[tomder55]

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 .

[talaniman]

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.

[tomder55]

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

[paraclete]

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 .

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 centry

[TUT317]

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 .

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

[tomder55]

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.

[TUT317]

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 rediculous. 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,

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

[excon]

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

[tomder55]

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.

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 .

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?

As I said before It is not possible to make a ruling and believe you have not created a law.

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.
Where the court excedes it's authority is when they impose a solution.

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.

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.

[tomder55]

Hello again, tom:

How dya rule on a law that you're NOT gonna read?? Scalia said he ain't gonna, and he chuckled about it...

Scalia: You Expect Us to Read 2,700 Pages? | Conservative Byte

excon

And Congress didn't when they passed it ;and the President didn't when he signed it .
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 .

[TUT317]

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 .


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.
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.

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

[talaniman]

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.

[paraclete]

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 whats the point of government?

We are UNITED states, not Divided states, in theory at least. Thats 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 coup

[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.

[paraclete]

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

[tomder55]

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.

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 ).

[tomder55]

One way we overcame this was to have the states cede certain rights in exchange for funding.

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 .

[TUT317]

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 ).

Hi Tom,

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

[paraclete]

Hi Tom,


I understand THE THEORY.

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 box

[tomder55]

Can you show me how this can be avoided?

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 .

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

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.
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..