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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.


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TOPICS: Constitution/Conservatism; Editorial
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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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