A mere rhetorical flourish

The taxing and spending clause

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

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.

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.

A meme? A talking point?

A republic, not a democracy.

We hear with increasing frequency from conservative sources that the Framers feared democracy and gave us a republic instead of a democracy.

In the sense of a direct, participatory democracy the republic they gave us was certainly not that.

Nor did anyone want such a thing.

Nor is the republic we have now, needless to say.

But most of the Framers and all of the big names among them insisted the new republic designed at Philadelphia had to have at least minimal democratic features and nearly all of them thought that meant the members of at least one chamber of the legislature ought to be directly elected by the people.

And all but the obviously self-interested small states thought representation in both chambers ought to be proportionate to population.

According to his notes, Madison, for example, was quite snippy about it, demanding of a Delaware representative who complained his state would be crushed in both houses of the new legislature by the men of the more populous New York and Virginia how his state would fare with no union at all, or out of the union while the large states were in.

And all but those from slave states thought that, for purposes of calculating a state’s representation in the legislature, slaves resident in that state ought not to count at all as part of the population because counting them only enhanced the power of their owners.

As for fear of the demos, Madison and Hamilton were pretty clear they dreaded efforts of the poor and ordinary folk to “impair the rights of property,” to pass laws favoring debtors over creditors, etc.

Though Wilson and others spoke up strongly for democracy, and the convention as a whole was more concerned of danger on the right than on the left.

Hence the new constitution would take the trouble to expressly forbid both to the federal government and the states creation of a new nobility, and would guarantee the states a republican - meaning non-monarchical, non-aristocratic, non-hereditary, non-caste - form of government.

There were no such guarantees against too much democracy in the states, though there were against domestic tumult and insurrection.

All the same, it might be argued this convention of grandees, slavocrats, and property-owners nowhere gave the federal government the authority or the federal congress the power to do any such thing as “spread the wealth around” through a food stamp program, or federally supported welfare, or a school lunch program, or Medicaid, or etc.

On the whole, I think, this fellow is right.

Larry Elder on the Welfare State

All the same, as Dan on Night Court used to ask, “What’s your point?”

Not really a novel reading, but a highly inconvenient one

Eleven North Carolina Republicans Sponsor Resolution Saying Their State Can Ignore The Constitution

Well, IM exaggerates what’s up.

Here is what was put before the NC legislature.

SECTION 1. The North Carolina General Assembly asserts that the Constitution of the United States of America does not prohibit states or their subsidiaries from making laws respecting an establishment of religion.

That is true and no one would have thought otherwise before the Civil War.

Why think so after?

Go ahead.

Read every amendment passed since then.

IM relies on fictitious history and a gross misreading of the 14^th Amendment in general that have become dogmas of the liberal story, much like their silly interpretation of the 2^nd Amendment.

His reading of the privileges and immunities clause in particular was rejected by the Supremes in the Slaughter House cases.

So far as I know, the only Supreme ever to have agreed to repudiate Slaughter House and accept such a reading of that clause was Clarence Thomas, though lately liberals have launched an outburst of legal and mass propaganda in its favor.

His next to last paragraph pretty much lets the cat out of the bag that incorporation is and has been for long nothing but an invention of courts, and mostly liberal courts at that.

SECTION 2. The North Carolina General Assembly does not recognize federal court rulings which prohibit and otherwise regulate the State of North Carolina, its public schools, or any political subdivisions of the State from making laws respecting an establishment of religion.

The North Carolina General Assembly has no authority to do any such thing.

Lord knows why they might think they have.

Scalia makes a valid point and Jen Sorensen doesn’t.

Mockery of justice

If justice means conformity to the constitution and honest interpretation thereof it is she who makes the mockery.

Scalia is on the money.

But if she refers to natural justice, moral justice, or divine justice, well, there are no such things.

Though in any case Scalia is right that the Supremes are not required to decide such matters, partisan folderol notwithstanding.

Fraud as principle

How justices decide

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.

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.

Most of the Justices Reject the Commerce Clause Defense of the Mandate

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 10^th 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?

14^th 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.

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 10^th 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 2^nd 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.

Lizard people?

Yes, your neighbors might be crazy

Hunter quotes Public Policy Polling,

4% of voters say they believe “lizard people” control our societies by gaining political power.

Heck, what would you say if some pollster asked you that?

Free trade my foot

Why Was Paul Krugman So Wrong?

We need a return to protection of American jobs, American industry, and the American market.

Free trade was always a recipe for disaster, as even the patriotic, anti-Wall Street right knew and said, time and again.

Completely round the bend

Some people are religious crazies and some people are political crazies and some people are either or both in a very scary way.

Islamists, for one example.

And guys like this for another.

If They Come for Your Guns, Do You Have a Responsibility to Fight?

There is reason to think he is widely admired and his view is widely shared.

[Aside:

Recall people used to say communism was a substitute for religion.

Others - the usual high-publicity imbeciles - even insisted it was a religion, much as others nowadays say the same of atheism - including some atheists.

But there is a valid and important point here, right next to the nonsense.

Religion is in all cases a package of groundless but often psychologically very appealing beliefs with biographical, familial, social, organizational, and sometimes political ties making it a powerful factor in making up the believer's identity and worldview, sometimes providing the pervasive and even exclusive meaning for his life.

Exactly the same can be said for even purely secular political ideologies.

Communism, for example, was in its day easily able to marshal many heroes and martyrs - though perhaps not as many as Islam and Christianity have done over their entire histories.

And the same again can be said, though in lesser degree, for the packages of moral beliefs making up the human conscience, as we know it, whether or not associated with religious beliefs.

Only the most ignorant, unreflective, stupid, or desperate can really be said to believe these things are true.

In a very real sense it is probably in most cases just a matter of wanting them to be true.

All the same, in every case they ready their believers for programs of violence and coercion.

/Aside.]

The success of people like this in making the questions of gun rights and gun control so central to American politics and in making such fanatical devotion to guns so common among conservatives and so powerful an influence on Republican politicians is to me the most literally frightening aspect of the conservative takeover of that party.

How clear does it have to be?

There is barely the thickness of a sheet of paper between mainstream, movement conservatism and the most idiotic and dangerous neo-Bircherism.

Yes.

I am saying this is George Will's fault, the fault of Fox News, Rush Limbaugh, and the entire right wing noise machine, the fault of the National Review, the Weekly Standard, and all the rest of those irresponsible jerks.

They have fed this beast for decades and dragged it into the center of our national life.

They are all political scum.

It's just more obvious in the case of Limbaugh and the slime at Fox.

The war over marriage

Cardinal: LGBT People Shouldn't Shun Catholics Who Oppose Them

To begin with, there is no federal ban on gay marriage.

DOMA is not a federal ban on gay marriage.

It is a law instructing federal authorities not to recognize anything but heterosexual, monogamous marriages for federal legal purposes.

It in no way interferes with or diminishes state authority over what each of the states individually may allow or forbid in their marriage law.

But DOMA seems to me unconstitutional vis-à-vis both full faith and credit and the First Amendment’s religion clauses for so spectacularly discountenancing any form of marriage other than the Judeo-Christian norm.

As for the states, I don’t see any honest way to say they cannot do what they want with marriage law.

The incorporation doctrine is false and no frank reading of equal protection, due process, or privileges and immunities is germane

On the other hand, if we swallow the whopper that the First Amendment constrains the states in the same ways it does the federal government then any state law privileging the Judeo-Christian norm over other forms of marriage is unconstitutional.

But nobody but an atheist or a libertarian would even suggest so strong a reading of both disestablishment and free exercise.

As for me, I find that people are more likely to find the courage for a frank reading of the First Amendment and the whole Bill of Rights if they read them in the conviction that the incorporation doctrine is simply wrong and they no more bind the states today than they did before the Civil War.

As to the bishop, I wonder if he might at some point think religious pluralism ought to extend to a legal pluralism regarding lawful forms of marriage.

Polygamy for Mormons and Muslims, Your Eminence?

Liberals would freak, of course.

Polygamy would really irk the feminazis.

This man Wuerl has risen fast.

He could yet be a pope.

What “freedom” means to some, though not to all

Freedom in the fifty states

Not feeling free in Maryland, was a young, male acquaintance, this rainy Easter Sunday.

His personal pet peeves were taxes and gun laws, though there was critical mention of the state's restrictions regarding medical marijuana and faint praise for its recent acceptance (by plebiscite, I think) of gay marriage.

And of the two it was mostly about gun laws, for him.

As to the taxes, Maryland's are by no means the highest and the question what the state was doing with the money did not even arise.

As to gun rights, he is one of those for whom 2nd Amendment propaganda has turned a moderately dangerous and expensive hobby into a political near-obsession.

And because of that obsession our conversation threw into relief for me the drastic difference between the constitutional outlook of today's libertarians and that of old-style movement conservatives.

The latter are and have pretty consistently been states' rights enthusiasts given to incredulity regarding incorporation and relatively restrained interpretations of due process, equal protection, and privileges and immunities.

Brown was wrong, the entire train of liberal affirmative action decisions was wrong, Griswold was wrong, Roe was way, way wrong, a whole string of liberal decisions about pornography were wrong, and so on.

But the gun enthusiasts have pretty much taken over the libertarian movement, and that has strengthened a tendency already there among them to insist the rights guaranteed against the federal government by the Bill of Rights, very strongly read, as well as others guaranteed in the constitution, are also imposed by the constitution - never mind where or how - on the states and lesser locales.

These are not the guys to insist a reading of the First Amendment sweeping enough to protect the most abject and repulsive child porn and a doctrine of incorporation shameless enough to impose that on all lesser jurisdictions are both wrong.

Common ground between the two types of conservative is that they are all fans of the sort of reading of due process we haven't seen since Lochner, recently lamented by such luminaries as George Will.

But for the libertarians if it takes a strong constitutional right to privacy also imposed on the states to ensure sexual liberty then that's fine, too.

None of these eccentricities would be more than, well, eccentricities, were it not for the particular penchant of gun rights enthusiasts to seize upon the 2nd Amendment to turn a hobby into a political cause of such significance as to justify in their minds violent resistance to laws inconveniencing people who are, whatever they may think they are, at best mere hobbyists.

And that would be violence in defense of a very strong reading of the 2nd as guaranteeing an individual right to own at least semi-automatic weapons easily re-converted to their fully automatic counterparts, designed for military use.

These are people who personally resent the idea that the police or the military should be better armed than they are.

These are people who urge that there are only aesthetic differences between assault rifles and ordinary hunting rifles while bitterly opposing laws banning private possession of the former, insisting the 2nd Amendment guarantees them a right to own and carry weapons specifically designed and built for military use.

And their heroes have told them it is their obligation as free Americans to go down shooting, Charlton Heston style, if and when agents of the state show up at their door to confiscate, say, assault rifles.

They sincerely believe, or anyway claim to believe, Americans must be free to arm themselves in this way to resist tyranny, but they understand tyranny to comprise mostly just gun control, though also in lesser degree taxes at levels and for purposes Ayn Rand would disapprove.

Meanwhile, to the vast bulk of Americans who have not immersed themselves in this political quackery, the threat of crazed and well-armed mass murderers at the mall, at the schools, or at other public places is much more a worry than the threat of high taxes.

And as for gun control limiting personal armories to non-military firearms, far from seeing this as tyranny per se they mostly see it as a very sensible public safety measure with the regrettable side-effect of interfering with a hobby that has become too dangerous to indulge.

It is possible these libertarians are more dangerous to America than any left wing extremists now walking around on American soil, being both more likely to respond with significant violence to what they judge to be tyranny and more idiosyncratic in making that judgement.

I was and am genuinely frightened for my young friend, and hope I am just over-reacting to a casual conversation.