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Thomas Dissents: Itís All Unconstitutional
http://www.redstate.com/ ^ | June 29 2012 | by Daniel Horowitz

Posted on 06/29/2012 4:55:10 PM PDT by Para-Ord.45

Oh, how far we’ve deviated from our Founders in just over 200 years.

The entire country is pouring over an incoherent, internally contradictory, ill-conceived and politically motivated decision by Chief Justice Roberts, which grants Congress the power to regulate anything that moves and the power to tax anything that moves and anything that doesn’t move.

Amidst the garrulous analysis from the conservative pundit class on the Roberts decision, there is a one-page dissent from Justice Thomas (in addition to his joint dissent with the other 3 conservatives) that has been overlooked. The joint dissent with Scalia, Alito, and Kennedy focuses primarily on taking down Roberts’s tax powers jurisprudence and Ginsburg’s opinion on the unlimited power of the Commerce Clause. Thomas felt there was a need to add one point. Not only was Roberts way off the reservation by rewriting this law as a tax and concurrently expanding the tax power of Congress, he was also wrong about the Commerce Clause.

Take a look at this paragraph from Thomas’s dissent (last two-pages of pdf http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf )

"I dissent for the reasons stated in our joint opinion, but I write separately to say a word about the Commerce Clause. The joint dissent and THE CHIEF JUSTICE cor­rectly apply our precedents to conclude that the Individual Mandate is beyond the power granted to Congress un-der the Commerce Clause and the Necessary and Proper Clause. Under those precedents, Congress may regulate“economic activity [that] substantially affects interstate commerce.” United States v. Lopez, 514 U. S. 549, 560 (1995). I adhere to my view that “the very notion of a ‘substantial effects’ test under the Commerce Clause is inconsistent with the original understanding of Congress’ powers and with this Court’s early Commerce Clause cases.” United States v. Morrison, 529 U. S. 598, 627 (2000) (THOMAS, J., concurring); see also Lopez, supra, at 584–602 (THOMAS, J., concurring); Gonzales v. Raich, 545"

As I have explained, the Court’s continued use of that test “has encouraged the Federal Government to persist in its view that the Commerce Clause has virtually no limits.” Morri­son, supra, at 627. The Government’s unprecedented claim in this suit that it may regulate not only economic activity but also inactivity...

Here’s what James Madison had to say about the Commerce Clause in a letter to Joseph C. Cabell in 1829:

" For a like reason, I made no reference to the “power to regulate commerce among the several States.” I always foresaw that difficulties might be started in relation to that power which could not be fully explained without recurring to views of it, which, however just, might give birth to specious though unsound objections. Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it. Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and

was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government "

Madison is bemoaning the expansion and misconstruing of the Commerce Clause circa 1829! One can only imagine what he would say about our entire domestic policy in 2012.

The reality is that not only is Obamacare unconstitutional, almost every discretionary department, welfare program, and entitlement program is unconstitutional. Obviously, we cannot repeal each one overnight and must deal with them prudently, but we must not buy into the notion that the prevailing view of federal power over the past 80 years is sacrosanct. It’s not. We get our rights from God, not from the government, and not even from the Constitution. The Constitution grants the federal government a few enumerated powers. We must not let the views of one unprincipled man in a black robe – or even decades’ worth of misguided court decisions – abrogate our founding documents.

James Madison would be proud of Clarence Thomas.


TOPICS: News/Current Events
KEYWORDS: clarencethomas; commerceclause; constitution; scotus; sourcetitlenoturl
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1 posted on 06/29/2012 4:55:14 PM PDT by Para-Ord.45
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To: Para-Ord.45

eat, drink and be merry, baby.


2 posted on 06/29/2012 4:59:22 PM PDT by the invisib1e hand (they have no god but caesar)
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To: Para-Ord.45
Whose side is Thomas on anyways? Who cares if it's all unconstitutional. Does he not want to join Roberts in handing the Conservatives such a big win? < / sarc

www.cafenetamerica.com| Usenet Political Boards
Twitter

3 posted on 06/29/2012 5:04:20 PM PDT by tsowellfan (http://www.cafenetamerica.com/)
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To: Para-Ord.45
What about Obama phones?

I 'spose dems unconsteetoshunals too?

4 posted on 06/29/2012 5:05:03 PM PDT by Manic_Episode (Tom Hoefling for President - 2012)
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To: Para-Ord.45
“the very notion of a ‘substantial effects’ test under the Commerce Clause is inconsistent with the original understanding of Congress’ powers

A lone voice of reason. It's either in interstate commerce, or it's not.
5 posted on 06/29/2012 5:07:10 PM PDT by andyk (Go Juan Pablo!)
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To: Para-Ord.45

Justice Thomas fails to see the “silver lining” of the Chief Kangaroo’s ruling. He is clearly too dense to understand that Roberts gave conservatives a “major victory”. It’s time that george Will offered Mr. Thomas a spot in his pasture reserved for conservatives who haven’t “grown”. Bob


6 posted on 06/29/2012 5:13:36 PM PDT by alstewartfan (Two broken Tigers on fire in the night Flicker their souls to the wind. Al Stewart "Roads to Moscow")
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To: Para-Ord.45

7 posted on 06/29/2012 5:19:02 PM PDT by BenLurkin (This is not a statement of fact. It is either opinion or satire; or both)
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To: Para-Ord.45

How can Thomas and Scalia even talk to the commie now? I don’t see how they can even have one iota of respect for his complete sellout of America.

If you haven’t gone to www.zerohedge.com and read the editorial about Guest Post: The Supreme Court And Natural Law, do it now; it’s a good read, but definitely sad and maddening. It’s akin to what Rush said today.


8 posted on 06/29/2012 5:21:33 PM PDT by CincyRichieRich (Keep your head up and keep moving forward!)
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To: Para-Ord.45

The KardashianCare premise is that there will be no commerce “among the various states”. They specifically prevented crossing state lines to buy insurance in the free market commerce. Each state in mandated to have a system within each state, so the commerce clause (state-to-state or crossing state lines) doesn’t even seem to apply here at all....but I may be wrong.


9 posted on 06/29/2012 5:21:43 PM PDT by SERKIT ("Blazing Saddles" explains it all.......)
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To: BenLurkin

Madison BUMP


10 posted on 06/29/2012 5:23:04 PM PDT by newfreep (Breitbart sent me...)
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To: Para-Ord.45

How can Thomas and Scalia even talk to the commie now? I don’t see how they can even have one iota of respect for his complete sellout of America.

If you haven’t gone to www.zerohedge.com and read the editorial about Guest Post: The Supreme Court And Natural Law, do it now; it’s a good read, but definitely sad and maddening. It’s akin to what Rush said today.


11 posted on 06/29/2012 5:23:56 PM PDT by CincyRichieRich (Keep your head up and keep moving forward!)
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To: Para-Ord.45

Commerce is not economic activity

Public use is not public purpose

A penalty is not a tax.

Taxes must be either uniform or apportioned. The fact that Roberts acknowledges some people are exempt from the tax means it is not uniform.

They couldn’t care less.


12 posted on 06/29/2012 5:27:16 PM PDT by ALPAPilot
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To: Para-Ord.45

The USSC has become a complete joke, they are now nothing more then tools of the coummunist/fascists/progressives.

I hold the court in complete distain, I have no respect for them...


13 posted on 06/29/2012 5:28:27 PM PDT by stockpirate (No longer proud to be an American! SCOTUS is just as corrupt as congress. IMPEACH ROBERTS!)
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To: Para-Ord.45

Meaning no disrespect of the other three conservatives on the SCOTUS, I’ll note that Clarence Thomas looks, listens, thinks, and then speaks plainly and wisely. He uses two eyes, two ears, and one mouth in the proportions God intended.


14 posted on 06/29/2012 5:32:06 PM PDT by Grampa3711 (Some people bring happiness wherever they go; others, whenever.)
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To: basil

ping for later


15 posted on 06/29/2012 5:35:45 PM PDT by basil
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To: stockpirate
The USSC has become a complete joke, they are now nothing more then tools of the coummunist/fascists/progressives.

Isn't that Thomas' point? It's been that way for a long time - each decision adding another cut to the Constitution.

It's not the 1000th cut on its own that kills, but that doesn't much matter once you've died.

16 posted on 06/29/2012 5:47:07 PM PDT by Mygirlsmom (Scott Walker, Paul Ryan, Ron Johnson, Reince Preibus. The Cheesehead Revolution to save America.)
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To: Para-Ord.45

An outstanding article.

A breath of fresh air in the midst of the foul stench of so much Romney Republican propaganda.


17 posted on 06/29/2012 5:55:49 PM PDT by EternalVigilance (Liberty. What a concept. TomHoefling.com)
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To: Grampa3711

Well stated.


18 posted on 06/29/2012 5:56:59 PM PDT by gilor (Pull the wool over your own eyes!)
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To: Para-Ord.45

The Supreme Court’s gutting of the Constitution in the Obamacare case was the bad fruit of the GW Bush administration, no doubt about it. But it was also the first-fruits of Romney Republicanism.


19 posted on 06/29/2012 5:59:27 PM PDT by EternalVigilance (Liberty. What a concept. TomHoefling.com)
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To: Para-Ord.45

This is the latest in a very long series of unconstitutional laws passed over the past 100+ years.


20 posted on 06/29/2012 6:00:16 PM PDT by Jack Hydrazine (It's the end of the world as we know it and I feel fine!)
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To: Para-Ord.45

One of the last sane men standing. May God bless him.


21 posted on 06/29/2012 6:06:34 PM PDT by SE Mom (Proud mom of an Iraq war combat vet)
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To: Para-Ord.45

Bookmark.


22 posted on 06/29/2012 6:08:10 PM PDT by NavVet ("You Lie!")
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To: Para-Ord.45

Nothing short of a revolution will resolve this.


23 posted on 06/29/2012 6:09:51 PM PDT by CodeToad (Homosexuals are homophobes. They insist on being called 'gay' instead.)
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To: CincyRichieRich

I wonder who the guest is. An excellent essay -thanks for pointing it out.


24 posted on 06/29/2012 7:01:58 PM PDT by sanjuanbob (Festina Lente)
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To: Para-Ord.45

After reading some of the original case law, I always thought the Founders intention was for the federal government to “make regular” or standardize the rules and methods of commerce between the states. That applied to currency, weights and measures, forms and vehicles of trade (stocks, banking operations.) It also applied to prohibitions on exactions, regulations etc. that hit disproportionately on out of state residents.

It did not give the federal government the General legislative jurisdiction of the “police powers” to regulate actions to prevent substantial harm to general public health and safety. That is reserved to the states - with the exception of federal enclaves and D.C. where the federal government has exclusive legislative jurisdiction.


25 posted on 06/29/2012 7:16:37 PM PDT by marsh2
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To: stockpirate

“The USSC has become a complete joke, they are now nothing more then tools of the coummunist/fascists/progressives.

I hold the court in complete distain, I have no respect for them...”

They’ve always been like that. In the 1880’s every ruling favors railroad companies in a case which involves railroad companies. In the 1980’s every case favors Japanese corporations in a case which involves Japanese corporations. Ever since “Read My Lips, No New Taxes” George H. W. Bush raised taxes, hailed the New World Order, and loosed snipers on a small reclusive family at Ruby Ridge, the Supreme Court has approved and expanded the federal Imperium.

As Reagan pointed out, the problem IS the government.

Alter or abolish it, lock, stock and barrel.


26 posted on 06/29/2012 7:16:37 PM PDT by Psalm 144 (Government HealthControl. Uniting the compassion of HMOs and the diligence of bureaucracy.)
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To: CincyRichieRich

Thanks for posting the link to the zero hedge post. Excellent but sad and maddening as you stated.


27 posted on 06/29/2012 7:19:55 PM PDT by wolf24
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To: alstewartfan

Clarence Thomas has more integrity in his baby finger than you undoubtedly have in your entire being.
He’s a fine justice and a fine man. We are very lucky to have him on the court.
Why don’t you go clean your toilet or something instead of tearing down good people whom you don’t know anything about?


28 posted on 06/29/2012 7:22:20 PM PDT by Mountain Mary (Voting for the lesser of two evils is still voting for evil.)
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To: Para-Ord.45

Thomas is RIGHT ON!

One would think we could do better than one out of nine.


29 posted on 06/29/2012 7:31:29 PM PDT by Bigun ("The most fearsome words in the English language are I'm from the government and I'm here to help!")
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To: Para-Ord.45
Thomas is a genius of the people: Honest, consistent, brilliant humble, reverent, etc... Everything that we hope from a best friend, spouse, child, sibling, etc. He is us.

I have been asked which Supreme Court justice would I most like to hang out with for an evening with the understanding that we can't talk "shop." Justice Thomas is my first choice: Breakfast at my house; fly fishing in my back yard in the morning; sporting clays at the club in the afternoon; a few pints of Harp at the Irish Pub down the street from my house; and then back to my house for a home cooked dinner where our wives have been getting to know each other over a martini or two. (Please note that several years ago, I had the piviledge of spending the evening with Justice Scalia at a very private event and he is truely the "most interesting man in the world."

30 posted on 06/29/2012 7:33:20 PM PDT by Labyrinthos
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To: Labyrinthos
I have a question that so far not a single Freeper has addressed, that I've seen:
If this thing is founded upon a tax or taxes to be accurate, is it Constitutionally allowed that little barry bastard commie can unilaterally exempt groups from this legally passed tax? Has the Oval Office stinker just given himself unenumerated powers? And what the hell can the Congress do about it?

31 posted on 06/29/2012 7:37:08 PM PDT by MHGinTN (Being deceived can be cured.)
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To: Para-Ord.45
Clarence Thomas is right and so is the writer of the article. This country has gone so far astray but Thomas hasn't lost sight of the original vision. Unlike Roberts, he doesn't accept the premise of the false America.
32 posted on 06/29/2012 7:41:57 PM PDT by Yardstick
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To: Para-Ord.45
Obviously, we cannot repeal each one overnight and must deal with them prudently, but we must not buy into the notion that the prevailing view of federal power over the past 80 years is sacrosanct.

We as a society will watch them all vanish in the blink of an eye. It is unsustainable; designed to fail. The only question is when . . .
33 posted on 06/29/2012 7:43:30 PM PDT by BraveMan
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To: Mountain Mary

I’d ask you to go clean an outhouse up there on the mountain, for not getting the obvious irony and sarcasm, but I’m not an Al Stewart fan so I won’t!


34 posted on 06/29/2012 7:43:30 PM PDT by Revolting cat! (Bad things are wrong!)
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To: Para-Ord.45

It could go like Social Security, and that’s what the Left is counting on. We’ll bitch a little and then get used to it.

Just another government program to ensure the electability of the RAT Party. Whadya think has been the ultimate purpose of it?!


35 posted on 06/29/2012 7:47:16 PM PDT by Revolting cat! (Bad things are wrong!)
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To: Mountain Mary

Mary, before you send me off with a scrub brush, please re-read my posting. I thought that my sarcasm was dripping, but I guess not. Bob


36 posted on 06/29/2012 7:47:58 PM PDT by alstewartfan (Two broken Tigers on fire in the night Flicker their souls to the wind. Al Stewart "Roads to Moscow")
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To: alstewartfan

Oh sorry. I’m not right in the head since yesterday.


37 posted on 06/29/2012 7:56:22 PM PDT by Mountain Mary (Voting for the lesser of two evils is still voting for evil.)
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To: Para-Ord.45
"We must not let the views of one unprincipled man in a black robe – or even decades’ worth of misguided court decisions – abrogate our founding documents."

Wow. That sounds like a smack down of Roberts to me.

38 posted on 06/29/2012 8:15:33 PM PDT by Smokeyblue
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To: BraveMan
We as a society will watch them all vanish in the blink of an eye. It is unsustainable; designed to fail. The only question is when . . .

Until recently, I would have disagreed that it was designed to fail, but with Obama that seems to be a valid presumption. And you're absolutely right, when we hit that wall it won't be pretty.
39 posted on 06/29/2012 8:23:33 PM PDT by DaveInDallas
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To: Smokeyblue

Looking through the PDF, I don’t see Thomas writing that sentence. Must be written by the author of the article not Thomas.


40 posted on 06/29/2012 8:30:08 PM PDT by Smokeyblue
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To: Psalm 144
Ever since “Read My Lips, No New Taxes” George H. W. Bush raised taxes, hailed the New World Order, and loosed snipers on a small reclusive family at Ruby Ridge...

Nice historical knowledge there. Ruby Ridge was 92. Was that the old man's second term?

41 posted on 06/29/2012 8:52:42 PM PDT by Stentor (Former free citizen of the US. Currently subject of the same.)
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To: Mountain Mary

LOL No apology needed! Bob


42 posted on 06/29/2012 9:14:18 PM PDT by alstewartfan (Two broken Tigers on fire in the night Flicker their souls to the wind. Al Stewart "Roads to Moscow")
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To: Stentor
Was that the old man's second term?

It was at the end of Bush41's only term.

Vicki Weaver was murdered by the sadistic, Lon Horiuchi. This FBI sadist knowingly and gleefully murdered her right in front of children.

He and his team should have been brought up on 1st degree murder charges.

Sadistic Lon also gleefully likely murdered American children and adults at Waco. Lon and his FBI pals like killing innocents. There was a coverup of his murders at Waco.

43 posted on 06/29/2012 10:57:06 PM PDT by sand88
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To: Para-Ord.45

Clarence Thomas is STILL my favorite member of the Supreme Court.


44 posted on 06/29/2012 11:08:55 PM PDT by Freedom_Is_Not_Free (REPEAL OBAMACARE. Nothing else matters.)
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To: Para-Ord.45

It’s time for a military coup d’état.


45 posted on 06/30/2012 1:52:33 AM PDT by Iron Munro (John Adams: 'Two ways to enslave a country. One is by the sword, the other is by debt')
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To: CodeToad
Nothing short of a revolution will resolve this.

Agree - the question would be; who to begin it and to serve as valid rallying points. I believe that Republican Governors, who have contested Obama Care in the Courts and who even now are talking about not jumping to subjagative obedience with SCOTUS atrocious "ruling", might be the nexus of the People returning the Constitution to its proper standing...

46 posted on 06/30/2012 3:41:04 AM PDT by trebb ("If a man will not work, he should not eat" From 2 Thes 3)
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To: Stentor

Ever since “Read My Lips, No New Taxes” George H. W. Bush raised taxes, hailed the New World Order, and loosed snipers on a small reclusive family at Ruby Ridge...

Nice historical knowledge there. Ruby Ridge was 92. Was that the old man’s second term?

****************************

Thanks for the compliment.

The actual government homicides at Ruby Ridge were executed in August of 1992. You may not know, but the original Voodoo Republican only won a single term which spanned from January 20, 1989 until he was replaced by cigar aficianado Democrat on January 20, 1993. If you squint real hard, you can see that Ruby Ridge fall between the first - and final - GHW Bush inauguration and the inauguration of WJB Clinton. This proud hour for the FBI took place on a Republican watch.

Of course, in service to the New World Order it really doesn’t matter which party is taking its turn at the wheel, as we are all on the same road trip, and it is all a bipartisan effort.


47 posted on 06/30/2012 5:05:48 AM PDT by Psalm 144 (Voodoo Republicans. Don't read their lips. Watch their hands.)
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To: MHGinTN
If this thing is founded upon a tax or taxes to be accurate, is it Constitutionally allowed that little barry bastard commie can unilaterally exempt groups from this legally passed tax? Has the Oval Office stinker just given himself unenumerated powers? And what the hell can the Congress do about it?

Also, all revenue bills must originate in the House. This began in the Senate. However, as Rush said, where are you going to go with that argument? Back to this same Supreme Court?

Our best bet is to put pressure on our state to ignore it and to not implement it.

48 posted on 06/30/2012 7:19:51 AM PDT by Mind-numbed Robot
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To: Iron Munro

Well past the Rubicon.

At this point the USA may need their own Augusto José Ramón Pinochet Ugarte only because the Beast system is so big it could never be dismantled brick by brick. It would require a Lockean style of intervention:


” Whenever the legislators endeavor to take away and destroy the property of the people, or to reduce them to slavery under arbitrary power, they put themselves into a state of war with the people, who are thereupon absolved from any further obedience, and are left to the common refuge which God hath provided for all men against force and violence.

And thus the community perpetually retains a supreme power of saving themselves from the attempts and designs of anybody, even of their legislators, whenever they shall be so foolish, or so wicked, as to lay and carry on designs against the liberties and properties of the subject

But if a long train of abuses, prevarications and artifices, all tending the same way, make the design visible to the people, and they cannot but feel, what they lie under, and whither they are going, ‘tis not to be wondered, that they should then rouse themselves, and endeavour to put the rule into such hands, which may secure to them the ends for which government was at first enacted.

The legislature acts against the trust reposed in them, when they endeavour to invade the property of the subject, and to make themselves, or any part of the community, masters, or arbitrary disposers of the lives, liberties or fortunes of the people”


Locke felt people are slow to act and pointed out that “rebellion” meant a RETURN to lawful government. It was the government that first rebelled against the people and it was the people putting down this rebellion.

It was, as Locke contended, the Right of the people to put down unlawful government in rebellion, unlawful in that it has violated the trust and the law of nature, leading to Statism, rebellion and dissolution.


49 posted on 06/30/2012 8:33:39 AM PDT by Para-Ord.45
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To: Mind-numbed Robot

Could you address the issue of Barry unilaterally exempting groupds from this ‘taxing bill’?


50 posted on 06/30/2012 11:29:25 AM PDT by MHGinTN (Being deceived can be cured.)
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