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The Supreme Court's fear
Washington Times ^ | October 2, 2001 | Philip Gold

Posted on 10/02/2001 9:02:01 AM PDT by tberry

Edited on 07/12/2004 3:47:34 PM PDT by Jim Robinson. [history]

Many years ago, I took an undergraduate course on the Supreme Court. Reading several dozen decisions convinced me of two things. First, I had zero aptitude for the law a conclusion amply and emphatically confirmed by my LSATs, which I took mostly as a favor to my law school bound friends (somebody has to be at the bottom). Secondly, I developed a healthy skepticism regarding what is known in the trade as legal reasoning. Far too often, it seemed, the opinions of the justices reflected both the Supreme Court's will to power and an almost willful confusion, a shady reluctance to be honest about what they were doing, and why.


(Excerpt) Read more at washtimes.com ...


TOPICS: Constitution/Conservatism; Editorial
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"world war and Cold War, proving that, in government, there's nothing quite so permanent as the temporary."

Beware all of those "temporary" restrictions on our liberty. Once they are instituted they will not go away.

1 posted on 10/02/2001 9:02:01 AM PDT by tberry
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To: tberry
Scalia and Thomas are definitely not afraid, and have no problem saying decisions like Roe v. Wade were wrong. I think the author is describing perfectly O'Connor and Kennedy, who both know the court has made mistakes in the past, but who are both unwilling to correct them because of the potential backlash.
2 posted on 10/02/2001 9:14:07 AM PDT by tenderstone jr.
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To: tberry
Told ya' so.
3 posted on 10/02/2001 9:17:32 AM PDT by Maelstrom
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To: tberry
Interesting to see that one who admits no ability in or understanding of legal reasoning feels someone should care about his blovating on such significant legal issues.

Of course, he will find a ready audience here among those similiarly gifted.

4 posted on 10/02/2001 9:20:45 AM PDT by justshutupandtakeit
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To: tberry
Thank you. A keeper.
5 posted on 10/02/2001 9:29:43 AM PDT by Brian Allen
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To: justshutupandtakeit
The Constitution is not a difficult document to read. It's set out in fairly plain language, and was done so on purpose. It does not take a legal scholar to understand what is constitutional and what is not.

The problem is, congress, filled mostly with lawyers, obfuscate the law to the point where the ordinary citizen can't understand what is being passed. Then it takes a legal scholar to interpret what is written. It's mainly job security.

Mr. Gold is correct. And it doesn't take a legal scholar to see that.

6 posted on 10/02/2001 9:41:59 AM PDT by AKbear
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To: tberry
Good article. Bump!
7 posted on 10/02/2001 9:42:35 AM PDT by AKbear
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To: tberry
Most are terribly afraid of having to rely on the Constitution for guidance rather than some previous incorrect ruling, i.e. the non-existant "seperation of church and state".
8 posted on 10/02/2001 9:49:30 AM PDT by Blood of Tyrants
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To: tberry
I have a slightly different view of the power struggle between the Congress and the courts. I think that there is no struggle. The legislators have willing ceded their power to make clear laws to the courts, because our congressmen do not trust the public to know what is best for them. They fear a political backlash if they support a politically controversial stand. So, they allow the courts to legislate from the bench, to attempt to determine the intent of the law, which should have been made clear in the first place, or be rewritten.
9 posted on 10/02/2001 9:54:29 AM PDT by Eva
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To: AKbear
While I realize that this is the claim of the non-expert, it is false. Like all deep political philosophy (or great literature) the constitution requires great thought to understand all its ramifications. This is why Hamilton had to write the Federalist in order to explain and educate the population as to its meaning. This is why John Marshall had to explicate its meaning over a thirty year period.

Like the Bible it provides an outline which is often not at all obvious as to how it applies to a specific case. Thus, millions of pages have been written explaining and amplifying the meanings of the Bible and perhaps that many doing the same for the constitution.

Since the population was not as educated then as it is today the likelihood of the majority of the people understanding it is not great. Mythology to the contrary. Even Jefferson appeared not to understand it and he was a lawyer.

Most of those claiming the great simplicity of this phenomenal document cannot carry a legal analysis past a couple of sentences and those with whom I have had contact do not know what the hell they are talking about. They understand little of what the document actually says and nothing of its implications. Generally their arguments are limited to declaring something unconstitutional because they feel that it should be so and blaming all complications on lawyers. Similiar to blaming sickness on the doctors.

10 posted on 10/02/2001 10:38:13 AM PDT by justshutupandtakeit
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To: justshutupandtakeit
Interesting to see that one who admits no ability in or understanding of legal reasoning feels someone should care about his blovating on such significant legal issues.

What you call "legal reasoning" has, of late, become blatantly unreasonable. Today, almost no one’s life remains untouched by some egregious misinterpretation of the written words of law. To many present-day observers, “legal reasoning “ has become a précis from which any creative interpretation of words can be used to reconstruct law.

Of course, he will find a ready audience here among those similiarly gifted.

Perhaps the "gift" you scorn is simply the ability of rational people to make a measured observation.

11 posted on 10/02/2001 10:51:08 AM PDT by eskimo
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To: justshutupandtakeit
I disagree. The Constitution is very easily understood. It was written in plain language and is very straightforward on what the government is allowed to do. It's when some legislator decides to try to pass it by the people that the meanings get obfuscated. They try to stretch the meaning of the interstate commerce clause to the breaking point. Or they try to mealy mouth the 2nd Amendment to mean a collective right, or the claim the general welfare clause (which is not a clause that means anything other than a general introduction to the powers of congress) to mean free money, food, education, medical care, etc.

Since the population was not as educated then as it is today...

Here I have to disagree as well. People knew grammer and what sentence structure meant and how it was used to delineate an introduction clause from the specifics, or that the first part of the 2nd Amendment was not a limiting clause. It seems that just in the last century that people were dumbed down to the point where those things started to mean nothing to the people.

It does not take a scholar to understand the Constitution. It was written for the people to understand. If it had been hard to understand, it would have been even harder to ratify than it was.

12 posted on 10/02/2001 11:31:57 AM PDT by AKbear
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To: eskimo
I would love to see this astute reasoning you describe but the love of crackpot theories and lunatic fringe legal scholarship and political theory seems to have driven most of it away from here.

Now if we could just get these "experts" to turn their attention to medicine and self treatment based on their "expertise" viola problem solved.

13 posted on 10/02/2001 12:33:06 PM PDT by justshutupandtakeit
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To: AKbear
The majority of people outside the cities in our early day could neither read nor write. The New England states were an exception perhaps. As far as the illiterate being able to understand the constitution goes- well, it is a nice sweet myth. You can believe if you like but it is totally false. Only after the spread of public education was literacy widespread.
14 posted on 10/02/2001 12:36:19 PM PDT by justshutupandtakeit
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To: justshutupandtakeit
Whether the masses were literate or not was irrelavent as to the understanding of the law at that time in history. Whether a "reasonable man" could understand the meaning of the law as written is what mattered, intent had no standing as intent is what was codified when written. The Constitution's meaning is extremely clear in all respects. It takes "experts" to obfuscate new interpretations into it, and that is why we are where we are.

---max

15 posted on 10/02/2001 1:06:18 PM PDT by max61
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To: justshutupandtakeit
. Like all deep political philosophy (or great literature) the constitution requires great thought to understand all its ramifications.

Back on your "deep study" fixed idea, I see.

I've got to hand it to you, you managed to make a decent analogy. I like the comparison to great literature. I don't claim to be an expert on literature, but that doesn't stop me from understanding, say, Macbeth or some other play by Shakespeare. If you told me that Coriolanus was able to control his temper and wanted to give more political power to averege Romans, I'd know you were wrong. You would still be wrong if you had credentials, and I would still know it, not because I'm an expert, but because I read the play. Sure, some thing are deep and obscure and subtle, but some things are obvious.

This is why Hamilton had to write the Federalist in order to explain and educate the population as to its meaning.

To the contrary, Hamilton and Madison(don't you hate that?) wrote it to persuade people to support it. Of course, that involved going over it and the arguments for it in detail, but it wasn't as if everyone was so stupid they couldn't read it for themselves.

Even Jefferson appeared not to understand it and he was a lawyer.

I'll note that you also think Jefferson was a traitor.

Most of those claiming the great simplicity of this phenomenal document cannot carry a legal analysis past a couple of sentences

Sometimes you don't need to. I've found that asking where the Constitution authorizes something is usually enough. Half the time they bring up the "general welfare clause".

16 posted on 10/02/2001 1:07:15 PM PDT by A.J.Armitage
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Comment #17 Removed by Moderator

To: justshutupandtakeit
Now if we could just get these "experts" to turn their attention to medicine and self treatment based on their "expertise" viola problem solved.

You seem to consider rational people making measured observations to be an overt encroachment into some realm where only the omniscient priests of "law" may venture.

I have heard many a bellicose barrister expound that the “law” is necessarily incomprehensible by common folk but none that I asked would tell me to what end that it so.

18 posted on 10/02/2001 3:46:00 PM PDT by eskimo
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To: eskimo
I have heard many a bellicose barrister expound that the “law” is necessarily incomprehensible by common folk but none that I asked would tell me to what end that it so.

If a law is so confusing that nobody understands it but people fear going afoul of it, the interpretation most people obey will be far stricter than anything that could otherwise be enforced.

19 posted on 10/02/2001 9:12:48 PM PDT by supercat
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To: A.J.Armitage
Sure, some thing are deep and obscure and subtle, but some things are obvious.

There should be a requirement that the foundation of all appellate court decisions be the law (in all its forms, including the Constitution). Other court decisions may be cited as well, to help clarify places the law may be ambiguous, but the law must be the backbone of every appellate court decision.

20 posted on 10/02/2001 9:17:45 PM PDT by supercat
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To: tberry
And third, the federal government found a dandy all-purpose justification for its own expansion in the Constitution's "interstate commerce" clause, which gives the feds the "right" to deal with items that "substantially affect" interstate trade. Whether the Founders ever intended the clause to be used to support federal mandates of "gun-free school zones" or the prevention of violence against women may be debated.

By and large, the guy's right, but he doesn't help his argument by picking two examples where SCOTUS actually stepped in and limited Congressional power under the Commerce Clause - the guns in school zones law was struck down in US v. Lopez, and the portions of the Violence Against Women Act of 1994 that relied on the Commerce Clause were struck down in US v. Morrison.
21 posted on 10/02/2001 9:33:11 PM PDT by general_re
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To: max61
Only the simple minded believe the complex is simple.
22 posted on 10/03/2001 6:58:52 AM PDT by justshutupandtakeit
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To: A.J.Armitage
Everyone can get something from Shakespeare because he rises to the universal however everyone cannot get everything from Shakespeare because they cannot rise to all his heights of knowing (there is no real evidence of his learning). This is also true of the Constitution which is good and bad. Good because it allows the belief that people actually understand their governmental system but bad because a little learning can be a dangerous thing.

No I don't hate acknowledging Madison as one of the authors. Leaving him out merely allows me to point to the greatness of Hamilton the Ramrod of the Constitution since he wrote 2/3s of them and was the initiator of the project. Madison stated there was no way he could keep up with Hamilton's prodigous output which like Mozart turned out masterpieces in lightning speed.

Since the majority of our population was illiterate chances are they couldn't read it for themselves they were not stupid merely uneducated. If I am not mistaken most states voted on ratification with electorates less restricted than normal. High property qualifications in the South assured that the small electorates there were literate since the wealthy could educate their children. New England and New York probably had a majority which was literate and a more expanded electorate due to property being widely held.

No I don't claim that Jefferson was a traitor because there was no state of war between the U.S. and France at the time of his disloyalty to Washington and Adams when they were president. Just as Obubba Been Lyin' can't be charged with treason absent a war. Unfortunately.

Read Hamilton's discussion of the constitutionality of the National Bank as to implied powers which reasoning Madison accepted until the mid 1790s i.e. before partisian politics turned him into a party hack.

Is your belief that the general welfare clause is meaningless?

23 posted on 10/03/2001 7:15:35 AM PDT by justshutupandtakeit
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To: eskimo
One of the problems is that the Law is like undergrowth. It just keeps getting more and more tangled as time goes on and less and less accessible to those who can't spend full time studying it.

There is certainly truth to the statement that men of those days could understand it better than those of today because it was new and uncontaminated by the workings of time. Like the earlier radios and cars were possible for the average guy to work on and fix. Now? No way.

As the cases argued before the courts have all become part of constitutional law so the practical exclusion of the understanding of the common man has grown more complete.

24 posted on 10/03/2001 7:21:22 AM PDT by justshutupandtakeit
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To: general_re
Right up front he undermined his credibility. I wonder why the publication couldn't get someone trained in the law to write the review?
25 posted on 10/03/2001 7:23:53 AM PDT by justshutupandtakeit
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To: tberry
Whether the Founders ever intended the clause to be used to support federal mandates of "gun-free school zones" or the prevention of violence against women may be debated.

Both the Gun-Free School Act and the Violence Against Women Act were held unconstitutional by the Supreme Court, contradicting his argument that the Court is abetting the end of federalism.

26 posted on 10/03/2001 7:29:41 AM PDT by Lurking Libertarian
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To: eskimo
>>>What you call "legal reasoning" has, of late, become blatantly unreasonable. Today, almost no one’s life remains untouched by some egregious misinterpretation of the written words of law<<<

"Its Our job... to distort the law totally beyond commonsense"

Allie McBeal 02/02/98

27 posted on 10/03/2001 7:38:17 AM PDT by bert
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To: Lurking Libertarian
Both of those were 5-4 decisions, if I recall correctly (with the obvious suspects as the dissenters).
28 posted on 10/03/2001 7:44:44 AM PDT by Republican Wildcat
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To: justshutupandtakeit
Is your belief that the general welfare clause is meaningless?

It's my belief that there's no such thing. Read it. It's the lay and collect taxes clause. There's no power to do whatever they think is in the general welfare. It's just that simple.

29 posted on 10/03/2001 9:55:15 AM PDT by A.J.Armitage
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To: justshutupandtakeit;Lurking Libertarian;Republican Wildcat
Both US v. Lopez (1995) (guns in school zones) and US v. Morrison (2000) (VAWA) were 5-4 decisions. In both, Souter, Stevens, Ginsburg, and Breyer dissented.

Why did this guy pick those two? Really, picking those two examples was a mistake - there's plenty of examples of expansion of the Commerce Clause to pick from, going back to Heart of Atlanta in 1964 (the companion to that case, Katzenbach v. McClung, was even worse, IMO).

Additionally, I don't think we can hang our hats on those two decisions just yet - they're both narrow decisions, and really aberrations in a long line of cases expanding Commerce Clause powers, so I think it's way too early to take those as a bona fide shift in the Court's thinking on this issue...
30 posted on 10/03/2001 11:31:00 AM PDT by general_re
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To: A.J.Armitage;justshutupandtakeit
Not only is it that simple, Madison wrote about it in several of his Federalist Papers, specificially #41. The general welfare clause it nothing more than an introductory clause to the following powers of congress.
31 posted on 10/03/2001 11:31:09 AM PDT by AKbear
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To: A.J.Armitage
...to pay the Debts and provide for the common Defence and general Welfare of the United States;...

You think this is not saying that funds can be raised to provide for the "general Welfare"? Says exactly that with all the slippery slope that it implies. If there is no prohibition on the expenditure of these funds elsewhere in the constitution such expenditures are not unconstitutional. Unwise or unjust perhaps but not unconstitutional.

The devil is indefining "general Welfare."

32 posted on 10/03/2001 11:31:50 AM PDT by justshutupandtakeit
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To: AKbear
That is a rather contrived argument not supported by the structure of the sentence. If that was what was intended the sentence should not have been structured that way. I have seen the argument in 41 and don't buy it.

Many times presidents vetoed bills claiming that they were not for the "general" welfare but for state or local interests. This implied they understood the bills not to be unconstitutional in their intent but in their effect. I am unaware of any of Hamilton's or Marshall's thinking on this issue not that they would differ from each other much anyway since Marshall used Hamilton's legal reasoning over and over and acknowledged the source.

33 posted on 10/03/2001 11:50:46 AM PDT by justshutupandtakeit
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To: justshutupandtakeit, A.J.Armitage, AKbear
Here is the pertinent passage from Federalist 41, James Madison, on the "general Welfare" clause:

Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power "to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States," amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.

Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms "to raise money for the general welfare."

But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter.

The objection here is the more extraordinary, as it appears that the language used by the convention is a copy from the articles of Confederation. The objects of the Union among the States, as described in article third, are "their common defense, security of their liberties, and mutual and general welfare." The terms of article eighth are still more identical: "All charges of war and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress, shall be defrayed out of a common treasury," etc. A similar language again occurs in article ninth. Construe either of these articles by the rules which would justify the construction put on the new Constitution, and they vest in the existing Congress a power to legislate in all cases whatsoever. But what would have been thought of that assembly, if, attaching themselves to these general expressions, and disregarding the specifications which ascertain and limit their import, they had exercised an unlimited power of providing for the common defense and general welfare? I appeal to the objectors themselves, whether they would in that case have employed the same reasoning in justification of Congress as they now make use of against the convention. How difficult it is for error to escape its own condemnation!

justshutupandtakeit, I'd like to hear your rebuttal to Mr. Madison. I am extremely curious about it, in fact.

34 posted on 10/03/2001 11:56:56 AM PDT by Huck
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To: justshutupandtakeit;Huck
I have seen the argument in 41 and don't buy it.

LOL, it was only written by the guy who wrote the phrase, don't you think he would have known what he meant it to say?

Sheesh!

Huck, thanks for posting the revelant part of Federalist #41.

35 posted on 10/03/2001 12:37:08 PM PDT by AKbear
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To: AKbear
Huck, thanks for posting the revelant part of Federalist #41.

No problemo. I would love to see the point debated by competent adversaries. I should say I don't have a dog in this fight, i.e., I don't know for certain what I think the correct answer is. I am slightly biased towards Madison, because I admire what he did. Yet I have a good amount of skepticism about his libertarian inclinations, and his manner of flip-flopping. Take nullification. Madison was both correct and dead wrong on that subject, depending on the year. But it is a key constitutional point. We know which view prevailed. It would still interest me to see it debated here.

36 posted on 10/03/2001 12:43:27 PM PDT by Huck
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To: AKbear
More grist for the mill:

Tax & Spend for the "General Welfare"

37 posted on 10/03/2001 12:54:30 PM PDT by Huck
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To: tberry
One of the best articles I've seen on this or any similar topic. Kudos to Mr. Gold. Outstanding.
38 posted on 10/03/2001 1:22:47 PM PDT by ihatemyalarmclock
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To: justshutupandtakeit
Most of those claiming the great simplicity of this phenomenal document cannot carry a legal analysis past a couple of sentences

And that is why it is viewed without all the clutter and garbage that legal 'experts' like to impart on it now.

39 posted on 10/03/2001 1:29:09 PM PDT by riley1992
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To: justshutupandtakeit
As the cases argued before the courts have all become part of constitutional law so the practical exclusion of the understanding of the common man has grown more complete.

I agree. The frightening aspect of this hurried pace to ever more convoluted law is that those who use “law” to force political change and accumulate political power will find some interpretation that grants them any authority they desire, and most of the common folk will soon declare the intentionally distorted rules of their society to be hopelessly contaminated and completely irrelevenant.

Many are saying that the corruption is now so severe that only one of two logical outcomes appears to be possible at this point, tyranny or anarchy.

40 posted on 10/03/2001 1:29:11 PM PDT by eskimo
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To: Huck
Madison, Jay, and especially Hamilton were not true "libertarian" types. Hamilton was a strong advocate for expanded federal powers, and Madison and Jay were to a lesser extent. Madison really wanted a strong central government with protections for individual liberty, but he wasn't adamant about it. I think Jay was the most "libertarian" among the three and held them to keep the intrusions of federal government to a minimum.

The true "libertarian" types were Jefferson and other Anti-Federalists. They thought the Articles of Confederation were sufficient, and if we had to have a constitution it had better have some very, very strong protection for individual liberties. Thus they fought for the Bill of Rights which the Federalists claimed were unnecessary. They said that if the federal government adhered to the constitution, an individual's rights were protected, and a Bill of Rights would be redundant.

That is the primary reason for the Federalist Papers. The Anti-Federalists were writing letters to newspapers saying that the proposed constitution gave the federal government too much power. Madison, Jay, and Hamilton wrote the Federalist Papers to counter those arugments.

Unfortunately, the predictions of the Anti-Federalists turned out to be pretty accurate.

41 posted on 10/03/2001 1:41:31 PM PDT by AKbear
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To: Huck
RE: Your link in 37.

Even that interpretation would be better than the one they are using now. However, you have to remember that the supreme court that made that decision was the one stacked by FDR while trying to get all his TLAs passed. Under this interpretation, every one of Roosevelt's programs were wholly constitutional.

I, personally, like Madison's interpretation in Federalist #41. After all, he was the one who wrote the dang thing.

The Constitution was indeed meant to ensure a government that had limited and specific powers. Why would they have used a phrase that was not very specific when they did use phrases that were very specific everywhere else? It would make no sense taking it as a whole.

42 posted on 10/03/2001 1:58:25 PM PDT by AKbear
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To: justshutupandtakeit
You think this is not saying that funds can be raised to provide for the "general Welfare"?

It's saying taxes can be imposed to provide for the general welfare. That provision can only be understood in light of what follows in the section, i.e. the enumeration of powers. Look at it this way: there are two ways of looking at it. #1 holds that it does not grant the power to do anything that might be for the general welfare, and #2 hold that it does. #2 renders the rest of the section pointless, since everything listed is there to promote the general welfare, and makes the Tenth Amendment incoherent, since "powers not delegated to the United States by the Constitution, nor prohibited by it to the states" would be a null set. Not to mention, it makes the author of the phrase a liar, because he directly and very clearly denied #2.

It would seem #1 ought to be considered as having some small advantage. The general welfare can only be understood in relation to the context of what follows. As Madison says, "a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon." Any other view cannot be supported in light of the rest of the document, the words of the authors in other places, or the historical context.

43 posted on 10/03/2001 2:07:19 PM PDT by A.J.Armitage
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To: justshutupandtakeit
I have seen the argument in 41 and don't buy it.

You accused us of being like people who think they know more about medicine than doctors because we hold views on the Constitution unlike those of some lawyers, and here you're dismissing the guy who wrote it out of hand.

44 posted on 10/03/2001 2:13:06 PM PDT by A.J.Armitage
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To: AKbear
Unfortunately, the predictions of the Anti-Federalists turned out to be pretty accurate.

Pretty accurate? More like dead-on bulls-eye.

45 posted on 10/03/2001 2:19:11 PM PDT by Ego
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To: Huck;AKbear;A.J.Armitage
I have no intention of trying to rebut Madison merely to say that his later argument is not entirely convincing. Much of the selection posted appears to be backfilling and an attempt to escape an ambiguity which enemies of the Constitution seized upon. This was brought about by very unclear and convoluted sentence construction. Perhaps the committee on style did not notice it perhaps there was a typographic error.

The very fact that this discussion has to occur is substantiation of my argument that this document is not simple and that major differences of opinion can occur over the meaning of punctuation marks and sentence structure. To claim that this is simple is like claiming Faulkner is simple. This is a sentence of hundreds of words and was not written by Madison but by the Committee on Style. I don't have Hamilton's analysis of it handy but believe it to be a little different. He was also on the Committee and probably had more discussions with Madison about the document than anyone else. At that time they were very close allies even friends. So I will assume that Madison's description of the intent of the phrase is correct. However...

1)from my understanding of grammar the phrases enumerating what funds could be spent for are all independent clauses not examples of what is the "general welfare." My belief is that when a list is to be imparted it follows a : not a ; perhaps an English major could clarify this. Maybe usage was different in 1787.

But all those phrases ending with ; seem to be seperate allowable uses.

2)Madison's complaint that it could be construed to allow funds to be used for destruction of the freedom of the press apparently remained a concern with many so the Bill of Rights was adopted to clarify this point. M. and H. did not believe a BofR was necessary.

3)The section "If the different parts...." is not entirely clear to me but I do not agree that it is logical to construe the specified uses as something to "be denied any signification whatsoever." The clauses appear to be independent of each other.

4)Since Madison refers to the identity of language in the Articles etc. it appears that this is a conventional phrase probably not given much thought before its useage. A rhetorical device can come back to haunt you in a document like this when every word is scrutinized.

5)Why is the term even there if it is to be ignored? It certainly has created confusion, controversey and mischief.

6) AJA I have stated elsewhere that I believe that the 10th amendment is essentially meaningless but for noting that State internal police powers are affirmed, judicial, health, etc. it has no meaning that I have been able to discover as regards the relation between the state and the federal governments or that between the state governments with each other. The 10th is significant in its apparent lack of impact on constitutional law. I have challenged those who believe it to be anything other than a rhetorical device to refer me to some case law where it is referenced.

46 posted on 10/04/2001 7:54:43 AM PDT by justshutupandtakeit
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To: AKbear
The Committee on Style wrote the constitution, not Madison.
47 posted on 10/04/2001 7:55:45 AM PDT by justshutupandtakeit
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To: A.J.Armitage
The Committee on Style included Hamilton (naturally), and Morris as well. Madison did not write the constitution.

BTW 31 of the 55 conventioneers were lawyers.

48 posted on 10/04/2001 7:58:07 AM PDT by justshutupandtakeit
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To: eskimo
ONe of the most attractive aspects of the Republican takeover of Congress in 1994 was its declared intention to start weeding some of these laws out.

Anarchy will not result from not having laws but from having so many that it is impossible to know them all or which apply to what. We need to start doing some serious chopping on every level of government. There are even more ridiculous laws on the local and state books than on the federal. Some are hysterically ridiculous.

49 posted on 10/04/2001 8:02:34 AM PDT by justshutupandtakeit
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To: justshutupandtakeit
First, let me just say thanks for getting back to this. Now then:

The very fact that this discussion has to occur is substantiation of my argument that this document is not simple and that major differences of opinion can occur over the meaning of punctuation marks and sentence structure. To claim that this is simple is like claiming Faulkner is simple.

I agree with you on that. This is a problem I have with nullification. It seems to me there ought to be a final judge of constitutionality, and then, if the states require remedy, or clarification, there is amendment. Maybe that's not perfect, but how many interpretations can we have at one time and still have a workable system?

But all those phrases ending with ; seem to be seperate allowable uses.

My understanding is that semicolons separate independent clauses.

5)Why is the term even there if it is to be ignored? It certainly has created confusion, controversey and mischief.

I think general Welfare was meant to mean "for the good of all the states in general." That's what I take it to mean. As opposed to "for the benefit of certain states."

The 10th is significant in its apparent lack of impact on constitutional law. I have challenged those who believe it to be anything other than a rhetorical device to refer me to some case law where it is referenced.

My mother the lawyer says that's actually how they teach the 10th amendment in law school.

50 posted on 10/04/2001 8:05:10 AM PDT by Huck
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