[excon]

The answer to preventing insurance companies from dumping people is to reward them by forcing people to buy their services ?

Hello again, tom:

How else are they going to pay the claims if they can't dump people?

excon

[TUT317]

Tut , the commerce clause says that[ Congress has the power ] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;

So tell me how in hell that gives them the power to do what they did to Filburn ,or to mandate the purchase of goods or services that an individual doesn't want ? You have to have a very creative imagination to divine that from the penumbras and eminations of the clear written word. I also backed that up with many references to the clause in the Federalist papers ,written by the key founders at the Constitutional Convention.

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

[tomder55]

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.

[tomder55]

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 .

[TUT317]

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.

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

[tomder55]

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 .

[TUT317]

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 .

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

[talaniman]

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

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.

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 .

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.

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.

[excon]

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 .

Hello again, tom:

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

[talaniman]

Hello again, tom:

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!

Point of fact, all poor, old, and disadvataged are not democrats, or ARE THEY??

Hmm better check on that!

[TUT317]

.

So despite your rhetoric, and spin, the legal process played itself out, its 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.

Hi Tal,

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

[paraclete]

So just for some of us who might be confused what did the court decide?

[excon]

So just for some of us who might be confused what did the court decide?

Hello clete:

They didn't yet. Said they would in June.

excon

[paraclete]

Hello clete:

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?

[talaniman]

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!

[paraclete]

1400 channels and nothing on

[talaniman]

There is plenty on and 80% of the people have better things to do than watch the political wonks all day.

[paraclete]

Yes like hang out here

[tomder55]

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 .

[paraclete]

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