I suppose it's never for the last time, eh?
Article 1, Section 8, clause 1 of the US Constitution
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. . . .
It does not actually say
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, in order 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. . . .
Nor does it say,
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 through the exercise of those powers conferred on it elsewhere in this constitution and not otherwise; but all Duties, Imposts and Excises shall be uniform throughout the United States. . . .
Nor indeed does it combine both interpolations.
So perhaps the simplest reading is that this is a grant of several distinct powers, followed by a restriction on the first few.
The Congress shall have power to:
Lay and collect taxes, duties, imposts, and excises,
Pay the debts of the United States,
Provide for the common defense of the United States,
And provide for the general welfare of the United States.
But all Duties, Imposts and Excises shall be uniform throughout the United States.
Nothing in the clause itself limits any of these powers in any way.
And the occurrence of the clause in a series of clauses granting powers does not in itself limit these powers, either.
A very liberal reading, yes, and not at all likely acceptable to any Republican jurist.
It is what it is.
And however this reading might have shocked some of the Founders and their generation, a reading of the Preamble makes it far less implausible, at least as regards existence of a distinct power to provide for the general welfare.
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
Showing posts with label the General Welfare clause. Show all posts
Showing posts with label the General Welfare clause. Show all posts
Wednesday, February 28, 2018
Thursday, December 7, 2017
Quick. Check the Constitution.
By what authority do they do this, this party of soi-disant strict constructionists and limited government fans?
Talk about fake news.
Where in section 8 of Article I do they find the power to do this?
If they claim the commerce clause their readings are as broad and implausible as any liberal's.
And you know they aren't claiming either the general welfare clause or the necessary and proper clause.
They are allowing gun toters from Vermont where no actual permit is required, as concealed carry is lawful for everyone, to carry a little bubble of Vermont law with them, as regards this one particular matter, wherever they go in the US, in blithest ignorance of and unconcern for the laws of every state through which they may serenely pass, as regards gun rights.
Guns are just so special, you see.
If this is passed and is taken by state attorneys general to the Supremes and the conservatives among them defend it their hypocrisy will be evident and beyond laughable.
The Second Amendment does not have a finishing sentence, "Congress shall have power to enforce this amendment by appropriate legislation," even if we accept a version of incorporation that makes it binding on the states.
Update 08142020. How does this proposal comport with the requirement of full faith and credit?
House Votes to Sharply Expand Concealed-Carry Gun Rights
The House on Wednesday easily passed a sweeping expansion of the right to carry concealed firearms virtually anywhere in the country, putting the fate of the National Rifle Association’s top legislative priority in the hands of a divided Senate.
To win over Democrats, House Republicans paired the measure, which would require all states to recognize any other state’s concealed-carry permit, with a more modest bipartisan fix meant to incentivize better reporting of legal and mental health records to the national background check system.
Together, the measures were the first gun-related bill to pass through the chamber since two of the deadliest mass shootings in the United States, in Las Vegas and Sutherland Springs, Tex., in the fall.
But the background check measure was not enough to win over most Democrats, nor did it persuade law enforcement officials in some of the largest cities, including New York, who say the legislation would force locales with strict gun laws to bow to places with few or no gun restrictions.
The final House vote was 231 to 198, with six Democrats in favor of and 14 Republicans against the bill.
Talk about fake news.
Where in section 8 of Article I do they find the power to do this?
If they claim the commerce clause their readings are as broad and implausible as any liberal's.
And you know they aren't claiming either the general welfare clause or the necessary and proper clause.
They are allowing gun toters from Vermont where no actual permit is required, as concealed carry is lawful for everyone, to carry a little bubble of Vermont law with them, as regards this one particular matter, wherever they go in the US, in blithest ignorance of and unconcern for the laws of every state through which they may serenely pass, as regards gun rights.
Guns are just so special, you see.
If this is passed and is taken by state attorneys general to the Supremes and the conservatives among them defend it their hypocrisy will be evident and beyond laughable.
The Second Amendment does not have a finishing sentence, "Congress shall have power to enforce this amendment by appropriate legislation," even if we accept a version of incorporation that makes it binding on the states.
Update 08142020. How does this proposal comport with the requirement of full faith and credit?
House Votes to Sharply Expand Concealed-Carry Gun Rights
The House on Wednesday easily passed a sweeping expansion of the right to carry concealed firearms virtually anywhere in the country, putting the fate of the National Rifle Association’s top legislative priority in the hands of a divided Senate.
To win over Democrats, House Republicans paired the measure, which would require all states to recognize any other state’s concealed-carry permit, with a more modest bipartisan fix meant to incentivize better reporting of legal and mental health records to the national background check system.
Together, the measures were the first gun-related bill to pass through the chamber since two of the deadliest mass shootings in the United States, in Las Vegas and Sutherland Springs, Tex., in the fall.
But the background check measure was not enough to win over most Democrats, nor did it persuade law enforcement officials in some of the largest cities, including New York, who say the legislation would force locales with strict gun laws to bow to places with few or no gun restrictions.
The final House vote was 231 to 198, with six Democrats in favor of and 14 Republicans against the bill.
Wednesday, February 1, 2017
All you need to know about Neil Gorsuch
Scalia, in defiance of his own earlier and popular writings, embraced the dogma of incorporation based on the due process clause in order to impose the 2nd Amendment on states and locales, rather than incorporation based on the privileges or immunities clause, much more defensible as an understanding of the actual wording and the legislative intent.
And that was the conservative reading of the 2nd according to which it protects an individual right effectively independent of the individual's membership in either a militia (public or private) or the National Guard.
Nobody has yet said anything about Gorsuch's detailed legal views, alleging only that he is an admirer of Scalia and is the same sort of "strict constructionist" as him.
Originalists, textualists, and other forms of strict constructionists, though sharing a general approach, don't necessarily agree in details.
Crucially and one might say definingly, all species of strict constructionists agree in disapproving and holding as fanciful and, er, not strict, interpretations of the constitution that, while not defensible as narrow, literal, textualist, or adhering to original intent, are crucial to the sexual and civil rights revolutions, as well as many other parts of progressivism in the law.
My concern would be with how far he is willing to overturn past courts in major decisions such as Roe or even Griswold, or overturn established institutions such as Medicare and Social Security via long known readings, preferred as strict, of the general welfare and necessary and proper clauses that flatly rule them both out.
I am, I confess, an old fart, and such things worry me.
And also how far he is in sympathy with conservatives' renewed interest in and respect for Lochner, based though it is on a reading of due process that is not remotely literal, textualist, narrow, or plausibly based on original intent, that threatens just about any form of federal or state regulation of the labor market, wages, working conditions, and the like.
People so easily seem to ignore that the conservative "main stream" is in fact very, very radical in a right wing, counter-revolutionary way.
Everything from unemployment compensation to the affirmative right to counsel, from federal and state workplace and product safety regulation to prohibitions of discrimination in employment, actually the whole and entire ball of wax, depends on rulings of constitutionality that strict constructionists are known to profoundly deplore.
Everything since McKinley is at risk, every day one of these guys sits on any federal court.
Of course, strict construction is a fraud, anyway.And that was the conservative reading of the 2nd according to which it protects an individual right effectively independent of the individual's membership in either a militia (public or private) or the National Guard.
Nobody has yet said anything about Gorsuch's detailed legal views, alleging only that he is an admirer of Scalia and is the same sort of "strict constructionist" as him.
Originalists, textualists, and other forms of strict constructionists, though sharing a general approach, don't necessarily agree in details.
Crucially and one might say definingly, all species of strict constructionists agree in disapproving and holding as fanciful and, er, not strict, interpretations of the constitution that, while not defensible as narrow, literal, textualist, or adhering to original intent, are crucial to the sexual and civil rights revolutions, as well as many other parts of progressivism in the law.
My concern would be with how far he is willing to overturn past courts in major decisions such as Roe or even Griswold, or overturn established institutions such as Medicare and Social Security via long known readings, preferred as strict, of the general welfare and necessary and proper clauses that flatly rule them both out.
I am, I confess, an old fart, and such things worry me.
And also how far he is in sympathy with conservatives' renewed interest in and respect for Lochner, based though it is on a reading of due process that is not remotely literal, textualist, narrow, or plausibly based on original intent, that threatens just about any form of federal or state regulation of the labor market, wages, working conditions, and the like.
People so easily seem to ignore that the conservative "main stream" is in fact very, very radical in a right wing, counter-revolutionary way.
Everything from unemployment compensation to the affirmative right to counsel, from federal and state workplace and product safety regulation to prohibitions of discrimination in employment, actually the whole and entire ball of wax, depends on rulings of constitutionality that strict constructionists are known to profoundly deplore.
Everything since McKinley is at risk, every day one of these guys sits on any federal court.
In addition to their defections from narrowness, original intent, and adherence to the actual text noted above, I am not aware of anyone of the tribe who, for example, holds that the free exercise clause protects human sacrifice, and pretty much all of them seem to agree it disallows, in some cases (e.g., Quakers refusing to perform military service) if not in all (e.g., parental refusal to provide medical care to their sick children), requiring people to do what their religion forbids.
Gorsuch, for example, is on record as agreeing, in the Hobby Lobby case, it disallows requiring people or even businesses in the hands of people whose religion forbids doing A to provide the means for someone else, not of their religion, to optionally do A.
(How then defend taxation of pacifists to support the military?)
Everyone pretty much accepts that the First Amendment covers electronic or recorded media as well as the paper press and in person, real time speech.
And Republicans are notorious for the conviction that paying somebody else to publish or speak is protected by the Amendment that in so many words protects only speaking and publishing.
But pretty much - though not quite - none of them accepts the blatant absolutism of "Congress shall make no law."
And pretty much everyone agrees wiretaps and most forms of electronic eavesdropping require a warrant.
And there is much else, besides, including the Air Force and paper currency.
Much, much more.
BTW, are any of the judges who might be tempted to overturn Roe of a mind to do so without overturning Griswold?
Without overturning Lawrence?
Would they be content with only that much of restoration of American Christian clericalism and Christian sexual morality?
Wednesday, June 15, 2016
About Trump's judicial appointments
Trump Says He Will Delegate Judicial Selection To The Conservative Federalist Society
In my own view, the most honest reading of the constitution makes Social Security and Medicare both unconstitutional, along with paper money, the Air Force, the Federal Reserve System, the Department of Education, the EPA, and everything anybody has ever based on the incorporation doctrine, the fictitious right to privacy, and the utterly mad liberal readings of the due process and equal protection clauses of the 14th Amendment.
And, by the way, the First Amendment, which binds only the federal Congress, only protects actual speech and publications on paper, and though it protects human sacrifice from Congressional interference, it does not prohibit the Congress compelling people to do what their religion forbids.
The Second Amendment conjoins a demonstrable falsehood about the role of militias with a guarantee of the individual right to keep and bear arms against federal infringement.
Or perhaps it conjoins a conditional guarantee of that right with the false assertion of its condition, leaving the guarantee an undetached consequent, I can never quite be sure which.
Interception of the mails is a search only at a stretch, and is not a seizure, nor are warrants required or indeed is anything said about electronic communications, surveillance, or eavesdropping.
The so called "tax and spend" clause is otherwise a mere preamble and confers no powers but those elsewhere specified in the constitution.
Congress is not empowered to do whatever it wants in pursuit of either the general welfare or the common defense of the states, nor to do whatever might be necessary and proper in pursuit of those objects.
Judicial review is a fraud and the supremacy clause is a mere assertion and a naked command aimed at state courts that in no way grants power to anyone or anything, and so not a power of enforcement to the federal courts, the Supreme Court, or anyone else.
No state any longer has a militia, and the National Guard is not a militia.
No one can bind their choices, and the Electors can each and all vote in utter freedom for whomever they wish for the offices of President and Vice President of the United States.
The power to make and the manner of making treaties is set out clearly enough, but no power to abrogate them is even contemplated.
The power to make people executive department heads and officers of the federal government is created and the manner of doing it specified, but apart from impeachment the document does not contemplate their resignations or any particular limit on their tenure in office.
It is definitely not provided that they serve at the pleasure of the president nor that they must resign when his term of office ends.
And, as Justice Roberts has pointed out to us, Obamacare is constitutional only if - I do not say "if" - we consider federal compulsion of individual purchase of private insurance a tax, which is ludicrous.
What a ridiculous, inadequate, and antiquated artifact of the 18th Century that document is.
But why quibble, eh?
So far, so good.
Anyway, on the whole, nobody is interested in a constitutional challenge to any of that but Social Security and Medicare - and, right, Obamacare.
And so, being a geezer who does not want to be left for dead and feeling, yes, entitled, given I have paid the relevant taxes all my working life, I oppose putting judges on the bench who might rule, eventually, against the constitutionality of Social Security and Medicare.
And though the feckless and totally unreliable Duce has pledged to unshakably defend Social Security and Medicare when seeking the votes of the elderly, this pledge concerning his judicial appointments greatly endangers both.
Just saying.
Oh, the constitution does guarantee a speedy trial, but good luck getting one.
Update.
My view of I, 8, 1 has changed in a significant fashion.
I think what it actually says is quite breathtaking, and that taking it at its word would have been contrary to the intentions of some, if not all, of the Framers and their generation.
In my own view, the most honest reading of the constitution makes Social Security and Medicare both unconstitutional, along with paper money, the Air Force, the Federal Reserve System, the Department of Education, the EPA, and everything anybody has ever based on the incorporation doctrine, the fictitious right to privacy, and the utterly mad liberal readings of the due process and equal protection clauses of the 14th Amendment.
And, by the way, the First Amendment, which binds only the federal Congress, only protects actual speech and publications on paper, and though it protects human sacrifice from Congressional interference, it does not prohibit the Congress compelling people to do what their religion forbids.
The Second Amendment conjoins a demonstrable falsehood about the role of militias with a guarantee of the individual right to keep and bear arms against federal infringement.
Or perhaps it conjoins a conditional guarantee of that right with the false assertion of its condition, leaving the guarantee an undetached consequent, I can never quite be sure which.
Interception of the mails is a search only at a stretch, and is not a seizure, nor are warrants required or indeed is anything said about electronic communications, surveillance, or eavesdropping.
The so called "tax and spend" clause is otherwise a mere preamble and confers no powers but those elsewhere specified in the constitution.
Congress is not empowered to do whatever it wants in pursuit of either the general welfare or the common defense of the states, nor to do whatever might be necessary and proper in pursuit of those objects.
Judicial review is a fraud and the supremacy clause is a mere assertion and a naked command aimed at state courts that in no way grants power to anyone or anything, and so not a power of enforcement to the federal courts, the Supreme Court, or anyone else.
No state any longer has a militia, and the National Guard is not a militia.
No one can bind their choices, and the Electors can each and all vote in utter freedom for whomever they wish for the offices of President and Vice President of the United States.
The power to make and the manner of making treaties is set out clearly enough, but no power to abrogate them is even contemplated.
The power to make people executive department heads and officers of the federal government is created and the manner of doing it specified, but apart from impeachment the document does not contemplate their resignations or any particular limit on their tenure in office.
It is definitely not provided that they serve at the pleasure of the president nor that they must resign when his term of office ends.
And, as Justice Roberts has pointed out to us, Obamacare is constitutional only if - I do not say "if" - we consider federal compulsion of individual purchase of private insurance a tax, which is ludicrous.
What a ridiculous, inadequate, and antiquated artifact of the 18th Century that document is.
But why quibble, eh?
So far, so good.
Anyway, on the whole, nobody is interested in a constitutional challenge to any of that but Social Security and Medicare - and, right, Obamacare.
And so, being a geezer who does not want to be left for dead and feeling, yes, entitled, given I have paid the relevant taxes all my working life, I oppose putting judges on the bench who might rule, eventually, against the constitutionality of Social Security and Medicare.
And though the feckless and totally unreliable Duce has pledged to unshakably defend Social Security and Medicare when seeking the votes of the elderly, this pledge concerning his judicial appointments greatly endangers both.
Just saying.
Oh, the constitution does guarantee a speedy trial, but good luck getting one.
Update.
My view of I, 8, 1 has changed in a significant fashion.
I think what it actually says is quite breathtaking, and that taking it at its word would have been contrary to the intentions of some, if not all, of the Framers and their generation.
Saturday, December 19, 2015
Is federal suppression of recreational drug use unconstitutional?
The federal government lacked the authority to ban alcohol without the 18th Amendment, since repealed by the 21st.
Actually, it never banned its use, but only manufacture, transportation, and sale of liquor as a beverage - that is, for recreational use.
The use of a product is not interstate commerce by any stretch of the imagination.
Nor is intrastate production, transportation, or sale.
So what about bans on manufacture, transportation, or sale of heroin, cocaine, or other drugs?
Or their mere use?
And what does this say about Obamacare?
Had it included a tax on the uninsured rather than a fine on those who disobeyed a command to buy insurance it would have been, by the letter if not by the spirit of the thing.
So Roberts lied and said it was a tax, and so it was ok.
Why?
Political cowardice?
The 4 Best Legal Arguments Against ObamaCare
The only good one is that the commerce clause does not grant congress the power to compel purchase of anything.
Nor, of course, the general welfare clause.
The 4 Best Legal Arguments Against ObamaCare
The only good one is that the commerce clause does not grant congress the power to compel purchase of anything.
Nor, of course, the general welfare clause.
Thursday, January 22, 2015
"Disparate impact" is not discrimination
The Roberts court takes on the Fair Housing Act
Mojo reports,
The question before the court is whether the Fair Housing Act of 1968, intended to fight pervasive residential segregation, bans practices that unintentionally discriminate against minorities.
And there's the rub.
"Unintentional discrimination" is an oxymoron.
Under the FHA, it is illegal to "refuse to sell or rent… to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin."
Civil rights advocates believe this language is broad enough to include disparate-impact claims, and the courts have historically agreed.
Some courts, not "the" courts; and it is evident there is nothing in the quoted text to support so violent an act of "interpretation."
Lower courts just play follow the leader, anyway, like so many lemmings trying their best not to poke their heads up.
This is the background of the current controversy.
The Texas case involves a fair-housing advocacy group that alleged state officials were perpetuating racial segregation in the Dallas region by making federal low-income housing vouchers available primarily in minority neighborhoods.
A district court agreed that state officials were violating the FHA—whether intentionally or not.
Texas appealed, urging the courts to find that the law only applies to intentional discrimination.
"The text of the Fair Housing Act unambiguously precludes the 'disparate impact' interpretation adopted by HUD and the court of appeals," the brief from the state says.
"There is no language anywhere in the Fair Housing Act’s anti-discrimination rules that refers to ‘effects’ or actions that ‘adversely affect’ others."
The Texans are clearly right.
The idea seems to have been that by providing aid only for purchases in minority neighborhoods the Texas law made it easier for minorities to locate in minority neighborhoods than elsewhere, thus perpetuating residential segregation.
That may be right, and I think it's a fair supposition that it was intentional.
Two points.
First, state officials do not seem to have been renting or selling or etc. They were providing assistance to housing-seekers. The law does not seem to address or constrain people or agencies doing that. So the law does not seem to apply in the case at issue.
Second, suppose they could prove an intention to perpetuate residential segregation. That does not seem to be forbidden by the quoted portion of this law. Again, the law does not seem to apply in the case at issue.
It appears to be the liberal view that, regardless of the actual text, (a) the law should be taken as forbidding any policy, rule, law, regulation, or other act in any way related to housing that has a "disparate impact" on different racial groups, (b) whether by intention or not.
It is not only right wing prosecutors or fascist cops out to nail their man who so grossly abuse the law.
And as to (a), you may be sure it has not occurred to them that the federal housing voucher program likely violates that constraint, since at a guess I would say it aids disproportionately more minorities than whites.
And they would tear their hair out at the suggestion that was unlawful discrimination, intentional or not.
Anyway, the entire controversy ignores the difference between compulsory separation of the races and spontaneous separation, perhaps resulting from people preferring to live in more or less homogeneous neighborhoods dominated by their own group, or in which their own group at least has an established presence.
Exactly as does the whole government effort for compulsory integration of schools.
By the way, how is that Fair Housing Act of 1968 constitutional?
On what constitutional peg is hung the power to so constrain local commerce?
If not the general welfare clause or the Fourteen Amendment equal protection clause, I don't see any peg available.
Bit of a stretch, in either case.
Mojo reports,
The question before the court is whether the Fair Housing Act of 1968, intended to fight pervasive residential segregation, bans practices that unintentionally discriminate against minorities.
And there's the rub.
"Unintentional discrimination" is an oxymoron.
Under the FHA, it is illegal to "refuse to sell or rent… to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin."
Civil rights advocates believe this language is broad enough to include disparate-impact claims, and the courts have historically agreed.
Some courts, not "the" courts; and it is evident there is nothing in the quoted text to support so violent an act of "interpretation."
Lower courts just play follow the leader, anyway, like so many lemmings trying their best not to poke their heads up.
This is the background of the current controversy.
The Texas case involves a fair-housing advocacy group that alleged state officials were perpetuating racial segregation in the Dallas region by making federal low-income housing vouchers available primarily in minority neighborhoods.
A district court agreed that state officials were violating the FHA—whether intentionally or not.
Texas appealed, urging the courts to find that the law only applies to intentional discrimination.
"The text of the Fair Housing Act unambiguously precludes the 'disparate impact' interpretation adopted by HUD and the court of appeals," the brief from the state says.
"There is no language anywhere in the Fair Housing Act’s anti-discrimination rules that refers to ‘effects’ or actions that ‘adversely affect’ others."
The Texans are clearly right.
The idea seems to have been that by providing aid only for purchases in minority neighborhoods the Texas law made it easier for minorities to locate in minority neighborhoods than elsewhere, thus perpetuating residential segregation.
That may be right, and I think it's a fair supposition that it was intentional.
Two points.
First, state officials do not seem to have been renting or selling or etc. They were providing assistance to housing-seekers. The law does not seem to address or constrain people or agencies doing that. So the law does not seem to apply in the case at issue.
Second, suppose they could prove an intention to perpetuate residential segregation. That does not seem to be forbidden by the quoted portion of this law. Again, the law does not seem to apply in the case at issue.
It appears to be the liberal view that, regardless of the actual text, (a) the law should be taken as forbidding any policy, rule, law, regulation, or other act in any way related to housing that has a "disparate impact" on different racial groups, (b) whether by intention or not.
It is not only right wing prosecutors or fascist cops out to nail their man who so grossly abuse the law.
And as to (a), you may be sure it has not occurred to them that the federal housing voucher program likely violates that constraint, since at a guess I would say it aids disproportionately more minorities than whites.
And they would tear their hair out at the suggestion that was unlawful discrimination, intentional or not.
Anyway, the entire controversy ignores the difference between compulsory separation of the races and spontaneous separation, perhaps resulting from people preferring to live in more or less homogeneous neighborhoods dominated by their own group, or in which their own group at least has an established presence.
Exactly as does the whole government effort for compulsory integration of schools.
By the way, how is that Fair Housing Act of 1968 constitutional?
On what constitutional peg is hung the power to so constrain local commerce?
If not the general welfare clause or the Fourteen Amendment equal protection clause, I don't see any peg available.
Bit of a stretch, in either case.
Saturday, December 6, 2014
Second (third?) thoughts on Article I, Section 8, Clauses 1 and 18
If the congress is empowered to raise taxes for certain purposes then surely it is empowered by implication to undertake those purposes.
I, 8, 1
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;
Now, the text does not actually say the following.
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 so far as these last may be done through the exercise of powers granted elsewhere in this constitution; but all Duties, Imposts and Excises shall be uniform throughout the United States;
That interpolated restriction is pure invisible ink.
Think of it this way.
Without question or dispute, I, 8, 1 empowers the congress to raise taxes.
And it does not empower the congress to raise taxes only so far as authority and means to do so can be found in other powers granted to the congress elsewhere in the document.
Too, I, 8, 1 by implication empowers the congress to pay the debts of the United States.
It does not, as is sometimes said, only give to the congress the power to raise taxes.
And it does not empower the congress to pay those debts only so far as authority and means to pay them can be found in other powers granted to the congress elsewhere in the document.
There is no such limitation in the text of I, 8, 1.
So it empowers the congress both to raise taxes and to pay the debts of the United States without any such limitation or constraint.
How then does it not also empower the congress to provide both for the common defense and for the general welfare of the United States, also without any such limitation or constraint?
So what we have here in the constitution as written is in fact an explicit grant of power to collect taxes for three purposes, and an implied grant of power to undertake those same three purposes: to pay the debts, to provide for the common defense, and to provide for the general welfare of the United States.
Those three, then, stand alongside the other powers of the congress enumerated in Section 8, rather than being limited by them or other constitutional powers of that body.
But the congress also has power to do anything necessary and proper to carry out any undertaking under its legitimate powers.
I, 8, 18
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
On this reading, the entire progressive, New Deal, Great Society agenda is constitutionally legitimate and would have been at any time since 1788, though at least some of the Framers (not all) would have been aghast to realize what they had countenanced.
Too, we may take "and proper," I think, to at least mean consistent with limitations elsewhere expressed in the constitution.
A more narrow reading might be getting a little too much into invisible ink.
None of this goes any distance to legitimate any of the constitutional creations based on the 14th Amendment or the fiction of incorporation.
But it does, I think, legitimate the Air Force, paper money, and a lot besides.
And Obamacare, in particular, including its mandatory purchase provisions.
I, 8, 1
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;
Now, the text does not actually say the following.
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 so far as these last may be done through the exercise of powers granted elsewhere in this constitution; but all Duties, Imposts and Excises shall be uniform throughout the United States;
That interpolated restriction is pure invisible ink.
Think of it this way.
Without question or dispute, I, 8, 1 empowers the congress to raise taxes.
And it does not empower the congress to raise taxes only so far as authority and means to do so can be found in other powers granted to the congress elsewhere in the document.
Too, I, 8, 1 by implication empowers the congress to pay the debts of the United States.
It does not, as is sometimes said, only give to the congress the power to raise taxes.
There is no such limitation in the text of I, 8, 1.
So it empowers the congress both to raise taxes and to pay the debts of the United States without any such limitation or constraint.
How then does it not also empower the congress to provide both for the common defense and for the general welfare of the United States, also without any such limitation or constraint?
So what we have here in the constitution as written is in fact an explicit grant of power to collect taxes for three purposes, and an implied grant of power to undertake those same three purposes: to pay the debts, to provide for the common defense, and to provide for the general welfare of the United States.
Those three, then, stand alongside the other powers of the congress enumerated in Section 8, rather than being limited by them or other constitutional powers of that body.
But the congress also has power to do anything necessary and proper to carry out any undertaking under its legitimate powers.
I, 8, 18
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
On this reading, the entire progressive, New Deal, Great Society agenda is constitutionally legitimate and would have been at any time since 1788, though at least some of the Framers (not all) would have been aghast to realize what they had countenanced.
Too, we may take "and proper," I think, to at least mean consistent with limitations elsewhere expressed in the constitution.
A more narrow reading might be getting a little too much into invisible ink.
None of this goes any distance to legitimate any of the constitutional creations based on the 14th Amendment or the fiction of incorporation.
But it does, I think, legitimate the Air Force, paper money, and a lot besides.
And Obamacare, in particular, including its mandatory purchase provisions.
Monday, April 21, 2014
NASA, illegitimate offspring of Werner von Braun and the Sputnik scare
No constitutional basis exists for NASA.
Congress didn't care.
IKE probably didn't even realize.
Newton's Eisenhower reports the Cold War panic.
Update.
Common defense, general welfare.
Article I, Section 8, Clause 1.
Sunday, April 7, 2013
A rock and a hard place
IM says the federal authority for the existence of FEMA relies
on the general welfare clause (also known as the tax and spend clause, clause 1
of Section 8 of Article I of the constitution).
Numerous Republican conservatives have said so, not all of them libertarians like Ron Paul.
Numerous Republican conservatives have said so, not all of them libertarians like Ron Paul.
Of course, in addition to their objection to its
constitutionality their underlying, real problem with the thing is its wholly redistributive
function – though it is only that in the same way as a massive, national
emergency management insurance policy.
But even that’s too much for these free market
fundamentalists.
And then there are the crackpots who think FEMA runs secret
government concentration camps and will help the black helos of the UN impose a
New World Order tyranny when Obama gives the word.
But when disaster strikes their own districts they get on
board, like both Peter and Steve King in the US House.
See?
We’ve all been corrupted.
All we want is handouts.
Wednesday, April 3, 2013
A mere rhetorical flourish
The taxing and spending clause
And ditto for the references to common defense.
Article I, Section 8, clause 1.
The congress shall
have power to lay and collect taxes, duties, imposts and excises, to pay the
debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United
States;
I take this part to be a nearly empty rhetorical flourish
and provide for the
common defense and general welfare of the United States
best understood as equivalent to
and provide for the
common defense and general welfare of the United States through the exercise of its powers as enumerated in this section or as stipulated elsewhere in this constitution
That is, and specifically, I take the reference to general welfare as neither an additional grant of power independent of the enumerated powers or those provided elsewhere nor as a limitation on the power to tax.
And I take it to have no more bearing on the question what congress may or may not do than the reference to the general welfare in the preamble of the constitution is generally taken to have.
We the people of the
United States, in order to form a more perfect union, establish justice, insure
domestic tranquility, provide for the common defense, promote the general
welfare, and secure the blessings of liberty to ourselves and our posterity, do
ordain and establish this constitution for the United States of America.
That’s nice.
And ditto for the references to common defense.
Anyway, my view seems quite idiosyncratic in refusing both those options, I admit, given Wikipedia's account.
But the former option, quite as Jefferson insisted, makes it a grant of such sweeping and unrestrained power as to make the enumeration of powers the clause begins quite senseless.
And the latter implies the former.
That is, supposing it to be a mere qualification on the power to tax we have to read the thing as meaning
The congress shall have power to lay and collect taxes, duties, imposts and excises, for the purposes of paying the debts, providing for the common defense, and providing for the general welfare of the United States
But the former option, quite as Jefferson insisted, makes it a grant of such sweeping and unrestrained power as to make the enumeration of powers the clause begins quite senseless.
And the latter implies the former.
That is, supposing it to be a mere qualification on the power to tax we have to read the thing as meaning
The congress shall have power to lay and collect taxes, duties, imposts and excises, for the purposes of paying the debts, providing for the common defense, and providing for the general welfare of the United States
And that surely implies congress has the powers to pay those debts, provide for that defense, and provide for the general welfare.
Why allow congress to collect taxes in order to do something it cannot do?
So this reading seems really as bad as the other.
Why allow congress to collect taxes in order to do something it cannot do?
So this reading seems really as bad as the other.
And there is no justification whatsoever for taking the
Federalist Papers, written by three men and mostly by just two, as gospel on
the constitution or the intentions or understandings of the Framers, quite a politically diverse bunch, though it
is good evidence on how these three (or two) understood things or wanted others
to understand them.
Particularly given that Madison and others even in our own day have so often expressed the view that the constitution speaks for itself and is addressed to the understanding of the ordinary, non-specialist, and non-expert citizen.
Fraud as principle
Or “everybody bullshits so our side has to be better at it.”
Personally, I think it says volumes that political activists
believe this, apparently, nearly to a man, on both sides, and are perfectly shameless about it.
Explains how we got where we are.
Explains why the constitution the “constitution in exile”
folks want back is a fake.
Explains why the lies, distortion, and fakery are so pervasive.
Ask any of the activists on either side.
They fear a constitutional convention like the plague,
convinced the crazies of the other side will be able to write into honest, black letter
law their whole, nut ball agenda.
They prefer to impose their own agendas through lying judges
and fraudulent jurisprudence.
And by stampeding their voters with anger and hate, driven
by more lies.
As for Hunter, he has no idea what judicial integrity would
actually be.
He thinks it's fidelity to principles like federalism.
It's not.
It's not.
Judicial integrity is what you get when judges adhere to and
enforce the law rather than bending it to their own agendas, not even when those
agendas are expressed as principles.
It’s what you get when courts adhere to a constitution instead
of amending, rewriting, or inventing one.
Scalia and the textualists are perfectly right about that much.
It would be a mistake to expect their practice to conform to this understanding.
Here is a notable case of liberal baloney.
They were right to do so.
And the tax defense was inexplicable poppycock.
That a state can and quite reasonably may require you to buy
car insurance or, indeed, health insurance is one thing.
The states have, per the 10th Amendment and by
implication in any case, consistent with the federal constitution, any power to
do anything not denied them outright by it.
Something in the US constitution denies the states the right
to mandate purchase of car insurance?
Something denies Massachusetts the right to mandate purchase
of health insurance?
What, exactly?
14th Amendment due process?
Phooey.
But though the constitution itself clearly implies that the
ability of the federal government to suppress international or interstate commerce in such and such a
thing, or trade with the Indians in that thing, is included in the ability to
regulate commerce there is no text to support the idea that congress can require
anyone to buy anything under that power.
And so not health insurance.
The claim is often made, in fact, by conservatives and libertarians that much of the liberal regulatory state and a good part, if not all, of the welfare state are unconstitutional.
This is probably correct.
Without an illicit reading of either or both of the general welfare clause and the necessary and proper clause, it's very hard to see how Social Security, Medicare, or Medicaid, for example, can be within the authority of congress.
Though in passing I note that American social democracy and the regulatory state are among the many matters concerning the constitutional status of which I would prefer the courts to continue to lie in a friendly, liberal direction.
The claim is often made, in fact, by conservatives and libertarians that much of the liberal regulatory state and a good part, if not all, of the welfare state are unconstitutional.
This is probably correct.
Without an illicit reading of either or both of the general welfare clause and the necessary and proper clause, it's very hard to see how Social Security, Medicare, or Medicaid, for example, can be within the authority of congress.
Though in passing I note that American social democracy and the regulatory state are among the many matters concerning the constitutional status of which I would prefer the courts to continue to lie in a friendly, liberal direction.
For comparison, DOMA is, in my view, conservative overreach
defying full faith and credit and the First Amendment establishment clause.
Not to mention the reserve powers clause of the 10th
Amendment.
Where in Section 8 or elsewhere did conservatives think they
found constitutional license for congress to pass DOMA?
It cannot rest on the reference to general welfare in
Section 8, clause 1, since that is a mere rhetorical flourish right along with
the reference to providing for the common defense, having no more substance
that the reference to militia in the 2nd Amendment.
For conservatives to say otherwise is grotesque.
But they did.
And Lochner along with numerous other decisions of the era named for it that conservatives and libertarians continue to try to rehabilitate were built on a travesty of due process, both in the 14th Amendment and in the 5th.
As was McDonald, extending the reach of the 2nd Amendment to the states via an absurd abuse of the due process clause in the 14th Amendment.
And Lochner along with numerous other decisions of the era named for it that conservatives and libertarians continue to try to rehabilitate were built on a travesty of due process, both in the 14th Amendment and in the 5th.
As was McDonald, extending the reach of the 2nd Amendment to the states via an absurd abuse of the due process clause in the 14th Amendment.
Friday, March 29, 2013
Can the congress create a national bank? Or build canals?
There is the constitution we have, the constitution we
pretend we have, and the constitution we would rather have.
This post is concerned with the one we have.
Purely academic, then?
Well, sort of.
The excerpt of Jefferson at the above link is the more meaty
and interesting.
In it, he seems to reduce to nothing both the general
welfare clause and the necessary and proper clause in the constitutional enumeration
of congressional powers, though in the quote exemplifying his position Hamilton
relies only on the latter and does not mention the former.
Personally, I think he is right both times and is right
about the main question regarding establishment of a bank.
However, his argument against construing the former as a
distinct grant of power to provide for the general welfare is mistaken – or
perhaps only revealing and interesting – in that it utterly ignores any role
for the Supremes in determining whether something congress might do under this
provision really does or does not provide for the general welfare.
But this is 1791, and John Marshall will not put the world
on notice of the Supremes’ power of judicial review of federal acts until 1803,
in Marbury vs. Madison, basing it as he will on smoke, mirrors, and invisible
ink, during Jefferson’s own presidency.
Jefferson also points out that the conventioneers at
Philadelphia had considered and rejected the idea the congress ought to have
power to erect canals and to create corporations for the reason that this would
enable them to create a bank and that idea was politically anathema.
He takes this to be an argument for refusing to suppose
congress can create a bank “as a means” to doing something congress is expressly
authorized to do, viz. collect taxes, given the conventioneers rejected
allowing congress to do this “as an end.”
Too, against Hamilton he urges a restrained interpretation
of the necessary and proper clause, insisting that “necessary” means exactly
what we think and not “convenient” or “useful,” Hamilton urging the contrary.
Anyway, here are the relevant portions of Article I, Section
8, whose meaning is disputed.
The constitution
quotes them thus:
1: 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;
. . . . .
18: To make all Laws
which shall be necessary and proper for carrying into Execution the foregoing
Powers, and all other Powers vested by this Constitution in the Government of
the United States, or in any Department or Officer thereof.
I think in 1 the only power the constitution grants is a fairly
circumscribed power to lay and collect taxes to pay the debts of the US.
I think the actual meaning of the rest of 1 is best
understood as equivalent to “and provide for the common defense and general
welfare of the United States through the exercise of the powers specified
hereinafter and elsewhere in this constitution.”
I think 18 merely emphasizes that congress can do whatever
it needs to do to carry into execution its powers otherwise specified – which
we no doubt would and should have surmised, anyway.
Here as elsewhere, the penalty for rhetorical flourish is
often misunderstanding.
People sometimes say the point of having a written
constitution is to ensure everyone understands what the government erected by
it is empowered to do and what limits are imposed upon its doing of it.
Hence, they say, the requirement that a constitution be
clear, precise, unambiguous, and not at all vague in its language.
Others also say the point of judicial review is to enable
the judiciary to force the other branches to live within constitutional limits.
And life tenure, they think, is essential to enabling judges
to perform this function honestly and with integrity.
Amusing, all this naiveté, no?
PS.
In Federalist 10, Madison is quite clear he understands the
un-amended constitution to give the federal government no power to create or
issue paper money, and to deny such power to the states.
Issuance of paper money, he says, is one of the zany
disorders prompted by faction that the constitution whose ratification he is
urging will rule out.
He is right, I think.
About the constitution ruling out paper money, I mean.
Not about it being a bad thing.
And I am not aware of anything in any amendment that changed
this.
PS.
Considering the nearly monarchist views and nationalist proposals Hamilton advocated at the convention, I don't think he is much to be trusted regarding what its ultimate product actually does provide.
PS.
Considering the nearly monarchist views and nationalist proposals Hamilton advocated at the convention, I don't think he is much to be trusted regarding what its ultimate product actually does provide.
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