The constitution is confusing to washington elitist

[Bob Hubbard]

From Wikipedia:

United States

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

• the Preamble to the U.S. Constitution "has never been regarded as the source of any substantive power conferred on the Government of the United States or on any of its Departments";[2][3] and,
• that Associate Justice Joseph Story's construction of the Article I, Section 8 General Welfare Clause—as elaborated in Story's 1833 Commentaries on the Constitution of the United States—is the correct interpretation.[4][5] Justice Story concluded that the General Welfare Clause is not an independent grant of power, but a qualification on the taxing power which included within it a power to spend tax revenues on matters of general interest to the federal government.

Thomas Jefferson explained the latter general welfare clause for the United States: “[T]he laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. They [Congress] are not to lay taxes ad libitum for any purpose they please; but only to pay the debts or provide for the welfare of the Union. In like manner, they are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose.”[6]
In 1824 Chief Justice John Marshall described in obiter dictum a further limit on the General Welfare Clause in Gibbons v. Ogden: "Congress is authorized to lay and collect taxes, &c. to pay the debts and provide for the common defence and general welfare of the United States. ... Congress is not empowered to tax for those purposes which are within the exclusive province of the States."[7]
The historical controversy over the U.S. General Welfare Clause arises from two distinct disagreements. The first concerns whether the General Welfare Clause grants an independent spending power or is a restriction upon the taxing power. The second disagreement pertains to what exactly is meant by the phrase "general welfare."
The two primary authors of the The Federalist essays set forth two separate, conflicting interpretations:

• James Madison advocated for the ratification of the Constitution in The Federalist and at the Virginia ratifying convention upon a narrow construction of the clause, asserting that spending must be at least tangentially tied to one of the other specifically enumerated powers, such as regulating interstate or foreign commerce, or providing for the military, as the General Welfare Clause is not a specific grant of power, but a statement of purpose qualifying the power to tax.[8][9]
• Alexander Hamilton, only after the Constitution had been ratified, argued for a broad interpretation which viewed spending as an enumerated power Congress could exercise independently to benefit the general welfare, such as to assist national needs in agriculture or education, provided that the spending is general in nature and does not favor any specific section of the country over any other.[10]

While Hamilton's view prevailed during the administrations of Presidents Washington and Adams, historians argue that his view of the General Welfare Clause was repudiated in the election of 1800, and helped establish the primacy of the Democratic-Republican Party for the subsequent 24 years.[11]
Prior to 1936, the United States Supreme Court had imposed a narrow interpretation on the Clause, as demonstrated by the holding in Bailey v. Drexel Furniture Co.,[12] in which a tax on child labor was an impermissible attempt to regulate commerce beyond that Court's equally narrow interpretation of the Commerce Clause. This narrow view was later overturned in United States v. Butler. There, the Court agreed with Associate Justice Joseph Story's construction in Story's 1833 Commentaries on the Constitution of the United States. Story had concluded that the General Welfare Clause was not a general grant of legislative power, but also dismissed Madison's narrow construction requiring its use be dependent upon the other enumerated powers. Consequently, the Supreme Court held the power to tax and spend is an independent power and that the General Welfare Clause gives Congress power it might not derive anywhere else. However, the Court did limit the power to spending for matters affecting only the national welfare.
Shortly after Butler, in Helvering v. Davis,[13] the Supreme Court interpreted the clause even more expansively, conferring upon Congress a plenary power to impose taxes and to spend money for the general welfare subject almost entirely to its own discretion. Even more recently, the Court has included the power to indirectly coerce the states into adopting national standards by threatening to withhold federal funds in South Dakota v. Dole.[14] To date, the Hamiltonian view of the General Welfare Clause predominates in case law.

 

[Empty Hands]

No. The point is the selective outrage...

To those who keep leaving me anonymous rep dings without any message to it: why don't you bring your feelings to the thread and we can hash it out like adults? That would certainly be more useful.

 

[billc]

I'm curious, what is an anonymous rep ding?

 

[Touch Of Death]

I'm curious, what is an anonymous rep ding?

Its something you will be experiencing a lot of, in your future, I suspect. Don't worry about the red marks on the corner. Think of them as ribbons, or badges. I like you. I don't agree with a word you write but I like you. I think the fact that you bought in to the science fiction of the republican party is a direct result of you being a science fiction buff. Just know there is plenty of fiction coming from both sides. The republican talking points which you spout are usually ignorant of about twenty facts that refute them, and become nothing more than political blips. However, keep up the good work. I know this post isn't going to change you.
Sean

 

[5-0 Kenpo]

It is by necessity open to interpretation and amendment. The founders certainly recognized that, which is why they included in the document the means for its amendment - not easy, but not impossible either.

So, because the Framers were smart enough to figure out that they could not forsee every possible thing that could occur in the future, and therefore provided a contingency to change the document, that means that it should be interpreted? I call B.S.

The amendment process is there so that if there is or is not something in the Constitution that later generations seek to change that we would have a mechanism to change it, for instance, the 17th Amendment and the election of Senators. They didn't conceive that someone would twist and turn the Constitution to mean what it says. For instance, they didn't say that although Article 1, Section 3 says that "chosen by the Legislature" could mean that since the State Legislatures is chosen by the people, then in effect, the Senators are chosen by the people, so we can cut out the middle man. No, they actually had to change the Constitution from it's original meaning.

The way you would have it would make the Constitution meaningless due to the fact that it could then mean whatever anyone wants it to mean.

To be sure, certain of the sections of the Constitution allow for a wide range of options, such as the Fourth Amendment, where we get to debate what a "reasonable" search and seizure is. But they allowed for that, based on the prevailing conditions confronted by the future Government. But the expressly did not do that for other parts of the Constitution.

It is telling when those who insist that we must follow the Constitution to the letter also insist that any number of amendments should be repealed.

What is so telling about that? They want the Amendments repealed, not disregarded. If it's the law, then it's the law. But that doesn't mean that they can't be faithful to the execution of the Constitution, while at the same time wanting to change it.

If you just want things run a certain way, then say that - because the Constitution can be made to reflect the will of the people through amendment, to anything the people desire. You may not like what it becomes, and then where will your devotion to the Constitution lead you?

And you have just addressed the point. The Constitution can be "made to reflect the will of the people through amendment", not through interpretation. That about sums up my position, and I think the position of many other people who do not like what our politicians, judicial officers, and bureaucrats have done.

The Constitution is a tool, a very good tool, but like any tool it can be turned to any number of ends both fair and foul. Better then to develop a higher set of principles then the inerrancy of a particular document.

No one has stated that the Constitution is inerrant. Hence, the ability to change it by amendment. But, you cannot tighten a bolt on with a hammer, to use your tool reference. You adopt another tool.

Our history has shown that we are not above ignoring it when we want to - even some of those who wrote the damn thing to begin with! It was John Adams who signed the Alien and Sedition Act after all.

You are absolutely right when you say that we are not above ignoring it. And this is done by both sides of the political spectrum. The fact still remains, however, that it is supposed to be there for the people to address their rights and grievences, not for the politician to manipulate however they see fit.

And so what if John Adams signed the acts which as a whole are considered the Alien and Sedition Acts (there were four). The Constitution is there specifically to prevent such things, or if they do occur, provide the people a mechanism to address such things. In your argument, all he, or the court his party appoints, could then choose to "interpret" the Constitution to allow such acts to remain in force. It is to prevent imperfect people, including John Adams, for devolving our Republic into a dictatorship.

By the way, subsequent Supreme Court Justices have stated that it is likely that the Acts would have been ruled unconstitutional if it had ever reached the Supreme Court. Not due to an interpretation of what the Constitution says, but because of what it in fact actually says.

 

[Bob Hubbard]

Jefferson's understanding of how the Constitution should be interpreted is made clear in a letter he wrote March 27, 1801, after assuming the Presidency, "The Constitution on which our union rests, shall be administered by me according to the safe and honest meaning contemplated by the plain understanding of the people of the United States, at the time of its adoption,—a meaning to be found in the explanations of those who advocated (it)...These explanations are preserved in the publications of the time, and are too recent in the memories of most men to admit of question."

James Madison, principal author of the U.S. Constitution and often called the "Father of the Constitution". "I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that is not the guide in expounding it, there may be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense."

So, here we have 2 of the Founding Fathers, 1 the author of the Declaration of Independence, the other of the Constitution, basically saying it's not this soft malleable thing of vague clay, but means what it means. Both men as President had a history of strict interpretations and if it wasn't in the USC, tended to not do it. (oversimplified for brevity).

A simple "Where in the USC does it clearly say you can do X?" followed by a "no, not where it's vague and might say it might not say it, but where does it specifically say it" hard line would prevent much of the abuse we've dealt with for over 100 years.

The argument of "well they couldn't foresee that" is easily blunted with "then get an amendment passed to authorize it, other wise you're SOL."

The "Living Constitution" is a fallacy argument. If the highest law of the land is open to interpretation, so is every single law on the books, depending on a cop, judge or politicians whim. I prefer a strict and dependable definition.

 

[WC_lun]

Ken, it is a document that is open for changes...unless they are changes you don't agree with, then the other side is tearing up the constitution or doesn't understand it.

 

[Big Don]

Ken, it is a document that is open for changes...unless they are changes you don't agree with, then the other side is tearing up the constitution or doesn't understand it.

As has been stated, it is open for changes and there is a process prescribed for that. There is a reason two thirds of the states have to ratify amendments to the constitution.

 

[billc]

5-0 kenpo, Bob hubbard, big don, great posts. I really appreciate what you guys are saying here, you have done it well. Have a happy new year.

 

[Tez3]

Does the fact that the USA is now so much bigger with vastly more people in it than when it was written make it harder to 'use' the Constitution?

 

[Big Don]

Does the fact that the USA is now so much bigger with vastly more people in it than when it was written make it harder to 'use' the Constitution?

It does, but, it should not. The rules shouldn't change just because there are more players in the game, this isn't soccer (football).

 

[Bob Hubbard]

What makes it harder to use is the 100 or so years of propaganda that has the average US citizen thinking that a State is just another geographic political divide like a county line, when in fact the US was intended to operate as 13 (now 50) independent nations with a small amount of power concentrated in a confederation for mutual benefits. (over simplification for brevity's sake). As the states surrendered more and more power to the Federal, they basically became serfs. Even the idea of a "National Bank" was against the founders ideals, which is why I have a small collection of currency issued by NY, Virginia, Texas, and several other states from the 1800's, and why the armies from our pre-1865 condition were -State- regiments, not Federal ones. The British Crown signed a treaty with 13 independent countries, not 1 country, a fact not understood by our own citizens, despite the wording of that treaty. In fact, some argue that the "United States" created the subject states.

His Brittanic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be free sovereign and independent states, that he treats with them as such, and for himself, his heirs, and successors, relinquishes all claims to the government, propriety, and territorial rights of the same and every part thereof.

The Articles of Confederation, signed shortly after the war ended, did not surrender that independence. It was dissolved and the Constitution adopted. At no time did the States surrender their independence or sovereignty. The various articles were in fact designed to maintain that, as clauses such as "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." indicate. If we were 1 united nation, there would not be a need for such. After all, no State constitution had clauses such as "The Citizens of each County shall be entitled to all Privileges and Immunities of Citizens in the several Counties." That would be dumb.

I can drive a car in Canada because somewhere, there is a treaty with a clause that says I can. In other countries, I might need to get an International drivers license. (Right?) But because of that clause I bolded above, I can drive a car in any US State, without having to re-qualify or re-license. Texas will recognize my NY marriage (unless I married a guy, which makes Texas's non-recognition a violation of that clause, which will be clarified in the next 10 years in courts, but I digress).

The problem is, most American's never read the bloody thing, don't take the time to understand it, or simply take a few sound bytes as gospel. It's sad. Some of us here arguing have honest disagreements on how to read it, or how to interpret it, but we usually have read it. I saw a comment from a former Congressman who said many of his fellows admitted to not reading it or being poorly versed on it's history, and these are the people who write laws that are supposed to work within it's limits.

The US Constitution is 19 pages of handcuffs on Federal government, with a small amount of "ok, you can do this" notes. In the end however it very clearly states:
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

"The powers not delegated to the United States by the Constitution"
Meaning powers not specifically listed as being the power of the United States

"nor prohibited by it to the States"
it being the Constitution. More clearly written would be 'The powers not prohibited by the Constitution to the States' meaning the Constitution specifically says the States can't do it.

"are reserved to the States respectively, or to the people."
If the US Constitution doesn't specifically say the US Government CAN do it, or doesn't say the States CANNOT do it, then the States CAN do it, or the people CAN do it.

There in is a STRICT read of the 10th Amendment to the US Constitution.

Health care, retirement, unemployment, education, medical treatment, and a million other things FAIL this read. They do it anyway, the people let them do it for so long, we know little else. Let em do it long enough it's 'forever' and it's hell to change it.
Which is why we American's argue like crazy over this thing. Someone here will read this and think I'm nuts, and maybe even disagree with me. Great. Explain it better and I might change my mind. Hell, I used to be a Democrat/Liberal/Save the Whales type in college. Wrote a paper singing Michael Dukkakis's praises too. (That'll shock a few folks I'm sure. LOL).

:asian:

 

[Bob Hubbard]

Doesn't matter. Each time a new party threatens the SQ, the "big 2" make it harder for them to get on the ballots, and work some of their goals into their platforms weakening support.

None of this is however relevant to a Constitutional discussion. Political parties aren't addressed in the USC, though who could vote has been changed and what obstacles they faced modified as well through various amendments.

 

[WC_lun]

Does the fact that the USA is now so much bigger with vastly more people in it than when it was written make it harder to 'use' the Constitution?

Tez, I really don't think the population amount really makes it more difficult to use the constitution. There have always been varying views of the constitution, from the day it was written. It is written vaguely in certain areas on purpose, but even if it was not, there would be arguement. It is the nature of human beings and even moreso of politicians. Heck, I could write, "the sky is blue" and for a lot of politicians that statement is vague and open for interpretation.

 

[Bob Hubbard]

The main issue is with an understanding of the phrase "General Welfare".

Again, borrowing from Wikipedia

United States

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

• the Preamble to the U.S. Constitution "has never been regarded as the source of any substantive power conferred on the Government of the United States or on any of its Departments";[2][3] and,
• that Associate Justice Joseph Story's construction of the Article I, Section 8 General Welfare Clause—as elaborated in Story's 1833 Commentaries on the Constitution of the United States—is the correct interpretation.[4][5] Justice Story concluded that the General Welfare Clause is not an independent grant of power, but a qualification on the taxing power which included within it a power to spend tax revenues on matters of general interest to the federal government.

Thomas Jefferson explained the latter general welfare clause for the United States: “[T]he laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. They [Congress] are not to lay taxes ad libitum for any purpose they please; but only to pay the debts or provide for the welfare of the Union. In like manner, they are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose.”[6]
In 1824 Chief Justice John Marshall described in obiter dictum a further limit on the General Welfare Clause in Gibbons v. Ogden: "Congress is authorized to lay and collect taxes, &c. to pay the debts and provide for the common defence and general welfare of the United States. ... Congress is not empowered to tax for those purposes which are within the exclusive province of the States."[7]
The historical controversy over the U.S. General Welfare Clause arises from two distinct disagreements. The first concerns whether the General Welfare Clause grants an independent spending power or is a restriction upon the taxing power. The second disagreement pertains to what exactly is meant by the phrase "general welfare."
The two primary authors of the The Federalist essays set forth two separate, conflicting interpretations:

• James Madison advocated for the ratification of the Constitution in The Federalist and at the Virginia ratifying convention upon a narrow construction of the clause, asserting that spending must be at least tangentially tied to one of the other specifically enumerated powers, such as regulating interstate or foreign commerce, or providing for the military, as the General Welfare Clause is not a specific grant of power, but a statement of purpose qualifying the power to tax.[8][9]
• Alexander Hamilton, only after the Constitution had been ratified, argued for a broad interpretation which viewed spending as an enumerated power Congress could exercise independently to benefit the general welfare, such as to assist national needs in agriculture or education, provided that the spending is general in nature and does not favor any specific section of the country over any other.[10]

While Hamilton's view prevailed during the administrations of Presidents Washington and Adams, historians argue that his view of the General Welfare Clause was repudiated in the election of 1800, and helped establish the primacy of the Democratic-Republican Party for the subsequent 24 years.[11]
Prior to 1936, the United States Supreme Court had imposed a narrow interpretation on the Clause, as demonstrated by the holding in Bailey v. Drexel Furniture Co.,[12] in which a tax on child labor was an impermissible attempt to regulate commerce beyond that Court's equally narrow interpretation of the Commerce Clause. This narrow view was later overturned in United States v. Butler. There, the Court agreed with Associate Justice Joseph Story's construction in Story's 1833 Commentaries on the Constitution of the United States. Story had concluded that the General Welfare Clause was not a general grant of legislative power, but also dismissed Madison's narrow construction requiring its use be dependent upon the other enumerated powers. Consequently, the Supreme Court held the power to tax and spend is an independent power and that the General Welfare Clause gives Congress power it might not derive anywhere else. However, the Court did limit the power to spending for matters affecting only the national welfare.
Shortly after Butler, in Helvering v. Davis,[13] the Supreme Court interpreted the clause even more expansively, conferring upon Congress a plenary power to impose taxes and to spend money for the general welfare subject almost entirely to its own discretion. Even more recently, the Court has included the power to indirectly coerce the states into adopting national standards by threatening to withhold federal funds in South Dakota v. Dole.[14] To date, the Hamiltonian view of the General Welfare Clause predominates in case law.

http://en.wikipedia.org/wiki/General_Welfare_clause

The argument for Obamacare for example falling under the GWC is one of several current instances where this disagreement of definitions happens.

 

[Bob Hubbard]

Definitions of socialism on the Web:

• a political theory advocating state ownership of industry
• an economic system based on state ownership of capital
  wordnetweb.princeton.edu/perl/webwn

The view that the government should own and control major industries
www.mcwdn.org/ECONOMICS/EcoGlossary.html


Now, back to the US Constitution and the idea of "Common Good".
Those like Hamilton basically said that the "all powerful Federal Government" (which is how they viewed it, rather than the States calling the shots) could do whatever it felt necessary, as long as it was for the false idea of "the Common Good".

The problem with "Common Good" is it doesn't exist as somehow a special interest gets the 'better end of the deal'. This is the case with ObamaCare, where the populace under the mistaken idea that mandating everyone obtain (buy) insurance would cut costs and bring prices down. This isn't what happened as coverage was decreased, premiums rose, and service continued to be as inefficient as before. None of this is expected to change as the system is implemented, other than the companies will see growing profits from forced patronage. The 'Common Good' doesn't exist in this case.

The larger the group, the less likely "Common Good" can survive corruption by Special Interests.

This is why the USC limited the Federal Government to a minimum level of invasiveness, leaving much of the details of operation to the State Level for handling. They are better positioned to determine how to best serve their own citizens.

 

[Bob Hubbard]

Administrator Notice

This thread has seriously drifted into many tangents. I've pruned it of any posting NOT directly relating to confusion over the US Constitution. Please restrict your input/debate to US Constitutional matters here.

Thank you.

Pruned posts are being reviewed by staff and are currently locked until staff review is completed.

 

[Cryozombie]

I thought this thread was about both the Constitution and Washington Elitists. My bad.

 

[Bob Hubbard]

I thought this thread was about both the Constitution and Washington Elitists. My bad.

Yeah, them too. If I pruned anything that should be brought back, please REPORT the post in the DUMP thread and we will reconsider its inclusion.