Hello again, tom:Quote:
Originally Posted by tomder55
How else are they going to pay the claims if they can't dump people?
excon
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Hello again, tom:Quote:
Originally Posted by tomder55
How else are they going to pay the claims if they can't dump people?
excon
Quote:
Originally Posted by tomder55
Hi Tom,
You want the judges to apply the law in this particular case because you think their job is interpret the law rather than make the law. No doubt you see the Filburn decision as an example of judges making the law. Law making should be the job of Congress.
If this is what you are saying then there is a problem of bivalence here. The Constitution interprets itself using itself. Unfortunately, this tells us nothing about the way the world is at the moment. Judges can and do make constitutional decisions sitting in an armchair.
This is bootstrap theory. This idea may work well in some idealized reality but this principle of bivalence doesn't work in the real world.
It seems to me that you agree with Justice Scalia when you see him applying the law, but disagree with him when you see him interpreting the law. I am sure Scalia is aware he is doing both. You can't help but do both at the same time.
As I said before, you agree with a decision if it suits a political belief. That's the beauty of putting all conservative interpretations under the one banner. You get to pick.
Tut
Tut , not exactly . The Filburn case was a case where Congress overstepped it's Constitutionality. It was the duty of the Court to reverse it. They didn't and instead allowed a massive expansion of the Federal Government that was not the intent of the founders. There were some in the nation like Patrick Henry that opposed the adoption of a federalist system for that very reason .
Scalia is a faint hearted originalist. He recognizes the absurdity of past decisions ,but doesn't have the desire to reverse the previous bad decisions.
Ex ,you see the solution to the problem of 3rd party payer as a massive government takeover of the industry. I see it as a return to free market principles .
Constitutionally ,the problem with the mandate is just like I stated ,the government is creating commerce for the purpose of regulating it .
Quote:
Originally Posted by tomder55
Hi Tom,
Well, of course he is. That's the whole idea. It's the only sane approach if you are not an armchair conservative. I am still interested in which part of originalism you adopt.
The Founding Fathers could not have predicted the Great Depression and the way it changed society. Probably more importantly the way society is continually changing.
The amendment process just goes to show that Wendell Holmes is correct. "The life of the law has not been logic it has been experience"
Tut
Wickard reversed 130 years of constitutional law. Something that so fundamentally changed the relationship between the people and the Federal Government needed an amendment ,not a judicial stamp of approval on a blatant power grab. If the people wanted a behomoth Leviathan central government (and perhaps they did in 1942 ) ,then it should've happened through the amendment or Constitutional convention process. That is my brand of originalism .
Quote:
Originally Posted by tomder55
Probably wouldn't make any difference. Any such amendment would have become part of the formalist process. The judiciary would still get the final say.
Tut
.Quote:
Originally Posted by tomder55
Wickard reversed 130 years of constitutional law
That's your spin, Filburn was asessed a fine, legal under The Agriculture Adjustment Act of 1938 (AAA) set quotas on the amount of wheat put into interstate commerce and established penalties for overproduction. He chose not to pay, and go to court
.Quote:
Something that so fundamentally changed the relationship between the people and the Federal Government needed an amendment ,not a judicial stamp of approval on a blatant power grab
There was no fundemental change, it was the law, and he chose to ignore it. He exercised his rights, he lost.
They should have stopped the congressional law from being implemented in the first place, but after it became the law, he was bound to obey it, as we all are.Quote:
If the people wanted a behomoth Leviathan central government (and perhaps they did in 1942 ) ,then it should've happened through the amendment or Constitutional convention process. That is my brand of originalism .
The fact was that circumstances dictated the reasons behind the law, wheat prices on the global market, and had farmers been allowed to over plant, for whatever reason, the price of their wheat would have fallen.
"The goal of the Act was to stabilize the market price of wheat by preventing shortages or surpluses. Filburn (P) sold part of his wheat crop and used the rest for his own consumption. The amount of wheat Filburn produced for his own consumption combined with the amount he sold exceeded the amount he was permitted to produce.
Secretary of Agriculture Wickard (D) assessed a penalty against him. Filburn refused to pay, contending that the Act sought to limit local commercial activity and therefore was unconstitutional because it exceeded the scope of Congress's power under the Commerce Clause.
Filburn brought this lawsuit seeking to enjoin enforcement of the Act and a declaratory judgment that the wheat marketing provisions of the AAA were unconstitutional for exceeding the scope of Congress's commerce power. The court below, a district court panel of three judges, entered judgment for Filburn and the Supreme Court granted cert."
So despite your rhetoric, and spin, the legal process played itself out, it's the results you don't like. Which don't get me wrong, I do understand, given your position of small government, and do as you please states, and individuals, but this was about market regulation, and the needs of the many, over the wants of the few.
Hello again, tom:Quote:
Originally Posted by tomder55
I'm a BELIEVER in free market solutions, WHEN free market solutions address the needs of the citizen. The PROBLEM with free market solutions, is that companies generally address the NEEDS of their customers and their stockholders OVER that of the citizenry. As we've discussed before, I don't believe ANY private company would build a sidewalk in front of your house. Government WOULD, and DID.
Now, there's a free market solution to old people starving, and that's for old people to work until they drop. Social Security is the government solution that FIXED that.
The difference between us, is you're fine with people working until they drop, and/or dying because they don't have access to health care. I'm not. Those are things I associate with third world countries.
excon
Boom, BADDA BING! The righties love profits over people, and will bend over and get screwed themselves to prove it!Quote:
Originally Posted by excon
Point of fact, all poor, old, and disadvataged are not democrats, or ARE THEY??
Hmm better check on that!
Hi Tal,Quote:
Originally Posted by talaniman
A good point. Sometimes unusual circumstances require a different approach. In this particular case I can see why SCOTUS decided to promote the needs of the many over the few.
It would make no difference if it were possible to travel back into the past and talk to the Founding Fathers. It would make no difference if they told you to the man they want small government, limited involvement in state economic matters, limited government services.
You many well come back and bang you fist on the table and tell us, "This is the case" and "This is also the case". We couldn't disagree with you. After all, you were there, they told you exactly.
I think this particular case demonstrates that no amount of knowing what 'is the case' in terms of the Constitution can ever tell us what 'ought to be the case'. Only events such as the Great Depression being played out will ever tell us what we ought to do.
I think Wendell Oliver Holmes Jr. Said something along the lines of life being an experience and so is the law.
Tut
So just for some of us who might be confused what did the court decide?
Hello clete:Quote:
Originally Posted by paraclete
They didn't yet. Said they would in June.
excon
Thanks ex, so why is the discussion proceeding as if the result had been handed down?Quote:
Originally Posted by excon
Because we like to watch the talking heads on TV twist and turn reporting every fact and nuance. It's the end of basketball and the beginning of baseball. That's the beauty of 1400 channels on TV!
1400 channels and nothing on
There is plenty on and 80% of the people have better things to do than watch the political wonks all day.
Yes like hang out here
SCOTUS decided Friday.. They will spend the next couple months writing their opinion on the case. On rare occasions a justice has changed his/her opinion based on the written opinion of another; but that is rare.
The reason this one is getting so much attention is because of how fundamental the change in the relationship between the people and the Federal Government ,the States and the Federal Government will be if this law is allowed to stand .
It goes WAY beyond individuals buying insurance. Throughout the questioning the justices asked the proponents what are the limiting principles of the law . They could not clearly identify one. This law gives the Federal government carte blanche to do anything in the name of commerce... commerce as the government defines commerce. It is a game changer ;and clearly justifies the attention it is getting .
But Tom the relationsship between government and the people has changed since the eighteenth century. The whole world has changed remarkably and irrevocably, it is surely time to recognise this. Your founding fathers never envisaged the world as it exists today, they could hardly see beyond their slave quarters and their plantations
The founders knew how badly organs of government can misfire, and so far the checks and balances have kept us on the map. The Constitution was supposed to be the template , that with amendment ,would last forever. If the only way to govern is to govern outside the framework of the Constitution ,I prefer it get scapped and we start over. But I still believe in the framework and will be on the side that prefers to preserve it.
Sen. Richard Blumenthal of Connecticut threatened the court with violence if they overturned Obama care .The court commands no armies, it has no money; it depends for its power on its credibility. The only reason people obey it is because it has that credibility. And the court risks grave damage if it strikes down a statute of this magnitude and importance, and stretches so dramatically and drastically to do it. I guess since the President commands an army ,he doesn't need the credibility . This reminds me of Stalin's flippant comment "How many divisions does the Pope command ? " For the record ;the Soviet Union is history ,and the Papacy is still around.
Andrew Jackson once verbally challenged the court in a similar manner and eventually complied with it's decision. SCOTUS overturned the whole original framework of Roosevelt's New Deal . Roosevelt complied and rebooted to get the law to comply with the Constitution. If a clearly unconsititutional law is allowed to stand then indeed SCOTUS will have lost the last vestige of credibility .(it already stands on that balance with some of it's own brand of usurpation of powers).
Indeed it's credibility is at stake. If it overturns it preserves the constitution. If not , then the concept of limited powers of the government ,and the Constitutional framework is consigned to the scrap heap of history .
I totally disagree Tom, because one of the weaknesses of your arguments about limited government is that it often reacts to slowly to changes, and situations. Limited government may have been great when it to a letter a week to go 100 miles, but the world has indeed changed and a derivative can go around the world in 10 minutes, 10 times. To handcuff the government and limit its power is like giving a house burglar, your house keys before you go on vacation.
Cause and effect IS the relationship between government, and the governed. What the founding fathers intended was a fair government, and their ideals and interpretation of what that was was limited only to the thinking of the time. They created a framework that they knew would be added to and modified with time and conditions. For sure they didn't intend for us to be slaves though they owned slaves, just as they didn't intend us to be enslaved by the system they created.
We can argue the merits of intent, but we can only judge by the effects , and that led to a bloody civil war, when powerful states were in opposition to that limited, central government.
The Constitution should not be scraped Tom, because that's not the problem at all. The problem is that government itself is subverted by influences that serve the interests of a few, and the many are locked out of the process. The relationship has become vastly unequal. Between people and its government.
Its one thing to work to strike down a law you feel is unconstitutional, but quite another to replace it with something that is, given the FACT that what we had before was not working, ineffective, and was bankrupting both government, and people.
In effect, going back to a situation that was unacceptable. For these reasons I don't see the entire law as being struck down, just the part that says the feds can mandate, as its clearly the states that can do so, constitutionally.
The severability of this law is the main issue, but the weakness is the states response so far in doing its job to address the problem in the first place.
The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.James Madison, Federalist No. 45
Most bad government has grown out of too much government. Thomas Jefferson
If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.Alexander Hamilton, Federalist No. 33
If Congress can do whatever in their discretion can be done by money, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one-James Madison
There is again, that Hobson's choice and perhaps it should be consigned to the scrap heap of history because it seems to me you spend a tremendous amount of time referring to the constitution, and debating issues that arise out of it, over there and here it barely rates a mention yet nothing unconstitutional is done. What this tells me is the twenty-first century keeps bumping up against the eighteenth centryQuote:
Originally Posted by tomder55
Quote:
Originally Posted by tomder55
Tom, this is clearly a fallacy of false dilemma. If anything gives rise to this fallacy it is politics. Things don't stack up in a neat dichotomy. I am sure the justices are well are of the importance of avoiding this very dilemma.
If not then what was for so long your strength will fast become your weakness.
Tut
Then they will overturn it .
I don't see why them doing their job is such a problem . They are not a rubber stamp to a tyranny .
And as for Scalia ; the SCOTUS recognized it made a bad move in the Plessy decision and corrected it later in Brown v Board of Ed. I don't understand why he accepts bad calls in the past as something he shouldn't reverse .
The Wickard case was clear government expansion of it's enumerated power and to accept it is ridiculous. If the court allows this then I am 100% correct in my assessment . Even progressive justice,and Obama appointee Sotomayor asked the Solicitor General what limits the government if this law is confirmed . He could not give an answer.
Hi Tom,Quote:
Originally Posted by tomder55
May I suggest that you don't see it as a problem because you are still stuck on original intent.
The Constitution means what it means and says what it says. There is no need for the judiciary to go into any further details in terms of discussing meanings. Their job is to decide on the legitimacy of the law not to make the law as they go along. True?
If you are agree with this then there are problems. In fact many problems. It doesn't matter what I think, but it seems clear to me that Scalia thinks along the same lines as myself. Despite the fact that I am not in any way an originalist I can see what has been presented so far on Scalia's behalf seems consistent.
As I said before It is not possible to make a ruling and believe you have not created a law. I think Scalia recognizes this fact.
Perhaps the Solicitor General's answer should have been along the lines:
Of course there are no limitations. The law is not a statue. We discover its relevance as we go along. It is it's relevance to the current situation that determines its necessity.
I would have thought that was obvious.
Tut
Hello again, tom:
How dya rule on a law that you're NOT going to read? Scalia said he ain't going to, and he chuckled about it...
Scalia: You Expect Us to Read 2,700 Pages? | Conservative Byte
excon
Nope ,Scalia just doesn't want to revisit the past. If that was the opinion then segregation would never 've been reversed . I call him a faint hearted originalist . Bet you didn't see that in Wiki . The case law and decisions by SCOTUS has completely distorted the Commerce Clause beyond recognition.He knows this is true ;but doesn't have the heart to fight the battles of the past . But I was encourged with his line of questioning to believe that even he sees a line in the sand that can't be crossed if the Constitution has any integrity left .Quote:
As I said before It is not possible to make a ruling and believe you have not created a law. I think Scalia recognizes this fact.
Quote:
The Constitution means what it means and says what it says. There is no need for the judiciary to go into any further details in terms of discussing meanings. Their job is to decide on the legitimacy of the law not to make the law as they go along. True?
It is very possible to make a court decision and not make a law. All you have to say to Congress is "no ;the law we just decided doesn't cut Constitutionality " .Then all they need do is hand it back to Congress to make whatever revisions are necessary to make a constitutional law . It's been done many times in the past.Quote:
As I said before It is not possible to make a ruling and believe you have not created a law.
Where the court excedes it's authority is when they impose a solution.
If there are no limits to the government's authority then there is no need for the Constitution ,which is a limiting document by definitiion in that it defines the limits of the Federal Government's authority and power.Quote:
Perhaps the Solicitor General's answer should have been along the lines:
Of course there are no limitations. The law is not a statue. We discover its relevance as we go along. It is it's relevance to the current situation that determines its necessity.
And Congress didn't when they passed it ;and the President didn't when he signed it .Quote:
Originally Posted by excon
It's very simple because they are ruling on the mandate . Then they simply say that anything that was funded by the mandate is not allowed until they craft a new law with an alternate funding mechanism.
Yeah Scalia joked about it and he was right. The Obots were trying to tell the court that if they strike down the mandate ,that they should go over the bill ,page by page ,parsed language and all ;and pick which parts were constitutional . THAT IS NOT THE ROLE OF THE COURT despite the left's delight in the court making law in the past . All the court need to do is decide if a law is constitutional or not . If the mandate is unconstitutional then the whole law is .
Quote:
Originally Posted by tomder55
The reason some originalists are faint hearted is because they don't want to subscribe to a tautology. See the section on orginalism not being in and of itself. This points to the problem I have been highlighting all along. Simply describing a case doesn't decide a case. Describing a case is just an exercise it tautology. It is the same as saying the Constitution means what is says and says what it means. While this is the domain of the original intentists, it only tells us of a strange type of way we ought to do things.
By revisiting the past and changing previous decisions we will only end up doing what you are trying to deny. We are creating laws rather than ruling on them. By doing 'nothing' you are still doing something. Whatever we do we will always have a foot in both camps.
I was being a bit flippant in relation to the," no limits comment" asked of the Solicitor General. You know, ask a silly question...
Again I would say there is an attempt to set up a false dichotomy in relation to limits and no limits. So on this basis you and some other people would not be 100 percent correct. There are in fact a number of incremental choices that exist between limits and no limits.
There is a law written in stone that tells us that we shall not steal. One may well see the importance of a person breaking this law in order to feed his starving family. Opponents of this may well argue that if we allow one or two exceptions here and there then it become 'open season' on stealing. It will be tantamount to letting everyone steal.
The choice is stealing or no stealing there is no in between.
The actual dichotomy trying to be set up at SCOTUS is a choice between limits and no limits. In my view it is a false dichotomy. It would only be an incremental expansion of government powers.
Tut
Interesting concept Tut, entertaining other perspectives rather than just one to proceed forward, and address real problems for real people. I don't see it as expansion, but somebody finally got off their a$$ to get a solution rather than let a growing problem keep growing. Indeed if a government cannot address problems for the country as a whole, then what's the point of government?
We are UNITED states, not Divided states, in theory at least. That's why we have a court of "learned" men and women to solve deputes, right? Some will like the ruling, some will NOT!
Will it solve the problem? Not if they strike it down and we have to go back to the way it was. But then again, if states and federal governments had of been working together, we wouldn't need this decided by a court!
So now we wait.
Well you had a civil war to make that point but you haven't gotten rid of those state rights or the idea that those states are somehow separate. One way we overcame this was to have the states cede certain rights in exchange for funding. Eg; they ceded their right to taxation in exchange for a guarantee of share of revenue, Thus we have uniform income taxes and a GST, replacing sales tax. Which is uniform. We still have some way to go as they still have some regressive taxes they were supposed to get rid of but haven't, but it set a platform for cooperation. Next to go will be state involvement in delivery of medical services because parts of the state systems are unsustainable, again the deal will be done with funding, in fact it was done by another government, with one state holding out, then undone after the coupQuote:
Originally Posted by talaniman
That's well put Clete, as the minority party is trying to get the power back from the last main election. After the last president and his party screwed everything up for everybody else.
You might say we have a perpetual civil war here, that's not so civil at times.
Interesting take, not so much a civil war as a rights war, tjhat same thing your civil war was about, states rights. We reserve all that war for our parliament, it is certainly not civil there and they rarely talk about states
Quote:
Originally Posted by talaniman
Quote:
The actual dichotomy trying to be set up at SCOTUS is a choice between limits and no limits. In my view it is a false dichotomy. It would only be an incremental expansion of government powers.
That's the advantage of Fabianism . Even when they lose ,they win. They keep the ball rolling towards their utopian goals.. a defeat is an incremental advance.Incremental expansions have distorted the meaning and intent of the Constitution(that being a limiting document on government power ).
Yes ,the Federal Government frequently uses that form of coercion. They take our money and tell us that we can have some of it back if we meet certain conditions .Quote:
One way we overcame this was to have the states cede certain rights in exchange for funding.
Hi Tom,Quote:
Originally Posted by tomder55
I can't disagree with your comments about Fabianism. All I am saying is there is an attempt to set up a false dichotomy, intentionally or unintentionally. Idealism seems to be getting in the way. Let's look at the alternative.
I understand THE THEORY.
There should be three branches of government, each providing a check upon the other. No need to go into obvious detail but as far as the judiciary is concerned its job is to rule on whether a law is constitution or not constitutional. It's job is not to make laws, the limits of its powers are clearly defined.
Again, all I can say is that this exists in an idealistic world. The actual reality is that the three branches of government are 'nuts and bolts'. They are very much ground in reality. If this wasn't the case then there would be nothing to discuss here.
All I can say is can you show me a SCOTUS decision handed down in terms of a law being constitution or not constitutional that avoids providing us with some type of prescriptive explanation? If it turns out every decision ever handed down is necessarily prescriptive then they are ruling on a law and creating a law at the same time. Can you show me how this can be avoided?
Tut
Yes tut I think we all understand the theory but the practicalities are very different in different places. In some places the executive keeps it's nose out of the legistlature and in some places the judiciary keeps its nose out of the legislature and in some places the legislature does what it supposed to do which oddly enough is to look after the citizens. However it seems the citizens have a different opinion to the legislature and appeal to the judiciary instead of doing what they are supposed to do which is use the ballot boxQuote:
Originally Posted by TUT317
Yes ;just overturn it and send it back to Congress. There is no need at all ;nor is it desirable for SCOTUS to give a prescriptive . All they need to do is give their opinion as to why it is unconstitutional .Quote:
Can you show me how this can be avoided?
I keep on bringing this up . People don't realize the huge power grab that SCOTUS did early in the nation's history in the Marbury v Madison decision. Perhaps Scalia doesn't want to revisit that or other cases like Wickard ;but these have all been part of the erosion of constitutional law.Quote:
however it seems the citizens have a different opinion to the legislature and appeal to the judiciary instead of doing what they are supposed to do which is use the ballot box
Tut is correct in saying that SCOTUS essentially makes law .They make it because no one has challenged their decisions . That makes them a more powerful branch than was intended in the co-equal framework.
You are also correct in that the people's house by design should be making the law ,and more often than not there is a presumption of constitutionality (that is what the Obots are clinging to ) . But there is a tyranny of the majority that the founders were very fearful of . That is why the laws have to pass constitutional muster.
What the combined branches of the government have done is to chip away at that foundation (more accelerated in the last century) . SCOTUS more often than not looks at the case history than the document to a point that one can't use the document as the logical framework for the decision.
Fine then... if that's the way to govern in the 21st century then why the pretense of government by constitution ? Let the people in power ,the party in power have carte blanc control... the road to serfdom and tyranny realized..
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