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I guess this would be a question for an attorney. Do we have any?
You're missing the point. We're not looking of technical legal determination. That's what the Supreme Court is for. We're trying to understand the political philosophy of modern liberals. What is your opinion? How should the Constitution's limits on federal power be interpreted?
No, I get your point. You're trying to trick us into saying something to give you an AHA! moment.
Allow me to be more specific. Good, bad, or indifferent, the SCOTT'S is tasked with interpreting the Constitution. My opinion has no bearing on their actions whatsoever.
That said, hasn't the SCOTUS repeatedly affirmed a presidents right to issue Executive Orders?
Congress is tasked to do what needs to be done
The voters will decide if they are doing it correctly
Actually, you are wrong.
It is the TeaTards and Libertarians who are unfamiliar with the Constitution and the role our legal system and resulting case law play in its execution
Burying yourself in an 18th century mindset is not the answer
Really? Are you seriously trying to tell me that liberals are more familiar with the Constitution than the right?
I will tell you that neither the left or the right are particularly knowledgeable about the Constitution. They both have preconceived, and often erroneous notions that come mainly from extremist blogs and websites on one end or the other.
If you really want to learn about the Constitution, take a course in Constitutional Law. After you have read and been tested on a few hundred cases, you will begin the get a picture of what Con Law is. Never rely on partisan sources.
It is one thing, of course, to claim that in seeking agreement the Framers used language that was open-textured and another that they themselves did not think their intentions should play a significant role in the interpretive process. It is tempting, in fact, to think that at precisely those points where the texts meaning is open to doubt, we ought to turn to what they originally had in mind.
It is, therefore, a matter of some significance that the Framers decided on the last day of the Convention (September 17, 1787) not to publish any record of their deliberations. They decided instead to entrust all papers to Convention President George Washington. Throughout the summer too there was a strict code of secrecy, a "gag" rule on all those in attendance. No one was to mention a word about the proceedings to anyone outside the Convention. If we expect arguments about Framers' intent to bring the meaning of the Constitution more explicitly to light, the Framers themselves were certainly quite resourceful in making it very difficult, if not impossible, for us to recover their intentions. James Madison, who kept the most extensive notes during the course of the Convention, also refused to publish his journal until after his death
or, at least, . . . till the Constitution should be well settled by practice, and till a knowledge of the controversial part of the proceedings of its framers could be turned to no improper account . . . . As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character.
Here from one of the authors of the Constitution we have direct evidence that the Framers themselves tried to block access to their deliberations in part because they did not wish their original intent to play an "authoritative" role in subsequent efforts to interpret the meaning of the text.
It could not have been clearer to Madison that whatever understanding members of the Philadelphia Convention shared about this or that passage of the Constitution, that understanding "could never be regarded as [a] . . .guide" in an effort to make sense of it. The original intent of the Framers ought not to engage us because the document they drafted was, quite frankly, not theirs. If intentions are to count for something, they must be the intentions of the people who approved it, not the intentions of those who proposed it.
This conclusion has real consequences for arguments about original intent. If there are problems with an attempt to recover the intentions of small group of authors, meeting together in the summer of 1787, those problems are now compounded by the practical difficulties of trying to figure out what went through the minds of the representatives who attended the various state conventions. These problems aside, however, it is necessary to note that, having shifted attention away from the understanding of the document shared by those in Philadelphia to the understanding of those who eventually adopted it, Madison did not let the matter rest. He went on to stress that the meaning of the Constitution was determined by an interpretive process that continued long after the Philadelphia and State Conventions had closed their doors.
In October 1986, Attorney General Edwin Meese spoke at Tulane University, where he made a distinction between the Constitution and Constitutional law. To distinguish them is necessary, he argued; to confuse them is to court anarchy. "The Constitution," he opined, "is - to put it simply but, one hopes, not too simplistically - the Constitution . . . Constitutional law, on the other hand, is that body of law which has resulted from the Supreme Court's adjudications. The point of Meese's distinction, as Gerald Frug of Harvard Law School has pointed out, "is that only the Constitution, not the decision of the Court, is the Supreme Law of the land." Meese's view of the Constitution betrays a resemblance to Reagan's somewhat simplistic and wistful view of the Bible. Both seem to think that these texts merely need to be read to be understood without interpretation.
But by insisting upon a distinction between the Constitution and Constitutional law, the Attorney General offered an opinion that is impossible to sustain not because of any failure in our powers of refinement but because the Constitution is to be found in constitutional law. This is less a confusion than the nature of the enterprise. To confuse the Constitution with Constitutional law, we would have to be able to identify its meaning apart from the history of its interpretations, including the constructions placed upon it by the people through their state conventions. But this cannot be done, and it cannot, not only because the drafters of the Constitution took steps to block efforts to recover their original intent, but because they expected the meaning of key clauses only to be settled by future "authoritative decisions" and "judicial determinations."
"Original Intent or How Does the Constitution Mean?" by Andreas Teuber
Congress is tasked to do what needs to be done
The voters will decide if they are doing it correctly
Incorrect on the first point.
Correct on the second.
Honestly, is there ANYTHING that Congress might consider a "good idea" that Congress would be prevented from doing by the Constitution?
In other words, does the Constitution place any constraints at all on Congress?
If so, how are those constraints defined? Be specific.
I would like a general answer, but for example, Would Congress be permitted by the Constitution to implement "single payer," mandatory, universal health insurance? Why or why not?
Honestly.
(1) If you are tempted to cite the "general welfare" wording of Article 1, Section 8, you really need to do some research. It has long been SETTLED CONSTITUTIONAL LAW that this wording has no independent significance, and is DEFINED by the powers listed. Honestly, don't waste anyone's time with that "argument." It was stupid in the first place and remains dead as the proverbial doornail (whatever that is).
(2) The President's right to issue Executive Orders is implicit in Article II. The President executes the laws of the United States. He runs the "Departments" of the Federal government. It is entirely appropriate for him to elucidate and formalize how he intends to do his job. But he is constrained by the LAWS and the CONSTITUTION, not to do anything that has been reserved to Congress, the Courts, or the States, or the People. For example, the President cannot Constitutionally issue an Executive Order that changes the top marginal personal income tax rates, even though he is the titular head of the Revenue Department and the IRS. That power is reserved to Congress.
(3) The Constitution is not long or complicated. Most of the contributors were not lawyers. It is (and should be) possible for any literate English-speaking human to read it and to understand basically what it means.
(4) Section 8 of Article I of the Constitution defines the powers of Congress. It is logical to assume that since the Founders defined the powers in such detail, there was a REASON for that level of detail. In other words, the did not simply say, "Congress shall have the power to provide for the General Welfare of the United States in whatever ways it deems appropriate."
(5) To any logical reader, the Tenth Amendment clarifies the point that the Congress (and the Federal Government) were to have well-defined, and limited powers, with all other governmental powers reserved to the states. Not my words, their words.
(6) Ever since the FDR Administration, the President, the Congress, and the Courts, driven forward by "Progressives" in all three branches, have sought to expand the powers of Congress to levels never imagined prior to, say, 1932. This has been done by "interpreting" the Constitution to mean things that the people who wrote it never intended. Indeed, people who seek to interpret the Constitution according to what the writers intended are MOCKED, as being out of touch. But recall that Grover Cleveland once vetoed a bill providing a hundred thousand dollars in drought relief to farmers, because the Constitution prohibited it. And he took his oath of office seriously. Imagine that.
(7) So my question is, do Liberals/Progressives still acknowledge any constraints on what Congress can do? Or is the Tenth Amendment "dead letter law," and Congress can do anything it believes is "good" for the country?
Inquiring minds want to know?
(1) If you are tempted to cite the "general welfare" wording of Article 1, Section 8, you really need to do some research. It has long been SETTLED CONSTITUTIONAL LAW that this wording has no independent significance, and is DEFINED by the powers listed. Honestly, don't waste anyone's time with that "argument." It was stupid in the first place and remains dead as the proverbial doornail (whatever that is).
***
Inquiring minds want to know?
The Constitution is what the Court say it is.
Justice Hughes.
The Constitution is what the Court say it is.
Justice Hughes.
The judge was correct.
(1) If you are tempted to cite the "general welfare" wording of Article 1, Section 8, you really need to do some research. It has long been SETTLED CONSTITUTIONAL LAW that this wording has no independent significance, and is DEFINED by the powers listed. Honestly, don't waste anyone's time with that "argument." It was stupid in the first place and remains dead as the proverbial doornail (whatever that is).
***
Inquiring minds want to know?
Your narrow interpretation of the Welfare clause, 1st Embraced by Madison himself, has been explicitly rejected by the Court in South Dakota Vs. Dole, 483 U.S.203 (1987)
FindLaw | Cases and Codes
General Welfare clause - Wikipedia, the free encyclopedia
If it meant only what you say it means the words would have been totally superfluous.
(1) If you are tempted to cite the "general welfare" wording of Article 1, Section 8, you really need to do some research. It has long been SETTLED CONSTITUTIONAL LAW that this wording has no independent significance, and is DEFINED by the powers listed. Honestly, don't waste anyone's time with that "argument." It was stupid in the first place and remains dead as the proverbial doornail (whatever that is).
***
Inquiring minds want to know?
Your narrow interpretation of the Welfare clause, 1st Embraced by Madison himself, has been explicitly rejected by the Court in South Dakota Vs. Dole, 483 U.S.203 (1987)
FindLaw | Cases and Codes
General Welfare clause - Wikipedia, the free encyclopedia
If it meant only what you say it means the words would have been totally superfluous.
Federalist 41 was always the clincher for me. Madison, the primary author of the Constitution, flat out mocks the idea that anyone would interpret the taxation power as a broad general power. It was misinterpreted deliberately by Courts that sympathized with Hamilton's ambitions for authoritarian power.
Your narrow interpretation of the Welfare clause, 1st Embraced by Madison himself, has been explicitly rejected by the Court in South Dakota Vs. Dole, 483 U.S.203 (1987)
FindLaw | Cases and Codes
General Welfare clause - Wikipedia, the free encyclopedia
If it meant only what you say it means the words would have been totally superfluous.
Federalist 41 was always the clincher for me. Madison, the primary author of the Constitution, flat out mocks the idea that anyone would interpret the taxation power as a broad general power. It was misinterpreted deliberately by Courts that sympathized with Hamilton's ambitions for authoritarian power.
To quote you, "So what." Madison is s hero of mine, and the author of the Bill of Rights, but he is hardly the last word in interpreting the words of the United States Constitution. He could mock all he wants, but why are the words there if they mean nothing?
The point isn't to cite Court opinions, but to find some agreement on general principles that make it possible to predict how much power government will have. That's the whole point of having a constitution in the first place, to make consent of the government something besides a blank check.
But the above case is at least as start. First of all, do you agree with the Court's decision in US vs MORRISON? It was a 5-4 ruling. Would you have supported it if it had gone the other way? And most importantly, why or why not? How far do you think the commerce clause should be stretched to justify federal power? How about the general welfare clause? What limiting principles should apply to the interpretation of these clauses as broad general powers?
We already have general principles that we agree with.
What are those?
Who is calling for 'broadness'? What does that mean?
I don't think that this is malicious. I think that this is simply a matter of the inability to articulate what is already in existence and what you want to achieve.
Do I think that Morrison was decided rightly? In part. Does it qualify under the commerce clause? Yes. Do we have precedent? We do.
So, you disagree with the example you originally cited as an example of how the commerce clause is limited. How should it be limited, in your view?
It is in the remedies. Are they inadequate? Yes. Were there states involved in the creation of this law to address the inadequacies in state laws? Yes, there were.
Now, explain to me how it is that a state or your state has addressed or will address those inadequacies? Along with rights come responsibilities. When the states refuse to act or to use the rights that they have then this in turn fosters a desire and need to find a solution at the federal level.
So?
We already have general principles that we agree with.
What are those?
Who is calling for 'broadness'? What does that mean?
So, you disagree with the example you originally cited as an example of how the commerce clause is limited. How should it be limited, in your view?
So?It is in the remedies. Are they inadequate? Yes. Were there states involved in the creation of this law to address the inadequacies in state laws? Yes, there were.
Now, explain to me how it is that a state or your state has addressed or will address those inadequacies? Along with rights come responsibilities. When the states refuse to act or to use the rights that they have then this in turn fosters a desire and need to find a solution at the federal level.
I don't have time to address this fully right now. I'll be back later to finish.
I already stated that I agree in part. I am not a Rehnquist fan. The case can be made that it impacts economic activity that crosses the state lines and that what is in place is inadequate. He pretends it does not exist. The problem is that it does and has been proven.
Yet, as inadequate as the solutions are, they are still in place. Criminal justice is, by and large, left to the states. This I agree with. The solutions (in this instance) are to be found in the states.
And.......so what? So, you will find that the disagreement is not a liberal/right wing issue. It's a get off your ass and take care of business issue.
If we did not have principals that we agreed upon then the right would not have taken the fight over the ACA to the SC. It isn't necessary to reinvent the wheel.
Just as a heads up........the Bill of Rights stems from the anti-federalists. Madison was opposed to it.
