is easily understood to be very specific parameters governing exactly what each branch of our federal government was specifically permitted to do.

 

The advent of the living document, combined with the forward thinking interpretation that the document allows all things not specifically forbiden; makes all permissable. Nothing is unConstitutional.

 

Slavery was constitutional...so I guess everything has always been constitutional

[TakeYouToTasker]

 

 

Slavery was constitutional...so I guess everything has always been constitutional

That's a complete non-sequitor.

 

Slavery absolutely was Constitutional. That doesn't mean that all things were intended to be.

 

You've actually just begun the essential core of the argument demanding the meaning of the document bd changed by amendment only.

[dayman]

I realize that nowadays it's pretty much a moot point, but the tax & spend power is limited. I'm not sure which provision of Article 1 it would fall under.

 

Well, I know you study law. I get the tax and spend power of Ron Paul but the argument is over and I see almost no limits on taxing and spending now. Vote is basically it.

 

The US Constitution has become a blank document. It origionally had a fixed point meaning, which is easily understood to be very specific parameters governing exactly what each branch of our federal government was specifically permitted to do.

 

The advent of the living document, combined with the forward thinking interpretation that the document allows all things not specifically forbiden; makes all permissable. Nothing is unConstitutional.

 

Also, not to just be a prick but I really disagree that everything was specific and easily understood as of the date it was signed. Squabbles emerged instantly. Very famous ones.

[Rob's House]

 

 

Well, I know you study law. I get the tax and spend power of Ron Paul but the argument is over and I see almost no limits on taxing and spending now. Vote is basically it.

I don't entirely disagree, but that's not to agree that it's constitutional under either the letter or "spirit" of the constitution. We've just stopped following it for the most part. We've selectively retained a handful of principles from it, but by & large the court rules that it says whatever the court at the time wishes it said. The consolidation of these powers is the primary cause of our political unrest b/c there are a wide range of issues that must now be fit under the "one size fits all" blanket policies of the Feds, & it's unnecessary.

 

Edit: The ACA case actually put new limits on the commerce clause & taxing power. John Roberts fancies himself a modern day John Marshall. Conceded one point so that he could set up new limitations under the radar a la Marbury. I'm not a fan. I think he should have taken a firm stand & weathered the storm, but it is what it is.

Edited November 8, 2012 by Rob's House

[dayman]

I don't entirely disagree, but that's not to agree that it's constitutional under either the letter or "spirit" of the constitution. We've just stopped following it for the most part. We've selectively retained a handful of principles from it, but by & large the court rules that it says whatever the court at the time wishes it said. The consolidation of these powers is the primary cause of our political unrest b/c there are a wide range of issues that must now be fit under the "one size fits all" blanket policies of the Feds, & it's unnecessary.

 

Edit: The ACA case actually put new limits on the commerce clause & taxing power. John Roberts fancies himself a modern day John Marshall. Conceded one point so that he could set up new limitations under the radar a la Marbury. I'm not a fan. I think he should have taken a firm stand & weathered the storm, but it is what it is.

 

New limits on Commerce ... been a while since I read it but basically no limits on tax.

 

Anyway am I to read the first paragraph as you being an originalist? More appropriate to rule based on the current court thinks it meant at the time to a group of men to didn't agree and compromised than to just call it as they see it since they are actually on the court?

[TakeYouToTasker]

TheNewBills:

 

To reference, are you speaking the the rise of Hamiltonianism?

[Rob's House]

 

 

New limits on Commerce ... been a while since I read it but basically no limits on tax.

 

Anyway am I to read the first paragraph as you being an originalist? More appropriate to rule based on the current court thinks it meant at the time to a group of men to didn't agree and compromised than to just call it as they see it since they are actually on the court?

If I have to put myself in a box I'd go with neo-textualist. I'm not so naive to think an 18th century code is without flaws, but the fundamental structure of separating & limiting powers of branches of government as well as a system of dual federalism are as relevant today as they were then. And if something is so clear that it requires an alteration to the underlying structure and very foundation of our system of government, I find the amendment process preferable to changes made willy nilly by political appointees.

 

And the reason congress couldn't impose the Medicaid expansion on the states is because it exceeded its tax & spend power.

[dayman]

TheNewBills:

 

To reference, are you speaking the the rise of Hamiltonianism?

 

Wasn't thinking of anything in particular more so just the historical fact that basically right after they signed the thing they started arguing about it themselves as did others. One of the reasons I don't buy originalism as necessarily superior to what Scalia would derogatively call "constitutional consequentialists"

 

If I have to put myself in a box I'd go with neo-textualist. I'm not so naive to think an 18th century code is without flaws, but the fundamental structure of separating & limiting powers of branches of government as well as a system of dual federalism are as relevant today as they were then. And if something is so clear that it requires an alteration to the underlying structure and very foundation of our system of government, I find the amendment process preferable to changes made willy nilly by political appointees.

 

And the reason congress couldn't impose the Medicaid expansion on the states is because it exceeded its tax & spend power.

 

Ah, medicaid expansion. Forgot exactly what happened there but ya coming back to me. Can't coerce to the point of not having a choice or something along those lines? Was it solely tax and spend there though? IDK one day I'll glance over it again...Either way that's pretty shaky IMO for the future I think that part of the opinion was all over the map in terms of split opinions running rampant.

 

There is no doubt, whatever it is, each justice must have some deep understanding of the basic mechanical workings of the structure...but what is such an altering of your idea of the basic balance? Just the court being comprised of "consequentialists?"

[TakeYouToTasker]

TheNewBills:

 

The were created as a deliberative body comprised largely of lawyers.

 

The truth of the intent of the document must be found in the body of works which led to and accompanied it, along with the understanding that it was written at a 4th grade reading level.

[dayman]

TheNewBills:

 

The were created as a deliberative body comprised largely of lawyers.

 

The truth of the intent of the document must be found in the body of works which led to and accompanied it, along with the understanding that it was written at a 4th grade reading level.

 

What I believe is that even the truth of the intent at the time of the framing likely meant something different in different spots to different signatories. And ultimately the negotiation of various concepts ended up serving as a workable document they could all live with, not some lock solid clear script for all problems in the future. Brilliant men doing the best they could (a damn good job) but not brilliant men creating something more than that.

 

Also, like justice Thomas I think to be a true originalist you really can't believe in stare decisis and if originalism is thought of as a more workable approach to interpretation...given (as I feel) that the truth behind various "hot spots" of the constitution may have been the areas of most contention in some circumstances and most ambiguity...then as the court changes and each judge holds to their own originalist interpretation w/ no adherence to past holdings....you end up with a fluctuating constitution all the same.

[Rob's House]

Wasn't thinking of anything in particular more so just the historical fact that basically right after they signed the thing they started arguing about it themselves as did others. One of the reasons I don't buy originalism as necessarily superior to what Scalia would derogatively call "constitutional consequentialists"

 

 

 

Ah, medicaid expansion. Forgot exactly what happened there but ya coming back to me. Can't coerce to the point of not having a choice or something along those lines? Was it solely tax and spend there though? IDK one day I'll glance over it again...Either way that's pretty shaky IMO for the future I think that part of the opinion was all over the map in terms of split opinions running rampant.

 

There is no doubt, whatever it is, each justice must have some deep understanding of the basic mechanical workings of the structure...but what is such an altering of your idea of the basic balance? Just the court being comprised of "consequentialists?"

The constructive abolition of the 10th amendment is pretty significant. The entire bill of rights was thought to be superfluous b/c it was self evident from the document itself that the Federal government lacked the power to infringe upon those rights b/c it was a government of enumerated powers. The powers are no longer enumerated. The massive expansions of the commerce clause as well as the tax and spend powers have all but eliminated the constraints on federal power. The rights of the individual states have been relegated to little more than ministerial functions. We've all but abolished the system of dual Federalism. I don't get why people don't understand how making different people with different values all live under the same laws is harmful. Doesn't it make sense that CA and KY should be able to govern differently? And isn't it easy to see how making one live according to the will of the other is oppressive?

 

And don't think I'm laying this all off on liberal justices. The conservatives are often just as bad on 4th amendment issues as the liberals are on states' rights.

[dayman]

The constructive abolition of the 10th amendment is pretty significant. The entire bill of rights was thought to be superfluous b/c it was self evident from the document itself that the Federal government lacked the power to infringe upon those rights b/c it was a government of enumerated powers. The powers are no longer enumerated. The massive expansions of the commerce clause as well as the tax and spend powers have all but eliminated the constraints on federal power. The rights of the individual states have been relegated to little more than ministerial functions. We've all but abolished the system of dual Federalism. I don't get why people don't understand how making different people with different values all live under the same laws is harmful. Doesn't it make sense that CA and KY should be able to govern differently? And isn't it easy to see how making one live according to the will of the other is oppressive?

 

And don't think I'm laying this all off on liberal justices. The conservatives are often just as bad on 4th amendment issues as the liberals are on states' rights.

 

Well now that you mention the 10th amendment it got some love w/ that Medicaid holding (for whatever weight it carries). So it is still popping up in meaningful ways that some governors find helpful. And there are commerce cases, while rare, that reverse the trend. So IDK about "all but abolished."

 

And in any event, even Scalia will concede that interstate commerce is quite a different matter today that it was then. The founders had no interstate highway system w/ trucks, or fed-ex plains, and certainly no internet. The idea that federalism, in modern times is inherently weakened as the course of history connects us more, isn't something I see as abolishing the basic bargain in the constitution.

 

To be sure I think there are some issues, most notably in regulatory law and the deference agencies get interpreting their statutes and promulgating more rules that apply to very new areas of concern (relative to the founders day)..and it's always easy to find someone battling with the EPA, or even a more straightforward commerce clause issue like what most people thought the ACA would have originally been. But to say that it is not perfect and we are struggling with it, does not IMO mean we have abolished federalism. That's a bit dramatic for my taste.

Edited November 8, 2012 by TheNewBills

[Rob's House]

Well now that you mention the 10th amendment it got some love w/ that Medicaid holding (for whatever weight it carries). So it is still popping up in meaningful ways that some governors find helpful. And there are commerce cases, while rare, that reverse the trend. So IDK about "all but abolished."

 

And in any event, even Scalia will concede that interstate commerce is quite a different matter today that it was then. The founders had no interstate highway system w/ trucks, or fed-ex plains, and certainly no internet. The idea that federalism, in modern times is inherently weakened as the course of history connects us more, isn't something I see as abolishing the basic bargain in the constitution.

 

To be sure I think there are some issues, most notably in regulatory law and the deference agencies get interpreting their statutes and promulgating more rules that apply to very new areas of concern (relative to the founders day)..and it's always easy to find someone battling with the EPA, or even a more straightforward commerce clause issue like what most people thought the ACA would have originally been. But to say that it is not perfect and we are struggling with it, does not IMO mean we have abolished federalism. That's a bit dramatic for my taste.

Of course interstate commerce is different now. That's not the point. The reason for that power was to ... wait for it ... regulate interstate commerce. It was primarily to address concerns of states enacting protectionist policies. Much of what passes under this rationale has virtually no connection to that. Federal drug laws are justified under the commerce clause. Your tomatoe garden is subject to regulation under the commerce clause even if you're the only one eating them. It's absurd. And while A few cases have put some limitations on the abusive use of it, it's use is still broader than anything that could be considered a reasonable interpretation.

 

And don't pull that bit where you misquote me and say it's overly dramatic. Do you really think our politics would be this divisive if the Federal government didn't have such a pervasive impact on our everyday lives?

[dayman]

Of course interstate commerce is different now. That's not the point. The reason for that power was to ... wait for it ... regulate interstate commerce. It was primarily to address concerns of states enacting protectionist policies. Much of what passes under this rationale has virtually no connection to that. Federal drug laws are justified under the commerce clause. Your tomatoe garden is subject to regulation under the commerce clause even if you're the only one eating them. It's absurd. And while A few cases have put some limitations on the abusive use of it, it's use is still broader than anything that could be considered a reasonable interpretation.

 

And don't pull that bit where you misquote me and say it's overly dramatic. Do you really think our politics would be this divisive if the Federal government didn't have such a pervasive impact on our everyday lives?

 

Worthy of debate but not absurd. Regulating things substantially affecting interstate commerce and the things necessary to prevent that authority from being undercut...as modern society grows closer this naturally means that the federal government will become more expansive. But it's inherent in our constitution that this is the case. They did not try to conceive all the wild possibilities of future commerce. They recognized a principle that there will be issues, and state protectionism was certainly one of them (probably thought by many at the time to be an "unreasonable" prohibition on state sovereignty itself). But there it is, in the constitution. Obviously the history of the development of this clause was a bit crazy...but that's OUR history. It doesn't mean that each policy is wise, or that oppressive policies cannot be enacted under this power. But the Constitution isn't a shield against oppressive federal policy. It's a shield against unconstitutional overreach. It's a fuzzy line and we struggle with it. I wouldn't be shocked if something happens where we swing a little more conservative with it in the next 10 years...and I wouldn't mind. But my point stands, to say that we have constructively abolished state sovereignty is I think overly dramatic.

 

As for the divisive politics question. The short answer is yes. Our politics are more superficially divisive right now than anything else and largely for political reasons IMO. There have been much worst substantive differences in the past. Obviously there are some real differences but the commerce clause is not the reason Congress is gridlocked.