Brett's July 2009 Post

[Brett Kraus]

Now, whether you agree with his policies or not, there has been a lot
of discussion among conservative pundits about how Barrack Obama has
been destroying the U.S. Constitution. Does this claim have any basis
in truth, or are his policies so different from what we have known
that some would reject their application as anti-american as a gut
instinct, and what makes them appear as such?

[Jake Patterson]

Sorry it's taken me so long. Here's my response:

It could be argued that the Constitution was effectively destroyed in
1803 with the Louisiana Purchase. Thomas Jefferson and his associates
struggled over the constitutionality of a President exercising this
much financial power. In the end, they decided to do it because it
was beneficial for the country. In the end, I think they made the
right choice. But they bent the Constitution to do it.

And that bending hasn’t stopped. Since FDR we have been going into a
fantastic spiral of governmental dependence. I don’t like to see it,
but that’s my personal opinion. A lot of people do. Also my opinion:
the people who do are either IN the government and want power or are
lazy citizens who have accepted a lifestyle of helplessness.

There is a sentiment today that if it’s not forbidden by the
Constitution, then the government can do it. Our Founding Fathers
were perfectly aware that a government can became large, abusive, and
controlling. They wrote the Constitution to avoid that. In my
studies, their intent was that if it’s not specified in the
Constitution, then the government can’t do it. A far cry from today’s
attitude.

So yes, I think Barack Obama is on the cutting edge of ruining the
Constitution. But not more so than George Bush or any other President
we’ve had in the last hundred years.

[Binyamin]

If people have been "ruining" the Constitution for so long, they're
not very GOOD at it.

What history books or thinkers inform your views of the Constitution?
I've always wanted to delve more into American legal history, but
haven't gotten around to it.

On Jul 15, 11:21 am, Jake Patterson <empireofp...@gmail.com> wrote:
> Sorry it's taken me so long.  Here's my response:
>

> It could be argued that theConstitutionwas effectively destroyed in

> 1803 with the Louisiana Purchase.  Thomas Jefferson and his associates
> struggled over the constitutionality of a President exercising this
> much financial power.  In the end, they decided to do it because it
> was beneficial for the country.  In the end, I think they made the

> right choice.  But they bent theConstitutionto do it.

>
> And that bending hasn’t stopped.  Since FDR we have been going into a
> fantastic spiral of governmental dependence.  I don’t like to see it,
> but that’s my personal opinion.  A lot of people do.  Also my opinion:
> the people who do are either IN the government and want power or are
> lazy citizens who have accepted a lifestyle of helplessness.
>

> There is a sentiment today that if it’s not forbidden by theConstitution, then the government can do it.  Our Founding Fathers

> were perfectly aware that a government can became large, abusive, and

> controlling.  They wrote theConstitutionto avoid that.  In my
> studies, their intent was that if it’s not specified in theConstitution, then the government can’t do it.  A far cry from today’s
> attitude.
>
> So yes, I think Barack Obama is on the cutting edge of ruining theConstitution.  But not more so than George Bush or any other President

> we’ve had in the last hundred years.
>
> On Jul 7, 1:06 pm, Brett Kraus <MoralEconom...@gmail.com> wrote:
>
> > Now, whether you agree with his policies or not, there has been a lot
> > of discussion among conservative pundits about how Barrack Obama has

> > been destroying the U.S.Constitution. Does this claim have any basis

[Brett Kraus]

Another long post, I am sorry about this and I do not mean to scare
people off, I really want an answer. Please ignore my even more
obvious bias in this part, but I am dissatisfied with all the
responses I have received outside of this forum. I will start off with
an explanation as to why one even in history may not have been against
the Constitution, only different from how that person wanted the
Constitution to be interpreted.

Interestingly enough, the Louisiana purchase was envisioned by some of
our nation's founders, but Jefferson belonged to a group that feared
the tyranny that a strong executive would bring. This answer as to why
the Louisiana purchase may not have been unconstitutional tells about
being how the founders were wordsmiths.

The Committee on Style was responsible for drafting the language of
the Constitution and some ratifiers were concerned about the power of
the Executive, so they watched for language in Article 2 that would
promote a more powerful executive than what they wanted (Madison,
Jefferson's intellectual companion, was among this group). Others,
including George Washington and Alexander Hamilton, felt that only a
strong executive could protect the people, so those seeking strong
executive powers added the empowering language to the Executive in
Article 1 (about the Legislative Branch), not Article 2 (about the
Executive Branch) of the Constitution.

To explain this further, you have to know about a legal principle that
predates our U.S. Constitution, but was adopted by our courts. It is
memorialized in this great Latin phrase: "expressio unius est exclusio
alterius" which literally translates to mean that the inclusion of one
thing is the intentional exclusion of all others. Founders added the
language that limited Congress' powers to those "herein granted"
implying that congress only had those powers listed in Article 1 of
the Constitution. There was no such exclusion in Article 2, leaving
the executive's power broader than the powers mentioned in the Article
allowing for such things that would allow the executive to exercise
the power it needed, and as it dealt with treaties, international
affairs, etc., so long as he was not expressly going against the
principles of things he could not do, the writers argued the President
was in Constitutional Territory.

Alexander Hamilton as Seretary of the Treasury under Washington
utilized these powers to great success, founding a national bank, a
stock market, the system behind the public debt, a national currency,
and more. These developments were developed to restore America's
credit, and it worked. Jefferson and Madison, however attacked
Hamilton for his policies, claiming they were unconstitutional,
because Hamilton's actions did not agree with their politics, not
because they could find any real clause that they violated. Then
Jefferson turned around, and while saying he was not sure it was
legitimate, he entered the Louisiana Purchase using the same logic
Hamilton applied to similar actions during Washington's tenure as
president.

Furthermore, clauses, such as the necessary and proper clause, expand
the authority of the government to take actions necessary to perform
Government's not inconsiderable powers. In the Lousiana Purchase, the
argument was that it was necessary for the economic development of our
nation and for security, both valid powers for the government to weild
and as it was an act taken by Jefferson with the consent of Congress,
it was agreed to be okay. Was the Constituion bent? I don't see how.

As for the Government growing, there was always a chance that it
would. But they feared a large beauracracy much less than one centered
in a single individual. They wanted government to be pitted against
itself. They wanted to ensure that the government could not take
actions that would hurt small groups. (This is one of the big
arguments in the Federalist Papers).

That being said, most of the things I have heard that Obama is doing
to ruin the Constitution does not sound like it even violates the
Constitution: it only seems like bad policy, which people think should
be against the Constitution - but it isn't. Truthfully, though, from
changing jobs twice, moving 400 miles a year after moving 2000 miles,
losing a beloved pet, working more than 50 hours a week and having a
family, I have had other things on my plate than looking for specific
instances of Constitutional violations that Obama has committing.

My problem is that people say he is violating or ruining the
Constitution without saying what he is doing that actually violates
the Constitution. When I ask, they always look at me like I am a dummy
and say, "You're a lawyer and don't know?" Invariably, since mostly it
is my family, I let it slide, but I have to ask...tell me something he
has done that is against the Constitution. George Bush Jr. had his
warrantless wiretaps, Guantanamo Bay Cuba and certain profiling issues
that could have been construed as violations of the Constitution. I am
looking for specific examples of that for Obama. It does not matter
that you don't agree with him; setting emissions standards for cars
that seems to be outrageously unreasonable, but with the help of
congress it is not a violation of the Constititon. Those powers stem
from the Commerce Clause in the Constitution and are explicitly given
to Congress; they are the ones who passed the bill at the President's
urging, so don't use that one - I've heard that one - it does not
prove the point.

Give me details on things you do not like that he has done that may be
controversial. We can talk about the politics of what he is doing and
discuss why we think his actions are dumb or not someplace else, but
my question here is based on the allegation that he is destroying the
Constitution. Please provide some back-up for that allegation. One
family member I talked to said they got the idea from Sean Hannity,
Rush Limbaugh, Glenn Beck and Ann Coulter. Those to me are not
reliable sources. Saying he is violating the Constitution is a serious
charge to me and I have not heard anything that sounds like a valid
argument to support such a claim. So if you believe it, give me
something to work with to accept it as something more than mudslinging
to get votes for the next election. Please do not leave it out. This
place is supposed to be a spot where our assumptions are tested...let
me test this one.

[Scott Nesler]

The majority don't understand argument theory. The media and
politicians have a monopoly in the debate. The tag team of hate
and fear has pummeled wonder and think. Throughout history the
common man has been duped into believing there are only two sides of
an argument.

Brett, your latest post touches on what no economical system has ever
addressed. Democracy to me means for the people and by the
people. I understand the logistical problems with this. The Bill
of Rights has a requirement of "Freedom of Speech". Many
misunderstand this as being freedom to be heard. There is no
freedom to be heard. Being heard is limited to the privilege or the
few individuals with the skill to craft an argument. These crafted
arguments still only have a one in a million chance to percolating to
higher visibility. When the media is a monopoly, even the best
rational argument is unlikely to receive any attention.

The fault of this is not with the politicians nor is the solution.
The solution resides in the pragmatic and generous spirits of a
populace armed with the "tools" and the "media" to express their point
of view in a respectful and intelligent light.

R. Buckminster Fuller had an optimistic view of how to prevent
irrational arguments from becoming society norms and laws. The
shame is, twenty five years after his death his vision is yet to be
realized:

Computers can remember accurately and can cope with and
integrate the vast amounts of all known, relevant information
on complex problems, uncopeable with prior to the computer.
What we had prior to the computer were respected opinions and
only-selfishness-conditioned reflexes on how to cope. Though
an opinion might be wrong, there was no practical and convincing
way to prove it. Unchallenged , the opinions became respected
precedent, then exceptionless concepts, and sometimes even civil
and academically accepted social law.

-- R. Buckminster Fuller -- Critical Path.

My Do Good Gauge abstract is starting to show some clarity. The
second and third page of the abstract tie in much of R. Buckminster
Fuller's concepts.

http://wow.dogoodgauge.org

I'll explain 'wow' vs 'www' in another thread.

[Brett Kraus]

Scott, you do touch on an important element, that perception can be
made to look like truth. The problem with thinking that this is
necessary or even inevitable is mistaken. The media and politicians no
longer have a monopoly on the debate. There has been an explosion of
information, of course not all of it is good information, but it is
there.

I do not know who quoted Winston Churchill, but they referenced his
statement that history is written by the victors. This has been
changing. During the dark ages, armies would destroy libraries or art
works, so that the ideologies of the defeated nation would no longer
survive (although the conquering nations would inevitably take
something they liked from that culture, integrate it into, and claim
it as their own.) Today, however, we don't do the same things, even
when it would suit our purpose.

There is enough information to rebut false ideas, but, your reference
to the computer is apt. We cannot store all of the information
available and we cannot all possess the information, but we can all
possess some of it. A friend of mine has never obtained any college
education or degrees, and I consider his intelligence and importance
to be great. He can take some pieces of wood that others have thrown
out, and build it into a desk or table that one could see in the halls
of castles or mansions. He has talent. He can tell you what each piece
of wood can be used for, and in which object it would be most useful.
As for me, the only thing I can do with wood is burn it.

No person knows everything, or even very much. I know some songs, but
if you want to know a general encyclopedia of music, you should ask
Adam. In my history with him, he has been able to identify any song I
have asked him about and probably knows the lyrics.

That is why debate and discussion between an interdisciplinary group
is essential. We all have differing backgrounds that allow us to
explore the various nuances and give insights that those from other
fields have not been able to think of.

In spite of loving this atmosphere, though, it is only valuable if we
do a thorough and detailed analysis.

In this post, I am attempting to use the Scientific method to test the
theory that Obama is not violating the Constitution. If anyone can
provide me with something that breaks that theory, it will be
debunked. If not, then I will be forced to assume that the theory may
be true.

[Scott Nesler]

Brett, I respect your attempt to see the logic. But, I think your
trying to make sense of an irrational agenda. I'm sure there
are many more logical fallacies to identify, but straw man and appeal
to motive come to mind.

By straw man I'm describing loyal party members attempting to
misrepresent the role of the team in the present crisis. Sure,
there is enough blame to spread around. Until someone identifies
the source of the hate and fear mongering, it will never stop. Until
it stops, we will not be able to move on and focus on solutions.

[Adam Webster]

Hey guys. Yes, I am still alive. Brett, I really like this question, and
I have to say that it actually only scratches the surface of bigger
issues. What the core question seems to be is the debate between Weak
Construction and Strong Construction. Constitutionally, Obama appears
to be a weak constructionist, basically affirming that he has the right
to do whatever the Constitution does not forbid. Does this destroy it?
Only when Republicans want to say it does. Is there some specific
instance they point to when making this accusation? What part of the
Constitution do they accuse him of violating exactly?

[Binyamin]

Just a reminder, the United States is not a democracy. It is a
democratic republic, whose republican representatives are elected by
hundreds, thousands, and sometimes millions of people with many
different interests and viewpoints. These representatives walk a
delicate line between following their own viewpoint and conscience,
turning to majority opinions by their majority of constituents, or
making a point of defending minority opinions in their jurisdictions.

We talk about the Constitution as a guiding light, but its narrowness
and small size is also a curse. Unlike the gargantuan legislative
constitutions of countries like Australia and Britain, we seek to
parse commas and single word definitions of our tiny Constitution. A
weird project, and one that ALWAYS makes me skeptical of those who say
they understand what the Constitution says, what the Constitution
means, and what the Constitution should mean.

[Jake Patterson]

Benjamin: A few years ago I could have cited you some good reading
material, but I've spent the time in between in school and ironically,
now I can't cite anything.

The writings of James Madison are informative. Thomas Jefferson is
usually cited as the minimalist, but he wasn't at the
Const.Convention. Madison was its architect and he was in lock step
with Jefferson most of the time.

Brett: What specifically have you heard others claim as examples of
Obama ruining the Constitution?

Also, when I talk to people who listen to Hannity or Limbaugh they're
usually conservatives. The pundits are easy to discredit by pointing
out that they are more Republican than Conservative. Case in point
their tireless defense of George W Bush who was by any standard, a
liberal president. He expanded the powers of the President and spent
irresponsibly, the most "conservative" things he did were so extreme
he couldn't have passed them.

When it comes down to it, the Constitution is impossible to violate
because it is so easy to stretch, manipulate, and interpret. I think
that Adam's rephrasing as strong or weak is appropriate.

> > > instinct, and what makes them appear as such?- Hide quoted text -
>
> - Show quoted text -

[Brett Kraus]

Paco, most of the answers I get are the emissions standards for
vehicles, the..."what, you don't know," or if I push any further after
debunking these two, they bail on me and tell me I am being too
critical of a point, because I must be a democrat (I am not, but
neither am I a Republican, and among some of my family and associates,
that appears to be a cardinal sin.)

As for the Constitution being weak, I do not think so. There are
limits, but those limits are couched more in process and orders than
in substance and meat. The founders quite intended it to be that way
(even the minimalists). They knew there would be changes, and they
knew a government would have to adapt to those changes. They also knew
that they could not anticipate those changes and so they couldn't
craft a document too structured otherwise they would handcuff the
government to an archaic way of thinking. There are only a few
specific rights in the body of the Constitution, which referenced
specific bad acts. A couple of examples are the ex post facto
provisions, which prevent the government from making something a crime
after you have done it (i.e. you eat blue M&Ms today when it is legal,
you cannot be prosecuted tomorrow when the government decides to ban
Blue foods.

The other is that they prohibit bills of attainer, which is when the
Congress passes a bill saying Jake/Paco is guilty of building lego
monuments, but requiring that such a determination goes to the court
for a jury to decide if Jake/Paco so desires (he can opt for a judge
to hear his case). Just because the Constitution is not specific on
what it allows and does not allow does not make it weak, it just
changes how we have to think of it. The Constitution can be violated
and in fact, I think GWB Jr. did, with his warrantless wiretaps and
with Gitmo (the Supreme Court thought so too, at least with the
latter, I don't think the former was ever tested). My main argument is
that many policies are not violative of the Constitution, and we
should be careful of using that claim unless we can back it up.

[Jake Patterson]

I don't mean that the Constitution is weak. I was referencing Adam
when he said that the core debate is between a Weak Constitution and a
Strong Constitution. In the Weak version, wiretaps are just fine
because GWB's team of legal experts found a way to interpret the
Constitution in such a way that it worked. In a Strong version, well,
the Louisiana Purchase makes you pause.

And that brings up an interesting point but that's for another
thread. In fact, I'll go ahead and start it.

[Brett Kraus]

Your other thread was interesting. As to the strong interp and the
weak interp, I think it goes deeper than that even and there are these
different perspectives on the court. Scalia and Thomas (more the
latter than the former) are strict constructionalists, meaning that
they say the Constitution means what it says. Souter, one of the
brightest members of the court - the one retiring to let Sotomayor
join the court - came up with the answer and made it legitimate, using
a series of legal theories. Ginsburg is much more of a living
Constitutionalist, but one who says that the Constitution was intended
to be looked at through the prism of our modern understanding. There
is also the question on what the intent of the framers really was.

Really, the interpretation of commas and words is really the only way
to subscribe to the Constitution. There is also an interesting
example. On the original of the Bill of Rights, there is a smudge
right at a point in the Second Amendment that a comma could be placed
(right after the word militia), the addition of which could change the
plain meaning of the amendment, but only slightly. So look in
different texts of the constitution and you will see the comma in
some, but not in other versions.

This difficult interpretation is what keeps me in business. As to the
wiretaps, there is only limited support for it. Lincoln and FDR both
took draconian measures during war time to protect their interests.
These kinds of war powers would have allowed the kinds of things as
Gitmo and Warrantless wiretaps, although not so much the latter as the
former, as when Lincoln tried something similar, the court (after the
war) said that when a court is available, the executive has to abide
by the civil protections. The suspending of habeas corpus was done in
much the same way, but in Korematsu, the court authorized the
internment of Japanese-Americans in Concentration camps (after the
fact - of course), which would make it seem that this would be okay
for terrorists in our war on terror.

The short of it, I can see the arguments for an against, but think
people are trying too hard to bypass the plain meaning of the
Constitution, which is necessary.

As to interpretation, try this one on: On a sign hanging outside a
park in England, around 1945 (put up in the 1800s), a sign stood
saying: "no vehicles allowed in the park." Imagine you, with all of
your background and history are told this and nothing else and asked
to patrol the park enforcing this rule and did not have to deal with
any other law, which of these would you allow into the park:

Horse and Buggy?
Car/Truck/SUV?
Bicycle?
Stroller?
Roller Blades?
Wheelchair?
Electric Wheelchair?
Gas power-chair?
Ambulance?
Fire Truck?
Remote Control Car/Boat/Helicopter?

We could, and I have, argued about which would be allowed and which
would not. I did this in a legal interpretation class. There were 16
future attorneys arguing about whether the guy in the wheelchair would
be let in while the guy in the electric wheelchair would be kept out,
because of where we drew the line. The law must have meaning, or else
it is unfair and unjust. Aristotle has said you cannot treat like
things differently or different things alike without it being unjust,
so either our law is just, which I believe it mostly is, or our law is
not and why do we keep it? This is the long way to say that I do not
like the strong or weak classifications, because only one justice
appears to have the weak perspective, and he will not be on the court
much longer and it does not seem to be a good way to decide the law
fairly. Just to let you know, I disagree with those classes and sorry,
but my arguments are admittedly more nuanced than one might expect or
like, but I think nuance is important, as "the devil is in the
details".

[Adam Webster]

Brett, this is all extremely interesting, but I must say we are straying
from the topic (or at least delving into a massive tangent). I'm still
a bit confused as to what Obama is doing that is being construed as
unconstitutional or anti-constitutional. Perhaps you could not only
talk about his actions but clear up to me just which parts of the
constitution he is being accused of attacking or subverting.

[Brett Kraus]

We are straying from the topic, but mostly because I have no idea why
people say Obama is violating the Constitution. While looking last
night, I found a new one. People are saying that the bailouts are
unconstitutional because they are hurting the market. First, that
statement is arguable, I may think they are a bad idea, but there are
economists who think they are a good way to prevent a complete
implosion of our market system. Second, our market is not protected by
the Constitution. We have a freedom to make legal contracts in the
Constitution, and Congress can regulate interstated commerce. Markets
were created, under the hand of Alexander Hamilton, with the approval
of George Washington, after the Constitution was ratified. Jefferson
and Madison were the main opponents to setting up the market system.
So when a person says that harming our market system violates the
Constitution, it shows a lack of understanding with regards to the
economic history of our nation.

The other claim I found was made by Sean Hannity, stating that Obama
may not have been born in America and thus is not a natural citizen. I
have not yet heard the evidence behind this, but it seems that this
simple act violated the Constitution, and it may. This, if true, would
bend the Constitution, but a true determination will never be made
about it. The courts have repeatedly rejected attempts by the common
voter to challenge such an action and those are the people making a
stink. Hillary Clinton could have filed suit, because she has
standing, but it would be a tough road. So if this is their claim,
maybe, but by becoming president had he destroyed the Constitution? In
my opinion, No.

> > details".- Hide quoted text -

[Adam Webster]

As for the Hannity claim, it just makes him a hair-splitting jackass.
Because the constitution says something to the effect that the President
must be born on US soil, he claims any US citizen, born as a citizen and
to citizens, but born on an airforce base or during a vacation in
another country, cannot technically be president. In that case, it's
not Obama who has violated the Constitution. It's everyone who voted
for him and the court that allowed him to take the Oath of Office (which
he flubbed but fixed).

About interfering with the markets, I think it was a foolish idea, but I
have yet to see which part of the constitution it violates.

[Brett Kraus]

Adam, thats where I stand on it. I have heard the claims, but never any supportable basis. My post was only seeking to find out if there was any, or, as I said before, if it was only to try and demonize him prior to the next election. There is another chance that it is meant to bring people in to listen to the political commentators and make them rich. That would just tick me off. 

 

What ticks me off even more is that when people hear someone they do not like is violating the Constitution, they get to pretend that they are morally superior because they, at least, have not destroyed the Constitution.

 

Follow up query:

 

The majority of people who say these things do not like Obama. The ones who listen usually do not like him either. How do you tell convince people who are unwilling to listen not to pass judgment so quickly?

[Adam Webster]

My brother's mantra is that "a man convinced against his will is of the
same opinion still." Think of John Filpot during our freshman year of
college. That man would argue with you about anything and everything,
not bending to even the least bit of logic. I'm not the greatest fan of
the Obama administration, but I can't say I'm a fan of any recent
administration. When it comes to unavoidable confrontation with people
who are obviously taken up by biased rhetoric, I tend to ask for
evidence. If the evidence isn't there, that's at least grounds to end
the conversation.

[Jake Patterson]

You're not going to get hard-core Limbaugh fans to listen to reason.
Also, of COURSE Hannity and Limbaugh are in it for the money. This is
their living, and they're not altruistic truth-seekers, they're
pundits who develop talking points in order to bolster their
audience. While I am typically very irritated with them, I have let
myself listen to them once in a while since Obama's election because
they're the only ones delivering an alternative point of view.

Also, coming back to "expressio unius est exclusio alterius," what
else is meant by the Tenth Amendment? And go ahead and enlighten me
because I don't know its legal interpretation, but it says to me that
if it doesn't specify a power, then said power is reserved for the
states or for the people.

The Federal government HAS certain powers. Congress can regulate
interstate commerce, for example. But powers not ennumerated in the
Constitution can't just be made up. So based on this I believe the
people who tell you that the Bailout is against the Constitution have
a valid point. It never says that the government can buy up private
stock or issue loans. They are permitted to do some things but this
appears to be beyond their parameters.

[Brett Kraus]

The tenth amendment is complicated, but simple...it is not generally applied, it does nothing, the reasons for that are complicated and may take some time to explain.

 

Congress, in Article 1 can regulate interstate commerce and can take measures necessary and proper to fulfill their objective. The market was created post Constitution as an avenue to direct business and support the development of U.S. wealth. It is not a natural creation of "the people." Now that the market is entrenched with the economic system, they feel a need to uphold it.

 

The bailout was considered to be necessary to the continuation of interstate commerce and interstate banking. National Credit, which would be harmed by having our largest banks fail, has traditionally been treated as a valid Congressional action under the necessary and proper clause to allow the government to promote interstate commerce. The car companies is a little more difficult to justify, but it reveals the need for the government to act to protect jobs, with employees and customers that cross state lines, making it proper for national and not state help. That is the easy way to justify the actions as Constitutional. The Constitution is meant to be vague in some respects and this is one. The protection of our nations finances is envisioned by and helped motivate the formation of the Constitution, and since that is the stated and apparent goal of the actions there are not many courts that would find it violated the Constitution.

 

That being said, Jake's answer does lead us down an interesting path, but one I disagree with. Just because there is no specific mention of the right to do this, there was an intent to allow it. According to Madison's notes on the Constitution, a committee dealing with the powers of congress stated that there should be a clause authorizing congress to act "as may become necessary, from time to time, for the well managing and securing the common property and general interests of the United States in such a manner as shall not interfere with the governments individual states." This did not appear in the Constitution, there is no explanation as to why in Madison's notes, but it seems clear that they intended there to be some power to allow the government to act, when necessary, to protect our nations interest.

 

There is also the grant of permission for Government to take private property for public use if they pay money for it. Public use has not been defined well, but that clause seems to imply that they can buy up private property for public good as long as they pay for it. If I read it right, they did pay for it, at least more than what the stuff was really worth.

 

Requiring the government to find specific grants of authority before allowing them to act would cripple our governments and does not appear to be the intent of the framers. Still, I love that Jake/Paco came up with a reason people could rely on...if people use this, I could see their point, much that I still would try to prove them wrong.

 

Remind me on the tenth amendment discussion. I will chime in, I just need more time than I have now to respond.

[Adam Webster]

Also, would it be up to the states to buy up banks and businesses?

[Brett Kraus]

It depends on the circumstances, but yeah, that would be the idea. Originally, the national government and Constitution had little that controlled the states. They were two separate entities, but that changed after the civil war. States could do almost anything they wanted. The bill of rights did not apply to them (it does now, clearly).

[Brett Kraus]

Okay, the tenth Amendment...The language from the Amendment was a rewording of a provision in the Articles of Confederation. There are two groups that try to apply interpretation to it. The first I am going to mention is by far in the minority. These are the people who say, if it ain't in the Constitution, the states have to do it, or it can't be done. The number of Supreme Court cases interpreting this amendment that way is zero. Not one Court has done it.

 

The real protection of state interests was found, again, in the structure of the original Constitution. That structure is now gone. We have a federal system, one with a main central power and various smaller independent powers, technically, but the power of the states over the nation is smaller.

 

Binyamin made an important note for this conversation, of which he is right. We are a Constitutional Republic, meaning that we select our leaders, select the bounds within which they can act, and then the leaders make the important decisions. The selection of the President of the United States is solely in the hands of state governments...really. The President is elected by an electoral college. The selection of members to the electoral college is dictated by state law. State law could say that the governor selects who goes into the electoral college and voters be damned. Then he would get promptly voted out of office and things would be restored to the status quo, where the voters select the electors that are in a candidate's camp so that these electors go and cast their vote for your candidate. It happens and it works. This part of the structure is still in place, but tradition has made it so that the people feel entitled to vote and would not be willing to give up that right...so much for state control here.

 

The other protection states had was in the selection of Congress. The house was always meant to be the people's branch. The group that would keep the others, the senate, the courts, and the President honest, even though they were not elected or selected by the people. The senate, prior to the civil war, was selected by state governments. State officials would select the candidate for senate that they thought was best. The people had no control over who made it into the senate, beyond the letters and calls of constituents.

 

During the Civil War, people began to distrust state governments' ability to protect people's freedoms and so they made senators electable by the people of the state, instead of being selected by the government of the state. By this point, the Electoral College was already being elected by the people and the states who really cared, the southern ones, did not have the political power to take that back from the people, to whom they had ceded it to, even though that grant of power could theoretically be taken back at any time.

 

That was the real power protecting state's rights and privileges.

 

The majority opinion of the Tenth Amendment is that it was set up as a truism, an affirmation that States still had the power to control their own destinies. States still take action and make moves, but they do not have the kinds of checks against the National Government that they once had. People did not think that the Tenth Amendment granted any kind of power to the states to take future action. The prohibition against the National Government being able to force states to take action without giving them money to do so was found on other grounds...not on on the Tenth Amendment, even though they were pushed to do so. (An example is Printz v. U.S., which dealt with the Brady Bill - National Government required that state officers run background checks on everyone buying a gun, and impose a 5 day waiting period. The Feds did not give any money for the state to do this, and so the Supreme Court found it outside of Congress' Article I Powers.)

 

The courts have always argued that they could not know what the words in the amendment meant, and if they tried to interpret the language it would lead to abuses among state governments. They also just thought it a philosophical commentary on our nature of Government and how it was different from most governments that existed at the time. Other governments stated that the peasants/serfs were given land in exchange for service to the Lords, and that the Lords were given land in exchange for service to the Monarch, and the Monarch was given land in exchange for service to God, and that God was the ultimate puppet-master behind the workings of government (which is why the pope had so much power in most Catholic Countries).

 

The theory of the language was that it represented the idea that the government was a formation of people who ceded their own rights to the government in exchange for safety, security, wealth and peace. As such, the Tenth Amendment has been heralded but ignored by most judges, lawyers, politicians and citizens.

 

There are people pushing to have the Tenth Amendment enforced, but I do not see that movement getting anywhere and I, if you could not already tell, do not agree with that movement ideologically. Is this clear? If not, tell me where you are confused or where your problems are.

[Jake Patterson]

That's clear.

The Bill of Rights is made up of protections for the people against
the government. I can't imagine why the Tenth Amendment was drafted
at all unless the Founders meant for it to be taken seriously. It
seems to me that they established the central government to be an
improvement to the Articles of Confederation and make the union
stronger. But they weren't trying to step all over the states.

Minority or not, I think it is correct to claim that the Tenth
Amendment prohibits the Federal government from overextending, and
reserves anything not ennumerated for the States.

Think about it historically. Today the government in Washington tries
to impose its will on everything. All the controversial issues get
the great big foot of thefederal government stamped in it. They try
to legislate everything, from abortion to marriage to state welfare to
the environment. The entire nation is painted in broad stripes. If
they had tried this back in the day they would have met intense
resistence. I would say that the local culture of Massachusets is
still as different as the local culture of Georgia today as it was in
1776. Any broad regulations like No Child Left Behind or the proposed
health care reform bill would have sparked protests and burning
effigies of the president back in the day.

I think the Founders considered these differences very important
because they, themselves, came from a varied background. These
cultural differences created an enormous threat to getting the
Constitution put together at all. So they listed the duties they felt
should be centralized, and put a cap on it.

I believe that the States are capable of doing a lot more than they
do, and it would further allow the local culture to be expressed.
We've seen a little of this recently with some states voting against
gay marriage and others choosing to allow it. I think this is the
heart of the Union. The federal government should have no say in this
whatsoever. It allows the States to be different instead of blandly
painting the whole nation.

[Jake Patterson]

Back to breaking the Constitution. There appears to be no
Constitutional justification for agenties. I'm sure there is some
obscure line in some dark corner that when interpretted in a certain
light given something John Marshall once said, makes agencies
perfectly fine. But on an objective reading I don't find anything.

Brett, you mentioned something I didn't understand, about markets
being set up. What does that mean? Were markets nonexistant until
the US government allowed thme to be? I thought they were completely
private.

I also wanted to mention that in the conversations I've had I've
rarely heard it stated that Obama is "ruining the Constitution." I
have heard repeatedly that he is "ruining the country," on the grounds
that we have a strong capitalist tradition and our original ideals
were all about freedom, when Obama's policies sound even more
socialist and he's no less Big Brother-ish than Bush was.

[Brett Kraus]

By markets being set up, I am referring to the stock market, banking system and monetary system of the U.S.

 

Prior to the Constitutional Convention, there had been an attempt to create a national currency, the Continental, which fell flat. Locals still used the British Pound for trade and or used the barter system. Also, there was no such thing as a stock market, or a way to transfer debt/accounts, there also was no bank. There were few small lenders, giving private loans, but these were often the merchants selling the products, who took the risk on themselves to let people pay over time.

 

By setting up banks, a viable U.S. currency (controlled by the U.S.) and by setting up the national stock market (which later became private in the form of the NYSE), they created a mechanism to trade debt, assets, ownership, etc. and allowed the formation of large corporations. With the government purchase of bad loans and buying ownership, the part of the market that he is playing with is the governmentally created part (which has since mostly, but not entirely, become private, with government restrictions).

 

As to what you have heard Jake, I would not them hard if all they said was ruinging the country. That is an opinion that they can reasonably hold. There are valid arguments one can make to support that argument.

 

As to agencies, which agencies are you talking about? CIA? All of the beuacratic agencies of the government? Those are easier to justify then you might think. They enforce the laws Congress makes. The agencies are created by a joint Congressional/Presidential effort. Congress passes a law that says, President, you can create this agency, we promise to fund it. The President then can create it or not (generally he does - I do not know of any instance where he did not), then the agency is under the authority of the President, he can hire/fire anyone from it. They take their orders from the president. The agency heads that ignore the president make big headlines and then are fired. Some people, when an agency head gets fired, say that the agencies should be independent of the President and that the president should not be able to fire their heads when they disagree (usually because that person agrees with the fired individual), but that does not make sense to me. The agencies are making rules in the name of the President. If they are using his name and his power, then of course he should be able to control them.

The basis, though, for the capitalist tradition stems more from policies that were created using the broad interpretion to the Constitution, rather than the limited one that pure-Capitalism fans suggest the current president should use.