Oklahoma Tea Party/GOP Seek to Form Militia

[Gushawk]

...to "help defend against improper federal infringements on state sovereignty."

Another lawmaker, state Rep. Charles Key, R-Oklahoma City, said he believes there's a good chance of introducing legislation for a state-authorized militia next year.

Tea party leader J.W. Berry of the Tulsa-based OKforTea began soliciting interest in a state militia through his newsletter under the subject "Buy more guns, more bullets."

"It's not a far-right crazy plan or anything like that," Berry said. "This would be done with the full cooperation of the state Legislature."

Sounds like a fantastic(al) idea.

http://news.yahoo.com/s/ap/20100412/ap_on_re_us/us_tea_party_militia

[Rolo Tomassi]

This article notwithstanding, do you believe the federal government has improperly impinged on state sovereignty?

[IchBinKalt]

National Guard?

[lilzaphod]

...to "help defend against improper federal infringements on state sovereignty."

Another lawmaker, state Rep. Charles Key, R-Oklahoma City, said he believes there's a good chance of introducing legislation for a state-authorized militia next year.

Tea party leader J.W. Berry of the Tulsa-based OKforTea began soliciting interest in a state militia through his newsletter under the subject "Buy more guns, more bullets."

"It's not a far-right crazy plan or anything like that," Berry said. "This would be done with the full cooperation of the state Legislature."

Sounds like a fantastic(al) idea.

http://news.yahoo.com/s/ap/20100412/ap_on_re_us/us_tea_party_militia

Oklahoma already has a militia.
http://www.ok.ngb.army.mil/

Idiots.

And no, Rolo, I'm not disregarding what you've said. But this isn't a year old issue like the bagger act like. This has been debated back and forth since 1862.

The same people who clamored on for years about "elections having consequences" are now trying to take their ball and go home.

[Debit One]

I'd call this thread title seriously misleading.

[Gushawk]

This article notwithstanding, do you believe the federal government has improperly impinged on state sovereignty?

Not really.

[crazed_hoosier1]

This article notwithstanding, do you believe the federal government has improperly impinged on state sovereignty?

See, that's kinda where I am on this too.

I don't want to see things like this gathering steam any more than anybody else does. Talk of secession, militias, revolution, etc. is harmless enough when it's just idle chatter. But we certainly shouldn't convince ourselves that "it'll never happen here." And if these kinds of thoughts spread far enough, it could cease being idle chatter right quick.

And while one part of me wants to say to the people who talk and think like this to cool their jets and think hard about what they're saying, another part of me completely sympathizes with what's driven them to this point.

That part of me wants to tell the people who have helped drive it to this point that they, too, should think hard about where this is coming from and what those of us who aren't interested in seeing the country come apart at the seams again can do to keep it from happening.

[funnelcake]

This article notwithstanding, do you believe the federal government has improperly impinged on state sovereignty?

See, that's kinda where I am on this too.

I don't want to see things like this gathering steam any more than anybody else does. Talk of secession, militias, revolution, etc. is harmless enough when it's just idle chatter. But we certainly shouldn't convince ourselves that "it'll never happen here." And if these kinds of thoughts spread far enough, it could cease being idle chatter right quick.

And while one part of me wants to say to the people who talk and think like this to cool their jets and think hard about what they're saying, another part of me completely sympathizes with what's driven them to this point.

That part of me wants to tell the people who have helped drive it to this point that they, too, should think hard about where this is coming from and what those of us who aren't interested in seeing the country come apart at the seams again can do to keep it from happening.

But yet are totally blindsided that there are those who could think opposite from these kooks, in their own kooky way- when the political shoe is on the other foot.

[mobyditch]

...to "help defend against improper federal infringements on state sovereignty."

Another lawmaker, state Rep. Charles Key, R-Oklahoma City, said he believes there's a good chance of introducing legislation for a state-authorized militia next year.

Tea party leader J.W. Berry of the Tulsa-based OKforTea began soliciting interest in a state militia through his newsletter under the subject "Buy more guns, more bullets."

"It's not a far-right crazy plan or anything like that," Berry said. "This would be done with the full cooperation of the state Legislature."

Sounds like a fantastic(al) idea.

http://news.yahoo.com/s/ap/20100412/ap_on_re_us/us_tea_party_militia

Oklahoma already has a militia.
http://www.ok.ngb.army.mil/

Idiots.

And no, Rolo, I'm not disregarding what you've said. But this isn't a year old issue like the bagger act like. This has been debated back and forth since 1862.

The same people who clamored on for years about "elections having consequences" are now trying to take their ball and go home.

But rolo is living in the 1860's along with many others in the GOP.

[JohnnyBootstrapsUSA#1fan]

I'd call this thread title seriously misleading.

Correct.

[JohnGault]

...to "help defend against improper federal infringements on state sovereignty."



Sounds like a fantastic(al) idea.

http://news.yahoo.com/s/ap/20100412/ap_on_re_us/us_tea_party_militia

Oklahoma already has a militia.
http://www.ok.ngb.army.mil/

Idiots.

And no, Rolo, I'm not disregarding what you've said. But this isn't a year old issue like the bagger act like. This has been debated back and forth since 1862.

The same people who clamored on for years about "elections having consequences" are now trying to take their ball and go home.

But rolo is living in the 1860's along with many others in the GOP.

As the left believes in slavery, so are you.

[crazed_hoosier1]

The same people who clamored on for years about "elections having consequences" are now trying to take their ball and go home.

Elections still do have consequences.

The thing is: those consequences aren't ever supposed to supersede the Constitution. And if in fact things to do get to the point where we can officially call it civil strife, I would say that its seeds were first sown when judicial activism became the accepted norm in the New Deal era.

[Mr. Hawk]

I'd call this thread title seriously misleading.

I'd call this thread title seriously misleading.

Correct.
pwned.

[crazed_hoosier1]

But yet are totally blindsided that there are those who could think opposite from these kooks, in their own kooky way- when the political shoe is on the other foot.

Except that I don't think what's going on here is simply the result of which foot the political shoe is on.

I'm still not sure that people have fully grasped the gravity of the fiscal abyss that we're heading into and what kind of broader, social repercussions it could well touch off.

Those who think that this whole Tea Party thing is nothing more than routine political sour grapes (or just a racist kneejerk) are wrong and would do well to take a few steps back and look at the bigger picture.

[Gushawk]

The same people who clamored on for years about "elections having consequences" are now trying to take their ball and go home.

Elections still do have consequences.

The thing is: those consequences aren't ever supposed to supersede the Constitution. And if in fact things to do get to the point where we can officially call it civil strife, I would say that its seeds were first sown when judicial activism became the accepted norm in the New Deal era.

I'm struggling to ascertain what electoral consequences we've seen in past 18 months that "supersede the Constitution." The Constitution is a brief document that in many cases provides extremely vague guidance. The notion that the health care bill so clearly violates it as to justify armed insurrection borders on comical.

There are judicial decisions that clearly create powers and rights that the Constitution doesn't provide, but they typically don't involve the sorts of economic legislation you're citing as a basis for rebellion.

The Consitution is in many respects a gray document, and people are seeking to pretend it's uniformly black to justify throwing a temper tantrum. I harkens back to John C. Calhoun and nullification.

[Sambud]

Actually I think Gus summarized rather well what was in this article with his thread starter.

[xr4ticlone]

I'm just going to keep saying the following.

"That could never happen" = "I'm not paying attention".

It won't take a whole lot to get that ball rolling down here in Texas as well...or several other states.

[crazed_hoosier1]

The same people who clamored on for years about "elections having consequences" are now trying to take their ball and go home.

Elections still do have consequences.

The thing is: those consequences aren't ever supposed to supersede the Constitution. And if in fact things to do get to the point where we can officially call it civil strife, I would say that its seeds were first sown when judicial activism became the accepted norm in the New Deal era.

I'm struggling to ascertain what electoral consequences we've seen in past 18 months that "supersede the Constitution." The Constitution is a brief document that in many cases provides extremely vague guidance. The notion that the health care bill so clearly violates it as to justify armed insurrection borders on comical.

There are judicial decisions that clearly create powers and rights that the Constitution doesn't provide, but they typically don't involve the sorts of economic legislation you're citing as a basis for rebellion.

The Consitution is in many respects a gray document, and people are seeking to pretend it's uniformly black to justify throwing a temper tantrum. I harkens back to John C. Calhoun and nullification.

What makes you think I'm talking about the past 18 months, Gus? You should know by now that I take a very wide view on all these things.

Do you also think that WWI happened because Franz Ferdinand was assassinated?

The last time we had a civil war, it didn't officially begin until 1861. The seeds which spawned it, though, were sown in 1787.

It was only a matter of time before the tendentious blessing of slavery, gingerly written into the Constitution to ensure ratification, would lead to a trainwreck with the collision of federalism, industrialization, and cultural enlightenment.

A whole lot of what happens today, Gus, is only possible because of earlier bastardizations of the Constitution -- most of which happened before the majority of sitting Supreme Court justices were born. You know it and I know it. In fact, you've admitted it and said you favor it because the courts' deviations have, in your view, mostly been improvements.

I understand why somebody could think that way. But I think it's an incredibly short-sighted perspective.

Because any binding covenant which is amended by interpretive fiat -- regardless how pragmatic -- rather than by formal ratification is destined for wholesale irrelevancy. It is just another form of "taxation without representation".

And just because the ramifications of these transgressions may not be evident until long after the fact doesn't exculpate them.

[crazed_hoosier1]

The same people who clamored on for years about "elections having consequences" are now trying to take their ball and go home.

Elections still do have consequences.

The thing is: those consequences aren't ever supposed to supersede the Constitution. And if in fact things to do get to the point where we can officially call it civil strife, I would say that its seeds were first sown when judicial activism became the accepted norm in the New Deal era.

I'm struggling to ascertain what electoral consequences we've seen in past 18 months that "supersede the Constitution." The Constitution is a brief document that in many cases provides extremely vague guidance. The notion that the health care bill so clearly violates it as to justify armed insurrection borders on comical.

There are judicial decisions that clearly create powers and rights that the Constitution doesn't provide, but they typically don't involve the sorts of economic legislation you're citing as a basis for rebellion.

The Consitution is in many respects a gray document, and people are seeking to pretend it's uniformly black to justify throwing a temper tantrum. I harkens back to John C. Calhoun and nullification.

I should also point out that I don't think the healthcare mandate, on its own, is what's fueling all this. It's more accurate to look at it as one of the latest straws on the camel's bending back, one that only promises to feel heavier once we start getting serious about tax reality.

Also, Gus, responding more specifically to the following statements:

The Constitution is a brief document that in many cases provides extremely vague guidance. The notion that the health care bill so clearly violates it...borders on comical.

There are judicial decisions that clearly create powers and rights that the Constitution doesn't provide, but they typically don't involve the sorts of economic legislation you're citing as a basis for rebellion.

Out of curiosity, how much do you know about the conflicts between the Hughes court and the Roosevelt Administration in the early days of the New Deal?

I think many people know that Roosevelt tried and failed to expand the number of justices on the court. And I also think many people know that, while that effort failed, FDR still got the "switch in time that saved nine."

But rarely anymore do you hear people discussing the specific Constitutional issues which underlied that duel.

And your statement is a glaring example of just how forgotten this critical period in American jurisprudence is. Here you are, a law school graduate and member of the bar, saying that most of the extraneous tinkering that the courts have on the Constitution "typically don't involve...economic legislation."

Nothing could be further from the truth. In fact, I'd argue that the bulk of the legislating that Congress does regarding fiscal policy these days is only possible because of the Constitutional distortions which resulted from the New Deal era contretemps.

And, yes, that includes the healthcare mandate. But it goes way, way beyond that.

[RobertIngersoll]

I'm just going to keep saying the following.

"That could never happen" = "I'm not paying attention".

It won't take a whole lot to get that ball rolling down here in Texas as well...or several other states.

I'm sure you believe that based on conversations with Texans. But I lived in Texas a long time, and I'm familiar with those same people. And the Texas idiom that comes to mind when I converse with those kinds of folks is "all hat and no cattle..."

[drbutkus]

The same people who clamored on for years about "elections having consequences" are now trying to take their ball and go home.

Elections still do have consequences.

The thing is: those consequences aren't ever supposed to supersede the Constitution. And if in fact things to do get to the point where we can officially call it civil strife, I would say that its seeds were first sown when judicial activism became the accepted norm in the New Deal era.

I'm struggling to ascertain what electoral consequences we've seen in past 18 months that "supersede the Constitution." The Constitution is a brief document that in many cases provides extremely vague guidance. The notion that the health care bill so clearly violates it as to justify armed insurrection borders on comical.

There are judicial decisions that clearly create powers and rights that the Constitution doesn't provide, but they typically don't involve the sorts of economic legislation you're citing as a basis for rebellion.

The Consitution is in many respects a gray document, and people are seeking to pretend it's uniformly black to justify throwing a temper tantrum. I harkens back to John C. Calhoun and nullification.


Spoken like the true, middle of the road, open minded and intellectually nimble progressive that you are. Of course, in your world view, political thought is a leftward turning ratchet only, and after considerable contemplation, you will vote democrat always.

Unhinged as he is, Glen Beck is occasionally educational and often entertaining. His series on the nature of true progressives was bit bellicose and a bit over the top. But he would look at your post and say: this is precisely how these people think. The Constitution, to them and you, is only a sketched out starting point. Truly intelligent thinkers, such as yourself and Obama, can find rights that were "left out" by the founders, or at least, interpret it in a manner more appropriate for our times.

No assault on our Constitution? How about declaring health care to be universal right to be guaranteed and delivered by the government, and laying penalties on people simply because they breathe?

How about the EPA, through regulatory fiat, dramatically altering interstate commerce and creating inspection agencies with extraordinary powers never legislatively endowed?

[RobertIngersoll]

I'd call this thread title seriously misleading.

I don't see how.

[crazed_hoosier1]

No assault on our Constitution? How about declaring health care to be universal right to be guaranteed and delivered by the government, and laying penalties on people simply because they breathe?

How about the EPA, through regulatory fiat, dramatically altering interstate commerce and creating inspection agencies with extraordinary powers never legislatively endowed?

I would venture to guess that more than 50 cents of every dollar Congress allocates today is towards an end that, for most of our nation's history, would've been (correctly) considered beyond Congress' rightful purview and authority.

And it's not as if we amended the Constitution to expand Congress' powers in this regard. We could've done that anytime we wanted -- still could. The reason we didn't is because those amendments would never be ratified. So, instead, we just got a de facto amendment by way of interpretive fiat.

There's no denying this. And I've had some terrific conversations with honest liberals who not only don't deny it, but passionately defend it.

Even to the extent their defense carries any practical merit, I'm not sure they realize the long-term dangers inherent in such an enterprise.

Also, Gus seems to suggest that I believe these Constitutional perversions warrant social upheaval. I shouldn't even have to point out that I do not at all think that. I do largely blame the misguided abrogations for stoking these passions -- which I expect to only grow hotter.

But I've been unfailingly critical of rhetoric like Texas Governor Perry's paeans toward secession, etc. etc.

[OlePeep]

Credit where due: Crazed has hit titanic shots in this thread. Tip o' the cap, sir.


any binding covenant which is amended by interpretive fiat -- regardless how pragmatic -- rather than by formal ratification is destined for wholesale irrelevancy.


Tasty stuff, there.

[crazed_hoosier1]

Credit where due: Crazed has hit titanic shots in this thread. Tip o' the cap, sir.


any binding covenant which is amended by interpretive fiat -- regardless how pragmatic -- rather than by formal ratification is destined for wholesale irrelevancy.


Tasty stuff, there.

Thanks. It just so happens that this is a general bugbear of mine that is impacting me in a different way right now. So I'm probably even more charged than normal.

We negotiate our CBA with the IBEW local every 3 years. The last contract went into effect in May 2009 and it is the closest thing we have to a "Constitution". It's amazing how contentious arguments can get over the choice of a single word. As such, you'd think it would be held by all as gospel -- and it is, depending on the circumstance.

A couple weeks ago, the local's BA (who is up for reelection this year) sent a letter to all 950 members saying that it is understood and consistent with precedent that everybody is entitled to two 15-minute on-the-clock breaks every day for safety reasons.

In other words, he just made it clear to everybody that they only have to work 7.5 hours a day for 8 hours of pay.

But nowhere can this be found in the current contract or any earlier contracts. He knows it and anybody familiar with the contract knows it. It's just "understood" and "established by precedent".

Now, this is such an egregious misrepresentation that there's virtually no way it would survive scrutiny. And I'm pretty sure he's only doing this for his own political reasons.

Still, if this were allowed to stand, it would beg the obvious question: what good is a contract if it's only relied on when it favors somebody's preferred outcome but disregarded when it doesn't?

We're fortunate to have an avenue whereby to compel him to abide the contract.

But the interpretations of the Supreme Court aren't subject to any further scrutiny -- except, perhaps, by future Supreme Courts (and even that is coming under assault with the phony pablum about stare decisis in Senate confirmation hearings).

When they began venturing outside the bounds of Constitutional edict, I think they may well have sowed the seeds of our nation's demise.

[Gushawk]

In fact, I'd argue that the bulk of the legislating that Congress does regarding fiscal policy these days is only possible because of the Constitutional distortions which resulted from the New Deal era contretemps.

And, yes, that includes the healthcare mandate. But it goes way, way beyond that.

But the "Constitutional distortions" you refer to are largely, if not exclusively, merely interpretations of Constitutional provisions with (perhaps intentionally) vague and ambiguous language and meaning in a manner that conflicted with prior interpretations and with which you personally disagree.

They much more resemble cases concerning the meaning of "cruel and unusual" punishment, than a case like Roe which essentially added to, rather interpreted, Constitutional provisions.

You may take the position that the Framers "never intended" for the commerce clause or the taxing power to be read as expansively as they have been, but the Framers had the choice to be more specific in their language and they weren't, I'd argue in most cases for a reason.

[pjhawk]

Credit where due: Crazed has hit titanic shots in this thread. Tip o' the cap, sir.


any binding covenant which is amended by interpretive fiat -- regardless how pragmatic -- rather than by formal ratification is destined for wholesale irrelevancy.


Tasty stuff, there.

Actually, Crazed is only showing what a titanic asshole and sack of shit he is.

Complete with the usual "not that I support this type of......but I understand where it's coming from......." bullshit.

Wingnuts are being utterly predictable here--Crazed was part of the crew telling all the libtards that mere criticism of the Bush administration was enabling and helping our foreign enemies. People like me were labeled as at the least borderline treasonous here and elsewhere on that basis.

Now Crazed is saying he "understands" actual armed rebellion against the legitimately elected US government from within to "save" the Constitution. And of course they must destroy the constitution and go outside of its provisions per legitimate government to "save it".

You want to talk "sore loserman" and traitors? What's especially funny is that these nuts want to claim that the tipping point was apparently the health care bill. Crazed tries to stretch it back to the New Deal blah blah blah but anyone following along on these boards all these years know that Crazed is the first one to talk about "elections having consequences" as long as his guys are winning.

Crazed (and the Oklahoma tea party nuts etc etc etc) is showing he's actually a fascist--he only supports the government and constitution and our democracy when he gets the election results he wants. Otherwise it's time to grab a gun.

[pjhawk]

In fact, I'd argue that the bulk of the legislating that Congress does regarding fiscal policy these days is only possible because of the Constitutional distortions which resulted from the New Deal era contretemps.

And, yes, that includes the healthcare mandate. But it goes way, way beyond that.

But the "Constitutional distortions" you refer to are largely, if not exclusively, merely interpretations of Constitutional provisions with (perhaps intentionally) vague and ambiguous language and meaning in a manner that conflicted with prior interpretations and with which you personally disagree.

They much more resemble cases concerning the meaning of "cruel and unusual" punishment, than a case like Roe which essentially added to, rather interpreted, Constitutional provisions.

You may take the position that the Framers "never intended" for the commerce clause or the taxing power to be read as expansively as they have been, but the Framers had the choice to be more specific in their language and they weren't, I'd argue in most cases for a reason.

But..but...but......

The constitution was bestowed on us from on high like the ten commandments.

No freaking way it was an amalgam and often very vague document that was a product of the political process and compromise and "I'll fight that fight later" thinking.

Nope, the constitution can only be "interpreted" accurately for its one true meaning by a small sect of people aligned with the perceived "rightwing" in this country. And if it's not interpreted "accurately" by the powers that be, it's time for armed revolution.

[Mr. Hawk]

I think pj might crack before Sal.

[pjhawk]

I think pj might crack before Sal.

This thread is actually perfect for this comment. Thanks.

Yeah, I'm the notable nut case person or idea in this thread.

Perfect.

[Mr. Hawk]

Yeah, I'm the notable nut case person or idea in this thread.No, not just in this thread.

[OlePeep]

Credit where due: Crazed has hit titanic shots in this thread. Tip o' the cap, sir.


any binding covenant which is amended by interpretive fiat -- regardless how pragmatic -- rather than by formal ratification is destined for wholesale irrelevancy.


Tasty stuff, there.

Actually, Crazed is only showing what a titanic asshole and sack of shit he is.


Oh. Sorry.

[crazed_hoosier1]

But the "Constitutional distortions" you refer to are largely, if not exclusively, merely interpretations of Constitutional provisions with (perhaps intentionally) vague and ambiguous language and meaning in a manner that conflicted with prior interpretations and with which you personally disagree.

They much more resemble cases concerning the meaning of "cruel and unusual" punishment, than a case like Roe which essentially added to, rather interpreted, Constitutional provisions.

You may take the position that the Framers "never intended" for the commerce clause or the taxing power to be read as expansively as they have been, but the Framers had the choice to be more specific in their language and they weren't, I'd argue in most cases for a reason.

Well, of course I'd take the position that the framers never intended the commerce clause to be interpreted as it has. I wouldn't even consider it a mere opinion that's no more or less valid than some competing opinion.

Even the pro New Deal justices understood that they were deviating sharply from the commonly understood meaning of the ICC and other relevant language when they wrote their opinions blessing the expansion of Congressional power.

In their mind, the economic conditions of the day called for such extraordinary measures....and rather than going through the messy process of amending the Constitution to do it, they just did it by fiat.

And they didn't even make an effort to obscure that in their opinions....which is at least more honest than many of the people who are standing on their shoulders.

So, again, I think we can stop arguing about whether or not we dispensed with the meaning of the as it was ratified....or saying that it's merely one of several equally valid perspectives.

And to suggest that the framers intentionally employed language so as to enable the courts to carve out de facto amendments when and where they see fit is absurd.

It doesn't take an encyclopedic knowledge of late 18th century American-English dialect, the Federalist Papers, or any framer's journals to figure out that Congress being empowered to "regulate commerce among the several states" didn't mean what it's had to be interpreted to mean in order to allow so much of the last 80 years of Congressional action.

Moreover, the ICC isn't the only language to have been bastardized by a less-than-dispassionate judiciary. One of my favorite exchanges from this era was in the 1937 West Coast Hotel v. Parrish (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=300&invol=379) decision which upheld the state of Washington's minimum wage law.

Charles Evan Hughes, writing for the court, argued:
The importance of the question,...the close division by which the decision in the Adkins Case (ed, a 1923 decision this overturned which had found that such laws violated the liberty of contract) was reached, and the economic conditions which have supervened, and in the light of which the reasonableness of the exercise of the protective power of the state must be considered, make it not only appropriate, but we think imperative, that in deciding the present case the subject should receive fresh consideration.

In other words, because the economy was in the crapper in 1937, but hadn't been in 1923, the meaning of the Due Process clause needed to be reconsidered....and, natch, they considered it to have changed.

George Sutherland gave one of the most moving and profound dissents I've ever read. The whole thing is worth reading. But a lot of the oomph came in the following passages:
It is urged that the question involved should now receive fresh consideration, among other reasons, because of 'the economic conditions which have supervened'; but the meaning of the Constitution does not change with the ebb and flow of economic events. We frequently are told in more general words that the Constitution must be construed in the light of the present. If by that it is meant that the Constitution is made up of living words that apply to every new condition which they include, the statement is quite true.

But to say, if that be intended, that the words of the Constitution mean today what they did not mean when written -- that is, that they do not apply to a situation now to which they would have applied then -- is to rob that instrument of the essential element which continues it in force as the people have made it until they, and not their official agents, have made it otherwise.

The words of Judge Campbell in People ex rel. Twitchell v. Blodgett, 13 Mich. 127, 139, 140, apply with peculiar force.

'But it may easily happen,' he said, 'that specific provisions may, in unforeseen emergencies, turn out to have been inexpedient. This does not make these provisions any less binding. Constitutions can not be changed by events alone. They remain binding as the acts of the people in their sovereign capacity, as the framers of Government, until they are amended or abrogated by the action prescribed by the authority which created them.

It is not competent for any department of the Government to change a constitution, or declare it changed, simply because it appears ill adapted to a new state of things.

Restrictions have, it is true, been found more likely than grants to be unsuited to unforeseen circumstances. But, where evils arise from the application of such regulations, their force cannot be denied or evaded; and the remedy consists in repeal or amendment, and not in false construction.'

This is but one example -- it's not hard to find more like it.

It's beyond question that the courts have often seen fit to completely disregard the intended meaning of ratified language when they've felt they could induce a better outcome by so doing.

And I think it's also beyond question that the most profoundly significant and impactful of these "false constructions" have been in areas dealing with Congressional powers, rights of due process, etc. and now serve as the constitutional foundation upon which so much of what goes on today in the form of fiscal policy.

If you want to defend it, then defend it. But (a) don't piss on me and tell me it's raining, and (b) don't shoot me, as the messenger, for simply pointing out that I believe it's the proper prism through which to view the kind of social unrest we're seeing.

I don't like that crap anymore than you do. I just think that the people who reengineered our society, and those who support and enable them, would do well to consider their culpability in getting things to this point.

[Gushawk]

I find it ironic that a critic of judicial activism cites a Constitutional right to "freedom of contract" as part of his argument. Speaking of penumbras and emanations, the Lochner court seemed awfully fond of them, which Justice Holmes full well recognized.

[crazed_hoosier1]

I find it ironic that a critic of judicial activism cites a Constitutional right to "freedom of contract" as part of his argument. Speaking of penumbras and emanations, the Lochner court seemed awfully fond of them, which Justice Holmes full well recognized.

....more ironic than somebody who holds that "regulate commerce among the several states" is so vague as to require broad judicial interpretation also holding that "(no State shall) deprive any person of life, liberty, or property without due process of law" is tightly constructed?

When I argue that the meaning of Constitutional language doesn't change, I'm not at all arguing that courts should have no interpretive capacity. Arguments over what exactly the phrase "due process of law" entails are as old as the Magna Carta where it originally appeared.

And it seems rather obvious that different, though similarly colorable, opinions would arise from such a broad concept....thus the always raging debate about what exactly it portends, procedural vs. substantive, etc.

And it's instances like this where judges are supposed to interpret.

To say that the phrase "regulate commerce...among the several states" is of similarly loose construction doesn't even pass the laugh test, Gus.

[Gushawk]

To say that the phrase "regulate commerce...among the several states" is of similarly loose construction doesn't even pass the laugh test, Gus.

Yes, that phrase is of grossly superior clarity in its meaning. "Regulate" and "commerce" have extremely narrow and specific meanings, and no reasonable person could conclude that they support any of the New Deal legislation and progeny.

On the other hand, reading an unfetterd "freedom of contract" into the words "no man shall be denied life, liberty or property without due process of law"? Without question, an eminently more reasonable "interpretation."

[OlePeep]

Are people arguing that the ObamaCare bill is enabled by the ICC?

[Gushawk]

Are people arguing that the ObamaCare bill is enabled by the ICC?

I think the taxing authority argument is stronger, at least with respect to the mandate provisions. There are probably other elements where the ICC argument is stronger.

[crazed_hoosier1]

To say that the phrase "regulate commerce...among the several states" is of similarly loose construction doesn't even pass the laugh test, Gus.

Yes, that phrase is of grossly superior clarity in its meaning. "Regulate" and "commerce" have extremely narrow and specific meanings, and no reasonable person could conclude that they support any of the New Deal legislation and progeny.
If they did, why did Roosevelt have to threaten to nuke the court in order to get them blessed?

So, yeah, I'd say regulating commerce among the states is pretty easy to define.

Just to show how hackneyed this has become, go find Clarence Thomas' dissent on Gonzales v. Raich -- which found that the ICC empowered Congress to supersede California's medical marijuana law.

A Californian patient could be prescribed marijuana by a Californian doctor, fill the prescription at a Californian pharmacy, who is supplied by a Californian pot farmer....and that qualifies as "commerce among the states" that Congress can regulate.

On the other hand, reading an unfetterd "freedom of contract" into the words "no man shall be denied life, liberty or property without due process of law"? Without question, an eminently more reasonable "interpretation."

Of course it is. As I said, people have been debating what's implicit in "due process of law" since the Magna Carta. What's more, the first judicial recognition of a freedom of contract came only about 30 years after ratification of the 14th amendment.

The ICC, on the other hand, survived intact for almost 150 years before it was suddenly redefined.

While I'd never say that "due process of law" is an unlimited concept, it pretty obviously demands interpretation...

...as does "regulating commerce", by the way. I've never said that it didn't.

But if the Raich decision doesn't show you just how off-track they've gotten with it, I'm not sure you're even open to argument.

[crazed_hoosier1]

Are people arguing that the ObamaCare bill is enabled by the ICC?

I think the taxing authority argument is stronger, at least with respect to the mandate provisions. There are probably other elements where the ICC argument is stronger.

Well, neither argument is actually very strong.

As I've pointed out to you before, the entire foundation for Helvering v. Davis was that the employer's involvement in SS was a tax like any other and the benefits an expenditure like any other...rather than a mandate that employers fund an insurance policy on behalf of their employees.

But it seems a lot easier to say that monies paid to the IRS for the purposes of funding Social Security are actually a tax than to say that monies paid to Aetna for the purposes of paying health insurance premiums are.

There's absolutely no precedent for this. And you've even acknowledged this, Gus. When pressed to give one, you playfully cited the mortgage interest deduction.

That ought to tell you something about how virgin this territory is.

[Gushawk]

The "tax" isn't the premium payments to the insurer, it is the payment to the government for choosing not to purchase insurance. And, yes, the government alters a person's federal tax liability for all sorts of personal choices, economic and otherwise (home ownership, marriage, etc.). I don't think this territory is as virgin as you profess it to be, semantical differences notwithstanding.

[crazed_hoosier1]

The "tax" isn't the premium payments to the insurer, it is the payment to the government for choosing not to purchase insurance. And, yes, the government alters a person's federal tax liability for all sorts of personal choices, economic and otherwise (home ownership, marriage, etc.). I don't think this territory is as virgin as you profess it to be, semantical differences notwithstanding.

Oh, I beg to differ.

You can not name for me a single thing that the federal government requires you to purchase lest you pay a tax that you wouldn't otherwise pay.

And that's precisely why you were reduced to citing the mortgage interest tax deduction as a precedent -- which, as I think you knew, isn't even remotely analogous.

What you're talking about are tax reductions the government offers so as to entice a particular economic activity -- not the imposition of taxes as a means of compelling one.

[Gushawk]

What you're talking about are tax reductions the government offers so as to entice a particular economic activity -- not the imposition of taxes as a means of compelling one.

Pure semantics. The net effect would be no different than if everyone who did purchase insurance got, say, a $1,000 federal tax deduction or credit. I don't see how you can argue that would clearly be Constitutionally permissible, while the law that actually was adopted wouldn't be. It's a distinction without a difference.