Balkinization  

Thursday, September 12, 2013

Comparing the UN Charter and the US Constitution

Sandy Levinson

I have posted a piece on the Al Jazeera web site noting that the principal argument for the US ignoring the United Nations is our unhappiness at an all important aspect of the UN "constitution," i.e., the UN Charter, that gives each of the victors in World War II an absolute veto regarding any action by the Security Council.  Thus we (correctly) believe that Russia will veto any call for a military response in Syria; therefore, according to Samantha Power, it is altogether proper that we instead engage in unilateral action.  Compare our willingness to speak publicly about defects in the basic structure of the United Nations with the ridiculous veneration we display toward our own flawed Constitution,  The basis of Obama's threatened action, in presumptive defiance of Congress, has almost nothing to do with his strained argument about his powers as Commander-in-Chief, which, if taken to their limit, really would turn him into a "constitutional dictator," but, rather, with the utter contempt felt by every President since Harry Truman toward Congress as a genuine partner in making foreign policy/military decisions.  But, of course, they can't speak publicly about this breakdown in the American constitutional order and instead pretend that they're acting under the terms of the "ever good US Constitution."  Steve Griffin's book is essential reading on this point (whether or not he would agree with all aspects of my own analysis).

Comments:

The veto of Russia is like if Texas, not just 40 Republican senators, had a veto of legislation. And, that still wouldn't quite be the same since it is still a U.S. state.

Recent years underline we don't have a "constitutional dictator" (will Prof. Levinson write an intro to a certain person's next book?) as that word seems to imply, but if he is going to "defy" Congress, sounds like the "veneration" (if we think the Constitution is so violated) is not quite as grand as all that.

I want to again say that Obama sought congressional authorization here. I'm unsure if Congress was a "partner" as such in all ways before Truman. But, didn't Obama ask Congress to work with him regarding Gitmo? Military spending issues? Other issues? The main thing that comes to mind is Libya, but it is notable for being specifically blatant.
 

It's notable for being particularly blatant if you ignore little matters like the Dream act, or suspending black letter implementation dates for the ACA.

We're currently in transition to dictatorship: Presidents still work with Congress if they think Congress will give them what they want, or it is a matter they're not terribly concerned about, but reserve, and increasingly use, the option of unilateral decision making. While the police state mechanisms used to keep the unruly populace in line are still being assembled. The surveillance is largely in place, but they're still working out the bugs on the stick end of things, a lot of people still think they can oppose the government without being crushed.

So, right now we're neither fish nor fowl, sort of a penguin of a state. But it's clear which direction we're heading.

Sandy, the major difference between the US and the United Nations is that the UN is in a kind of pre-Civil war state; A large number of it's members are authoritarian or totalitarian states, some worse than any of the states of the Confederacy ever were. Genocides walk the halls of the UN with impunity, even get appointed to the Human Rights committee.

Imagine the US had the slave states been a clear, controlling majority, many without even a pretense of democracy. Would a free state really profit from being part of such an institution?
 

Sandy:

"The United States has a political system that was intentionally designed to make it difficult, at best, to pass any legislation at all. It may be wise to constrain legislatures, but making it difficult to legislate does not promote “democracy... the Congress is basically incapable of passing legislation that responds adequately to any of the great challenges facing us today.”

Dividing the elected Congress into two chambers and providing the elected President with a veto do not make our Republic less of a representative democracy, but simply make it more difficult for that representative democracy to exercise power over the people - checks and balances. Under these checks and balances, the United States was able to enact necessary legislation for over two centuries, just not all the legislation progressives preferred.

To bypass our representative democracy and impose their policies by fiat, progressives created a bureaucracy and unconstitutionally delegated legislative and judicial power to it. That unelected and unaccountable bureaucracy and not our representative democracy now imposes the vast majority of law on the United States.

To create this unconstitutional fourth branch of government, unelected progressive courts turned our written Constitution into a common law document, which the judiciary rewrote at will to eliminate various checks, balances and rights which stood in the way of progressive policies.

These two unconstitutional developments and not the Constitution's checks and balances are the clear and present danger to what remains of our representative democracy.
 

>It's notable for being particularly blatant if you ignore little matters like the Dream act, or suspending black letter implementation dates for the ACA.

Over at Volokh Conspiracy, e.g., including by someone who finds the law horrible policy, multiple comments explained the "black letter" of ACA was not violated. Prosecutorial discretion as to immigrants has been in place for the range of our history of laws against illicit entry.

reserve, and increasingly use, the option of unilateral decision making

Things like executive power of prosecutorial discretion by the terms of the Constitution is an executive power.

a lot of people still think they can oppose the government without being crushed

Yes, unlike an actual dictatorial state, emigrants from who would often laugh at the comparison, people can blithely oppose the government now w/o being crushed.

Imagine the US had the slave states been a clear, controlling majority, many without even a pretense of democracy.

The U.S. still has strong power in the world, so this "clear controlling majority" with the Security Council veto (even w/o it) is of at best unlimited scope. Is it better not to be a member of a body with some ability to moderate world affairs given the real life reality that the countries will be there?

The U.S. will be members of the world community with bad actors with or without the U.N. The U.S. helped create the U.N. for a reason and horrible countries existed back in 1945 too.
 

Joe, my puzzlement is over why Sandy would like the UN, given his criticisms of the US constitution; The UN seems worse in every respect Sandy claims to care about; Wildly unrepresentative, no elected positions at all, a functioning majority in the general assembly of states that range from moderately authoritarian to hellish.
 

If I recall correctly The President in fact specifically referred to the relationship with Congress and its role in such matters. He said Congress had been in my words both cut out of the decision-making, and choose to pass the buck.

President Obama from day one especially beginning with the health care reform debate, if anything was and continues to be too deferential to Congress
 

Brett: "It's notable for being particularly blatant if you ignore little matters like the Dream act, or suspending black letter implementation dates for the ACA."

Take the administration to court. People have taken the administration to court before; sometimes they win, sometimes they lose.
 

Bart: "To create this unconstitutional fourth branch of government, unelected progressive courts turned our written Constitution into a common law document, which the judiciary rewrote at will to eliminate various checks, balances and rights which stood in the way of progressive policies."

Do you have any actual facts to support this claim? If anything there are more checks on government power these days, than decades ago.
 

Brett: "why Sandy would like the UN"

It is not clear that he likes the UN, except to the degree he might "wish it well" given the limited value it provides. That is, given the alternative realistically possible at the moment w/o the UN.

Your comment was not about that really anyway.
 

Bart

I am curious, can you point to a case or cases where in your opinion the courts began to fail to correctly police Congress' delegation of the powers reserved to it?
 

Mr. Whiskas said... Bart, I am curious, can you point to a case or cases where in your opinion the courts began to fail to correctly police Congress' delegation of the powers reserved to it?

From the beginning.

The Constitution expressly vests all legislative power in Congress. Every single court case which permitted the bureaucracy to legislate rules was a violation of that vestment.

Barry, I will get back to you about your lengthier question. I am off for the last mountain climbing of the season.

Enjoy your weekend flat landers...
 

I "like the UN" for a relatively simple reason: Every one of the security-enhancing rationales that Hamilton, in particular, gave for abandoning the Articles of Confederation in favor of the new Constitution,operate in the 21st century in favor of moving toward trans-national modes of governance (with all of their obvious problems). Kant, in his essay on universal peace, argued that the only rational solution to the problem of endless conflict among independent nation states, would be a universal government. From one perspective, that is a wildly utopian idea. But Kant argued that even "devils" would figure out that it is the only solution to the Hobbesian nightmare that we experienced throughout the 20th century in two world wars (part of one extended "Long War").

the United States was once the leader in speaking of the need for international cooperation. Now, alas, it is Vladimir Putin, for undoubtedly opportunistic reasons, who is articulating such arguments while the United States can't stop prating about its "exceptionalism" and entitlement to unilateral action.

All arguments about "constitutional dictatorship" take place under the shadow of believing that what one means by a dictator is someone like Hitler, Stalin, etc. Everyone should read Clinton Rossiter's great book Constitutional Dictatorship and realize that the contrast term is "totalitarian dictatorship," which, Rossiter and other people in that tradition, argued is almost altogether different.
 

The reason we think of dictators like Hitler or Stalin when we think of dictators, is that, once you've got a dictator, YOU NO LONGER HAVE ANY CHOICE ABOUT WHAT SORT OF DICTATOR TO HAVE.

Maybe you'll initially luck out, and get a good dictator, but actual benevolent dictators are pretty rare, so why expect your luck to continue?

No, the choice to have a dictatorship is the choice to accept whatever you're given, because it's the choice to abandon having a choice.
 

The point of Rossiter's book is that Brett's point is overstated. He, like Machiavelli, is a fan of the Roman model of the "constitutional dictator," which worked over an extended period reasonably well (until it led to Caesar, a most unhappy conclusion).
 

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Sandy Levinson said...I "like the UN" for a relatively simple reason: Every one of the security-enhancing rationales that Hamilton, in particular, gave for abandoning the Articles of Confederation in favor of the new Constitution,operate in the 21st century in favor of moving toward trans-national modes of governance...

I do not see how enforceable world constitutional governance could possibly work in our lifetimes.

The only way a constitutional government over multiple states works is when those states all accept the rules and the goals of the constitution and the government it establishes. We had to fight a massively destructive civil war under our constitution before before the North compelled the South to accept that the United States would be federalist Republic where everyone at least nominally enjoyed the same rights.

The divide between federalists and confederates in the US is nothing compared to the disagreement between the world's nation states as to what is a proper government. If we entered an enforceable world government, authoritarian states would heavily outnumber the West and the United States. If the authoritarian majority started to use its power to seize our wealth and abridge our liberties, I am confident the US would seek to secede in short order. If the authoritarian world government then took the view of our Unionists and sought to compel the US to remain in the world government, the resulting civil war would make WWII look like a Disney World ride.

Until the world's peoples agree that the fundamental purpose of government is to protect individual liberty, the US needs to stay far away from any enforceable world government and treat the current world bodies as merely diplomatic venues between nation states.
 

I understand the context, but don't think the word "dictator" is helpful for mainstream use. Words have basic meanings, and some might, e.g., want to talk about taxation being "slavery" (some do) or whatever, but at some point, very strong words should have limited applications.
 

I find it fascinating watching someone who thinks they are so right about the Constitution be so utterly wrong about it. Totally fascinating.

It's like you've never seen the document before. Do you know what it even does?
 

From what I see, it seems Mr Levinson is under the terrible misbelief that rights come from government or society or law. Even if he believes that, he can't even begin to understand the Constitution, since it is based in the believe that rights come from nature, birth or God, but certainly not government. This is the fundamental mistake of "card-carrying ACLU members". They want the "rights" [privileges] that they believe government has promised them, rather than demand that government respect the rights they have inherently.

I suspect he simply doesn't understand concepts like "Congress shall make no law" or "shall not be infringed", nor have any understanding of "provide for...the general welfare" and what that actually means.

I am interested to know if he can explain the 10th Amendment.
 

I'll be glad to explain the 10th Amendment. It is precisely what the Supreme Court has said it is: a "truism" that specifies that powers not allocated to the national government are reserved to the states or to the people. Note, Congress voted down the opportunity to use "expressly" in the Amendment, and Congress is explicitly given the power to raise taxes and regulate interstate commerce, not to mention the leeway provided by the "necessary and proper clause." Perhaps the snarky Mr. Wisard should himself read the document more carefully.

I'm more than happy to concede that rights don't come from the state, but are "recognized" by the state. That still doesn't give us any real guidance on the concrete meaning of abstract rights, especially when we realize that they inevitably conflict with one another.

Does Mr. Wisard, with his apparent propensity for a "plain meaning" version of the First Amendment, believe that it is unconstitutional for Congress to punish, among other crimes, perjury and solicitation to commit a crime, both of which are "speech" offenses. Does he believe that the press has the right to publish details of American troop movements in the days before a battle? And so on through the standard litany of basic examples that, sad to say, call into question the sufficiency of relying on "no law." I grew up idolizing Hugo Black, and I still admire his adamant stance protecting freedom of speech. I thus found it truly disappointing when he decided that the Tinker children were unprotected because wearing a black armband to school in protest of the Vietnam War wasn't really "speech" or that Paul Cohen could be convicted of disturbing the peace for wearing his "Fuck the Draft" jacket to a courtroom.
 

And how often has the US used the veto, for example in defense of Israel?
Another post ignoring the elephant in the room of US policy
 

In Cohen v. California, Paul Cohen was wearing the jacket not in the courtroom but "in the corridor outside of division 20 of the municipal court." That makes Blackmun's dissent, which Burger and Black joined, even more egregious.

The dissent offered two reasons. First, "it was mainly conduct, and little speech." But that conclusion is obviously based on the content of the speech. Second, "the case appears to me to be well within the sphere of Chaplinsky v. New Hampshire," which held that the First Amendment does not protect "fighting words." But the Court defined those as words that "by their very utterance, inflict injury or tend to incite an immediate breach of the peace." They are words said face to face.
 

" especially when we realize that they inevitably conflict with one another."

Any libertarian can tell you that's logic trying to give you your "concrete guidance": No logical system which self-contradicts can be true. The reason sets of rights beloved of 'liberals' always end up contradicting each other is that you always insist on inserting positive rights, which is the moral/ethical equivalent of dividing by zero in math.

If you stick to negative rights, the contradictions go away. If you insist on recognizing 'rights' that end up contradicting each other, you're simply, unavoidably, being irrational.

No matter how you feel about them.
 

Brett's sort of a songwriter:

"You've got to accentuate the negative,
Eliminate the positive, and
Don't mess with Mr. In-Between."

With apologies to Johnny Mercer, as Brett serves as a "Pied Piper" leading libertarians, lemming-like, over the cliff to the abyss. .
 

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Prof. Eugene Volokh had a useful discussion of rights, including positive rights:

http://www.volokh.com/2013/05/07/positive-rights-the-constitution-and-conservatives-and-moderate-libertarians/

He explains how "in the view of conservatives and most moderate libertarians" that positive rights are important. Even other member of the blog that was opposed to requiring jury service would seem to agree if the state still paid and regulated the jury.
 

So Brett is obviously not a "moderate" libertarian - nor moderate in any other regard. Perhaps Brett is a "natural law" libertarian.
 

Of course, Volokh defines "moderate" libertarians as excluding anarcho-libertarians, so I'm not a moderate by his definition.

There's no doubt about it, if you want to embrace the state as legitimate, rather that just an apparently unavoidable evil one seeks to extract some good from since you're stuck with having one, you have to embrace positive rights. I'm just pointing out that, if you do so, you're embracing a logical contradiction, and this is so no matter how much you'd like positive rights to genuinely make sense.
 

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if you want to embrace the state as legitimate

Like those who formed this country that in the Declaration of Independence did not suggest the state was illegitimate?

rather that just an apparently unavoidable evil one seeks to extract some good from since you're stuck with having one

In reality, yes, you are "stuck" with government, but this doesn't make it "illegitimate."

you have to embrace positive rights.

This would "you" would entail not just "liberals," but also conservatives, moderate libertarians, and probably others.

logical contradiction

The fact that things clash, have to be balanced in some fashion, is not how I would define a "logical contradiction." That is, "both is and is not in the same respect." It means that they have to be balanced in some fashion.

This applies with negative rights -- the right not to have the government seize you w/o due process of law and the right not to be censored, e.g., clash, since trial rights involve some limits on speech, such as perjury.

Prof. Volokh in general provides a more, to be blunt, realistic view of rights than certain non-liberals put forth.

and this is so no matter how much you'd like positive rights to genuinely make sense.

The right, e.g., to get assistance from the government to protect your property "makes sense." I "like" such things along with conservatives and moderate libertarians.
 

It is a logical contradiction, Joe, if you take rights seriously, as actual rules and constraints, rather than just treating them as guidelines to be tossed aside if they inconvenience you.

Which is, I'm afraid, how most people want to treat rights, because rights taken seriously will often get in the way of things you want to do.
 

"Note, Congress voted down the opportunity to use "expressly" in the Amendment"

But do you know why?

"and Congress is explicitly given the power to raise taxes and regulate interstate commerce"

And? This is far less than the power exercised.

"not to mention the leeway provided by the "necessary and proper clause."

And precisely what leeway do you believe that to be?

"Perhaps the snarky Mr. Wisard should himself read the document more carefully. "

I'm not the one with an English deficit.

"Does Mr. Wisard, with his apparent propensity for a "plain meaning" version of the First Amendment, believe that it is unconstitutional for Congress to punish, among other crimes, perjury and solicitation to commit a crime, both of which are "speech" offenses."

Yes. Only a court of law may do so with due process. Congress may make no such law.


Does he believe that the press has the right to publish details of American troop movements in the days before a battle?

Yes. Might be a good time to call off that battle. Also helps to have control of your secrets.

"And so on through the standard litany of basic examples that, sad to say, call into question the sufficiency of relying on "no law." "

What about "Congress shall make no law" confuses you? Do you understand the purpose of Article V?


"I grew up idolizing Hugo Black, and I still admire his adamant stance protecting freedom of speech. I thus found it truly disappointing when he decided that the Tinker children were unprotected because wearing a black armband to school in protest of the Vietnam War wasn't really "speech" or that Paul Cohen could be convicted of disturbing the peace for wearing his "Fuck the Draft" jacket to a courtroom."

Under the 9th Amendment, there is quite obviously a natural right to artist expression or other forms of expression which do not directly harm others. Further, these restrictions were on Congress alone and has somewhat more limited ability to be directly incorporated at a state/local level.

I have no idea how you can't understand the plain language of the 2nd Amendment and still call yourself some sort of constitutional scholar. Not sure what it is about "shall not be infringed" is so difficult for you.

Do you know what "provide for....the general welfare" means, and to what it pertains?
 

Brett, Joe,

Anyone who embraces made up liberal concepts like "positive rights" and "negative rights" has gone so far off the logical reservation that it makes it nearly impossible to have a rational conversation.

A "positive right" is generally just a societal privilege and a "negative right" is generally just a protection of an actual right which gets in the way of government doing "nice" things for you that ironically trample your rights to death.
 

Barry:

The Constitution erected three firewalls between government power and our individual liberties:

1) The Republic: Our federal government is supposed to be a representative democracy so we are not ruled by an unaccountable executive by decree.

The progressive courts dismantled this firewall two ways - by illegally abusing judicial review to rewrite our written constitution and then by allowing Congress to delegate large swaths of its legislative power to the bureaucracy like the Roman Senate used to do by appointing dictators, except that the delegation of powers to the bureaucracy has proven to be permanent.

2) Checks and Balances.

a) Vertical: The federal government is expressly limited to a limited list of power, with all other powers going the to states.

The progressive courts rewrote the Commerce Clause to unconstitutionally grant Congress a nearly complete police power, effectively eliminating our federalist system.

b) Horizontal: The enumerated powers of the federal government are divided between a bicameral legislature apportioned by population and geography, a president and a judiciary.

Most federal power (legislative, executive and judicial) is now concentrated in an unconstitutional bureaucracy which now imposes nearly all new law by fiat. What remains of the horizontal checks and balances actually makes it almost impossible to reverse even the most unpopular bureaucratic decrees. (See, e.g., Obamacare) The Federal Register or regulations now dwarfs the US Code of legislation.

3) Bill of Rights: The Constitution expressly carved out areas of liberty which were off limits to the federal government and then later the states.

The progressive courts have essentially written property and contract rights out of the Constitution to allow the progressive bureaucracy to direct the economy. The 2A was dead until Heller reversed nearly a century of progressive precedent. The 4A went in life support to support enforcement of our drug prohibition. The 9A is essentially ignored.

Our constitutional Republic is in twilight.
 

"Positive rights" are a contradiction in terms.

A right is supposed to protect a liberty.

No one has a "right" to task government to take their neighbor's wealth or labor for their own benefit.
 

Also, Mr Levinson, you called our Constitution "flawed".

That implies that somehow it could be perfect. Either that, or think that your flawed ideas are better than those of others.

Pure democracy is a runaway, sadistic form of government that would lead to civil war if actually practiced. The Framers were intelligent enough to know that. A little respect, please. There is no such thing as a "flawed" compact, unless it contradicts itself.

Further, you feel that the Constitution makes it difficult to pass laws, but it doesn't in any way. A simple majority is all that it requires. That's actually representative democracy at work. But what causes difficulty passing law is precisely the kind of thing you advocate - nearly limitless democracy with an unfettered Federal government (a contradiction in terms). Things tend to not get done when Congress feels it can legislate anything and everything, and force a single solution on all 50 states, despite the 10th Amendment. Once liberals decided that Amendments weren't at all necessary, things got complicated. IOW, it's not the Constitution, but Congress itself. People. It perfectly illustrates why democracy is a fantastically flawed concept.
 

Bart, I believe you understate the problems with the Courts.

With the "liberal" "progressive" ideas such as "jurisprudence", "judicial restraint", "precedence" and other made up follies that don't apply to the Constitution, once an obvious judicial mistake has been made, it's difficult to undo. Further, the laws that are made now are made on the backs of laws that were unconstitutional and have no valid basis to exist, which leads to bizarre rationalizations and firewalling of different applications and reasonings that say that one application of this is Constitutional while a very closely related one is not. Because, like a house of cards, pulling out one card can destroy everything that has been built up over the last 80 years.

For example, just because one SCOTUS read the word "affects" into the Commerce Clause, all following SCOTUS's feel the need to follow the same reading, instead of reading it exactly as it reads.

And then you have the ridiculous "liberal" notion of the "taxing and spending clause" which was thoroughly lambasted by the Father of the Constitution himself before it was even fully ratified. Yet it is so infiltrated the American psyche that conservative and even some libertarian lawyers actually call it that.

And then we have the bizarre cause of Justice Roberts being "concerned with the image of the Court" to the extent that he would go with media pressure and simply rewrite the ACA to make it "Constitutional" even though any rational human would be hard pressed to find even a single aspect of it that is Constitutional, even slightly. Ironically, this has caused the lowest approval rate for SCOTUS since the abysmal Kelo decision.
 

We now have an "anarcho-libertarians" trio that challenges "The Three Stooges."
 

Timothy (or do you prefer Tim?):

Thanks for the observations. There is not nearly enough room in a blog response to comprehensively review the various legal malfeasances by progressive courts, nor was that my purpose. I was expanding on my original point that our government is moving from a Republic to a bureaucratic dictatorship more familiar to the EU.
 

Anyone who embraces made up liberal concepts

Prof. Volokh, who is not a modern day "liberal," explains how "positive rights," is not illogical, including for conservatives and moderate libertarians. It is not a "liberal" concept alone.

Honestly, "right" is a "made up" concept on some level, unless God exists and gave them, making it a God made concept. But, I'll grant the existence of God here.

A "positive right" is generally just a societal privilege

I'm not an originalist particularly, but James Madison in his intro of the Bill of Rights noted:

In some instances they assert those rights which are exercised by the people in forming and establishing a plan of Government. In other instances, they specify those rights which are retained when particular powers are given up to be exercised by the Legislature. In other instances, they specify positive rights, which may seem to result from the nature of the compact. Trial by jury cannot be considered as a natural right, but a right resulting from a social compact which regulates the action of the community, but is as essential to secure the liberty of the people as any one of the pre-existent rights of nature. In other instances, they lay down dogmatic maxims with respect to the construction of the Government; declaring that the legislative, executive, and judicial branches shall be kept separate and distinct. Perhaps the best way of securing this in practice is, to provide such checks as will prevent the encroachment of the one upon the other.

The Bible and other religious works from my reading suggests that God provides "positive rights" in certain respects (see, e.g., Abraham's covenant where he received protection in return for following God's will), which seems "natural" rights to me.

But, regardless, positive rights are not "just" anything. They are basic things that society is in place to "secure" our liberty in general. See the basics in the Declaration of Independence.

And, yes, such things are "rights." There are different kinds of rights. The right to jury was a basic right, but if you want to diminish it with 'just,' be my guest.

and a "negative right" is generally just a protection of an actual right which gets in the way of government doing "nice" things for you that ironically trample your rights to death

Or, a positive right is something like the right to a jury trial, an obligation from the state, not just "nice," and essential to protect "negative" rights, that is, rights to stop the government from taking away life, liberty or property, like the 1A.

This is "nice" as James Madison et. al. argued and not in the sarcastic sense.
 

Again, Prof. Volokh, not a modern day liberal, explains how "positive" rights are essential. One example would be the whole civil litigation process, where the state provides the right to judges, juries, process et. al. as a positive right to protect life, liberty and property.

The confusion, mixed with sarcasm, again might be that "natural" right and other rights are confused as if the right to obtain education or not to die on the street is a "natural" right as such. Now, some might think that -- that God demands we provide basic things to others, that it is a "right" warranted by the community of God.

But, not necessary. Positive rights can be "essential to secure the liberty of the people as any one of the pre-existent rights of nature" and set forth by statutory law. And, "right" is the common understanding here, even if some might have some sort of philosophical concern for nicety.
 

You can call all kinds of privileges "rights", but they still aren't really rights.

Rights are not arbitrary. Societal privileges and governmental restraints are up to debate, but rights are not. That is an important distinction in the Constitution, regardless of what Madison may have said.

The Constitution isn't a document of postive and negative rights, it is a document of natural rights and legal privileges.
 

Mr. Wisard, does this mean that I had the "natural right" to carry a firearm before gunpowder was even invented?
 

It's the right to defense and to keep and bear that which may be used to defend yourself. Further, an "arm" includes things like a rock, or a knife, or a shield.
 

Alrighty then, if the 2nd really just means "self defense", then it would be completely constitutional to ban firearms, given that you can still defend yourself with a rock, a knife, or a shield.
 

Perhaps you have a complete misunderstanding of what "infringed" means. How can you limit a right without infringing upon it? Nice try though.
 

I'm not seeing how banning firearms infringes on anything if the 2nd amendment is really about self defense. No one is taking away your right to defend yourself, just your guns.
 

You mean, aside from taking away choice, cutting down the definition of arms to far less than it was stated to be by the Framers who felt firearms were critical to self defense against an army that would no doubt have them, and reducing your effectiveness at protecting yourself to hand to hand combat which may put you at a serious deficit and risk, sure, not infringing at all.

This is why we try to keep "liberals" away from the Constitution. No ability to handle simple logic.
 

So you see the fact that you're not allowed to own a nuke as a violation of your rights?
 

I don't understand why there aren't more libertarians moving to Afghanistan or Somalia. All the freedom and guns and more guns and more freedom that you could possibly ever want, and nary a liberal to be seen. They must be the most awesome places on Earth.
 

Bart: "The Constitution expressly vests all legislative power in Congress. Every single court case which permitted the bureaucracy to legislate rules was a violation of that vestment."

Bull. Congress passes laws, and the Excecutive branch - well, executes them. That calls for a bureaucracy and decision-making. That's not legislative power.

Your longer post was no better.
 

Personally, I think I have a natural right to possess a nuclear weapon as long as I don't use it. It becomes a pointless exercise since I have no right at all to use it as it is not a weapon of self-defense.

Of course, aside from the fact that it can't be picked up, no one said that the Constitution doesn't allow SOME infringement on SOME rights. But the right to keep and bear arms, as well as many others, are SPECIFICALLY protected, meaning that the government can't infringe upon them even if the majority of the people want to do so, short of an amendment, which means a grand majority, not a simple majority.

Further, the ACLU shows that is is a liberal, socialist organization in that it doesn't believe the 2nd Amendment protects an actual right and will not lift a finger to protect it. The ACLU believes that rights come from government, and therefore, they only protect those that they believe have been given by them, and only if their liberal supporters don't get upset with them over it.
 

Also, Joe, here's the big problem with "positive" and "negative" rights.

In conflates natural rights, upon which the Constitution is based, with simple privileges, such as trial by jury, or or voting. Those are societal privileges. They could just as easily be something else. They can be taken away, or altered at any time based on the wind direction and speed. There is no ownership of them. They are not your rights, they are privileges that are on loan at best.

To say that, for instance, the right to speak and the "right" to health care or the "right" to not be bothered by religion conflates two incompatible concepts. Further, to say that a positive right is something government must give you, and a negative right is something they cannot, just is a bizarre concept. Just because one philosopher popularized them and a few people use the terminology, doesn't make it valid, even if James Madison himself said it once.
 

Bartbuster, why should we have to move? We have been guaranteed a libertarian form of government, at least as far as the Constitution is at the moment, and we are defending America from philosophical invaders who feel that they can impose socialism.

So the question is, why haven't you all moved to Cuba?
 

Barry, the job of an agency is to implement the law, not to create law. The reason why it has been improperly delegated is that Congress has unconstitutionally created so many agencies that it would be impossible for Congress to write all the rules that they must enforce. That is why we have divided government, with the States left with these kind of tasks governing the daily lives of the people.

"The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State." James Madison.
 

Considering that dog catcher is the highest government position in which most Americans are willing to trust libertarians, your chances of getting your libertarian paradise here are exceedingly slim. Afghanistan, on the other hand, is already a libertarian's wet dream. Why fight for something you will never get when you can easily move someplace where your ideal system is already in place?
 

as it is not a weapon of self-defense.

Of course it is. If we learned one thing from George W Bush, it is that owning a nuke is a great way to prevent the US military from invading your country. See, Korea, North. Your "rights" have clearly been violated.
 

Bartbuster, not sure about what my previous statement left you confused, but maybe I could translate to your native language for you.
 

BB's:

"Considering that dog catcher is the highest government position in which most Americans are willing to trust libertarians, ...."

raises the question whether dogs are willing to trust libertarians, especially the anarcho variety.
 

No, I understand you completely. You think you are defending the Constitution from invaders.

The only problem with that "reasoning" is that you're fighting a war that you have no chance of winning. Most Americans think that libertarians are deranged nutcases, and that view does not appear to be changing any time soon.

Is it demoralizing to be seen as a deranged nutcase by almost everyone?
 

When the person viewing me as a deranged nutcase is a narcissistic sociopath who scoffs at the rule of law, I feel rather proud of it, thank you.
 

It's not just the narcissistic sociopaths who think you're a deranged nutcase, it's everyone.

Speaking of narcissistic sociopaths, you're fighting a war that you'll never win, and everyone else is wrong. Just thought that I'd point that out...
 

"Considering that dog catcher is the highest government position in which most Americans are willing to trust libertarians"

I'd say dog catcher is the highest elected position where the major party duopoly don't exert terrific efforts to keep all alternatives suppressed. You might have a point if we had a free political system, instead of one very thoroughly rigged against anybody not in the major parties.
 

"Speaking of narcissistic sociopaths, you're fighting a war that you'll never win, and everyone else is wrong. Just thought that I'd point that out..."

Then you have no point at all in arguing with me over it, since you're obviously not afraid of our POV.
 

Bart: "The Constitution expressly vests all legislative power in Congress. Every single court case which permitted the bureaucracy to legislate rules was a violation of that vestment."

Barry: Bull. Congress passes laws, and the Excecutive branch - well, executes them. That calls for a bureaucracy and decision-making. That's not legislative power.


Acquaint yourself with the progressive legal fiction and false distinction of quasi-legislative power:

http://en.wikipedia.org/wiki/Quasi-legislative_capacity

http://definitions.uslegal.com/q/quasi-legislative-power/

 

Then you have no point at all in arguing with me over it, since you're obviously not afraid of our POV.
# posted by Blogger Timothy Wisard : 5:56 PM


This feels a lot more like me mocking you than arguing with you.

 

"First they ignore you, then they mock you, then they fight you, then you win." M. Gandhi
 

Gandhi's side outnumbered his opposition by a very wide margin. Your side is a tiny fringe.
 

"A hand held over a candle in angst fuelled bravado...."

Tell me, what does "provide for....the general Welfare" mean in the Constitution?
 

It means that a system rigged to promote libertarianism is going to reject any libertarian who runs for an office more important than dog catcher?
 

You're not very bright, are you? Obviously it's a waste of time responding to you since you're simply a troll without knowledge or even opinion. A perfect "liberal", however, congrats.
 

Timothy:

BB is my personal cyberstalker and arguing with him is about as productive as repeatedly slamming your head against a rock, only more tedious.
 

Yeah, kinda got that. He's all yours, congratulations, you have arrived!
 

Rights are not arbitrary.

Trial by jury is not very "arbitrary."

Societal privileges and governmental restraints are up to debate, but rights are not.

What specifically natural rights entail have been up to debate.

That is an important distinction in the Constitution, regardless of what Madison may have said.

The Constitution references different types of rights as the person who introduced the Bill of Rights discussed.

The "right" (sic) to a speedy trial, to vote, to have compulsory process etc., are not natural rights. They are as Madison noted, societal and positive rights.

The Constitution isn't a document of positive and negative rights, it is a document of natural rights and legal privileges.

The rights cited above are not listed as "legal privileges." You not only have to disagree with James Madison and many others who speak like him, but the very text of the document.

 

In conflates natural rights, upon which the Constitution is based, with simple privileges, such as trial by jury, or or voting.

If you don't like the Constitution, that's fine, but the Constitution speaks of these things as "rights."

They can be taken away, or altered at any time based on the wind direction and speed. There is no ownership of them. They are not your rights, they are privileges that are on loan at best.

There are various types of "rights." The word "inalienable" would be redundant if "right" all by itself means something that cannot be taken away. But, that is not what 'right' means or meant. It had various aspects.

To say that, for instance, the right to speak and the "right" to health care or the "right" to not be bothered by religion conflates two incompatible concepts.

No, it doesn't and many constitutions speak of both.

Further, to say that a positive right is something government must give you, and a negative right is something they cannot, just is a bizarre concept.

Your say-so doesn't convince the general concept that there are rights that restraint and rights that provide (it need not be government; again, GOD in religious works offers both -- but if the Father of the Constitution is not good enough, perhaps the Father of us all isn't either?) is 'bizarre.' A lot of hand waving is all I see.

Just because one philosopher popularized them and a few people use the terminology, doesn't make it valid, even if James Madison himself said it once.

James Madison spoke of them in the speech, but his words weren't somehow strange to the ears -- he spoke of general well understood concepts that the listeners accepted as basic. With respect the idea it was something that was "said once" is most more "bizarre" than anything I said.
 

Trial by jury is plenty arbitrary. It could be a trial by 3 expert judges, or by people with IQs over 150 or by neighbors or some other thing.

I understand that many people believe there are different levels and types of rights, but that just tries to put different things into the same category.

For instance, one might say "I have a right to health care" and of course, any libertarian and most conservatives would scoff at that. But by your standard, simply making a law stating that it is a right makes it a right. But it's not inalienable, it's not under your ownership and the government can take it or alter it at any time.

The "right" to a jury is basically a conditional "right" in that, if the government infringes upon your right to freedom, then it gives you certain protections in return. Miranda "rights" are another case. Voting "rights" are a different case that can also be altered.

I don't mind if people call them "societal rights" or "legal rights", etc, but one of the biggest problems we have now is that people believe they have the right to all kinds of things given to them at someone else's expense. It's why I'm a bit more hardcore about the conflation of rights, privileges, protections, government obligations.
 

Wow, this thread sure escalated quickly, didn't it?

I am not much impressed by libertarian talk of rights only being 'negative' rights. I would assume that in Libertopia we would want people held to their contractual promises, that one would have certain legal rights from such things, and that there would be a court system which would enforce such rights. Is your right to enforce contractual promises made to you a 'positive' or 'negative' right?

Most libertarians I know want negative rights to be 'enforced' by some tax funded government entity. Take for example one's right to property: they call for a police force which would presumably be paid for with taxpayer dollars to 'enforce' or 'secure' this right. What is the difference between forcing me to pay for a police force to protect your property and forcing me to pay for a school system to educate your kid?
 

Bart

I do not see how laws could be carried out without some bureaucratic decision making, so the only question is, how much power is left to that? It seems to me that the intelligible principle doctrine is as good a place as any.
 

This was our SALADISTA'a response at 10:31 AM to Timothy (aka Tim or The Wis):

"There is not nearly enough room in a blog response to comprehensively review the various legal malfeasances by progressive courts, nor was that my purpose. I was expanding on my original point that our government is moving from a Republic to a bureaucratic dictatorship more familiar to the EU."

I don't much expect anything comprehensive or comprehensible from our SALADISTA. As to the "progressive courts" he mentions, there is no time framer specified. When last did we have a progressive Supreme Court? Did it end with the Warren Court or partway into the Burger Court? Nor does our SALADISTA provide a timeframe when our government started moving from a Republic to a bureaucratic dictatorship familiar to the EU. Was our SALADISTA expressing such concerns during the 8 years of Bush/Cheney that ended with their 2008 Great Recession? I don't think so. Government is smaller since Bush/Cheney. Or is it Obamacare? Perhaps in our SALADISTA's twisted mind the Roberts Court is progressive. As to dictatorship, surely Bush/Cheney with their unpaid for wars used the military in a more dictatorial manner than has Obama.
 

We haven't had anything but progressive courts since the 1930s. The Roberts court is quite progressive and "liberal" compared to anything prior to the 1930s. A conservative court would through out 80% of what has happened over the last 80 years.
 

Apparently The Wis would like us to "Follow the Yellow Brick Road" back to the antebellum Constitution that he and his fellow back peddling anarcho-libertarian Munchkins prefer (or at least back to pre-Brown v. Bd. of Educ. days).
 

Timothy

Contrary to Tea Party conventional wisdom the courts did not vigorously police the actions of the government before the 'Progressives' took over in the 1930's. Very few cases involved successful Bill of Rights challenges until that time, and decisions on the limits of government power were much more likely to turn out like Munn v. Illinois. Joe has a fantastic article about this, perhaps he would be good enough to link to it.

There was a brief flurry of such activity in the 'Lochner Court,' but that Court is rightly famous for its unusual activism. It was not the norm throughout US history.
 

That's simply because there wasn't that much government to police before the "progressive" area, for one thing. Also, people were made of far sterner stuff and didn't run to a lawyer every time something bad happened to them.
 

In a lot of ways there was more government. The police power state's exercised was extremely wide ranging and courts were very deferential to it. Like I said, you would be hard pressed to find many cases where the Bill of Rights was successfully invoked against government action before the Warren Court. Regulation of ordinary, everyday activities were not uncommon before the progressive era. Federal bans or regulations on interstate lotteries, or liquor sales, or pornography were well established, and states were quite active in economic legislation with courts allowing it (see Munn v. Illinois or the Slaughterhouse Cases).

And we certainly had 'big government' and vigorous bureaucracies before the Progressive era. Think of the Freedman bureaucracies, or the the post-Civil War agencies in charge of pensions.
 

The Wis is obviously a fan of the Gilded Age that preceded the Progressive Era. I assume that even though The Wis has been behind a curtain before his recent self-outing, he may not have actually experienced the Gilded Age. Not to worry, The Wis is now out in the open of the Second Gilded Age with its ever increasing inequality. The "good old days" are back! And according to The Wis, this is attributable to progressive courts of the past 80 years. Dictatorship is wonderful for the 0.1%.
 

Mr. W (if I might call him that) might be talking about this article:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2109659

The author also wrote an interesting book "In Reckless Hands: Skinner v. Oklahoma and the Near-Triumph of American Eugenics."

Prof. Nourse was a blocked nominee to the federal appeals court though a variety of supporters, including Prof. David Bernstein (another non-liberal over at Volokh Conspiracy) supported ending the filibuster.

Overall, I think pre-New Deal court action should not be stereotyped. It is clear enough that the USSC only in a limited case (though there are some important cases) enforced many civil liberties. The federal (and state) courts did look at certain types of cases differently, so Lochner should not be seen as some total outlier. But, it shouldn't be seen as stereotypical as some.

Still, if concern for "rights" are so important to some around here, it left a lot to be desired pre-New Deal, or in the minds of some, when the Constitution died.
 

Mr Whiskas,

I would say far LESS government, but some obviously bad, examples of local government gone wild, of course. There is nothing that compares with today's array of laws and agency regulations. Not even close.

The government has done a better job at enforcing some of the Bill of Rights over time, but a far worse job at enforcing the the rest of it.
 

Joe, it's one thing to protect individual rights, it's certainly another thing to "protect" some of them and creating illogical new "rights" at the expense of other genuine rights. The 1930-1940ss court made all manner of previously unconstitutional things "constitutional", including, regulation of not interstate commerce laws, but commerce itself, anything directly or indirectly related to it, and not between states, but within states.

So, you can't smoke a joint, because Randolph Hearst needs another mansion.
 

Mr. Whiskas said... Bart, I do not see how laws could be carried out without some bureaucratic decision making, so the only question is, how much power is left to that? It seems to me that the intelligible principle doctrine is as good a place as any.

Law enforcement always exercises some degree of discretion, but they do not write the laws they enforce.

My suggested remedy is an amendment forbidding any delegation of powers and have the bureaucracy submit regulations to Congress for consideration as legislation.
 

This comment has been removed by the author.
 

Bart: "There is not nearly enough room in a blog response to comprehensively review the various legal malfeasances by progressive courts, nor was that my purpose. I was expanding on my original point that our government is moving from a Republic to a bureaucratic dictatorship more familiar to the EU."

Shag: "When last did we have a progressive Supreme Court?"


Last session in National Federation of Independent Business v. Sebelius.

Every time a so called conservative court enforces unconstitutional progressive precedent or generates more of its own, it is acting as a progressive court. This is the problem with using stare decisis in constitutional cases.
 

Joe, it's one thing to protect individual rights, it's certainly another thing to "protect" some of them and creating illogical new "rights" at the expense of other genuine rights.

The courts in question protected free speech, religious liberty, rights of criminal defendants, started to put real teeth racial equality etc.

These "genuine rights" were not being protected as much before then. Since the right to jury was not deemed a 'right' above, I think I will probably disagree too on the nature of "illogical."

The 1930-1940ss court made all manner of previously unconstitutional things "constitutional", including, regulation of not interstate commerce laws, but commerce itself, anything directly or indirectly related to it, and not between states, but within states.

Commerce within states that still involve as a whole interstate commerce was allowed before the New Deal. As Gibbons v. Ogden noted: "The power of Congress, then, whatever it may be, must be exercised within the territorial jurisdiction of the several States."

So, you can't smoke a joint, because Randolph Hearst needs another mansion.

You don't help your cause with such silly statements though Scalia (concurring opinion in Raich) isn't a "liberal" either.

An interesting article on Wickard:

http://thefilburnfoundation.com/pdf/thestory.pdf
 

I consider Scalia to be quite liberal, just not as liberal as as the neo-socialists on the court.

All of these folks, less Thomas, are progressive enough to support the Commerce Clause as imagined, not as written.

Regulating employment, wages, manufacturing, etc, is FAR out of the bounds of the Federal powers, and, if you understand the Commerce Clause, the focus was on regulating state laws and handling state conflicts, not simply taking over the control of all commerce and all related to it.

You also need to learn the difference between a right and a legal guarantee. You are guaranteed a trial by jury, but that is not intrinsically your right, it is simply an arbitrary creation that makes sense, but could obviously be something else. Calling something a "right" doesn't automatically put it in the same standing as genuine, natural rights.
 

Also, if I were a Supreme Court of one, I would give the Feds 2 years to:

Push Social Security, Welfare, immigration and other programs down to the states, eliminate or amend into the Constitution, the Air Force, Dept of Ed, HHS, NASA and dozens of other agencies that have appeared since the 1930s, .

We have no true conservatives on the Court, but Thomas comes closest.
 

"Stare Decisis" = "Let the poop where it was pooped".

Funny how you ask these old professors like Levinson pointed questions and they run for the hills.
 

Er, Timothy, are you aware that Thomas does not accept the Dormant Commerce Clause (which, perversely, seems to be the only use of the Clause you recognize)?
 

Bart

"Law enforcement always exercises some degree of discretion, but they do not write the laws they enforce."

That's a good and well made point.

"My suggested remedy is an amendment forbidding any delegation of powers and have the bureaucracy submit regulations to Congress for consideration as legislation."

This is a smart suggestion, I guess I do not see how much an advantage it would be over present conditions where the Congress gives the bureaucracy broad powers and it makes regulations but Congress can overrule the regulations it wishes.
 

"You also need to learn the difference between a right and a legal guarantee. You are guaranteed a trial by jury, but that is not intrinsically your right"

I guess the Founders need this lesson too, as they mistakenly put the right to jury in the Bill of Rights instead of a Bill of Guarantees!
 

How do I accept the Dormant Commerce Clause theory?

I believe that Congress, actually, should be restricted from regulating commerce directly unless there is a cause and controversy that requires it. That it may only do so via regulation of state law, which requires no such thing as a "Dept of Commerce". It would simply state that "this is the standard states must apply, The End".
 

If the Framers of the Constitution saw how the word "rights" were conflated today with "free stuff" and "special privileges" today, I imagine they would have been more careful with it.

It is easy to say that someone has been given a right, but when that right has been taken away, it suddenly doesn't exist. Government giveth, government taketh away.

Real rights have genuine ownership.
 

As noted by a later thread, Happy Constitution Day! Rep. Bingham, sometimes called the Madison of the 14A, knew a thing or two about "rights," including those protected by the P/I Clause of that amendment.

In "A New Birth of Freedom: Human Rights, Named and Unnamed," Charles Black pointed to the dictionary to help define what a 'privilege' is here. He noted that it included "rights," with the BOR cited as an example.

And, Bingham et. al. did and still do think the P/I Clause protects rights. See, e.g., Justice Thomas' concurrence in McDonald v. Chicago:

At the time of Reconstruction, the terms "privileges" and "immunities" had an established meaning as synonyms for "rights." The two words, standing alone or paired together, were used interchangeably with the words "rights," "liberties," and "freedoms," and had been since the time of Blackstone. See 1 W. Blackstone, Commentaries *129 (describing the "rights and liberties" of Englishmen as "private immunities" and "civil privileges"). A number of antebellum judicial decisions used the terms in this manner. See, e.g., Magill v. Brown, 16 F. Cas. 408, 428 (No. 8,952) (CC ED Pa. 1833) (Baldwin, J.) ("The words `privileges and immunities' relate to the rights of persons, place or property; a privilege is a peculiar right, a private law, conceded to particular persons or places"). In addition, dictionary definitions confirm that the public shared this understanding. See, e.g., N. Webster, An American Dictionary of the English Language 1039 (C. Goodrich & N. Porter rev. 1865) (defining "privilege" as "a right or immunity not enjoyed by others or by all" and listing among its synonyms the words "immunity," "franchise," "right," and "liberty"); id., at 661 (defining "immunity" as "[f]reedom from an obligation" or "particular privilege"); id., at 1140 (defining "right" as "[p]rivilege or immunity granted by authority")

I think Scalia's acceptance of precedent realistic on this front, but Thomas' analysis is quite worthwhile, if -- as usual -- only up to a point.
 

BD: "My suggested remedy is an amendment forbidding any delegation of powers and have the bureaucracy submit regulations to Congress for consideration as legislation."

Mr. W: "This is a smart suggestion, I guess I do not see how much an advantage it would be over present conditions where the Congress gives the bureaucracy broad powers and it makes regulations but Congress can overrule the regulations it wishes."


Progressive Congresses enact enabling acts delegating broad legislative power to the bureaucracy to impose regulations by decree because progressives cannot enact the specific laws they would prefer by legislation.

Once the enabling legislation is in place, it is nearly impossible for a libertarian/conservative coalition to reverse regulatory decrees unless they have a House majority, a Senate supermajority and the White House, something that has not happened for nearly a century. There is also the near impossibility for Congress to keep up with the flood of regulations. (See, e.g., the 20,000+ pages over just the past four years)

Under my proposed remedy, progressives could no longer bypass the democratic process and the checks and balances which now protect regulatory decrees from Congress would instead serve to stop all but the most necessary regulations from being enacted as legislation by Congress and the President.

 

"How do I accept the Dormant Commerce Clause theory?"

You said:

"if you understand the Commerce Clause, the focus was on regulating state laws and handling state conflicts"

and

"it may only do so via regulation of state law, which requires no such thing as a "Dept of Commerce". It would simply state that "this is the standard states must apply, The End"."

That is essentially Dormant Commerce Clause as applied, no?

Of course the larger problem you run into is here:

"I believe that Congress, actually, should be restricted from regulating commerce directly unless there is a cause and controversy that requires it. That it may only do so via regulation of state law"

The text of the Interstate Commerce clause does not refer to a power over state law, but a power over interstate commerce.

"f the Framers of the Constitution saw how the word "rights" were conflated today"

This strikes me as handwaving away from what we were talking about. Whatever the Founders would have thought about how the word "rights" is used today, they thought to put the right to jury among a Bill of Rights rather than a Bill of Guarantees.

 

Joe, I certainly understand that "right" is used as a catch all phrase in many cases, and often includes things like "privileges" and "just claims" and all sorts of things, as opposed to natural rights.

However, I prefer to focus on keeping clear the difference between a natural right and a priivlege or "just claim" which would apply to the trial by jury.

IOW "If x is so, then I have a just claim to y". Of course, "just" is in the eye of the legislative body and it might simply be ignored. People believe they have the "right" to all kinds of things. I don't see the purpose in generalizing different things under a single term when there are other terms that more specifically set them apart.
 

Mr Whiskas, I do understand that the Commerce Clause allows for direct regulation of commerce by its very text, yet it is unknown whether that was intended. It is what it is, but I'd have preferred that it had said "in the event of a dispute". Even so, there's a reason why the Commerce Clause was one of the least used powers of the Federal government for 100 years, even though it was seen as a necessary addition.
 

Bart

I see some tension between your comment "progressives could no longer bypass the democratic process" and "Once the enabling legislation is in place, it is nearly impossible for a libertarian/conservative coalition to reverse regulatory decrees unless they have a House majority, a Senate supermajority and the White House, something that has not happened for nearly a century." It seems an awful lot to me as if you complain about Progressives violating the democratic process in the first and then complain about the results of the actual democratic process in the latter...
 

"there's a reason why the Commerce Clause was one of the least used powers of the Federal government for 100 years, even though it was seen as a necessary addition. "

I would think the reason had much to do with the relative, and changing, proportions of interstate vs. intrastate economic activity in our national history. There was a time when most things one came across were likely made locally, and that changed and our markets are now more interstate (and international) than could have been dreamed of. Good thing our farseeing Founders gave us such a broad power to regulate that suddenly dominating economic scene!
 

regulate, not dominate.

And there is still exactly zero control over non-commerce and commerce within borders.

Despite what the Feds do.
 

However, I prefer to focus on keeping clear the difference between a natural right and a priivlege or "just claim" which would apply to the trial by jury.

OTOH, the Bill of Rights, e.g., calls the trial by jury a "right."

The P/I Clause of the 14A, as noted (by yet another non-liberal), also doesn't so neatly divide things.

Oh well. I will leave things there.
 

trial by jury is sort of a "compensatory right".

"Since we are going to infringe on your freedom, we offer this as a guarantee."

It's certainly not an inalienable right.
 

Mr. W: I see some tension between your comment "progressives could no longer bypass the democratic process" and "Once the enabling legislation is in place, it is nearly impossible for a libertarian/conservative coalition to reverse regulatory decrees unless they have a House majority, a Senate supermajority and the White House, something that has not happened for nearly a century." It seems an awful lot to me as if you complain about Progressives violating the democratic process in the first and then complain about the results of the actual democratic process in the latter...

Our Republic is a representative democracy because we chooses our representatives.

The bureaucracy is unconstitutionally anti-democratic because it is an unelected body which enacts, enforces and adjudicates the law.

Checks and balances are not part of that democracy, but rather a means to limit the exercise of government power by that democracy.

The unconstitutional delegation of legislative and judicial power to the regulatory bureaucracy turns the checks and balances on their head by protecting bureaucratic exercises of government power from any check by the elected branches.
 

Bart

I still do not see it.

Congress can, by itself, defund a bureaucracy (in fact the House alone can do this), the executive is in charge of them, and the courts can at the least hold them to the 'intelligible principle' which Congress must provide them.

And, of course, Congress and the President can change bureaucracies and their mandates (or eliminate them altogether). Several times in recent history Congress and the Presidency have been in the hands of the same party. The fact that the changes were not made does not mean they could not have been if our elected branches wanted to do that.
 

Mr. W: "Congress can, by itself, defund a bureaucracy (in fact the House alone can do this)"

Interesting tactic, but this does not reverse offending regulations.

"the executive is in charge of them"

Only if you are a progressive or a socialist who is attempting to expand the reach of the bureaucracy. When Bush 43 attempted to reverse some literally last minute Clinton regulations, the courts supported the progressive bureaucrats and reimposed the regulations.

"the courts can at the least hold them to the 'intelligible principle' which Congress must provide them."

The courts grant the bureaucracy nearly everything it wants and has not even perceptibly slowed the growth of the Federal Register.

And, of course, Congress and the President can change bureaucracies and their mandates (or eliminate them altogether).

As I noted above, only a libertarian/conservative coalition with a House majority, a Senate supermajority and the White House could do this. Such a coalition has not existed since Harding and Coolidge eliminated the Wilson war bureaucracies which caused the 1920 depression. An occasional elected libertarian/conservative parity is insufficient to overcome our checks and balances perverted to protect our unconstitutional bureaucratic dictatorship.
 

Our SALADISTA's use of "libertarian" obviously refers to the "anarcho" variety and clearly not the "moderate."

And consider this from our SALADISTA:

***
Shag: "When last did we have a progressive Supreme Court?"

Last session in National Federation of Independent Business v. Sebelius

***

So one decision, 5-4, converted the current Roberts Court from conservative to progressive? Sounds like The Wis is our SALADISTA's puppeteer now that the curtain has been opened.
 

I had not previously read Rossiter's Constitutional Dictatorship, but his theory and mine concerning bureaucratic dictatorship dovetail rather nicely.

Rossiter notes that the Romans created a constitutional system where the Senate could appoint and delegate its power to a dictator for a short period of usually six months to deal with a military, economic or public health emergency.

Then, Rossiter compares Congress's delegation of legislative powers under the Constitution to the President and the bureaucracy during both World Wars and the Great Depression and argues that America is developing a similar system and argues that this is a good idea if limited in scope and duration. At the very end of his essay, though, Rossiter warns that Congress's delegations of power to the bureaucracy during the then recent Depression and WWII were becoming permanent.

If Rossiter were alive today and surveyed our ever expanding bureaucracy, I wonder whether he would believe the idea of a constitutional (or more accurately unconstitutional) dictatorship was really desirable.

Sometimes constitutional dictatorships do not turn into Caesar, but something more akin to the Chinese or Byzantine bureaucracies.
 

Our SALADISTA engages in dovetailing. So make sure to keep him in his cage bottom-lined with unread pages of his work of FRICTION. Those interested might check out Rossiter to determine how truly depressing this dovetailing is.
 

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