Democracy at work in House of Representatives?

[Steve Wilkins]

Most economists think Obama's bailouts are terrible, and I gather from your posts that you feel the same way. So what point am I making for you?

I do feel the same way, but not because of what some economist says because they happen to be the resident expert of the day. The fact that YOU defer to the experts is what I'm getting at. I would certainly consider many enlisted personnel (and especially the senior ones) experts in their particular job area. However, on more than one occasion I would have gotten myself and my ship into a world of shit by following their advice had I not took the time to understand what was going on.

Apples to oranges here. Waking up a pilot that's asleep at the stick is a lot different than debating the interpretation of the Constitution.

The actions themselves is apples and oranges, but the common denominator is that your posts show a trend of deference to others that supposedly have more knowledge, experience, or skill than you.

In some respects, yes.

Do you treat your command's instructions and regs the same way?

 

[Brett327]

I think it was a bit difficult for the Colonists to win their independence too, don't you think?

That's not what I'm talking about. Things have evolved since then and to the extent that the people in general are satisfied with their day to day lives(even if it's in blissful ignorance), things aren't going to change. That's my point. Most Americans are too stupid and/or lazy to care about such things - sad but true. Give me an America who has suffered under oppressive foreign rule for 100 years and I'll show you an America ready for revolutionary action. Until then, this is all just academic masturbation.

Brett

 

[OnTopTime]

If you understood the history leading up to the making of the Constitution, the events that transpired during the summer of 1787, and then the creation of the Bill of Rights, you would see why the powers delegated to the Federal government are very specific.

Yes, I understand the events and history. For instance, Madison and Hamilton disagreed about the meaning of the general welfare clause and whether it granted additional power to Congress to tax and spend for the general welfare above and beyond the other enumerated section 8 powers. The first rule of statutory interpretation is to look at the clear meaning of the words in the statute. I shouldn’t have to go outside the four corners of the document to get additional information that sheds light on the words in the document to make them “specific.” If the words in the Constitution convey a specific idea, it's because of the words themselves and not because of the history and events that caused them to be written.

If you are having trouble understanding what those words mean in the context in which they were written, then why are you arguing with me about it? Are you just arguing to argue?

No, I have no desire to argue for argument’s sake. As I mention above, there was disagreement among the founders about the meaning of the words in the context in which they were written. My disagreement with you is based on the fact that you’re so sure you know what the words mean, 200 plus years after the fact and in the face of court decisions to the contrary.

If you want to believe that you are less intelligent than others who have made similar arguments, then so be it. But you don't know me, where I've been, what I've done, or what I know. I am not a lawyer nor do I believe you need to be one to understand the Constitution (hell, John Marshall only studied law briefly, for less than a year), though I did take several law courses in college (which many of us know, really means nothing). With that said, I've read more books on Colonial history, the making of the Constitution, Constitutional history, and Constitutional law than I can count....for fun, because I find the subject very interesting. I'm not trying to impress you; I couldn't care less about that. I'm just trying to show you that the statements I make are not based on any preconceived notion I have or how I feel about any particular political party.

I apologize; I was trying to inject some levity into the discussion and I guess it fell on deaf ears. You’re right; I don’t know you or anything about you, and I’ll try not to be judgmental. The “others” I was referring to are attorneys who have made a living out of writing briefs for and making arguments before the Supreme Court, and the justices who have ruled on those briefs and arguments. If you want to make yourself the intellectual equal of those “others” than I have no basis to disagree with you. Your interest in colonial history and constitutional law and your initiative to do personal reading on those subjects is admirable. I’m sure that you’re more well-read on those topics than I am. My exposure to constitutional law comes mainly from assigned reading, class discussion and research papers for my political science undergraduate degree and my law degree.

Yes, I'm quite familiar with the case. That's a fairly popular quote you picked but does nothing for your argument. It's almost ironic in a sense, that you quote an excerpt from the majority decision of a case that declares the Judiciary Act of 1789 unconstitutional, the same act that established the judicial framework, including the form and specific responsibilities of the Supreme Court itself. So here we have John Marshal proclaiming that the Supreme Court has the constitutional authority to rule on the constitutionality of laws, thereby interpreting the meaning of the Constitution. On one hand he's saying the law is unconstitutional and on the other he's using it to establish to power of judicial review. But where did this power of judicial review originate? Clearly, John Marshal couldn't derive this power from the Judiciary Act of 1789, for he had declared that law unconstitutional. And the power of judicial review isn't found in the Constitution. Don't you think if the founders wanted the Supreme Court to be the final arbiter on the constitutionality of laws, they would have written it into the Constitution?

The Marshall court ruled that only part of Judiciary Act of 1789 was unconstitutional. I don’t think that Marshall was using the Judiciary Act of 1789 as a basis for claiming the power of judicial review for the Court; I think that Marshall’s argument was that that power existed in and of itself as a matter of necessity. I don’t know why the founders didn’t specify in the Constitution how constitutional conflicts are to be resolved, but since they didn’t, allow me to pose a question to you: if not the courts than who? If Congress passes a law that clearly conflicts with the Constitution, either with the president’s signature or over his veto, what do you think should happen absent the court’s power of judicial review?

And I haven't even mentioned the best part. The case itself was brought by Marbury because of the failure of Marshall (when he was Sec. of State under Adams) to deliver 17 appointments that Adams made, Marbury being one of those to not physically receive the appointment papers by Marshall. So, here was a guy deciding a case in which he had a hand in. If this happened today, people would be crying foul due to conflict of interest, and rightfully so.

You may be right about this, but it has no bearing on the substance of our disagreement.

The first case heard regarding the Commerce Clause was Gibbons v Ogden, heard by the Marshall Court (where have we heard that name before?). If you look a the history behind the commerce clause, you'll see that the impetus of the Constitutional Convention itself was the Confederation's lack of authority to regulate interstate commerce. The intent and purpose of the Commerce Clause currently in the Constitution was to eliminate trade barriers that some states had put up under the Articles of Confederation. You can look to the Supreme Court to give you your answer what the Commerce Clause means. I'll look to the history behind the intent and purpose.

I’m familiar with Gibbons v. Ogden as it was assigned in my first semester of law school. Like you, the courts also look to the intent and purpose of a law or a part of the Constitution when making a ruling.

Ah yes, the Supreme Court again....the source for all our answers. And it's not so much the bullshit programs (yes, that is part of it). It's Congress interjecting itself more and more into areas they have no business in, setting up precedent to interject itself into other areas But I guess we'll just wait for the Supreme Court to determine whether Congress is violating the Constitution instead of actually thinking for ourselves and holding Congress accountable.

This is what the Court has been doing since Marbury v. Madison. I think it’s great that you’re thinking for yourself, and while I disagree with your argument I certainly respect your right to have your own opinion. Likewise, I would hope that you would respect the fact that although the constitutional interpretation I subscribe to is different than yours, it doesn’t mean that I haven’t been doing my own thinking.

 

[Spekkio]

I do feel the same way, but not because of what some economist says because they happen to be the resident expert of the day. The fact that YOU defer to the experts is what I'm getting at. I would certainly consider many enlisted personnel (and especially the senior ones) experts in their particular job area. However, on more than one occasion I would have gotten myself and my ship into a world of shit by following their advice had I not took the time to understand what was going on.

It's still apples and oranges, though. A sonar tech cares about being able to range and avoid contacts; he isn't concerned with things like getting to station on schedule. They also aren't looking at and synthesizing all the available information at once; they are just interpreting the sonar trace. So it's very easy for them to recommend a maneuver that might be dangerous, partly from human error and partly because they don't have all the information available to them. Other times a division might want to do maintenance so they can go rack out, but that maintenance would put the ship in a potentially compromising position. And while enlisted Sailors are supposed to be experts in their ratings, I'm sure you've met your fair share of some who just are quite clueless.

I don't see how that analogy fits the Supreme Court. While it's not a requirement to be a prominent lawyer to become a justice, they all are. If they aren't the ones looking at the specifics and big picture of the Constitution, then who is?

That's not to say that I think the SC is infallable; far from it. Specifically, I don't like how broadly they have applied the elastic clause and interstate commerce clause to Congressional power (somehow a federal law against growing marijuana at home for self use was upheld citing these lines). And there are times where the SC flat out makes things up (Roe v. Wade). But that doesn't invalidate the SC as an authority on matters entirely. The important thing is to listen to both sides of the argument and make a judgement from there, but ignoring them as an expert is foolish and imprudent.

 

[Steve Wilkins]

The first rule of statutory interpretation is to look at the clear meaning of the words in the statute.

I agree. I had a professor in college that frequently said, "Words are good." The implication was that the statutes should say what they mean and mean what they say.

I shouldn’t have to go outside the four corners of the document to get additional information that sheds light on the words in the document to make them “specific.” If the words in the Constitution convey a specific idea, it's because of the words themselves and not because of the history and events that caused them to be written.

Similar to what I said above, I generally agree with this sentiment. However, this also means we can't (or shouldn't) be going to find meaning where there is none. Take for example the following:

The Congress shall have power to...provide for the common defense and general welfare of the United States...

According to what you're saying and the principle I generally subscribe, to understand the meaning of the General Welfare Clause we only need to know what 1) 'provide', 'general', and 'welfare' mean and 2) to whom or what 'general welfare' is to be provided. I think we can safely substitute 'provide for' with 'promote through legislation', so we are left only with needing to know what 'general welfare' means. Unfortunately, we can't look to the document because it doesn't define what 'general welfare' really means. The Preamble mentions 'general welfare' but does nothing to explain its meaning. Clearly, the General Welfare Clause had a meaning before the SCOTUS gave itself the power to determine what the Constitution means. But what was that meaning and just as importantly, does it mean something different today than what it meant in 1787 when the Constitution was written or in 1788 when it was ratified?

First off, this clause applied only to the Union because that's what it specifically says right there in the sentence (i.e. 'of the United States'). This was not a reference to people, groups, or individual persons. Without taking into account any history or what the Framers' intent was, we are only left to looking to how the word, 'welfare' was defined in the day. According to the 1806 edition of Webster's Dictionary, welfare is defined as "happiness, prosperity, success, health". So, now that we know what the components mean, let's put them all together.

"The Congress shall have power to...provide for the common defense and general welfare of the United States..." can be rewritten as "The Congress shall have power to...promote through legislation the common defense and general happiness, prosperity, success, and health of the Union..."

This still doesn't say much and may still leave things unclear, so what are we left to do? Of course, there's always Madison's interpretation that the specific powers associated with the first paragraph of Article 1, Section 8 are really the remaining underlying enumerated powers listed in that section. There's also the possibility that Hamilton's interpretation is correct in that what constitutes the "general welfare" is up to Congress.

Given that this is the document that 1) represents the supreme law of the land, 2) that all our laws are based on, I think it is necessary and proper at times to look outside the four corners of the document itself. Context and intent are needed for a complete understanding.

Yes, Hamilton and Madison certainly disagreed, but this only helps to demonstrate my points. Hamilton was an elitist that didn't trust the common people. His idea of the perfect government was modeled after the British monarchy and if he had his way, would have given much of the electorate life terms. On the other hand, Madison believed that power and authority ultimately resided in the hands of the people and that it was delegated to the government. I'm a strong believer in "We the people" and therefore believe Madison's notion of a limited government (compared to today's standards) is correct.

No, I have no desire to argue for argument’s sake. As I mention above, there was disagreement among the founders about the meaning of the words in the context in which they were written. My disagreement with you is based on the fact that you’re so sure you know what the words mean, 200 plus years after the fact and in the face of court decisions to the contrary.

Yes, of course there was disagreement, but there were also ideas that were more universally accepted than others. Hamilton's model of government received little to no support. He wanted a strong central government with broad legislative authority which is opposite of what most Americans (and Framers) wanted.

Regarding the court decisions, do you at least agree that that SCOTUS gave itself the authority to exercise the power of judicial review in the sense of being the final arbiter of what is constitutional and what is not? If you do, then please forgive my lack of deference to the Court in defining what the Constitution means. The 200+ years of court decisions have only served to confuse the American people into thinking they are not able to understand what our founding document means. Even several in this thread have indirectly implied that I can't possibly understand it because I'm not an elite hot shot lawyer with years and years of experience reading case law. And I guess this is the fundamental difference between myself and some others. I don't believe the meaning of the Constitution has changed except for through the amendment process. Because of this, I don't defer to defer to case law to understand its meaning.

I apologize; I was trying to inject some levity into the discussion and I guess it fell on deaf ears. You’re right; I don’t know you or anything about you, and I’ll try not to be judgmental. The “others” I was referring to are attorneys who have made a living out of writing briefs for and making arguments before the Supreme Court, and the justices who have ruled on those briefs and arguments. If you want to make yourself the intellectual equal of those “others” than I have no basis to disagree with you. Your interest in colonial history and constitutional law and your initiative to do personal reading on those subjects is admirable. I’m sure that you’re more well-read on those topics than I am. My exposure to constitutional law comes mainly from assigned reading, class discussion and research papers for my political science undergraduate degree and my law degree.

Intellectual equal? Yeah. Having the same experiential knowledge? No.

Intelligence as defined by Webster: the ability to learn or understand or to deal with new or trying situations; the ability to apply knowledge to manipulate one's environment or think abstractly

The Marshall court ruled that only part of Judiciary Act of 1789 was unconstitutional. I don’t think that Marshall was using the Judiciary Act of 1789 as a basis for claiming the power of judicial review for the Court; I think that Marshall’s argument was that that power existed in and of itself as a matter of necessity.

If he wasn't using the Judiciary Act to claim the power of judicial review, and this power is not in the Constitution, but yet the power exists in and of itself, then where was the authority to use this power derived? I don't necessarily disagree that the notion of judicial review is necessary, but the Court essentially plucked the authority to use this power out of the ether. Vis a vis the Constitution, this power was never properly delegated to the Court by the people. I suppose a case could be made that it was delegated indirectly by way of no action taken to fix the issue. I do not agree that inaction implies consent, but can see how others may see that.

I don’t know why the founders didn’t specify in the Constitution how constitutional conflicts are to be resolved, but since they didn’t, allow me to pose a question to you: if not the courts than who? If Congress passes a law that clearly conflicts with the Constitution, either with the president’s signature or over his veto, what do you think should happen absent the court’s power of judicial review?

The law should become null and void or the Constitution amended. If a law is unconstitutional, then how can it legally, ethically, or morally be enforced? A possible solution may be to have proposed legislation pass through the SCOTUS as a constitutional filter prior to being passed. Two thirds majority of the Court required instead of a simple majority to get the thumbs up. Bills are either deemed constitutional or unconstitutional.

You may be right about this, but it has no bearing on the substance of our disagreement.

Nope, but still interesting none the less.

I’m familiar with Gibbons v. Ogden as it was assigned in my first semester of law school. Like you, the courts also look to the intent and purpose of a law or a part of the Constitution when making a ruling.

To be honest, I actually agree with that particular decision

This is what the Court has been doing since Marbury v. Madison. I think it’s great that you’re thinking for yourself, and while I disagree with your argument I certainly respect your right to have your own opinion. Likewise, I would hope that you would respect the fact that although the constitutional interpretation I subscribe to is different than yours, it doesn’t mean that I haven’t been doing my own thinking.

Of course I respect it. I just happen to have a 'take no prisoners' approach in articulating my arguments, especially on this particular topic. Nothing personal even if it may have appeared that way. It's how I flush out those with no idea about what they're talking about.

 

[Steve Wilkins]

I don't see how that analogy fits the Supreme Court. While it's not a requirement to be a prominent lawyer to become a justice, they all are. If they aren't the ones looking at the specifics and big picture of the Constitution, then who is?

Hopefully you, me, and all our other brothers of another mother.

The important thing is to listen to both sides of the argument and make a judgement from there, but ignoring them as an expert is foolish and imprudent.

Ahh, I didn't say I ignore them. I just don't defer to them simply because they ARE labeled as an expert.

 

[Spekkio]

Hopefully you, me, and all our other brothers of another mother.

Well, that is done through our representatives when the SC decides to leave interpretations up to Congress (see your discussion on the "General Welfare" clause). You, me, and a bother of another mother can't vote directly on legislation, but our representatives can.

The problem is that people demand that the government do things it ought to stay out of, such as "fix" the economy. It's easy for me to say this while typing on a laptop over the internet, but the government needs to butt out. The thing is, how can someone get elected by saying "Yeaaaa, the economy sucks but we're not going to do anything about it. It'll get better eventually. When? I don't know, but I'm going to go play golf with my 6-figure tax-supported income."

 

[Junkball]

Get your history straight. FDR was elected to four terms not three. Nothing he did was so spectacular. You can argue that many of his actions actually prolonged the great depression.

Also, a lot of FDRs programs arguably PROLONGED the depression by stretching the correction out over a decade, not a couple years.

FDR did not get us out of the depression... WWII got us out of the depression.

The New Deal brought unemployment down from the peak of 25% when he took office. As for the "the Depression was prolonged by FDR" argument, the one's I've seen put forth (and this is a recent phenomenon put out by Right-Wing think tanks); well, I've yet to read one that didn't misrepresent the facts.
Arguably indeed.

A UCLA (regular right-wing think tank, that school) study a few years ago concluded FDR's policies prolonged the Great Depression.

http://newsroom.ucla.edu/portal/ucla/FDR-s-Policies-Prolonged-Depression-5409.aspx

Many thought the length of the GD was a sign capitalism couldn't be trusted to 'right the ship,' economically speaking. The authors concluded, "Ironically, our work shows that the recovery would have been very rapid had the government not intervened."

Wish BHO had seen that one...

 

[HercDriver]

Let me make this as simple as I can without drawing this out into an entire essay. The government gets its authority from the people. That's me and you. We delegate certain powers to it to take care of various functions. With that said, do you believe you have the authority compel me to give you my property for the purpose of my retirement and for others? Do you have the authority to compel me to give you my properety in exchange for my medical care now and later. Furthermore, do you have the authority to compel others to give me their property for the same reasons just mentioned? If your answer is no, then how can you delegate that same power to the government?

I actually don't entirely disagree with you, but in this place that is the real world, SCOTUS decides the constitutionality of laws and I doubt any of the things you mentioned could be seriously challenged in a case before them.

 

[Fog]

Message for Steve Wilkins: I'm in your court, but you need to just give it up. There are waaaaaay too many people here who are a lot smarter than you (or I). Just soak in the wisdom of their words, and you'll likely live a long & fruitful life. Fighting it is like pee'ing up a rope: it all comes back on your ankles.

 

[Steve Wilkins]

I actually don't entirely disagree with you

So then you agree just a little bit that you should be able to compel me to give up my property for the benefit of another? I'm not really sure I understand how you can not entirely disagree or agree. Either you believe you as an individual have the authority to compel me to do those things (give up my property) or you don't. We're getting down to one of the most fundamental elements of liberty here.

but in this place that is the real world, SCOTUS decides the constitutionality of laws and I doubt any of the things you mentioned could be seriously challenged in a case before them.

That's because the Court has so broadly interpreted the Constitution that most people in this country have lost touch with its original intent and focus, which was to create a stong(er) federal government (compared to the Articles of Confederation), but limited in scope. People no longer believe that they are the source of government authority. They think the Constitution is the document that says what the government can't do to them, not the other way around. Ask someone why they have a right to free speech and sure enough, they'll tell you it's because the Constitution says they do.

 

[HercDriver]

So then you agree just a little bit that you should be able to compel me to give up my property for the benefit of another? I'm not really sure I understand how you can not entirely disagree or agree. Either you believe you as an individual have the authority to compel me to do those things (give up my property) or you don't. We're getting down to one of the most fundamental elements of liberty here.

That's because the Court has so broadly interpreted the Constitution that most people in this country have lost touch with its original intent and focus, which was to create a stong(er) federal government (compared to the Articles of Confederation), but limited in scope. People no longer believe that they are the source of government authority. They think the Constitution is the document that says what the government can't do to them, not the other way around. Ask someone why they have a right to free speech and sure enough, they'll tell you it's because the Constitution says they do.

I agree with your points regarding the Constitution; I disagree with your earlier point on people being angry that Congress doesn't follow the Constitution WRT Social Security, Medicare, Health Reform, etc (at least not to a significant degree). From what I've seen most people are angry at Congress for political reasons, rather than Constitutional questions.

 

[OnTopTime]

Message for Steve Wilkins: I'm in your court, but you need to just give it up. There are waaaaaay too many people here who are a lot smarter than you (or I). Just soak in the wisdom of their words, and you'll likely live a long & fruitful life. Fighting it is like pee'ing up a rope: it all comes back on your ankles.

Fear not, Fog, for Steve's intellect is on par with that of Antonin Scalia, William O. Douglas, Benjamin Cardozo, Louis Brandeis and Oliver Wendell Holmes.

 

[OnTopTime]

Given that this is the document that 1) represents the supreme law of the land, 2) that all our laws are based on, I think it is necessary and proper at times to look outside the four corners of the document itself. Context and intent are needed for a complete understanding.

I agree. When a law isn’t clearly written, the courts will look to the legislative history to try and discern intent. My point has been that this is not an easy task where the Constitution is concerned. There were some strongly divergent views among the framers, and the passage of time complicates the matter.

Regarding the court decisions, do you at least agree that that SCOTUS gave itself the authority to exercise the power of judicial review in the sense of being the final arbiter of what is constitutional and what is not?

Yes, I do; again, I think the court assumed this authority out of necessity. The judiciary has neither the executive’s power of the sword nor the legislature’s power of the purse. In my opinion, the practical application of checks and balances in our system requires that the judiciary exercise the power of judicial review. While you may object to this extra-constitutional power, I hope you’ll agree with me that the least political of the branches is the best place for this authority to reside. And although I understand your argument that the court shouldn’t exercise this authority because the Constitution doesn’t explicitly grant it, I will point out that the framers could have explicitly denied this authority to the court, and they chose not to do so.

If you do, then please forgive my lack of deference to the Court in defining what the Constitution means. The 200+ years of court decisions have only served to confuse the American people into thinking they are not able to understand what our founding document means. Even several in this thread have indirectly implied that I can't possibly understand it because I'm not an elite hot shot lawyer with years and years of experience reading case law.

Without the benefit of reviewing the entire thread, I haven’t gotten that same impression. I hope that something I wrote isn’t what you’re referring to. The Constitution, its creation and subsequent interpretation is certainly not a light subject, but it can be understood with the application of a little mental elbow grease. As we both know, differences in constitutional interpretation have engendered strong feelings for centuries.

And I guess this is the fundamental difference between myself and some others. I don't believe the meaning of the Constitution has changed except for through the amendment process. Because of this, I don't defer to defer to case law to understand its meaning.

Well, we’re a common law nation (except for Louisiana), and that won’t change anytime soon. Two centuries of habit is hard to break.

The law should become null and void or the Constitution amended. If a law is unconstitutional, then how can it legally, ethically, or morally be enforced? A possible solution may be to have proposed legislation pass through the SCOTUS as a constitutional filter prior to being passed. Two thirds majority of the Court required instead of a simple majority to get the thumbs up. Bills are either deemed constitutional or unconstitutional.

Your possible solution, or something quite similar, was debated in 1787 and ultimately rejected.

What’s your favorite book on the constitutional convention?

 

[Steve Wilkins]

There are waaaaaay too many people here who are a lot smarter than you (or I).

Clearly