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Archive for September, 2009

I was behind a little Mazda on my way to work this morning.  When I read the license plate frame and realized the driver was probably a Seattle native.  It said:

I reject your reality and subsitute it with one of my own.

Maybe another Washington Democrat angling for a job in the Obama Administration?

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H/T To Eddie da Bear @ Innocent Bystanders.

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 I notice you did not answer Hippieprof’s question in the previous thread:

Honestly, I didn’t see it.  Please refer him to this answer so I don’t have to repeat myself.

“So – that old “general welfare” clause in Article 1 does not apply to health care? “

No, it doesn’t.  Any reasonably intelligent lawyer in my tribe can concoct a theoretical legal argument to support a conclusion that they want to reach.  It simply does not change the fact that they have to mystically ascertain something that is not there.  Even members of my tribe with lower than average intellects realize that the law is not served by this twisting and torture of the phraseology to confer a constitutional status upon a desired result, as demonstrated by this dimmer than average ‘constitutional scholar’:  (starting around 3:45)
www.youtube.com/watch?v=EFf7DU9ywQ4
(“you could craft theoretical justifications for it legally…”)
I take this as an affirmation of my point about strict constructionism being the only honest method of interpretation, because the “living document” tack takes you down the road of subjective standards employed by unelected jurists who use those standards to discover heretofore unknown and unrecognized law in the body of what were the formerly objective standards set forth in the Constitution. If you want to do something that is not constitutional, then use the existing available process to change that. Its called “Amendment”, and unlike judicial activism, which is an affront to the republican (small ‘r’) nature of our society, it allows for a majority of the society to agree with you, rather than empowering a minority to impose its will on the rest of us through judicial usurpation of legislative power.

As I have said before if you want amendments for everything not explicitly mentioned in the Constitution than we’re looking at legislative gridlock and hundreds of Constitutional amendments.

Or not.  You see, the reason for specifically enumerated powers was the belief that anything not specifically enumerated was rightfully the purview of the states.  That is the reason for Tenth Amendment.  The only exception would be the Necessary and Proper clause, which gives Congress the necessary authority to make the laws necessary to carry out its enumerated powers.  When those the powers not delegated to the Congress are properly handled at the state level, then there is no need for Amendment, but, if there is a perception that something should rightly be under the authority of the federal government, then it can be brought as an Amendment, and if enough people agree, then it can be made so. 

The Congress was not designed to be efficient.  Gridlock was to be preferred over compromise, which typically results in bad legislation.  Only a progressive, immersed and seasoned in the fallacious belief that “Something Must Be Done!!!” is preferable to debate…real debate, not what passes for it these days, deliberation, and the passage of good and necessary laws.

“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States”

What say you BiW?

What say I?  I say you aren’t reading very carefully.  This clause grants Congress the power to tax and spend, NOT the power to make laws for “the General Welfare.”

And before you try to dodge with a cry of “Semantics!”, consider carefully that the gentlemen who wrote this document were very careful with their wording.  Again, this clause means what it says.
[You might also spend some time considering why these careful and deliberate authors did not capitalize "general" with "Welfare"; no, I don't have another treatise to cite, but as a lawyer, I find it curious.]

But you do not have to take my word for it.

From Corwin and Peltason’s Understanding the Constitution, Twelfth edition, which was a seminal text for all undergraduate Constitutional Law courses:
“A word of caution: the general welfare clause is tied to the power to tax and to spend; no general power is granted to Congress to legislate for the general welfare.  But as noted in the discussion of federalism, liberal construction of congressional powers and the demands of our times have removed any serious constitutional limits stemming from this clause.
James Madison argued that Congress could tax and spend only to carry out one of its other granted powers-that is, Congress could tax and spend to establish post offices and post roads (Section 8, paragraph 7), to regulate commerce with foreign nations (Section 8, paragraph 3), and so on.”

Even if you choose to continue the modern Congressional trend of misreading this clause to find a right to legislate for the general welfare, this still wouldn’t qualify.   If you say that it is necessary for the general welfare for everyone to have “affordable” health care, the legislation contemplated doesn’t provide that, as it merely makes the government a competitor with the private sector to provide health insurance.
If you say that it is in the general welfare to provide “affordable” health insurance for everyone, it still fails to accomplish that, as even the Fresh Prez of Bill Ayers has admitted that it will still leave millions uninsured.  Further, mandating that we are all made (directly or indirectly) to pay for a “benefit” affecting something so personal is truly offensive to the very idea that we are a nation of free people who do not exist to serve our government, as application to something applying directly to the well being of individuals strikes deep into the firewall of privacy in all things personal and private to an individual, starting with the Fourth Amendment, and its penumbra that has found the right of privacy in so many other areas of our lives as well.  (Google Griswold v. Connecticut)

 “You’ll have health insurance, and even if you don’t, you’ll still pay us!” is a statement that should only illicit one response from free men who wish to remain that way: gunfire.

I don’t blame you for being wrong about this.  The modern American has heard so many times before that the Government is the solution to every problem that many of them fail to understand that if it isn’t about Government trying to rectify the result of a previous “solution”, then its solution should be no more than required.  I believe you already acknowledged that there were other things to be tried…tort reform, which would properly belong to the states, and in places where it has already been tried, like Texas, it has already made a positive impact, letting customers chose from companies out of state, etc.   You’re on the right track, you just need to finish educating yourself about which duties properly belong where.

In closing, before you expound further on the “Hamiltonian view of interpretation”,  I leave you with the following, from the Federalist # 33, written by Hamilton, who was addressing criticism of the “Necessary and Proper clause” and the “Supremacy clause”:

“But it may be again asked, Who is to judge of the NECESSITY and PROPRIETY of the laws to be passed for executing the powers of the Union? I answer, first, that this question arises as well and as fully upon the simple grant of those powers as upon the declaratory clause; and I answer, in the second place, that the national government, like every other, must judge, in the first instance, of the proper exercise of its powers, and its constituents in the last. 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. The propriety of a law, in a constitutional light, must always be determined by the nature of the powers upon which it is founded. “

The rationale that “The Government has been usurping power for years, why stop them now?”  simply won’t cut it.  When we know that Government has been doing something wrong for decades, we have a duty to correct that error, not to allow it to compound with our acquiescence.  If this wasn’t true, then slavery would still be the law of the land.  On the matter of H.R. 3200, the Congress simply does not possess the authority to do what it proposes.  It didn’t have the authority with Social Security, or with Medicare, either.  But that is no excuse to let them brew up another pot of failure, and pour a cup for the entire nation without being asked, no, demanded to tell us where they get the authority.  And when the answer is not satisfactory, then they should be told “NO.” until they finally understand that “NO” means “NO”.

———————————————————————————————————————————————————————————————————————————————-

As for the Constitution being a charter of negative liberties, I’m not quite sure where he’s coming from on that one. I’d need a bigger authority on the constitution to weigh in here but I only see the Constitution as being a charter of negative liberties by omission … hence the need for amendments that expanded liberties.

Let me help you out with this one. What the self-proclaimed ‘constitutional scholar’ is lamenting is that the Constitution was intended to preserve the people’s rights from the infringment of Government, and as such, places limitations on what Government can do, and, in the care of responsible leaders, these limitations are also a limit on Government’s ambitions and designs with regard to the rights of the people. Believing as he does in the dubious notions of “social justice” and the enormous power of a government strong enough to give life to such concepts, these limitations are completely unacceptable to him. Viewing the Constitution and its history through a glass darkly in this fashion, the only conclusion that he can arrive at is that the Constitution is “deeply flawed” and only he, in his benevolent wisdom can “fix” those flaws. Such a belief isn’t just wrong, it is hubris on a galactic level, and if he acts upon it, it will be as divisive as any issue this nation has ever faced.

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And now, its time for the first WTF? moment of the day, reported to us by the Wall Street Journal:

Policies that set the pay for tens of thousands of bank employees nationwide would require approval from the Federal Reserve as part of a far-reaching proposal to rein in risk-taking at financial institutions.

Where to start with this?  Determining the maximum limits on someone else’s earnings?  Excuse me?  These are private institutions, not governmental entities.  This smacks of class warfare at its finest, and the crass hijacking of envy at its worst. 

If this is allowed to succeed, you can expect it to spread to other private businesses as well, Comrade, because we all know that everyone but me makes too much money, and that those filthy evil earnings need to be curbed for the benefit of society.

Secondly, who is the Federal Reserve to decide this?  The power-hungry lefties in government aren’t even usurping this power themselves.  Instead they are leaving it to a quasi-governmental entity whose authority to act in any manner that it does is questionable at best?  Maybe next we can have AMTRAK set the fee rates for lawyers, or maybe the Post Office should be deciding what doctors can charge?  What’s next?  Price controls?  Wage and price controls…yeah, that’s the ticket.  They have always been successful in turning the economy around in the past, if by turning the economy around, you mean driving up inflation and scarcity of goods and services.

This is NOT the proper role of government, and it is certainly NOT the proper role of quasi-governmental entities.

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I enjoy debating lefties on political issues, that is when you can find one willing to actually debate instead of calling you a racist because you don’t think Barack Hussein Obama is the second coming.

While playing with one at Nice Deb’s today, I tossed out the proposition that HR 32oo is unconstitutional, as is Medicare and Social Security.  Rather than calling me a racist or a hater, my new friend tried to make a go of it.

Neither Social Security or Medicare would be constitutional if you are a “strict constructionist” ,but if you believed in “implied powers” like Hamilton they would be.

I found this to be quite an admission.  You usually have to paint them into a corner and make them realize that the Constitutional justifications for these programs are made up by jurists looking to uphold the result.  But the best part about these moments comes when I get to crystallize my own thoughts on the topic:

There is only one way to interpret the Constitution that can actually guarantee its preservation, and that is strict construction. The minute unelected jurists start finding rights and interpretations in penumbras and implications, then the only limitation on what is or is not Constitutional no longer resides in the objective guidelines of a foundational document, but in the subjective whims of five judges and the creativity they employ in their written decision to justify the result.  The result you are advocating can be made Constitutional, but the process to achieve that result is Amendment, not judicial activism.

I can’t wait for his response.

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Another quote for the “I wish I’d said that” file:

“We have no more “Wise Men” in Washington and New York, but rather graying children of the Sixties, aging badly.”

From the ever read-worthy VDH.

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Breaking News:  Congressman is an idiot of unimaginable proportions!   [OK, so it's not really news, but you'd think that they'd quit beclowning themselves.  I'm starting to feel embarrassed for them.]

“He did not help the cause of uh, of uh, diversity, uh, and tolerance with his remarks.”

   Uh, you’re an attorney, and you were uh, a judge.  Aside from your uh, atrocious uh, delivery, and reliance on the uh, silly premise, uh, that “diversity” [i.e. its all good unless its white] is or should be a cause of members of the House of Representatives, and the uh, sillier notion that uh, people elected to be part of that uh, august body and uh, represent us uh, somehow do us a service if they uh, just sit there when the uh, President stands before him insulting and uh, berating those who do not see it the way he uh, does, and then remain uh, silent when that same community organizer looks right into the uh, camera and brazenly uh, repeat the lies that the teleprompter scrolls for him, then you uh, dishonor the district and the constituents that uh, you represent. 

   What’s that?  Your predecessor was who???  Never mind.  It must be something in the water there.

“If I were a betting man, I would say that it instigated uh, more racist uh, sentiment feeling that its ok, you don’t have to bury it now, you can bring it out, talk about it fully, and so uh, I guess, we’ll probably have uh, folks uh, puttin’ on white hoods and white uniforms again, and uh, riding through the countryside intimidating people, and uh, you know, that’s the uh, logical conclusion, if uh, this kind of uh, attitude is not rebuked, and that uh, Congressman Wilson represents it, he’s the face of it, and uh, that’s why I support the resolution.”

   Projection, thy name is Congressman Hank Johnson.  Calling the President a liar when he is uh, you know, uh, lying, is many things.  A breach of decorum, possibly a breach of protocol, impolite, rude, impertinent [and judging from the stink-eye Dear Leader cast in his direction, this is possibly the best one], and of course, inconveniently true.  Interrupting the flawless delivery of a plate of lies is many things, but it is notracist.  Presenting it as somehow giving rise to the KKK rising again to wage a campaign of terror is inflammatory rhetoric and dishonors the memories of those who really suffered as a result of that group’s embodiment of racism.  You have squandered the moral gravitas of the image you would so callously pay lip service to, and in the process, you besmirch the recordof a man with a lifetime of service by painting him with the hues of a charge that there simply is no proof of. 

   Your inability to understand this situation could not be more stunning, Congressman Johnson.  The issue is not whether Congressman Wilson was wrong to do what he did, and it isn’t about whether calling a black man who happens to be President a liar makes him a racist.  The question is “Why didn’t more of you speak up?  Why didn’t more of you act in your constituents’ interest and in the interest of this country and DEMAND that the President tell the truth, rather than serve you a passel of pretty lies wrapped up in the sugar coating of a sonorous delivery and brightly colored “Let me be clear”s? ”  And now you act to shame one of your own who dared to speak up.  You pile on with an admonition that has the virtue of being easy, rather than displaying the character enough to fight for the truth and those who do have the courage to defend it.  Such a stunning lack of character is shameful.  I wouldn’t want you on the bench in traffic court, let alone some place where your judgment and input mattered.  congratulations.  You have contributed to the draining of meaning from the cry of racism.  Your actions, and the actions of others have done so much to contribute to the hyperbole that passes for serious debate in the Congress today.

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Sorry for the lack of posts.  I’ve been up to my eyeballs in litigation, some of it really complex, and while I thought I had it wrapped up for a while starting on Friday, two more lawsuits landed on my desk this morning.  Having to work long hours to get stuff done, the boys starting school, and me generally not caring enough about anything at the moment to write about it means nothing new and maybe nothing for a few days yet.  Don’t worry.  There will be something to criticize and fling poo at before too long.

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…based on the best information they had at the time. 

When I finally got a chance to sit down and look at something, anything, that did not require my URGENT! attention, for the first time in almost a week, I started to flip through my dogeared and battered copy of The Federalist Papers.  I wasn’t really sure what I was looking for, but I’ve found some really useful cases when I wasn’t looking for anything in particular, so if I’m not rushed, I tend to go with the urge.  Before I knew it, I was reading Number 57, written by Publius [Madison] which was his response to the criticism on the Constitution which speculated that the “House of Representatives would be taken from that class of citizens which will have least sympathy with the mass of people, and be most likely to aim at an ambitious sacrifice of the manny to the aggrandizement of the few

He started out with the right idea, and to be fair, he couldn’t have foreseen the direct election of Senators, or the expansion of the franchise to include women and african americans, or the fact that the position of Representative and Senator would become cushy positions with pay and health care for life with minimal service, to be performed under conditions that made the job itself attract, rather than the concept of a service as an unpleasant duty keeping the office holder from friends, family, home, and real jobs during their tenure.  Viewing these positions through his eyes, his arguments do not seem quite so funny. I recommend that you take some time to read it yourself and ponder the gulf between what was obviously intended, and what we got.  One thing that should be crystal clear is that they really did intend for a better class of people to serve in government, with a much different mindset.

His first argument:

“If we consider the situation of the men on whom the free suffrages of their fellow-citizens may confer the representative trust, we shall find it involving every security which can be devised or desired for their fidelity to their constituents. In the first place, as they will have been distinguished by the preference of their fellow-citizens, we are to presume that in general they will be somewhat distinguished also by those qualities which entitle them to it[The aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust.], and which promise a sincere and scrupulous regard to the nature of their engagements.”

Now, if this were actually the case, then this wouldn’t be possible.  Or this, this, this, this, this, or this.  I could go on, these were just some that spang to mind immediately.

On to the second argument:

“In the second place, they will enter into the public service under circumstances which cannot fail to produce a temporary affection at least to their constituents. There is in every breast a sensibility to marks of honor, of favor, of esteem, and of confidence, which, apart from all considerations of interest, is some pledge for grateful and benevolent returns.”

Now I think he is on to something with this.  Robert Byrd has been a senator of West Virginia since 1959, and in that time, has managed to bring enough federal money back to the state to get his name on damn near everything.  Maybe if he dies in office, they will rename the state after him, in his memory.

But then I look at these, and I see no affection for constituents, temporary or otherwise:

The third argument:

“In the third place, those ties which bind the representative to his constituents are strengthened by motives of a more selfish nature. His pride and vanity attach him to a form of government which favors his pretensions and gives him a share in its honors and distinctions. Whatever hopes or projects might be entertained by a few aspiring characters, it must generally happen that a great proportion of the men deriving their advancement from their influence with the people, would have more to hope from a preservation of the favor, than from innovations in the government subversive of the authority of the people.”

True, but when the people stop caring about the representation that their elected officials make, then what remains is to buy their favor with generous doses of the public fisk, and the race is on to “Bring home the bacon” as part of a pursuit in which it is generally ignored that we as individuals brought that bacon home first, and now we are getting back a portion of what was taken from us.  The days of satisfaction with being represented by persons of wisdom and integrity appear to be over.  I don’t like what that says about us, and you shouldn’t either.

The fourth argument:

All these securities, however, would be found very insufficient without the restraint of frequent elections. Hence, in the fourth place, the House of Representatives is so constituted as to support in the members an habitual recollection of their dependence on the people. Before the sentiments impressed on their minds by the mode of their elevation can be effaced by the exercise of power, they will be compelled to anticipate the moment when their power is to cease, when their exercise of it is to be reviewed, and when they must descend to the level from which they were raised; there forever to remain unless a faithful discharge of their trust shall have established their title to a renewal of it.

Again, as it was authored in the days before a short stint would get you pay and health care for life, and in a time when modesty and financial hardship precipitated by being away from one’s career would force the elected official to willingly depart from office before it became a lifestyle.  Now, while being called a politician is considered an insult, it doesn’t change the fact that for too many of them it is a career, and the notion that this is acceptable is fostered in the collective mind of the public with the careful cultivation of the ‘tyranny of the experts’ that is often raised to discourage the public form intruding in this exclusive playground.

But what really caught my attention was the fifth argument:

“I will add, as a fifth circumstance in the situation of the House of Representatives, restraining them from oppressive measures, that they can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society. This has always been deemed one of the strongest bonds by which human policy can connect the rulers and the people together. It creates between them that communion of interests and sympathy of sentiments, of which few governments have furnished examples; but without which every government degenerates into tyranny.”

Of course, we can’t arbitrarily vote ourselves raises, nor can we write gargantuan, mammoth, life changing bills that will apply to everyone but us and our friends, but hey, we could always run for Congress too, right?

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