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Madison on the "General Welfare" of America: His Consistent Constitutional Vision
The Cato Journal ^ | Robert A. Levy

Posted on 11/05/2003 9:31:22 PM PST by sourcery

posted by
sourcery

"Do not meddle in
the affairs of Wizards,
for they are subtle,
and quick to anger!"

 BOOK REVIEWS

 

Madison on the "General Welfare" of America: His Consistent Constitutional Vision 

Leonard R. Sorenson

Lanham, Md.: Rowman & Littlefield, 1995, 172 pp.

 

 Article I, section 8 of the Constitution confers upon Congress certain enumerated powers and a potentially more sweeping authority to provide for the general welfare, a goal also set forth in the Preamble. For proponents of a limited central government, the General Welfare Clause has been a source of great mischief. Interpreted elastically by constitutionalists of the "living document" persuasion, the Clause has helped serve up a gourmand?s feast of government programs, regulations, and intrusions that would have been unimaginable to the Framers.

Forty-three years ago, William W. Crosskey of the University of Chicago attempted to set the record straight?-to uncover the original meaning of the Constitution and shut down the revisionists who had robbed the document of its stability and permanence. Alas, Crosskey?s tome, Politics and the Constitution in the History of the United States, published in two volumes in 1953 with a third volume issued posthumously in 1980, only muddied the waters. Worse still, Crosskey managed to tarnish the image of James Madison, until then revered as a paladin in the struggle against encroaching government.

Leonard R. Sorenson, a professor of politics at Assumption College in Massachusetts, has undertaken to rescue us from our rescuer. According to Crosskey, Madison was duplicitous: Publicly, Madison proclaimed that the General Welfare Clause is merely a synonym for the enumerated powers considered collectively, not an independent source of power. But privately, Madison believed that the General Welfare Clause delegates to the Congress plenary legislative power; that the enumeration of specific powers served simply to allocate and assign governmental functions, establish certain procedural limitations, and illustrate some of the powers deemed to be necessary and proper. This alleged difference between Madison?s public and private persona is at the root of the so-called Madisonian contradiction.

Sorenson?s thesis, based primarily on Federalist No. 41, is that Madison regarded the enumeration as defining the objects entailed within the general welfare and the other general clauses that make up the Preamble (i.e., justice, domestic tranquility, common defense, and liberty). But those objects are the broad ends or purposes of the Constitution, not just means or powers. Therefore, states Sorenson, Madison understood the general terms of the Preamble to enlarge the dominion of government beyond the enumeration itself, although not to confer plenary power. Madison?s public position, ascribed to him by Crosskey, was that substantive powers are defined by specifying their number, kind, and application. On the contrary, Sorenson?s explanation is that (1) Madison perceived the Preamble of the Constitution as prescribing a limited number of limited ends; (2) the enumeration defines those ends more precisely; (3) the general welfare and other clauses that make up the Preamble vest particular powers beyond the enumeration, but only to accomplish the limited ends; and (4) the particular powers thus vested can be identified only through an examination of the enumerated powers themselves, in their relation to the authorized ends.

If that sounds recursive, it is intended to be. Sorenson maintains that the general ends or objects of the Constitution, as specified in the Preamble, define the purposes of the enumerated powers qua powers; but the enumerated powers, in their end-defining dimension, provide more specific meaning to the general purposes. Sorenson concludes that the purpose of the enumeration is to define the limited number of objects or purposes that fall within the idea of the general terms. Thus, a proposed new power must promote an object already authorized; that is, the new power must be derived from a general term, which means that it must also have an immediate and appropriate relation to an already enumerated power.

Perhaps an example from Sorenson will help. The Alien and Sedition Acts, under which aliens could be detained or deported, permitted prior restraint of speech and the press. It could be argued that Congress?s authority to pass the Acts was entailed within the enumerated power to suppress insurrections?-a particular means of providing for the common defense, domestic tranquility, and the general welfare. Madison rejects that formulation on the ground that suppressing an insurrection involves subsequent punishment, not prior restraint; the enumerated power neither explains nor defines any of the general terms in a manner that permits of censorship.

Sorenson weaves his way through The Federalist Papers

(principally Nos. 39-44), dissecting and analyzing the text with diligence, erudition, and fastidious attention to detail. His work product should and perhaps will have an impact upon our courts, but there are significant obstacles to overcome.

First, the battle over the General Welfare Clause was all but lost six decades ago in United States v. Butler (1936) and Helvering v. Davis (1937). In Butler, the Court struck down the Agricultural Adjustment Act, which taxed processors in order to pay farmers to reduce production. Although invalidating the statute, the Court adopted the Hamiltonian view (almost in passing) that the General Welfare Clause is a separate grant of congressional authority, linked to and qualified by the spending power. Sorenson perceives correctly that virtually all governmental activity involves the expenditure of money; accordingly, there is little difference between Hamilton?s view and Crosskey?s position that the General Welfare Clause represents a plenary grant of power.

Any doubt remaining after Butler as to the scope of the General Welfare Clause was dispelled a year later in Helvering. There the Court defended the constitutionality of the 1935 Social Security Act, requiring only that welfare spending be for the common benefit as distinguished from some mere local purpose. Justice Benjamin Cardozo summed up what has become controlling doctrine ever since: "Nor is the concept of the general welfare static.... What is critical or urgent changes with the times."

Justice Harlan Stone struck the final blow in Flemming v. Nester in 1954, holding that questions concerning the propriety of conditions imposed on spending, and questions concerning the generality of the benefits, were for the Congress to resolve?-subject to judicial invalidation "only if the statute manifests a patently arbitrary classification, utterly lacking in rational justification." However disheartening such cases may be to advocates of a narrower and more constraining General Welfare Clause, they do reinforce the urgent need for quality research from competent scholars like Sorenson.

The second hurdle for Sorenson is that his scholarship may be more widely referenced by historians than by jurists. Curiously, Sorenson chose as his principal theme the refutation of Crosskey. Writing long after the Supreme Court had done its damage, Crosskey?s influence has been marginal. He is cited but three times in Supreme Court majority opinions, and in only one instance has the cited material implicated (tangentially) the General Welfare Clause. To be fair, Crosskey indisputably provided intellectual ammunition for the bad guys and, in that sense, Sorenson?s effort to disarm him (and them) is an important part of the ongoing struggle to secure a more propitious climate of ideas.

Third, the focus of that struggle for ideas may have shifted in light of the Supreme Court?s 1995 salvo in United States v. Lopez. The explosion of federal power under the expansive rubric of the Commerce Clause?-arguably more harmful than any aggrandizement traceable to the General Welfare Clause-?has at last been scrutinized by the Court. And if the Commerce Clause is ever restored to its rightful role?-that of ensuring the free flow of trade among the states-?the next campaign may indeed be waged against the Necessary and Proper Clause. Distended by the Court in McCulloch v. Maryland (1819), that Clause now allows Congress to employ means in exercising its powers that are merely convenient--neither necessary nor proper. So, while welcoming Sorenson?s attack on the modernized General Welfare Clause, one should not be surprised if it is stalled by the allocation of scarce intellectual resources to more exigent projects. At a minimum, friends of liberty will surely find Sorenson's portrayal of Madison more congenial than Crosskey?s.

Proponents of a government constrained to exercise only its enumerated powers should not be discouraged if progress is gradual and halting. Sometimes, in order to effectuate radical change without rending the social fabric, we may have to content ourselves with incremental challenges to long-established doctrines. Sorenson has undeniably supplied more than his fair increment. By tracing to Madison a view less conducive to swollen government than the view embraced by the New Deal Court and its successors, Sorenson enrolls on the side of limited government. He is part of the crusade to circumscribe the reach of the feds?-even if his vision of Madison would not bind Congress as tightly to the original enumeration as old-line anti-federalists might desire.

 

Robert A. Levy
Potomac, Md.



TOPICS: Constitution/Conservatism
KEYWORDS: foundingfathers; jamesmadison

1 posted on 11/05/2003 9:31:23 PM PST by sourcery
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To: sourcery
sourcery says:

"Do not meddle in
the affairs of Wizards,
for they are subtle,
and quick to anger!"


2 posted on 11/05/2003 9:44:00 PM PST by sourcery ("Don't make me get my Ring!")
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To: sourcery
Argh! The limitations of human intellect are eventually injurious to all mankind.
3 posted on 11/05/2003 9:49:43 PM PST by jimkress (America has become Soviet Union Lite)
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To: Brian S; jmc813; tpaine; tacticalogic; JohnHuang2; Tauzero; philman_36; BikerNYC; NittanyLion; ...

"Do not meddle in
the affairs of Wizards,
for they are subtle,
and quick to anger!"

Summoning the usual suspects...


4 posted on 11/05/2003 10:14:25 PM PST by sourcery ("Don't make me get my Ring!")
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To: jimkress
Mr. Madison has, particularly recently, given the inexcusable non-teaching of U.S. history in government ''skools'', never received his due recognition as one of the 3 or 4 greatest figures of this republic.

Never mind his brilliance in his authorship of the bulk of the Constitution -- he was a principled and determined President who guided the nation through some of America's most difficult days, particularly when the New England states treated willfully with America's stated enemy, and argued aloud about secession (how oddly familiar these days, eh?)

5 posted on 11/05/2003 11:43:43 PM PST by SAJ
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To: sourcery
Thank you very much for the flag. Articles such as this are sadly lacking these days.
6 posted on 11/06/2003 7:27:22 AM PST by philman_36
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To: CSM; Destructor
Given the conversation of yesterday the two of you may find these articles interesting.
Note destructor in many of these where my premise is made about the preamble, most especially in The "General Welfare" Clause. What Does It Really Mean?.
The preamble is not a delegation of power to the federal government. It is simply a stated purpose.
7 posted on 11/06/2003 7:42:36 AM PST by philman_36
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To: HenryLeeII; yankhater
ping
8 posted on 11/06/2003 7:45:45 AM PST by sultan88 ("But after I've been cryin' all night, the sun is cold and the new day seems old")
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To: Wolfie; vin-one; WindMinstrel; philman_36; Beach_Babe; jenny65; AUgrad; Xenalyte; Bill D. Berger; ..
WOD Ping
9 posted on 11/06/2003 8:11:50 AM PST by jmc813 (Michael Schiavo is a bigger scumbag than Bill Clinton)
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To: sourcery
Years after the Federalist Papers, Madison used his seat in the House of Representatives to combat abuse of the general welfare term, as in this argument of 1792: "It would be absurd to say, first, that Congress may do what they please, and then that they may do this or that particular thing. After giving Congress power to raise money and apply it to all purposes which they may pronounce necessary to the general welfare, it would be absurd, to say the least, to superadd a power to raise armies, to provide fleets, etc."

Further, Madison stated the "general welfare" term came from the Articles of Confederation, and, "it was always considered [in the Articles of Confederation] as clear and certain that the old Congress was limited to the enumerated powers, and that the enumeration limited and explained the general terms."

Madison warned, "If Congress can apply money indefinitely on the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands, they may establish teachers in every state, county, and parish, and pay them out of the public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may undertake the regulation of all roads other than post roads. In short, everything, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress."

Madison and Jefferson owned a newspaper called the National Gazette. In 1792, the Editor, Philip Freneau, wrote a satire on usurpation containing these words: "... in order to render success the more certain, it will be of special moment to give the most plausible and popular name that can be found to the power that is to be usurped. It may be called, for example, a power for the common safety or the public good, or, "the general welfare" . . . If the people should not be too much enlightened, the name will have a most imposing effect. It will escape attention that it means, in fact, the same thing with a power to do anything the government pleases "in all cases whatsoever." To oppose the power may consequently seem to be ignorant, and be called by the artful, opposing the "general welfare," and may be cried down under that deception."

10 posted on 11/06/2003 8:32:49 AM PST by PhilipFreneau
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To: sultan88
A Good Ol' Virginny bump to the top for later digestion and ingestion. Thanks...
11 posted on 11/06/2003 9:13:18 AM PST by HenryLeeII
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To: sourcery
B U M P ! ! !
12 posted on 11/06/2003 9:18:31 AM PST by Bigun (IRSsucks@getridof it.com)
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To: PhilipFreneau
bttt
13 posted on 11/06/2003 10:01:06 AM PST by Tauzero (Avoid loose hair styles. When government offices burn, long hair sometimes catches on fire.)
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To: PhilipFreneau
everything, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress.

EXACTLY. Why enumerate anything if you can do everything? Why don't many conservatives hold with this?

14 posted on 11/06/2003 12:37:03 PM PST by Hemingway's Ghost
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To: sourcery
14 replies and little discussion whatsoever...what a pity.
I'll apologize for my fellow denizens of FR for such a poor showing on your superlative thread. Perhaps it was well read with nothing further needing to be said.
Even a BUMP would've been nice to see though.

And everyone wonders why this nation is in such dire political straits.

15 posted on 11/06/2003 12:50:12 PM PST by philman_36
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To: philman_36
sourcery says:

"Do not meddle in
the affairs of Wizards,
for they are subtle,
and quick to anger!"

Those who agree with Madison would have little reason to post anything other than some variation of "I agree." Those who disagree are free to ignore the Madisonites, since their point of view is so fully entrenched and institutionalized.

16 posted on 11/06/2003 1:01:08 PM PST by sourcery (No unauthorized parking allowed in sourcery's reserved space. Violators will be toad!)
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To: philman_36; yall

14 replies and little discussion whatsoever...what a pity.

I'll apologize for my fellow denizens of FR for such a poor showing on your superlative thread. Perhaps it was well read with nothing further needing to be said.
Even a BUMP would've been nice to see though.
And everyone wonders why this nation is in such dire political straits.
15 -phil-





What we have here on FR is a "failure to communicate". [sarcastic Ho ho.]

-- Many here give lip service to individual rights, while backing the current politically correct view that the feds's & states can 'regulate' [read prohibit] any type of property or any form of behavior, -- by decree..

Even some of those here that talk of 'CWII' over gun issues don't realize that this problem extends far beyond our RKBA's..

Both political parties are advancing their own different agendas in this 'war' on our individual rights to life, liberty & property.

"It is time", - time to put a stop to this type of sedition.

17 posted on 11/06/2003 1:09:00 PM PST by tpaine (I'm trying to be 'Mr Nice Guy', but wait till next year gun law appeasement effort is sheer BS)
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To: tpaine
sourcery says:

"Do not meddle in
the affairs of Wizards,
for they are subtle,
and quick to anger!"

The time to put a stop to corruption of the Constitution was upon us as soon as the Supreme issued its ruling in McCulloch v. Maryland, 17 U.S. 316 (1819).

18 posted on 11/06/2003 1:34:11 PM PST by sourcery (No unauthorized parking allowed in sourcery's reserved space. Violators will be toad!)
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To: sourcery
The Logic of Constitutional Republican Government
Address:http://www.freerepublic.com/focus/f-news/1016395/posts
19 posted on 11/06/2003 3:10:55 PM PST by tpaine (I'm trying to be 'Mr Nice Guy', but wait till next year gun law appeasement effort is sheer BS)
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To: tpaine
Bump for later review.
20 posted on 11/06/2003 3:20:53 PM PST by Ditto ( No trees were killed in sending this message, but billions of electrons were inconvenienced.)
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To: tpaine; sourcery
I'm almost too demoralized to care any more.
I keep hoping though...
21 posted on 11/06/2003 11:49:53 PM PST by philman_36
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To: philman_36
Sayeth philman_36: I'm almost too demoralized to care any more.
I keep hoping though...
Sayeth sourcery:

"Do not meddle in
the affairs of Wizards,
for they are subtle,
and quick to anger!"
Key point: no Constitution, no matter the words it contains, can preserve liberty by itself. Liberty is a way of life, a philosophy and a culture. That's what we've lost. And so, that's what must first be restored, before the government and the laws can possibly be changed.

22 posted on 11/06/2003 11:56:19 PM PST by sourcery (No unauthorized parking allowed in sourcery's reserved space. Violators will be toad!)
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To: sourcery
Liberty is a way of life, a philosophy and a culture. That's what we've lost. And so, that's what must first be restored, before the government and the laws can possibly be changed.
You say Liberty must first be restored and I see no way in which it can be anymore. We're riddled to death with numerous, overbearing legislation/laws. A Cray probably can't hold all of the legislation we have today. Until such legislation/laws is repealed then there is no way that Liberty can be restored as that same legislation/laws will still be present to destroy such renewed and restored Liberty of the life and mind at any time.
I'm afraid that, like a suckling infant, too many Americans are unwilling to detach from the government's teat. After living so many years on the government teat too many are afraid to let go of it and find the sustenance of "Liberty" on their own.
In your example I simply see the cart before the horse.
23 posted on 11/07/2003 12:32:38 AM PST by philman_36
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To: sourcery
To me, Liberty is supposed to be provided for, and protected, by laws. Where can Liberty exist when laws punish, ban and criminalize it?
24 posted on 11/07/2003 12:45:35 AM PST by philman_36
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To: philman_36
Sayeth philman_36: In your example I simply see the cart before the horse.
Sayeth sourcery:

"Do not meddle in
the affairs of Wizards,
for they are subtle,
and quick to anger!"
I completely understand and sympathize with your frustration.

But you yourself have stated the fundamental problem: "too many Americans are unwilling to detach from the government's teat." Exactly so. And too many Americans are unwilling to give up the idea that they rightfully have and justly exercise the collective power to violate others' right to Liberty. It is this attitude, belief, political philosophy--whatever you want to call it--that must be changed before any signfificant progress can be made. In a democracy, you first have to convince the electorate to see things your way before you can can change the laws. You have to have the votes.

You can't change the laws before you change the opinions of the lawmakers, and you can't change the opinions of the lawmakers without first changing the opinions of those who elect them.


Learn HTML
25 posted on 11/08/2003 12:48:21 AM PST by sourcery (No unauthorized parking allowed in sourcery's reserved space. Violators will be toad!)
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To: sourcery
And too many Americans are unwilling to give up the idea that they rightfully have and justly exercise the collective power to violate others' right to Liberty.
No one has the right or can justly exercise the power, collectively or otherwise, to violate other's right to Liberty.
In a democracy, you first have to convince the electorate to see things your way before you can can change the laws.
You don't even seem to understand that we don't live in a Democracy! How can we progress when you don't even understand the form of government we have? And please, don't give me the old "it is just an expression".
As long as you and others don't recognize our form of government then there will never be the recognition of other's right to Liberty! Democracy gives others that very collective ability and power to violate others' right to Liberty you claim they are unwilling to give up. Recognizing our republican form of government forces others to recognize the right to Liberty of others.

You can't change the laws before you change the opinions of the lawmakers, and you can't change the opinions of the lawmakers without first changing the opinions of those who elect them.
Another horse before the cart analogy! Those lawmakers aren't supposed to be influenced by voter's opinions, they're supposed to be influenced by the Constitution and the rights of all. Lawmakers are supposed to represent all and protect everyone's rights, not just those that put them in office. Those who elect them don't represent all Americans. Half of our eligible population doesn't even vote because they don't feel that they are being represented anyway! It is all PACS and special interest groups (opinions) like MADD and HGC nowadays.
Your thinking seems so backwards to me. I guess I've not correspondedd enough with you to really know what your thoughts are after all.
Your "Democracy" and "opinion following legislators" are killing America!

I don't need to learn HTML, but thanks for the link. I just don't see the need to go overboard with it. Sufficient to suffice is my motto.

26 posted on 11/08/2003 2:09:01 AM PST by philman_36
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To: philman_36
No one has the right or can justly exercise the power, collectively or otherwise, to violate other's right to Liberty.

Agreed.

You don't even seem to understand that we don't live in a Democracy! How can we progress when you don't even understand the form of government we have? And please, don't give me the old "it is just an expression". As long as you and others don't recognize our form of government then there will never be the recognition of other's right to Liberty! Democracy gives others that very collective ability and power to violate others' right to Liberty you claim they are unwilling to give up. Recognizing our republican form of government forces others to recognize the right to Liberty of others.

I completely understand that the US Constition of 1789 establishes a Republic, and not a Democracy--using the terms as was common in 1789. However, in modern usage we are a "democracy" (specifically, a "representative democracy.")

But let's not quibble over terms. I understand and agree that the US Constitution does not claim to establish a dictatorship of the majority over the minority, and that even if it did, it would have no right to do so. I am quite familiar with Bastiat's "The Law," and I fully agree with it.

Another horse before the cart analogy! Those lawmakers aren't supposed to be influenced by voter's opinions, they're supposed to be influenced by the Constitution and the rights of all.

Well, that's admittedly what the Founders intended. Unfortunately, it doesn't work that way in practice. The only way I know to chastise the politicians who fail to do their duty in this regard is to vote them out of office. Unfortunately, that takes a majority vote. Hence, my contention that "you have to have the votes."

Alternatively, you could sit down with all the misbehaving politicians and argue them into doing what you think is right. The good news is that the politicians tend to be better educated than the general public, and so you wouldn't have to spend as much time on Poltical Philosophy 101 with them. The bad news is that most of them care more about getting (re)elected than about doing the right thing. And so, again, "you have to have the votes."

Understand, please, that I am not contending that "needing the votes" is the way things ought to be. I do not like this situation one bit. But it's reality, like it or not. I think part of the problem is that you are speaking from a theoretical, ideal perspective (the way things should be,) whereas I am talking about what happens in the real world (as opposed to what should happen.)

Lawmakers are supposed to represent all and protect everyone's rights, not just those that put them in office. Those who elect them don't represent all Americans. Half of our eligible population doesn't even vote because they don't feel that they are being represented anyway! It is all PACS and special interest groups (opinions) like MADD and HGC nowadays.

The PACs, the Unions, the media, Big Business all certainly spend a lot of money towards (re)electing their preferred politicians. But it's also true that the politicians extort campaign contributions from those over whom they can a) threaten with adverse laws, regulations and enforcement actions, or b) bribe with favorable laws, regulations and enforcement inaction. It often isn't easy to tell victim from perpetrator. The whole system is evil.

However, the fundamental problem is the electorate. Their ignorance, their apathy, their willingness to be bribed with bread and circuses, and their mindless voting for the same party for which their family's been voting for the last five generations is what enables the evil system to keep itself in power.

Your thinking seems so backwards to me. I guess I've not correspondedd enough with you to really know what your thoughts are after all. Your "Democracy" and "opinion following legislators" are killing America!

I really do think you misunderstand me. I'm a libertarian. I believe that the right to Liberty (the right to do whatever does not violate the rights of others) is the foundation of all other rights. To deny the right to Liberty is to deny one's own right to make any claims whatsoever.

I don't need to learn HTML, but thanks for the link. I just don't see the need to go overboard with it. Sufficient to suffice is my motto.

I wasn't suggesting that you, personally, needed to learn HTML. The reason I put the "Learn HTML" link there was simply as a service to anyone reading who might have been interested. However, if you misinterpreted it, then others probably would also, so I either won't do that, or will do it some other way that makes the intent more clear.

27 posted on 11/08/2003 3:11:04 AM PST by sourcery (No unauthorized parking allowed in sourcery's reserved space. Violators will be toad!)
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To: sourcery
Following the rabbit down the hole...The United Kingdom exemplifies a representative democracy; Germany has been one since 1949.
It don't say diddly about America being a representative democracy. America ain't the UK and it sure ain't Germany!
I'll have to contemplate the rest of your reply before answering. Thanks for your clarifications.
28 posted on 11/08/2003 3:37:39 AM PST by philman_36
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To: sourcery
However, in modern usage we are a "democracy" (specifically, a "representative democracy.")
From your link...Using this older meaning, it is said that the United States is a federal republic, not a democracy. (Although most people, including most Americans, call it a democracy, they are using the modern definition, not the older one referred to here). This usage of the term republic was particularly common around the time of the American Founding Fathers. The authors of the United States Constitution intentionally chose what they called a republic for several reasons.
Have you read your own link?
I stand by my previous statement, America isn't a Democracy, not even a "representative" one.
29 posted on 11/08/2003 3:43:04 AM PST by philman_36
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