Oh those Constitutionalists!

[Travis]

"The government is broken and is acting in defiance of the original Constitution! It said nothing about things like income taxes without population apportionment!"

"Didn't the original Constitution specifically allow for the creation of new laws through the amendment process?"

"We need to go back to the Articles of Confederation!"

"Wouldn't that make commerce a nightmare with all the states having their own currency and trade policy?"

"Where's a King when you need one!"



We've all heard this line of reasoning before even if it doesn't end up going that far. Though, logically, that is where it should end.

 

[NoZed Avenger]

Who are you quoting?

 

[crimresearch]

"The government is broken and is acting in defiance of the original Constitution! It said nothing about things like income taxes without population apportionment!"

"Didn't the original Constitution specifically allow for the creation of new laws through the amendment process?"

"We need to go back to the Articles of Confederation!"

"Wouldn't that make commerce a nightmare with all the states having their own currency and trade policy?"

"Where's a King when you need one!"



We've all heard this line of reasoning before even if it doesn't end up going that far. Though, logically, that is where it should end.

I'm not seeing how all of those ideas fit under the label you've chosen.

 

[Quinn]

My guess is that this is meant to be a dialogue between two people, though if that's the case, it could certainly have been made clearer.

 

[JoeTheJuggler]

I think I agree with your general point, but I don't think this is a good argumentative approach. First of all, made up quotes are generally a hint that you might be arguing against a straw man.


And at least one of these things doesn't go with the others (the Constitution does allow for change through an amendment process).

I don't believe there is anyone who says they want us to return to the Articles of Confederacy or to a monarchy.

I think a lot of anti-federalists (or states' rights proponents, or Neo-Federalists, or libertarians, or small government proponents, or Tea Partiers) adhere to a general distrust of the federal government that I think points toward a rejection of the fundamental ideals of the Constitution even while they claim to be dedicated to it (as strict constructionists or originalists). [ETA: usually what they reject is the more liberal interpretation of the Constitution that has developed through the judiciary authority over the years. Especially, for example, the liberal interpretation of the Commerce Clause authority that has come up from cases like Wickard v. Filburn and so on.]

 

[Travis]

And at least one of these things doesn't go with the others (the Constitution does allow for change through an amendment process).

This is what I wanted to talk about. If you think the original Constitution was so damned awesome then why not also accept that it allowed for there to be changes made to it?

 

[Newtons Bit]

Who are you quoting?

Straw men or Jared Loughner. Maybe both.

 

[JoeTheJuggler]

This is what I wanted to talk about. If you think the original Constitution was so damned awesome then why not also accept that it allowed for there to be changes made to it?

But I took it that all the other made-up quotations were positions you're arguing against. That's why I said one of these things is not like the others.

But yeah, strict constructionists and originalists are a little bit like biblical literalists in that they seem to have selective blindness to some parts of the text (and original intention).

 

[JoeTheJuggler]

Straw men or Jared Loughner. Maybe both.

Yep. I've said it before and I'll say it again, if you find yourself inventing quotes to attribute to your opponent, it's a pretty good sign you're arguing against a straw man.

 

[Grizzly Adams]

I think a lot of anti-federalists (or states' rights proponents, or Neo-Federalists, or libertarians, or small government proponents, or Tea Partiers) adhere to a general distrust of the federal government that I think points toward a rejection of the fundamental ideals of the Constitution even while they claim to be dedicated to it (as strict constructionists or originalists). [ETA: usually what they reject is the more liberal interpretation of the Constitution that has developed through the judiciary authority over the years. Especially, for example, the liberal interpretation of the Commerce Clause authority that has come up from cases like Wickard v. Filburn and so on.]

We (or I, at least) reject the notion that Aricle III courts are an alternative to the amendment process prescribed in Article V. We (I) reject the notion that the Constitution used to mean one thing but since "times have changed" it now means something else.

One specific example is the one you've raised: the commerce clause authority. In a Constitution that was intended to create a national government of few and enumerated powers, an authority under the commerce clause to enact schemes like that at issue in Wickard or the individual mandate in the Affordable Care Act is laughable on its face because the scope of these powers is so far beyond "few and enumerated" that they cannot be justified under an original understanding of the powers the framers were delegating to the national government.

 

[Grizzly Adams]

This is what I wanted to talk about. If you think the original Constitution was so damned awesome then why not also accept that it allowed for there to be changes made to it?

Who says it doesn't? Specifically, who denies the existence of Article V?

 

[JoeTheJuggler]

We (or I, at least) reject the notion that Aricle III courts are an alternative to the amendment process prescribed in Article V. We (I) reject the notion that the Constitution used to mean one thing but since "times have changed" it now means something else.

But that's a straw man too. I don't know of any one claiming the judiciary authority is to amend the constitution. But they do have the authority to interpret it.

One specific example is the one you've raised: the commerce clause authority. In a Constitution that was intended to create a national government of few and enumerated powers, an authority under the commerce clause to enact schemes like that at issue in Wickard or the individual mandate in the Affordable Care Act is laughable on its face because the scope of these powers is so far beyond "few and enumerated" that they cannot be justified under an original understanding of the powers the framers were delegating to the national government.

Where does the phrase "few and enumerated" come from?

At any rate, the CC authority is not infinite, and it is one of the enumerated powers. It's well defined: it's the authority to regulate activity that has a significant effect on interstate commerce. In fact, back to one of the made-up quotes from the OP, the founding fathers considered and rejected a system with a much weaker central government (that lacked a federal judicial authority) under the Articles of Confederation, and they most certainly did envision a permanent union with a relatively strong central government.

And this:

that they cannot be justified under an original understanding of the powers the framers were delegating to the national government.

is factually false, because the broad (but defined) interpretation of the CC authority has indeed been justified. The broad authority from Wickard and the other cases is still current jurisprudence. Arguing that they can't do what they in fact did isn't very compelling.

 

[JoeTheJuggler]

Who says it doesn't? Specifically, who denies the existence of Article V?

I dunno, but maybe he's thinking of a statement Robert Prey made on one of these threads arguing against the idea that the Constitution is a "living document". I pointed out that the framers definitely anticipated amendments. Indeed, without the first 10 amendments, the ratification of the Constitution itself probably wouldn't have happened. I think Robert Prey was talking about what you were saying--a perceived abuse of the judicial power. But arguing that the framers didn't think of the Constitution as a "living document" doesn't support that assertion.

ETA: And for the record, on a couple of recent threads Robert Prey has flat out rejected the judicial authority. He has repeatedly claimed that the Supreme Court does not have the authority to interpret the Constitution and that jury decisions can trump Supreme Court decisions. (He even claimed that Dred Scott wasn't nullified by the Emancipation Proclamation and the 13th, 14th and 15th Amendments, but was overturned by jury decision!)

 

[Bri]

But I took it that all the other made-up quotations were positions you're arguing against. That's why I said one of these things is not like the others.

Although Travis hasn't clarified, I think Quinn is correct that it was meant to be a dialog between two people. When I read it, I assumed that Travis disagrees with the first and third statement, but agrees with the second and fourth.

-Bri

 

[JoeTheJuggler]

Although Travis hasn't clarified, I think Quinn is correct that it was meant to be a dialog between two people. When I read it, I assumed that Travis disagrees with the first and third statement, but agrees with the second and fourth.

I see that now. (I think I was misled into thinking they were all quotes by the thread title identifying only one party.)

[ETA: also the lack of logical connection between the Articles of Confederation made-up quote and the next one. Even though they established a much weaker central government, the Articles did grant "sole and exclusive" monetary authority to the "United States in Congress assembled".]

But we're back to strawman. Dialogues are supposed involve two people, not one!

 

[Grizzly Adams]

But that's a straw man too. I don't know of any one claiming the judiciary authority is to amend the constitution. But they do have the authority to interpret it.

Depending on the mothod used, interpretation can have (and has had) the effect of amending the Constitution. See the Slaughterhouse decision that has effectively eliminated the privileges and immunities clause. See Home Building & Loan Association v. Blaisdell that blatantly overrode the prohibition on alterations of contracts by the states. Those are just two examples.

Where does the phrase "few and enumerated" come from?

Nowhere. I misquoted "few and defined" from Federalist 40-something.

At any rate, the CC authority is not infinite, and it is one of the enumerated powers. It's well defined: it's the authority to regulate activity that has a significant effect on interstate commerce. In fact, back to one of the made-up quotes from the OP, the founding fathers considered and rejected a system with a much weaker central government (that lacked a federal judicial authority) under the Articles of Confederation, and they most certainly did envision a permanent union with a relatively strong central government.

"Relatively strong" compared to the Articles of Confederation, yes. As to your assertion that the commerce clause is not infinite, I would agree with it only in that it is not literally infinite. In other words, there are probably some limits that could be articulated and upheld, even under the theory that the Affordable Care Act is constitutional.

Anyway, your interpretation of the commerce clause may be "well-defined", but it certyainly does not comport with a national government of few powers.

And this:


is factually false, because the broad (but defined) interpretation of the CC authority has indeed been justified. The broad authority from Wickard and the other cases is still current jurisprudence. Arguing that they can't do what they in fact did isn't very compelling.

You're just using circular reasoning here. "They did it, therefore it is proper and they can do it" is even less compelling.

 

[crimresearch]

"You're just using circular reasoning here. "They did it, therefore it is proper and they can do it" is even less compelling"


OK, "It is proper because they did it using the specifically defined powers granted to the courts by the exact unamended words of the Constitution".

Better?

 

[Grizzly Adams]

"You're just using circular reasoning here. "They did it, therefore it is proper and they can do it" is even less compelling"


OK, "It is proper because they did it using the specifically defined powers granted to the courts by the exact unamended words of the Constitution".

Better?

Amending the Constitution by judicial fiat is not better under any different wording.

So no, it's not.

 

[crimresearch]

Amending the Constitution by judicial fiat is not better under any different wording.

So no, it's not.

The judical power to interpret all matters at law, and the amendment process are entirely different, which is why they are found in 2 different Articles.

So you disagree with the Constitution the way it is clearly written.

 

[JoeTheJuggler]

Anyway, your interpretation of the commerce clause may be "well-defined", but it certyainly does not comport with a national government of few powers.

Sure it does. Even though you obviously disagree, the authority to interpret the Constitution as was done in the Wickard case is invested in the Supreme Court.

You're just using circular reasoning here. "They did it, therefore it is proper and they can do it" is even less compelling.

That's another made up quote. Those words between the quotation marks are not mine. When you have to resort to made-up quotes, it's a pretty good indicator that you're arguing against a straw man.

I was responding to the narrow claim that it can't be done. They did, so it is not true that they can't. This isn't circular, even though it's very obvious. If someone makes the claim that something is impossible, it's only necessary to show that that something has been done to refute the claim.

I do believe they also did it properly, but that is a different claim (and crimresearch has adequately rephrased my rebuttal to fit that claim).