The Gaming Den

I actually suspect that the US has the most incompetent legislative branch out of all the Western democratic states.

There are some close runners elsewhere, but I'm not sure anyone is actually more special.

Sir Neil wrote:

fbmf wrote:So why not write a new Constitution, or formally amend the existing one?

Because it's too difficult to get 2/3rds of Congress to support something, let alone the legislatures of 3/4ths states. God help you if its something controversial.

So instead the cowards try to sneak changes through and hope for a sympathetic court ruling.

I am a strong supporter of playing "strict interpretation for a day" because if we did actually abide by one, we would get 2/3rd really damn fast.

Kaelik wrote:I am a strong supporter of playing "strict interpretation for a day" because if we did actually abide by one, we would get 2/3rd really damn fast.

What do you mean by "strict interpretation for a day"? That they'd see it was unworkable, or something?

RobbyPants wrote:

Kaelik wrote:I am a strong supporter of playing "strict interpretation for a day" because if we did actually abide by one, we would get 2/3rd really damn fast.

What do you mean by "strict interpretation for a day"? That they'd see it was unworkable, or something?

It would have to be more than a day, but yes.

My point is that if the courts hadn't been saving our butts by slipping things in, we would have demanded changes themselves. in the 30s and 40s, if the court hadn't allowed serious internal regulations, we'd damn well have changed the constitution to say "commerce" minus the interstate anyway, even more so if they had tried to hold back before the FDA.

Zinegata wrote:And in many ways their "defense of the constitution" was really little more than perpetuating their own self interests. Like how the rich Southerners of the 1860s kept pointing to the Constitution's ambiguity regarding slavery as justification for keeping it around.

This rant deserves its own side thread. Never the less, a little facts are in order. Lincoln as he started his presidency was proposing a constitutional amendment that would have prohibited the Federal Government from globally deciding the slave issue one way or the other. (Lincoln's opposition to slavery in the newly forming states wasn't because he was opposed to slaves in the new states; he was opposed to non whites in the new states and that would have been hard had white folk be able to bring in non white folk under the argument of "property.")

Gnosticism Is A Hoot wrote:

tzor wrote:

Gnosticism Is A Hoot wrote:Reading the Constitution will not tell Congresscritters how to do their jobs, because the modern United States is nothing like the elitist agrarian republic imagined by the Founding Fathers. 200+ years of social change and Supreme Court case law stand between us and the original meaning of the Constitution, and pretending that we can overlook those things is pure stupidity. EDIT: Or disingenuous political posturing. I don't pretend that every Constitutional Originalist is a moron.

What a fucking piece of progressive communist claptrap. Although I will agree that 200+ years of Supreme Court Judges pulling laws out of their asses and calling it constitutional law has indeed fucked up this nation so badly, we as a nation cannot sit down without being in massive agony.

Examples? I'm not sure I follow your point here; I tend to think that the Supreme Court's power of judicial review has been well used sometimes (Brown v Board, Roe v Wade) and badly used other times (Plessey v Ferguson, Citizens United). That doesn't change the fact that reading the Constitution on its own will tell you very little about modern politics; it's like trying to go from St Paul to Billy Graham without studying Martin Luther.

I have a nice book at home. I'll give you some good examples this evening.

Gnosticism Is A Hoot wrote:

The fundamental element of the Constitution is protection against the abuses of men in power. Despots have been the same since the inbread emperors of Rome. Progressives hate this notion because they want to be despots!

Troll harder? It wasn't progressives who brought in warrantless wiretaps, and it wasn't a progressive VP who claimed that his office was not part of the executive branch (and thereby exempt from oversight).

No. That was the result of people still under the influence of the Neo-Cons. Although, really, if only FDR had the ability, I'm sure he would have.

The enemies of the Constitution are many and are found in both parties.

"Honest" Abe Lincoln did more to fuck up the constitution than any Progressive President, including FDR.

Gnosticism Is A Hoot wrote:That aside, while there is some truth to the 'written, sovereign Constitutions serve as a check on tyranny' argument, the Constitution alone is not sufficient to this task. Nothing is innately unconstitutional; laws and actions are only acknowledged as unconstitutional when the Supreme Court says so. Thus, my original point stands - the Constitution cannot stand apart from or be read separately to the case law that has been built up around it.

Actually it can, and when it can't there should be a warning bell going off. It's a lot like the discussion of Magic the Gathering errata rules in the other section of the forums. It is one thing to refine descriptions based on new terminology and another thing to write new law out of whole cloth.

Gnosticism Is A Hoot wrote:

Never the less, there are some things that even a wide interpertation of the constitution cannot excuse. The best example is the individual mandate to buy health insurance. You might say it is based on the interstate commerce clause, only the system as it now stands does not allow insurance to be sold across state lines ... THUS NO INTERSTATE COMMERCE.

Actually, the interstate commerce clause is a great example of my point. While I agree that it is sometimes abused, it is utterly vital for the day-to-day governing of the nation. The document of the Constitution is vague, general, abstract (and rightly so!), and the actual business of government in the modern era requires powers which the founding fathers, despite their political wisdom, could not forsee.

First and foremost, although there are a few terms in the constitution that are vague, but in general the constitution is clear and precise to anyone with a modicum of understanding of law. The biggest problem is trying to avoid the Lincoln fallicy, in part because we have been indoctrinated in it since we were in public school. The "United States" is a plural noun. It is not singular and never was until after the Civil War. The powers of government, full, unlimited, apply to the States.

Now one can argue whether or not a true constitutional federal government can exist under the union of 50 states. I think it can, but, I can see arguments for the opposite side.

Gnosticism Is A Hoot wrote:

There are some people who think that congress can do whatever the hell it likes. The current minority leader in Congress is one such gal. The constitution gave specific powers to the federal government and a way to amend itself. This is why the early Supreme Court said that the constitution can rule laws of congress null and void.

Congress *can* do whatever the hell it likes, until the Supreme Court decides that its actions are unconstitutional. That's what I've been trying to get at. The Constitution *cannot* stand apart from the case law and judicial interpretation that has been built up around it, because the Constitution does not have a plain, clear, unambiguous meaning that can be easily interpreted.

It's a bit like the difference between Evangelical and Roman Catholic theology. The Evangelicals pretend that there is a clear, unambiguous, literal reading of the Bible that is apparent to all, while the RCC recognises that matters are somewhat trickier.

First of all, from a technical reading of the constitution and the initial debates for its ratification, there was a major question of whether a federal court system was needed at all. Clearly it was not designed to be the high veto power that it quickly assumed since it was thought that it was not even needed and would only be implemented if necessary.

It was further thought that the President would veto any stupidity by the congress. This turned out to be wrong.

It was further thought that the States would never allow the congress to get away with it because because they had controll of the Senate and becuse the question of nullification (the ability of state supreme courts to nullify federal law) was generally assumed. (Now this is an area where there is ambugiuty and it lasted until the civil war.) Both of these checks and balances have been removed.

It was actually assumed that no one can do anything they are not allowed to do. Indeed, one of the arguments against the Bill of Rights was that the constitution was designed to say exactly what federal powers there were (and no more) while the Bill of Rights might lead one to assume that the federal government has more powers than it was given under the Constitution.

Y'know, Tzor, there actually is a significant precedent for the individual mandate.

K wrote: I don't see why anything some guys thought up 200 years ago should be relevant now considering that the average high school student now is better educated that the average Founding Father.

I'd buy that, but then:

(A) amending the Constitution, or
(B) drafting a new one

...seems like the only honest thing to do.

Game On,
fbmf

tzor wrote:Never the less, there are some things that even a wide interpertation of the constitution cannot excuse. The best example is the individual mandate to buy health insurance. You might say it is based on the interstate commerce clause, only the system as it now stands does not allow insurance to be sold across state lines ... THUS NO INTERSTATE COMMERCE.

Ugh. I hate this sort of bullshit misdirection.

Besides the obvious issue that insurance actually IS an interstate issue since it affects commerce rather directly, this piece of legislation also falls under Article 1, Section 8, Clause 1: "The Congress shall have power To (provide for the) general Welfare of the United States."

Here's some tangential points:

1. Federal regulation of insurance is allowed by judicial review, but the US is explicitly barred from exercising that regulation in areas where states have enacted similar regulation due to the McCarran-Ferguson Act.

2. It remains that federal regulation of insurance is an allowed governmental activity, which is where things like the Optional Federal Charter come from.

3. While you can't personally buy StateA-licensed insurance to cover you in StateB, your employer can.

4. You can still buy insurance in StateA from CompanyX in StateB, so long as CompanyX is licensed to sell insurance in StateA and the insurance you buy is under that license.

When someone says you can't buy insurance over state lines, that's really a misdirection. Its really saying, "you can't buy California insurance in Oklahoma", not "a company selling insurance in California is barred from selling insurance in Oklahoma".

I have to admit that the concept of the "United States" as a loose collection of petty tyrannies is really unappealing to me. I can't get behind the idea of Florida (for example) being able to do whatever the hell it wants with no regard for whatever the rest of the nation might think--partially because I don't believe that such a confrontational stance would frequently, or ever, be struck for progressive causes. The "states rights" people are generally those who want to put god in government, ban contraception, and regulate driving while brown. Ugh. No thanks.

I really like having a federal government in place that can tell a state to fuck off when it's populace wants to do something unjust or discriminatory. Sure, the fed can do something unjust as well, but there's something comforting about it applying uniformly. A situation where I could say, vote, as a resident of some states, but not as a resident of others, would be more distressing than a situation where I simply couldn't vote anywhere.

Then again, I'm not much of a proponent for the concept of national sovereignty, so the idea of supreme independent authority on a sub-national level just doesn't even compute.

K wrote:Personally, I think they don't they even need to be addressed. I don't see why anything some guys thought up 200 years ago should be relevant now considering that the average high school student now is better educated that the average Founding Father. Progressives recognize that maybe we've learned something in the last 200 years and maybe our laws should reflect that.

K, you just made my day

Let's look at the typical founding father

Thomas Jefferson wrote:Thomas Jefferson was born on April 13, 1743
At the age of nine, Jefferson began studying Latin, Greek, and French; he learned to ride, and began to appreciate the study of nature.
In 1760, at the age of 16, Jefferson entered the College of William & Mary in Williamsburg. For two years he studied mathematics, metaphysics, and philosophy under Professor William Small, who introduced the enthusiastic Jefferson to the writings of the British Empiricists, including John Locke, Francis Bacon, and Isaac Newton (Jefferson called them the "three greatest men the world had ever produced"). He also perfected his French, carried his Greek grammar book wherever he went, practiced the violin, and read Tacitus and Homer.
After graduating in 1762 with highest honors, he read law with William & Mary law professor George Wythe and was admitted to the Virginia bar in 1767.

OK, Thomas Jefferson, at the age most people would have graduated high school had not just graduated college, he had passed the bar exam.

How many average high schoolers in the United States know French; hell they don't even know English!

When President John F. Kennedy welcomed 49 Nobel Prize winners to the White House in 1962 he said, "I think this is the most extraordinary collection of talent and of human knowledge that has ever been gathered together at the White House – with the possible exception of when Thomas Jefferson dined alone."

So please tell me, what did we learn in the past 200 years that so greatly changes politics as we know it? They a;ready knew that man is an arrogant pompous snot who doesn't know shit but thinks he is some sort of divine font of all knowledge; confident that if the world followed his commands everything would be perfect.

Power corrupts; absolute power corrupts absolutely.

Well, Tzor appears to be attempting a refutation by proving that he is less well educated than an average high school student.

Hey Tzor, Thomas Jefferson is not an "typical" founding father, as he is in fact one of the best if not the best educated, depending on how you count it.

Also, he is literally the worst possible source you could appeal to in a discussion of the value of the US constitution, since he didn't have shit to do with it.

mean_liar wrote:Ugh. I hate this sort of bullshit misdirection.

Besides the obvious issue that insurance actually IS an interstate issue since it affects commerce rather directly, this piece of legislation also falls under Article 1, Section 8, Clause 1: "The Congress shall have power To (provide for the) general Welfare of the United States."

Really? I do believe the bullshit misdirection is coming from you. Let’s look at the General Welfare clause …

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

The United States Constitution contains two references to "the General Welfare", one occurring in the Preamble and the other in the Taxing and Spending Clause. It is only the latter that is referred to as the "General Welfare Clause" of this document. These clauses in the U.S. Constitution are exceptions to the typical use of a general welfare clause, and are not considered grants of a general legislative power to the federal government as the U.S. Supreme Court has held:

• the Preamble to the U.S. Constitution "has never been regarded as the source of any substantive power conferred on the Government of the United States or on any of its Departments"; and,
• that Associate Justice Joseph Story's construction of the Article I, Section 8 General Welfare Clause—as elaborated in Story's 1833 Commentaries on the Constitution of the United States—is the correct interpretation. Justice Story concluded that the General Welfare Clause is not an independent grant of power, but a qualification on the taxing power which included within it a power to spend tax revenues on matters of general interest to the federal government.

Thomas Jefferson explained the latter general welfare clause for the United States: “[T]he laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. They [Congress] are not to lay taxes ad libitum for any purpose they please; but only to pay the debts or provide for the welfare of the Union. In like manner, they are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose.”[

In 1824 Chief Justice John Marshall described in obiter dictum a further limit on the General Welfare Clause in Gibbons v. Ogden: "Congress is authorized to lay and collect taxes, &c. to pay the debts and provide for the common defence and general welfare of the United States. ... Congress is not empowered to tax for those purposes which are within the exclusive province of the States."
The historical controversy over the U.S. General Welfare Clause arises from two distinct disagreements. The first concerns whether the General Welfare Clause grants an independent spending power or is a restriction upon the taxing power. The second disagreement pertains to what exactly is meant by the phrase "general welfare."

The two primary authors of the The Federalist essays set forth two separate, conflicting interpretations:

• James Madison advocated for the ratification of the Constitution in The Federalist and at the Virginia ratifying convention upon a narrow construction of the clause, asserting that spending must be at least tangentially tied to one of the other specifically enumerated powers, such as regulating interstate or foreign commerce, or providing for the military, as the General Welfare Clause is not a specific grant of power, but a statement of purpose qualifying the power to tax.
• Alexander Hamilton, only after the Constitution had been ratified, argued for a broad interpretation which viewed spending as an enumerated power Congress could exercise independently to benefit the general welfare, such as to assist national needs in agriculture or education, provided that the spending is general in nature and does not favor any specific section of the country over any other.

While there are two views of whether or not in terms of spending, the general welfare clause is tied to the other enumerated powers, there is no way in hell you can derive a individual mandate to do anything based on whether not congress can spend money on the general welfare.

Interstate commerce, by the way, means what it says commerce between and among the states.

Since Kaelik insists I mention others:

James Madison, Jr. (March 16, 1751 – June 28, 1836) was an American politician and political philosopher who served as the fourth President of the United States (1809–1817) and is considered one of the Founding Fathers of the United States.

He was the principal author of the US Constitution, and is often called the "Father of the Constitution". In 1788, he wrote over a third of the Federalist Papers, the most influential commentary on the Constitution. The first president to have served in the United States Congress, he was a leader in the 1st United States Congress, drafting many basic laws, and was responsible for the first ten amendments to the Constitution and thus is also known as the "Father of the Bill of Rights". As a political theorist, Madison's most distinctive belief was that the new republic needed checks and balances to protect individual rights from the tyranny of the majority.

From ages 11–16, A young "Jemmy" Madison studied under Donald Robertson, an instructor at the Innes plantation in King and Queen County, Virginia. Robertson was a Scottish teacher who flourished in the southern states. From Robertson, Madison learned mathematics, geography, and modern and ancient languages. He became especially proficient in Latin. Madison said that he owed his bent for learning "largely to that man (Robertson)."

At age 16, he began a two-year course of study under the Reverend Thomas Martin, who tutored Madison at Montpelier in preparation for college. Unlike most college-bound Virginians of his day, Madison did not choose the College of William and Mary because the lowland climate of Williamsburg might have strained his delicate health. Instead, in 1769 he enrolled at the College of New Jersey (now Princeton University).

Through diligence and long hours of study that may have damaged his health, Madison graduated in 1771. His studies there included Latin, Greek, science, geography, mathematics, rhetoric, and philosophy. Great emphasis also was placed on speech and debate. After graduation, Madison remained at Princeton to study Hebrew and political philosophy under university president John Witherspoon before returning to Montpelier in the spring of 1772. Afterwards, he knew Hebrew quite well. Madison studied law sporadically but never gained admission to the bar.

Alexander Hamilton (January 11, 1755 or 1757 – July 12, 1804) was the first United States Secretary of the Treasury, a Founding Father, economist, and political philosopher. Aide-de-camp to General George Washington during the American Revolutionary War, he was a leader of American nationalists calling for a new Constitution; he was one of America's first constitutional lawyers, and wrote most of the Federalist Papers, a primary source for Constitutional interpretation. Hamilton was the primary author of the economic policies of the George Washington Administration, especially the assumption of state debts by the Federal government, the establishment of a national bank, a system of tariffs, and restoration of friendly trade relations with Britain. His strong-central-government views formed the basis of the Federalist Party, and were opposed by the states-rights views of Thomas Jefferson and the Democratic-Republican Party.

In the autumn of 1772, Hamilton arrived by way of Boston, Massachusetts at Elizabethtown Academy, a grammar school in Elizabethtown, New Jersey. In 1773 he studied with Francis Barber at Elizabethtown, in preparation for college work; there he came under the influence of a leading intellectual and revolutionary, William Livingston. Hamilton applied to the College of New Jersey (now Princeton University) with the request that he be allowed to study at a quicker pace and complete his studies in a shorter time. The college's Board of Trustees refused his request. Hamilton made a similar request to King's College in New York City (now Columbia University), was accepted, and entered the college in late 1773 or early 1774.

When Church of England clergyman Samuel Seabury published a series of pamphlets promoting the Loyalist cause the following year, Hamilton struck back with his first political writings, A Full Vindication of the Measures of Congress and The Farmer Refuted. He published two additional pieces attacking the Quebec Act] as well as fourteen anonymous installments of "The Monitor" for Holt's New York Journal. Although Hamilton was a supporter of the Revolutionary cause at this prewar stage, he did not approve of mob reprisals against Loyalists. Hamilton on May 10, 1775, saved his college president, Loyalist Myles Cooper, from an angry mob, by speaking to the crowd long enough for Cooper to escape the danger.

Here is a list of the Educational Background of the Framers of the Constitution.

Ah, so you resort to Supreme Court review and precedent about General Welfare, but to do so regarding the Commerce Clause is verboten. As well, no attempt made to refute that insurance actually is an interstate good with intrastate regulation.

Way to go, dude: "misdirection".

http://en.wikipedia.org/wiki/Houston_E. ... ted_States

If you want to bring in precedent, well... then the Commerce Clause is not what strictly you think it is: "commerce between and among the states".

So stop fucking around.

I was kind of waiting for Tzor to flip out over Founder worship.

Listen, you know what the Founders didn't know? Basically everything that makes up modern society.

Education in the 1700s was basically just languages and law with a little history, literature, and philosophy. They didn't know about the advanced economics, science, or even political thought that we would create in the next 200 years and the math they taught is the same math we teach to high school students.

Basically, when you say "He studied four languages" then I have to ask "why didn't he study something useful?"

Just the fact that a modern student knows to wash his hands and can do an impression of CPR means that he has medical knowledge above and beyond even doctors of the time and could pretend to be a doctor and have a lower death rate than the doctors of the time. The modern student has the benefits of real historians and not the propagandists of the past. The modern student has played more complicated strategy games and would make a better general.

That being said, there were some exceptional Founders. Mostly, we made them President because they were the smartest guys around.

But the average Founder? In today's society he'd be a functional moron and his ability to read Latin and Greek would be useless and his knowledge of law a joke. His political power was due to his inherited wealth and the fact that he was "educated" with the other inherited wealthy, and nothing more.

And trust me, Harvard was not the hot shit it is now. It was just one of the four schools in the nation that gave basic aristocrat training.

fbmf wrote:

K wrote: I don't see why anything some guys thought up 200 years ago should be relevant now considering that the average high school student now is better educated that the average Founding Father.

I'd buy that, but then:

(A) amending the Constitution, or
(B) drafting a new one

...seems like the only honest thing to do.

Game On,
fbmf

I just saw a couple of segments on the reading of the Constitution in Congress. It actually seemed pretty classy. Both Democrats and Republicans were alternating reading parts of the document outloud. And the Fox News segment focused on a Democratic congresswoman reciting the oath of the President of the United States.

Also, they actually read the amended constitution, and not the original one. So they weren't reading 1700s text. They were reading the modern text, making no mention of sections already amended (i.e. No mention of Prohibition).

tzor->

It doesn't really matter what Lincoln was proposing. Again, the fact was Southern politicians were using the Constitution as a defense for the institution of slavery. Because the US Constitution at the time did not yet explicitly ban it.

That's why the Confederate Constitution was an almost verbatim copy of the US one - except that it states outright that slavery is legal. And post-war, the US Constitution was explicitly amended to make slavery illegal.

Historical aside:

K wrote:The modern student has played more complicated strategy games and would make a better general.

Strategic thought was once considered secret knowledge amongst the ancient Chinese and passed along by guarded texts. It contained head-slappingly obvious things such as, "position archers high" and "don't constantly shit on the people you rule".

The academic study of strategy and logistics in warfare, as opposed to secret knowledge lost and occasionally rediscovered, is a historically recent phenomena.

Well, not that recent. War colleges that focused on logistics and troop movements were rather common place by the late 1800s. Every major power in the world generally had at least one. And the US has had West Point for a long time, although interestingly West Point was more of an engineering school rather than a military school until this same time period.

When I think about the history of war, "recent" is from Jomini onward.

Some war strategy texts are still considered 'secret knowledge'. Consider Sovjet Deep Battle texts.

Interesting quote I found:

"Meanwhile, here's Thomas Jefferson weighing in: "Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment...But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.""

K wrote:Interesting quote I found:

"Meanwhile, here's Thomas Jefferson weighing in: "Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment...But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.""

Of course Jefferson believed that the Constitution should be amended...that's why a specific process for doing exactly that is laid out in it. That doesn't mean that very process should be circumvented for expediency.

A Constitution that cannot change is stagnant, and thus worthless.
A Constitution that can be changed too easily serves no purpose; it sets out rules of law that are ignored, and is thus worthless.

Balance is important. But if you believe the Constitution has any value (and I think Jefferson did, and I agree), you can't simply ignore it or handwave it because you think you know better.

Actually, I'm pretty damn sure that Jefferson would expect us to but no stock in their constitution.

In his more extreme moments he believed that the entire things should be redone every 20 or so years, each generation making their own. Even when being relatively conservative, he expected extensive changes very often.

He didn't just mean that it should be capable of being amended, but that it should be interpreted by the courts.

I think he would hold nothing but contempt for strict contructionalists who harp about "Framer's Intent."

From the Supreme Courts beginnings, they refused to give advisory opinions on whether new laws being proposed by the legislative were constitutional. Apparently, the Framers themselves had no problem with the courts determining the Constitution's intent and scope outside of the amendment process.

That's what makes the Republican, Tea Party, and conservative's stance so hilarious. They are supporting their position with a history they don't understand and trying to pretend the Founders were omniscient super-men, something the Founders themselves would find laughable.