|
Read the rules in the OP before posting, please.In order to ensure that this thread continues to meet TL standards and follows the proper guidelines, we will be enforcing the rules in the OP more strictly. Be sure to give them a re-read to refresh your memory! The vast majority of you are contributing in a healthy way, keep it up! NOTE: When providing a source, explain why you feel it is relevant and what purpose it adds to the discussion if it's not obvious. Also take note that unsubstantiated tweets/posts meant only to rekindle old arguments can result in a mod action. |
On November 18 2017 03:13 farvacola wrote:Show nested quote +On November 18 2017 03:08 Danglars wrote:
If you want a new constitution with broader federal power over the states, amend it or revolt and sign a new one. The only one in existence agreed to by the states is the current one. It respected abuse of power by a centralized authority. Today's operation of Washington DC and federal agencies shows it was right to try and curtail it. It would take novel length kwizach post to show how and why state rights were eroded and the pros and cons resulting from it. That's such a shit argument when huge components of the Constitution have been read out of existence by mere jurisprudence alone. The 9th Amendment can be construed as an incredibly broad grant of Constitutional federal power relative to the defense of rights infringed on by states, and yet, because it's hard to interpret, it basically isn't even acknowledged anymore. Oh yeah, totally ignore the Guarantee Clause too... This is where the lawblogz legal education has its limits; the Constitution is a very poor herald for much outside its contextual, iterative use by judges in service of their holding or as a barebones manual for basic federal processes.
You're sneaking quite a bit in here. It's more a desire to achieve good ends through expansive federal power that justifies judicial, congressional, and executive overreach, rather than a "It's hard to interpret, let's just pretend it exists" type rationalizations you provide. A originalist and textualist reading of why it was included and passed in the bill of rights makes it obvious what it was and how it should be interpreted. Hell, Madison himself had to deliver a speech in the House of Representatives to assure Virginia that the ninth amendment would not be used for federal power.
If there was no understanding that the text of the ninth amendment curtailed federal power, there would be no ratification by Virginia, no Constitution, no United States under that constitution.
Likewise, the Guarantee's Clause (aside from protecting all states under invasion) was debated to protect citizens against ex post facto laws, bill of attainder, and those obvious transgressions. So you apply to Congress for relief if you think your state government is no longer a Republican Form of Government or is engaging in domestic violence (say mob rule). The founders feared kings in states or state monarchies that might affect the stability of the United States in general. Farvacola, do you want a king in your state and no attendant protections from that?
+ Show Spoiler +
You have a point if you refer to civil war constitutionality and jurisprudence. That's a big can of worms.
|
On November 18 2017 03:27 TheTenthDoc wrote:
It's hard for me to take people arguing the founding fathers didn't want any coercion from the federal government seriously when the necessary consequence of that is that the federal government cannot provide money to the states in any way without immortalizing those grants in perpetuity, since any removal of funds could then be coercive to states.
This argument becomes especially compelling once one accounts for the independent budget decisions of the states made in contemplation of the temporality of federal funds. Many states slashed budgets and state-side funding knowing full well that the federal programs they turned to for funds could be dismantled; many of the states sucking hardest on the federal teet are also those that elect federal politicians that campaign on turning off the federal spigot, to make matters worse.
On November 18 2017 03:29 Danglars wrote:Show nested quote +On November 18 2017 03:13 farvacola wrote:On November 18 2017 03:08 Danglars wrote:
If you want a new constitution with broader federal power over the states, amend it or revolt and sign a new one. The only one in existence agreed to by the states is the current one. It respected abuse of power by a centralized authority. Today's operation of Washington DC and federal agencies shows it was right to try and curtail it. It would take novel length kwizach post to show how and why state rights were eroded and the pros and cons resulting from it. That's such a shit argument when huge components of the Constitution have been read out of existence by mere jurisprudence alone. The 9th Amendment can be construed as an incredibly broad grant of Constitutional federal power relative to the defense of rights infringed on by states, and yet, because it's hard to interpret, it basically isn't even acknowledged anymore. Oh yeah, totally ignore the Guarantee Clause too... This is where the lawblogz legal education has its limits; the Constitution is a very poor herald for much outside its contextual, iterative use by judges in service of their holding or as a barebones manual for basic federal processes. You're sneaking quite a bit in here. It's more a desire to achieve good ends through expansive federal power that justifies judicial, congressional, and executive overreach, rather than a "It's hard to interpret, let's just pretend it exists" type rationalizations you provide. A originalist and textualist reading of why it was included and passed in the bill of rights makes it obvious what it was and how it should be interpreted. Hell, Madison himself had to deliver a speech in the House of Representatives to assure Virginia that the ninth amendment would not be used for federal power. If there was no understanding that the text of the ninth amendment curtailed federal power, there would be no ratification by Virginia, no Constitution, no United States under that constitution. Likewise, the Guarantee's Clause (aside from protecting all states under invasion) was debated to protect citizens against ex post facto laws, bill of attainder, and those obvious transgressions. So you apply to Congress for relief if you think your state government is no longer a Republican Form of Government or is engaging in domestic violence (say mob rule). The founders feared kings in states or state monarchies that might affect the stability of the United States in general. Farvacola, do you want a king in your state and no attendant protections from that? + Show Spoiler +
You have a point if you refer to civil war constitutionality and jurisprudence. That's a big can of worms.
Where in the Constitution does it say that the Constitution is only to be interpreted in an originalist and textualist way? (by the way, originalism and textualism frequently conflict with one another, as is the case by the very terms of your explanation of the 9th Amendment's jurisprudence of non-existence)
|
United States42005 Posts
On November 18 2017 03:11 Danglars wrote:Show nested quote +On November 18 2017 03:06 farvacola wrote:
My take on the pathetic and incomplete nods towards the Founding Fathers frequently brought up in defense of ideas in lieu of substance is that many, if not most, of them would consider these gymnastic backwards glances pretty stupid, but hey, historical revisionism is easy when US politics is all Whose Line Is It Anyway. A good look at the federalist papers and founders writings show that they were right about the protections against elites in centralized authority, and their eventual eroding came at high cost to the American citizen. The reasons span from elected authorities seizing powers for themselves, cowardly representatives going along with it or opposing weakly, and citizens untaught and uninterested in civics ... or the decline in civic education. But they owned slaves guys, let's just ignore everything they said and did!
Care to expand upon:
What the good look at the Federalist papers and founders writings shows
The protections against elites
The erosion of those protections
The high cost to the American citizens
The seizure of power by elected authorities
The cowardly representatives
The citizens untaught and uninterested in civics
The decline in civic education
You say all these things as if they are definite statements that nobody could disagree with, and make absolutely no effort to argue any of them. You asset there is a decline in civics education and yet all evidence suggests that the American population has at no point in history been better educated than they are today. You suggest that there has been a high cost but make no effort to say what it is. Your assertion that the founders were right doesn't even parse as a coherent sentence, before we even consider that they were themselves the elites they thought the citizens should be protected from.
These kind of statements may work in a crazy right wing circle jerk where you can make these assertions without anyone wondering what the hell you're talking about, but they're not arguments. You didn't state a hypothesis and build up a case to argue for the validity of it, you just chained together a series of unrelated ideas.
|
On November 18 2017 03:27 TheTenthDoc wrote:
It's hard for me to take people arguing the founding fathers didn't want any coercion from the federal government seriously when the necessary consequence of that is that the federal government cannot provide money to the states in any way without immortalizing those grants in perpetuity, since any removal of funds could then be coercive to states. There is at the very least a bare minimum of coercion potential implicit in having a semi-autonomous federal government that regulates interstate commerce.
The question is removal of other funding agreements to compel acceptance of other programs authorized by the Spending Clause. Also, to use that in a backwards way to force states to regulate as you would have them do. Their volition and comprehension is at issue.
On November 18 2017 03:28 Plansix wrote:
Oh my god, stop talking about the federalist papers like they are prescriptive to how the government should work. They were written to convince a skeptical populace about the merit of a federal government, not as a guideline as to its limits. Again, the founding fathers opinions on government changed after they governed. Seriously, anyone who knows the history of the federalist papers would avoid using them in an argument about how the US government should function in the modern era.
Amend the constitution if you think the government authorized by it is insufficient to function in the modern era. Don't give me these stupid arguments at how written separation of powers and elaboration on why they were written and included aren't actually showing people how the constitution should and shall be interpreted. You're strangely at ease for the Federalists in favor of the Constitution adopting legitimate defraudment of affected citizens and citizen representatives to form a government.
|
I don’t think we need to amend the constitution to stay Danglars needs to go back to civics 101.
|
On November 18 2017 03:31 farvacola wrote:Show nested quote +On November 18 2017 03:27 TheTenthDoc wrote:
It's hard for me to take people arguing the founding fathers didn't want any coercion from the federal government seriously when the necessary consequence of that is that the federal government cannot provide money to the states in any way without immortalizing those grants in perpetuity, since any removal of funds could then be coercive to states. This argument becomes especially compelling once one accounts for the independent budget decisions of the states made in contemplation of the temporality of federal funds. Many states slashed budgets and state-side funding knowing full well that the federal programs they turned to for funds could be dismantled; many of the states sucking hardest on the federal teet are also those that elect federal politicians that campaign on turning off the federal spigot, to make matters worse. Show nested quote +On November 18 2017 03:29 Danglars wrote:On November 18 2017 03:13 farvacola wrote:On November 18 2017 03:08 Danglars wrote:
If you want a new constitution with broader federal power over the states, amend it or revolt and sign a new one. The only one in existence agreed to by the states is the current one. It respected abuse of power by a centralized authority. Today's operation of Washington DC and federal agencies shows it was right to try and curtail it. It would take novel length kwizach post to show how and why state rights were eroded and the pros and cons resulting from it. That's such a shit argument when huge components of the Constitution have been read out of existence by mere jurisprudence alone. The 9th Amendment can be construed as an incredibly broad grant of Constitutional federal power relative to the defense of rights infringed on by states, and yet, because it's hard to interpret, it basically isn't even acknowledged anymore. Oh yeah, totally ignore the Guarantee Clause too... This is where the lawblogz legal education has its limits; the Constitution is a very poor herald for much outside its contextual, iterative use by judges in service of their holding or as a barebones manual for basic federal processes. You're sneaking quite a bit in here. It's more a desire to achieve good ends through expansive federal power that justifies judicial, congressional, and executive overreach, rather than a "It's hard to interpret, let's just pretend it exists" type rationalizations you provide. A originalist and textualist reading of why it was included and passed in the bill of rights makes it obvious what it was and how it should be interpreted. Hell, Madison himself had to deliver a speech in the House of Representatives to assure Virginia that the ninth amendment would not be used for federal power. If there was no understanding that the text of the ninth amendment curtailed federal power, there would be no ratification by Virginia, no Constitution, no United States under that constitution. Likewise, the Guarantee's Clause (aside from protecting all states under invasion) was debated to protect citizens against ex post facto laws, bill of attainder, and those obvious transgressions. So you apply to Congress for relief if you think your state government is no longer a Republican Form of Government or is engaging in domestic violence (say mob rule). The founders feared kings in states or state monarchies that might affect the stability of the United States in general. Farvacola, do you want a king in your state and no attendant protections from that? + Show Spoiler +
You have a point if you refer to civil war constitutionality and jurisprudence. That's a big can of worms.
Where in the Constitution does it say that the Constitution is only to be interpreted in an originalist and textualist way? (by the way, originalism and textualism frequently conflict with one another, as is the case by the very terms of your explanation of the 9th Amendment's jurisprudence of non-existence)
Just like written documents and contracts, the only agreement that matters is according to what signee and signer understand it to mean at the time of signing. They specifically included two amendment processes with the understanding that what they had written might have to change in the future. The alternative is deciding to make up what it means as we go along.
You're familiar with the breadth of argumentation for and against a living constitution. I don't intend to repeat arguments you've already heard and rejected at length just for your personal pleasure. I bring it up because you thought the ninth amendment and the guarantee clause are some kind of smoking gun, which you haven't addressed, and just try to broaden.
EDIT: The original meaning of the words as ratified very frequently goes along with using the actual words of the law to determine what laws mean. That they don't always agree is one reason why we should have limited judicial interpretation of laws to cases. Not this bullshit judicial activism that we have today.
|
On November 18 2017 03:35 Danglars wrote:Show nested quote +On November 18 2017 03:27 TheTenthDoc wrote:
It's hard for me to take people arguing the founding fathers didn't want any coercion from the federal government seriously when the necessary consequence of that is that the federal government cannot provide money to the states in any way without immortalizing those grants in perpetuity, since any removal of funds could then be coercive to states. There is at the very least a bare minimum of coercion potential implicit in having a semi-autonomous federal government that regulates interstate commerce. The question is removal of other funding agreements to compel acceptance of other programs authorized by the Spending Clause. Also, to use that in a backwards way to force states to regulate as you would have them do. Their volition and comprehension is at issue.
The problem is that a state could argue any removal of federal funds was in fact a federal attempt to coerce them, even independent of formal use of other funding agreements. The process could simply be encoded in two separate laws; e.g. "we delete Medicaid in law 1, then in law 2 we create SuperCaid with all the riders we want and allow states to opt in."
Is that coercion? There's no funding agreements involved, it's merely dissembling of a federal program and creation of another one. So you have to allow for separate laws and potential temporal discontinuity when saying there's no coercion, at which point all removal of federal programs could potentially be coercion we just don't know about yet.
Edit: I also think that even the most charitable view here renders the federal government only able to make SuperCaid if it hasn't already made Medicaid which seems more Articles of Confederation-y than Constitution-y but what do I know
|
The constitution is not a contract. In fact, it creates and enshrines the legal system that later on defined modern contracts. You cannot apply the those modern standard to a document that predates those standards.
|
On November 18 2017 03:40 Danglars wrote:Show nested quote +On November 18 2017 03:31 farvacola wrote:On November 18 2017 03:27 TheTenthDoc wrote:
It's hard for me to take people arguing the founding fathers didn't want any coercion from the federal government seriously when the necessary consequence of that is that the federal government cannot provide money to the states in any way without immortalizing those grants in perpetuity, since any removal of funds could then be coercive to states. This argument becomes especially compelling once one accounts for the independent budget decisions of the states made in contemplation of the temporality of federal funds. Many states slashed budgets and state-side funding knowing full well that the federal programs they turned to for funds could be dismantled; many of the states sucking hardest on the federal teet are also those that elect federal politicians that campaign on turning off the federal spigot, to make matters worse. On November 18 2017 03:29 Danglars wrote:On November 18 2017 03:13 farvacola wrote:On November 18 2017 03:08 Danglars wrote:
If you want a new constitution with broader federal power over the states, amend it or revolt and sign a new one. The only one in existence agreed to by the states is the current one. It respected abuse of power by a centralized authority. Today's operation of Washington DC and federal agencies shows it was right to try and curtail it. It would take novel length kwizach post to show how and why state rights were eroded and the pros and cons resulting from it. That's such a shit argument when huge components of the Constitution have been read out of existence by mere jurisprudence alone. The 9th Amendment can be construed as an incredibly broad grant of Constitutional federal power relative to the defense of rights infringed on by states, and yet, because it's hard to interpret, it basically isn't even acknowledged anymore. Oh yeah, totally ignore the Guarantee Clause too... This is where the lawblogz legal education has its limits; the Constitution is a very poor herald for much outside its contextual, iterative use by judges in service of their holding or as a barebones manual for basic federal processes. You're sneaking quite a bit in here. It's more a desire to achieve good ends through expansive federal power that justifies judicial, congressional, and executive overreach, rather than a "It's hard to interpret, let's just pretend it exists" type rationalizations you provide. A originalist and textualist reading of why it was included and passed in the bill of rights makes it obvious what it was and how it should be interpreted. Hell, Madison himself had to deliver a speech in the House of Representatives to assure Virginia that the ninth amendment would not be used for federal power. If there was no understanding that the text of the ninth amendment curtailed federal power, there would be no ratification by Virginia, no Constitution, no United States under that constitution. Likewise, the Guarantee's Clause (aside from protecting all states under invasion) was debated to protect citizens against ex post facto laws, bill of attainder, and those obvious transgressions. So you apply to Congress for relief if you think your state government is no longer a Republican Form of Government or is engaging in domestic violence (say mob rule). The founders feared kings in states or state monarchies that might affect the stability of the United States in general. Farvacola, do you want a king in your state and no attendant protections from that? + Show Spoiler +
You have a point if you refer to civil war constitutionality and jurisprudence. That's a big can of worms.
Where in the Constitution does it say that the Constitution is only to be interpreted in an originalist and textualist way? (by the way, originalism and textualism frequently conflict with one another, as is the case by the very terms of your explanation of the 9th Amendment's jurisprudence of non-existence) Just like written documents and contracts, the only agreement that matters is according to what signee and signer understand it to mean at the time of signing. They specifically included two amendment processes with the understanding that what they had written might have to change in the future. The alternative is deciding to make up what it means as we go along. You're familiar with the breadth of argumentation for and against a living constitution. I don't intend to repeat arguments you've already heard and rejected at length just for your personal pleasure. I bring it up because you thought the ninth amendment and the guarantee clause are some kind of smoking gun, which you haven't addressed, and just try to broaden. EDIT: The original meaning of the words as ratified very frequently goes along with using the actual words of the law to determine what laws mean. That they don't always agree is one reason why we should have limited judicial interpretation of laws to cases. Not this bullshit judicial activism that we have today.
It's totally incoherent to on one hand bow to the logic of a 5-4 Supreme Court decision that is an inarguable expression of federal legal power while on the other argue that the totality of federal power is circumscribed by the Constitution and its amendment process. The latter is simply untrue and it doesn't help the matter to make overly-simple nods towards basic written contracts as though that explains anything. Like Igne intimated above, the "Social Contract" very clearly functions in a host of ways that render use of the term "contract" largely academic and not of much use in terms of clarifying the extent to which individuals are deigned to have surrendered some number of rights while retaining others at some fictional point in time that supposedly happens as one is born into his or her society.
You yourself talk of Madison's speeches as though they have interpretive gravity only to then say things like "the only agreement that matters is according to what signee and signer understanding it to mean at the time of signing." This is the sort of selective invocation of supposedly hard principles that smacks of inconsistency such that any attendant interpretive framework falls apart before it begins.
|
On November 18 2017 03:45 TheTenthDoc wrote:Show nested quote +On November 18 2017 03:35 Danglars wrote:On November 18 2017 03:27 TheTenthDoc wrote:
It's hard for me to take people arguing the founding fathers didn't want any coercion from the federal government seriously when the necessary consequence of that is that the federal government cannot provide money to the states in any way without immortalizing those grants in perpetuity, since any removal of funds could then be coercive to states. There is at the very least a bare minimum of coercion potential implicit in having a semi-autonomous federal government that regulates interstate commerce. The question is removal of other funding agreements to compel acceptance of other programs authorized by the Spending Clause. Also, to use that in a backwards way to force states to regulate as you would have them do. Their volition and comprehension is at issue. The problem is that a state could argue any removal of federal funds was in fact a federal attempt to coerce them, even independent of formal use of other funding agreements. The process could simply be encoded in two separate laws; e.g. "we delete Medicaid in law 1, then create SuperCaid with all the riders we want in law 2 and allow states to opt in." Is that coercion? There's no funding agreements involved, it's merely dissembling of a federal program and creation of another one. So you have to allow for separate laws and potential temporal discontinuity when saying there's no coercion, at which point all removal of federal programs could potentially be coercion we just don't know about yet.
The federal government may vote to end medicaid entirely. That's legal. They can bargain that states will sign on to SuperCaid because they have no more medicaid funding and they want funding. That's still a negotiation with the understanding of the States, but they can refuse that second bit just fine.
Good luck getting representatives in Congress to end Medicaid because they're using it to get around coercion prohibitions in the Constitution. Citizen representatives, you know. They're part of the process.
|
On November 18 2017 03:50 Danglars wrote:Show nested quote +On November 18 2017 03:45 TheTenthDoc wrote:On November 18 2017 03:35 Danglars wrote:On November 18 2017 03:27 TheTenthDoc wrote:
It's hard for me to take people arguing the founding fathers didn't want any coercion from the federal government seriously when the necessary consequence of that is that the federal government cannot provide money to the states in any way without immortalizing those grants in perpetuity, since any removal of funds could then be coercive to states. There is at the very least a bare minimum of coercion potential implicit in having a semi-autonomous federal government that regulates interstate commerce. The question is removal of other funding agreements to compel acceptance of other programs authorized by the Spending Clause. Also, to use that in a backwards way to force states to regulate as you would have them do. Their volition and comprehension is at issue. The problem is that a state could argue any removal of federal funds was in fact a federal attempt to coerce them, even independent of formal use of other funding agreements. The process could simply be encoded in two separate laws; e.g. "we delete Medicaid in law 1, then create SuperCaid with all the riders we want in law 2 and allow states to opt in." Is that coercion? There's no funding agreements involved, it's merely dissembling of a federal program and creation of another one. So you have to allow for separate laws and potential temporal discontinuity when saying there's no coercion, at which point all removal of federal programs could potentially be coercion we just don't know about yet. The federal government may vote to end medicaid entirely. That's legal. They can bargain that states will sign on to SuperCaid because they have no more medicaid funding and they want funding. That's still a negotiation with the understanding of the States, but they can refuse that second bit just fine. Good luck getting representatives in Congress to end Medicaid because they're using it to get around coercion prohibitions in the Constitution. Citizen representatives, you know. They're part of the process.
Somehow I don't think the founding fathers were so stupid as to set up a process in which two processes that work identically with a similar potential for coercion and result in an identical outcome have different constitutionality, but maybe I just have a higher opinion of them than you.
Especially when the second option (delete Medicaid, create SuperCaid) is if anything more coercive in some scenarios and without the ability to alter federal programs to add new requirements it is all that would be used.
|
On November 18 2017 03:50 farvacola wrote:Show nested quote +On November 18 2017 03:40 Danglars wrote:On November 18 2017 03:31 farvacola wrote:On November 18 2017 03:27 TheTenthDoc wrote:
It's hard for me to take people arguing the founding fathers didn't want any coercion from the federal government seriously when the necessary consequence of that is that the federal government cannot provide money to the states in any way without immortalizing those grants in perpetuity, since any removal of funds could then be coercive to states. This argument becomes especially compelling once one accounts for the independent budget decisions of the states made in contemplation of the temporality of federal funds. Many states slashed budgets and state-side funding knowing full well that the federal programs they turned to for funds could be dismantled; many of the states sucking hardest on the federal teet are also those that elect federal politicians that campaign on turning off the federal spigot, to make matters worse. On November 18 2017 03:29 Danglars wrote:On November 18 2017 03:13 farvacola wrote:On November 18 2017 03:08 Danglars wrote:
If you want a new constitution with broader federal power over the states, amend it or revolt and sign a new one. The only one in existence agreed to by the states is the current one. It respected abuse of power by a centralized authority. Today's operation of Washington DC and federal agencies shows it was right to try and curtail it. It would take novel length kwizach post to show how and why state rights were eroded and the pros and cons resulting from it. That's such a shit argument when huge components of the Constitution have been read out of existence by mere jurisprudence alone. The 9th Amendment can be construed as an incredibly broad grant of Constitutional federal power relative to the defense of rights infringed on by states, and yet, because it's hard to interpret, it basically isn't even acknowledged anymore. Oh yeah, totally ignore the Guarantee Clause too... This is where the lawblogz legal education has its limits; the Constitution is a very poor herald for much outside its contextual, iterative use by judges in service of their holding or as a barebones manual for basic federal processes. You're sneaking quite a bit in here. It's more a desire to achieve good ends through expansive federal power that justifies judicial, congressional, and executive overreach, rather than a "It's hard to interpret, let's just pretend it exists" type rationalizations you provide. A originalist and textualist reading of why it was included and passed in the bill of rights makes it obvious what it was and how it should be interpreted. Hell, Madison himself had to deliver a speech in the House of Representatives to assure Virginia that the ninth amendment would not be used for federal power. If there was no understanding that the text of the ninth amendment curtailed federal power, there would be no ratification by Virginia, no Constitution, no United States under that constitution. Likewise, the Guarantee's Clause (aside from protecting all states under invasion) was debated to protect citizens against ex post facto laws, bill of attainder, and those obvious transgressions. So you apply to Congress for relief if you think your state government is no longer a Republican Form of Government or is engaging in domestic violence (say mob rule). The founders feared kings in states or state monarchies that might affect the stability of the United States in general. Farvacola, do you want a king in your state and no attendant protections from that? + Show Spoiler +
You have a point if you refer to civil war constitutionality and jurisprudence. That's a big can of worms.
Where in the Constitution does it say that the Constitution is only to be interpreted in an originalist and textualist way? (by the way, originalism and textualism frequently conflict with one another, as is the case by the very terms of your explanation of the 9th Amendment's jurisprudence of non-existence) Just like written documents and contracts, the only agreement that matters is according to what signee and signer understand it to mean at the time of signing. They specifically included two amendment processes with the understanding that what they had written might have to change in the future. The alternative is deciding to make up what it means as we go along. You're familiar with the breadth of argumentation for and against a living constitution. I don't intend to repeat arguments you've already heard and rejected at length just for your personal pleasure. I bring it up because you thought the ninth amendment and the guarantee clause are some kind of smoking gun, which you haven't addressed, and just try to broaden. EDIT: The original meaning of the words as ratified very frequently goes along with using the actual words of the law to determine what laws mean. That they don't always agree is one reason why we should have limited judicial interpretation of laws to cases. Not this bullshit judicial activism that we have today. It's totally incoherent to on one hand bow to the logic of a 5-4 Supreme Court decision that is an inarguable expression of federal legal power while on the other argue that the totality of federal power is circumscribed by the Constitution and its amendment process. The latter is simply untrue and it doesn't help the matter to make overly-simple nods towards basic written contracts as though that explains anything. Like Igne intimated above, the "Social Contract" very clearly functions in a host of ways that render use of the term "contract" largely academic and not of much use in terms of clarifying the extent to which individuals are deigned to have surrendered some number of rights while retaining others at some fictional point in time that supposedly happens as one is born into his or her society. You yourself talk of Madison's speeches as though they have interpretive gravity only to then say things like "the only agreement that matters is according to what signee and signer understanding it to mean at the time of signing." This is the sort of selective invocation of supposedly hard principles that smacks of inconsistency such that any attendant interpretive framework falls apart before it begins.
dangles has really gone off the rails here. i love his extratextual analysis of the ninth amendment's true meaning.
i would really like to see, though, a full post by someone like danglars where they really attempt to be rigorous. then we could rate it on a scale of 1 to Scalia before busting out some Posner-esque breakdown
|
On November 18 2017 03:27 TheTenthDoc wrote:
It's hard for me to take people arguing the founding fathers didn't want any coercion from the federal government seriously when the necessary consequence of that is that the federal government cannot provide money to the states in any way without immortalizing those grants in perpetuity, since any removal of funds could then be coercive to states. There is at the very least a bare minimum of coercion potential implicit in having a semi-autonomous federal government that regulates interstate commerce and can remove its own laws.
Not to mention the Treaty powers that were split between the executive and leg branch. The federal government will always, and must always be able to Trump (pardon the pun) state laws.
|
On November 18 2017 04:00 TheTenthDoc wrote:Show nested quote +On November 18 2017 03:50 Danglars wrote:On November 18 2017 03:45 TheTenthDoc wrote:On November 18 2017 03:35 Danglars wrote:On November 18 2017 03:27 TheTenthDoc wrote:
It's hard for me to take people arguing the founding fathers didn't want any coercion from the federal government seriously when the necessary consequence of that is that the federal government cannot provide money to the states in any way without immortalizing those grants in perpetuity, since any removal of funds could then be coercive to states. There is at the very least a bare minimum of coercion potential implicit in having a semi-autonomous federal government that regulates interstate commerce. The question is removal of other funding agreements to compel acceptance of other programs authorized by the Spending Clause. Also, to use that in a backwards way to force states to regulate as you would have them do. Their volition and comprehension is at issue. The problem is that a state could argue any removal of federal funds was in fact a federal attempt to coerce them, even independent of formal use of other funding agreements. The process could simply be encoded in two separate laws; e.g. "we delete Medicaid in law 1, then create SuperCaid with all the riders we want in law 2 and allow states to opt in." Is that coercion? There's no funding agreements involved, it's merely dissembling of a federal program and creation of another one. So you have to allow for separate laws and potential temporal discontinuity when saying there's no coercion, at which point all removal of federal programs could potentially be coercion we just don't know about yet. The federal government may vote to end medicaid entirely. That's legal. They can bargain that states will sign on to SuperCaid because they have no more medicaid funding and they want funding. That's still a negotiation with the understanding of the States, but they can refuse that second bit just fine. Good luck getting representatives in Congress to end Medicaid because they're using it to get around coercion prohibitions in the Constitution. Citizen representatives, you know. They're part of the process. Somehow I don't think the founding fathers were so stupid as to set up a process in which two processes that work identically with a similar potential for coercion and result in an identical outcome have different constitutionality, but maybe I just have a higher opinion of them than you. Especially when the second option (delete Medicaid, create SuperCaid) is if anything more coercive in some scenarios.
The citizen representatives have much say in passing two separate laws that some individual or group wants to go together. They do not work identically. You must first repeal Medicaid with the knowledge that if the second law does not pass, you are responsible for ending the entitlement program. The representatives should object to that scheme as coercion. But they are lawfully entitled to repeal any program and set up any subsequent program if there are no other constitutional objections to the terms.
You act like someone could just repeal things willy nilly free of consequence. The ACA idiots could have tried to preserve a majority for repealing Medicare 1.0 and instituting Medicare 2.0 ... but that would have required state compliance and two votes. Good fucking luck staying in office after that first vote.
|
On November 18 2017 04:07 Danglars wrote:Show nested quote +On November 18 2017 04:00 TheTenthDoc wrote:On November 18 2017 03:50 Danglars wrote:On November 18 2017 03:45 TheTenthDoc wrote:On November 18 2017 03:35 Danglars wrote:On November 18 2017 03:27 TheTenthDoc wrote:
It's hard for me to take people arguing the founding fathers didn't want any coercion from the federal government seriously when the necessary consequence of that is that the federal government cannot provide money to the states in any way without immortalizing those grants in perpetuity, since any removal of funds could then be coercive to states. There is at the very least a bare minimum of coercion potential implicit in having a semi-autonomous federal government that regulates interstate commerce. The question is removal of other funding agreements to compel acceptance of other programs authorized by the Spending Clause. Also, to use that in a backwards way to force states to regulate as you would have them do. Their volition and comprehension is at issue. The problem is that a state could argue any removal of federal funds was in fact a federal attempt to coerce them, even independent of formal use of other funding agreements. The process could simply be encoded in two separate laws; e.g. "we delete Medicaid in law 1, then create SuperCaid with all the riders we want in law 2 and allow states to opt in." Is that coercion? There's no funding agreements involved, it's merely dissembling of a federal program and creation of another one. So you have to allow for separate laws and potential temporal discontinuity when saying there's no coercion, at which point all removal of federal programs could potentially be coercion we just don't know about yet. The federal government may vote to end medicaid entirely. That's legal. They can bargain that states will sign on to SuperCaid because they have no more medicaid funding and they want funding. That's still a negotiation with the understanding of the States, but they can refuse that second bit just fine. Good luck getting representatives in Congress to end Medicaid because they're using it to get around coercion prohibitions in the Constitution. Citizen representatives, you know. They're part of the process. Somehow I don't think the founding fathers were so stupid as to set up a process in which two processes that work identically with a similar potential for coercion and result in an identical outcome have different constitutionality, but maybe I just have a higher opinion of them than you. Especially when the second option (delete Medicaid, create SuperCaid) is if anything more coercive in some scenarios. The citizen representatives have much say in passing two separate laws that some individual or group wants to go together. They do not work identically. You must first repeal Medicaid with the knowledge that if the second law does not pass, you are responsible for ending the entitlement program. The representatives should object to that scheme as coercion. But they are lawfully entitled to repeal any program and set up any subsequent program if there are no other constitutional objections to the terms. You act like someone could just repeal things willy nilly free of consequence. The ACA idiots could have tried to preserve a majority for repealing Medicare 1.0 and instituting Medicare 2.0 ... but that would have required state compliance and two votes. Good fucking luck staying in office after that first vote.
If that's a problem then they just reinstate Medicare 1.0. Moreover, it isn't as though these votes can't be contemporaneous. In fact, they could even hold it in reconciliation until both laws go to the executive's desk at once and reject both if one fails, so they're never at risk.
If the executive kills both? Then it's the executive's fault. Easy buck passing (just like House R's passing the buck on killing the ACA to the Senate, or trying to).
This would have been even more common with far fewer barriers than exist today in the founding father's time, since nobody actually knew what was happening in the capitol and the "representative" part was mostly trusting them to know what they were doing.
Edit: Heck, you can even do it the other way around! Make SuperCaid, allow people to opt in, then delete Medicaid.
|
On November 18 2017 03:50 farvacola wrote:Show nested quote +On November 18 2017 03:40 Danglars wrote:On November 18 2017 03:31 farvacola wrote:On November 18 2017 03:27 TheTenthDoc wrote:
It's hard for me to take people arguing the founding fathers didn't want any coercion from the federal government seriously when the necessary consequence of that is that the federal government cannot provide money to the states in any way without immortalizing those grants in perpetuity, since any removal of funds could then be coercive to states. This argument becomes especially compelling once one accounts for the independent budget decisions of the states made in contemplation of the temporality of federal funds. Many states slashed budgets and state-side funding knowing full well that the federal programs they turned to for funds could be dismantled; many of the states sucking hardest on the federal teet are also those that elect federal politicians that campaign on turning off the federal spigot, to make matters worse. On November 18 2017 03:29 Danglars wrote:On November 18 2017 03:13 farvacola wrote:On November 18 2017 03:08 Danglars wrote:
If you want a new constitution with broader federal power over the states, amend it or revolt and sign a new one. The only one in existence agreed to by the states is the current one. It respected abuse of power by a centralized authority. Today's operation of Washington DC and federal agencies shows it was right to try and curtail it. It would take novel length kwizach post to show how and why state rights were eroded and the pros and cons resulting from it. That's such a shit argument when huge components of the Constitution have been read out of existence by mere jurisprudence alone. The 9th Amendment can be construed as an incredibly broad grant of Constitutional federal power relative to the defense of rights infringed on by states, and yet, because it's hard to interpret, it basically isn't even acknowledged anymore. Oh yeah, totally ignore the Guarantee Clause too... This is where the lawblogz legal education has its limits; the Constitution is a very poor herald for much outside its contextual, iterative use by judges in service of their holding or as a barebones manual for basic federal processes. You're sneaking quite a bit in here. It's more a desire to achieve good ends through expansive federal power that justifies judicial, congressional, and executive overreach, rather than a "It's hard to interpret, let's just pretend it exists" type rationalizations you provide. A originalist and textualist reading of why it was included and passed in the bill of rights makes it obvious what it was and how it should be interpreted. Hell, Madison himself had to deliver a speech in the House of Representatives to assure Virginia that the ninth amendment would not be used for federal power. If there was no understanding that the text of the ninth amendment curtailed federal power, there would be no ratification by Virginia, no Constitution, no United States under that constitution. Likewise, the Guarantee's Clause (aside from protecting all states under invasion) was debated to protect citizens against ex post facto laws, bill of attainder, and those obvious transgressions. So you apply to Congress for relief if you think your state government is no longer a Republican Form of Government or is engaging in domestic violence (say mob rule). The founders feared kings in states or state monarchies that might affect the stability of the United States in general. Farvacola, do you want a king in your state and no attendant protections from that? + Show Spoiler +
You have a point if you refer to civil war constitutionality and jurisprudence. That's a big can of worms.
Where in the Constitution does it say that the Constitution is only to be interpreted in an originalist and textualist way? (by the way, originalism and textualism frequently conflict with one another, as is the case by the very terms of your explanation of the 9th Amendment's jurisprudence of non-existence) Just like written documents and contracts, the only agreement that matters is according to what signee and signer understand it to mean at the time of signing. They specifically included two amendment processes with the understanding that what they had written might have to change in the future. The alternative is deciding to make up what it means as we go along. You're familiar with the breadth of argumentation for and against a living constitution. I don't intend to repeat arguments you've already heard and rejected at length just for your personal pleasure. I bring it up because you thought the ninth amendment and the guarantee clause are some kind of smoking gun, which you haven't addressed, and just try to broaden. EDIT: The original meaning of the words as ratified very frequently goes along with using the actual words of the law to determine what laws mean. That they don't always agree is one reason why we should have limited judicial interpretation of laws to cases. Not this bullshit judicial activism that we have today. It's totally incoherent to on one hand bow to the logic of a 5-4 Supreme Court decision that is an inarguable expression of federal legal power while on the other argue that the totality of federal power is circumscribed by the Constitution and its amendment process. The latter is simply untrue and it doesn't help the matter to make overly-simple nods towards basic written contracts as though that explains anything. Like Igne intimated above, the "Social Contract" very clearly functions in a host of ways that render use of the term "contract" largely academic and not of much use in terms of clarifying the extent to which individuals are deigned to have surrendered some number of rights while retaining others at some fictional point in time that supposedly happens as one is born into his or her society. You yourself talk of Madison's speeches as though they have interpretive gravity only to then say things like "the only agreement that matters is according to what signee and signer understanding it to mean at the time of signing." This is the sort of selective invocation of supposedly hard principles that smacks of inconsistency such that any attendant interpretive framework falls apart before it begins.
Brother, more than 5 justices thought the Medicaid expansion constituted unconstitutional overreach. I literally just wrote that. Second of all, it happens that the current court decided in that part of the decision correctly. If you want to continue, you'll have to stop including all these ludicrous asides.
Representatives had to agree on the writing of the Constitution to sign on. I just stated how Virginia's representatives were unsatisfied with the writing of the Ninth Amendment that might have been interpreted to extend Federal power instead of restricting it. Madison gave his speech saying what it meant before ratification. I'll be more willing to get into when the philosophies conflict and elaborate on inconsistencies if you first acknowledge what I've written to contradict your arguments. I see no point to go from federal schemes Medicaid coercion to allegations of "sentimentality for a local control" to where power rests to existing jurisprudence to the living constitution if you'll just keep on having new topics requiring extensive explaining.
You might as well say you like federal coercion because both textualism and originalism are dumb philosophies. Then I'll know your territory for debate extends that far and give up trying to persuade you or the broader audience.
|
On November 18 2017 04:18 TheTenthDoc wrote:Show nested quote +On November 18 2017 04:07 Danglars wrote:On November 18 2017 04:00 TheTenthDoc wrote:On November 18 2017 03:50 Danglars wrote:On November 18 2017 03:45 TheTenthDoc wrote:On November 18 2017 03:35 Danglars wrote:On November 18 2017 03:27 TheTenthDoc wrote:
It's hard for me to take people arguing the founding fathers didn't want any coercion from the federal government seriously when the necessary consequence of that is that the federal government cannot provide money to the states in any way without immortalizing those grants in perpetuity, since any removal of funds could then be coercive to states. There is at the very least a bare minimum of coercion potential implicit in having a semi-autonomous federal government that regulates interstate commerce. The question is removal of other funding agreements to compel acceptance of other programs authorized by the Spending Clause. Also, to use that in a backwards way to force states to regulate as you would have them do. Their volition and comprehension is at issue. The problem is that a state could argue any removal of federal funds was in fact a federal attempt to coerce them, even independent of formal use of other funding agreements. The process could simply be encoded in two separate laws; e.g. "we delete Medicaid in law 1, then create SuperCaid with all the riders we want in law 2 and allow states to opt in." Is that coercion? There's no funding agreements involved, it's merely dissembling of a federal program and creation of another one. So you have to allow for separate laws and potential temporal discontinuity when saying there's no coercion, at which point all removal of federal programs could potentially be coercion we just don't know about yet. The federal government may vote to end medicaid entirely. That's legal. They can bargain that states will sign on to SuperCaid because they have no more medicaid funding and they want funding. That's still a negotiation with the understanding of the States, but they can refuse that second bit just fine. Good luck getting representatives in Congress to end Medicaid because they're using it to get around coercion prohibitions in the Constitution. Citizen representatives, you know. They're part of the process. Somehow I don't think the founding fathers were so stupid as to set up a process in which two processes that work identically with a similar potential for coercion and result in an identical outcome have different constitutionality, but maybe I just have a higher opinion of them than you. Especially when the second option (delete Medicaid, create SuperCaid) is if anything more coercive in some scenarios. The citizen representatives have much say in passing two separate laws that some individual or group wants to go together. They do not work identically. You must first repeal Medicaid with the knowledge that if the second law does not pass, you are responsible for ending the entitlement program. The representatives should object to that scheme as coercion. But they are lawfully entitled to repeal any program and set up any subsequent program if there are no other constitutional objections to the terms. You act like someone could just repeal things willy nilly free of consequence. The ACA idiots could have tried to preserve a majority for repealing Medicare 1.0 and instituting Medicare 2.0 ... but that would have required state compliance and two votes. Good fucking luck staying in office after that first vote. If that's a problem then they just reinstate Medicare 1.0. Moreover, it isn't as though these votes can't be contemporaneous. In fact, they could even hold it in reconciliation until both laws go to the executive's desk at once and reject both if one fails, so they're never at risk. This would have been even more common with far fewer barriers than exist today in the founding father's time, since nobody actually knew what was happening in the capitol and the "representative" part was mostly trusting them to know what they were doing.
Yeah, good luck going home to your constituents and arguing "See, I took away your entitlement as part of my scheme to make it better. I bet big on coercing my fellow delegates to sign on to the later one after I convinced them to repeal the first."
These things survive by subterfuge. Once the coercion is exposed to the light of day, support usually vanishes. An honest medicaid expansion as a separate bill requiring the assent of states might have survived.
|
On November 18 2017 04:21 Danglars wrote:Show nested quote +On November 18 2017 04:18 TheTenthDoc wrote:On November 18 2017 04:07 Danglars wrote:On November 18 2017 04:00 TheTenthDoc wrote:On November 18 2017 03:50 Danglars wrote:On November 18 2017 03:45 TheTenthDoc wrote:On November 18 2017 03:35 Danglars wrote:On November 18 2017 03:27 TheTenthDoc wrote:
It's hard for me to take people arguing the founding fathers didn't want any coercion from the federal government seriously when the necessary consequence of that is that the federal government cannot provide money to the states in any way without immortalizing those grants in perpetuity, since any removal of funds could then be coercive to states. There is at the very least a bare minimum of coercion potential implicit in having a semi-autonomous federal government that regulates interstate commerce. The question is removal of other funding agreements to compel acceptance of other programs authorized by the Spending Clause. Also, to use that in a backwards way to force states to regulate as you would have them do. Their volition and comprehension is at issue. The problem is that a state could argue any removal of federal funds was in fact a federal attempt to coerce them, even independent of formal use of other funding agreements. The process could simply be encoded in two separate laws; e.g. "we delete Medicaid in law 1, then create SuperCaid with all the riders we want in law 2 and allow states to opt in." Is that coercion? There's no funding agreements involved, it's merely dissembling of a federal program and creation of another one. So you have to allow for separate laws and potential temporal discontinuity when saying there's no coercion, at which point all removal of federal programs could potentially be coercion we just don't know about yet. The federal government may vote to end medicaid entirely. That's legal. They can bargain that states will sign on to SuperCaid because they have no more medicaid funding and they want funding. That's still a negotiation with the understanding of the States, but they can refuse that second bit just fine. Good luck getting representatives in Congress to end Medicaid because they're using it to get around coercion prohibitions in the Constitution. Citizen representatives, you know. They're part of the process. Somehow I don't think the founding fathers were so stupid as to set up a process in which two processes that work identically with a similar potential for coercion and result in an identical outcome have different constitutionality, but maybe I just have a higher opinion of them than you. Especially when the second option (delete Medicaid, create SuperCaid) is if anything more coercive in some scenarios. The citizen representatives have much say in passing two separate laws that some individual or group wants to go together. They do not work identically. You must first repeal Medicaid with the knowledge that if the second law does not pass, you are responsible for ending the entitlement program. The representatives should object to that scheme as coercion. But they are lawfully entitled to repeal any program and set up any subsequent program if there are no other constitutional objections to the terms. You act like someone could just repeal things willy nilly free of consequence. The ACA idiots could have tried to preserve a majority for repealing Medicare 1.0 and instituting Medicare 2.0 ... but that would have required state compliance and two votes. Good fucking luck staying in office after that first vote. If that's a problem then they just reinstate Medicare 1.0. Moreover, it isn't as though these votes can't be contemporaneous. In fact, they could even hold it in reconciliation until both laws go to the executive's desk at once and reject both if one fails, so they're never at risk. This would have been even more common with far fewer barriers than exist today in the founding father's time, since nobody actually knew what was happening in the capitol and the "representative" part was mostly trusting them to know what they were doing. Yeah, good luck going home to your constituents and arguing "See, I took away your entitlement as part of my scheme to make it better. I bet big on coercing my fellow delegates to sign on to the later one after I convinced them to repeal the first." These things survive by subterfuge. Once the coercion is exposed to the light of day, support usually vanishes. An honest medicaid expansion as a separate bill requiring the assent of states might have survived.
That's a very good summery of xDaunt's plan for healthcare from last night.
|
On November 18 2017 04:21 Danglars wrote:Show nested quote +On November 18 2017 04:18 TheTenthDoc wrote:On November 18 2017 04:07 Danglars wrote:On November 18 2017 04:00 TheTenthDoc wrote:On November 18 2017 03:50 Danglars wrote:On November 18 2017 03:45 TheTenthDoc wrote:On November 18 2017 03:35 Danglars wrote:On November 18 2017 03:27 TheTenthDoc wrote:
It's hard for me to take people arguing the founding fathers didn't want any coercion from the federal government seriously when the necessary consequence of that is that the federal government cannot provide money to the states in any way without immortalizing those grants in perpetuity, since any removal of funds could then be coercive to states. There is at the very least a bare minimum of coercion potential implicit in having a semi-autonomous federal government that regulates interstate commerce. The question is removal of other funding agreements to compel acceptance of other programs authorized by the Spending Clause. Also, to use that in a backwards way to force states to regulate as you would have them do. Their volition and comprehension is at issue. The problem is that a state could argue any removal of federal funds was in fact a federal attempt to coerce them, even independent of formal use of other funding agreements. The process could simply be encoded in two separate laws; e.g. "we delete Medicaid in law 1, then create SuperCaid with all the riders we want in law 2 and allow states to opt in." Is that coercion? There's no funding agreements involved, it's merely dissembling of a federal program and creation of another one. So you have to allow for separate laws and potential temporal discontinuity when saying there's no coercion, at which point all removal of federal programs could potentially be coercion we just don't know about yet. The federal government may vote to end medicaid entirely. That's legal. They can bargain that states will sign on to SuperCaid because they have no more medicaid funding and they want funding. That's still a negotiation with the understanding of the States, but they can refuse that second bit just fine. Good luck getting representatives in Congress to end Medicaid because they're using it to get around coercion prohibitions in the Constitution. Citizen representatives, you know. They're part of the process. Somehow I don't think the founding fathers were so stupid as to set up a process in which two processes that work identically with a similar potential for coercion and result in an identical outcome have different constitutionality, but maybe I just have a higher opinion of them than you. Especially when the second option (delete Medicaid, create SuperCaid) is if anything more coercive in some scenarios. The citizen representatives have much say in passing two separate laws that some individual or group wants to go together. They do not work identically. You must first repeal Medicaid with the knowledge that if the second law does not pass, you are responsible for ending the entitlement program. The representatives should object to that scheme as coercion. But they are lawfully entitled to repeal any program and set up any subsequent program if there are no other constitutional objections to the terms. You act like someone could just repeal things willy nilly free of consequence. The ACA idiots could have tried to preserve a majority for repealing Medicare 1.0 and instituting Medicare 2.0 ... but that would have required state compliance and two votes. Good fucking luck staying in office after that first vote. If that's a problem then they just reinstate Medicare 1.0. Moreover, it isn't as though these votes can't be contemporaneous. In fact, they could even hold it in reconciliation until both laws go to the executive's desk at once and reject both if one fails, so they're never at risk. This would have been even more common with far fewer barriers than exist today in the founding father's time, since nobody actually knew what was happening in the capitol and the "representative" part was mostly trusting them to know what they were doing. Yeah, good luck going home to your constituents and arguing "See, I took away your entitlement as part of my scheme to make it better. I bet big on coercing my fellow delegates to sign on to the later one after I convinced them to repeal the first." These things survive by subterfuge. Once the coercion is exposed to the light of day, support usually vanishes. An honest medicaid expansion as a separate bill requiring the assent of states might have survived.
So your argument is that the founding fathers believed that grants to states should be paralytic and unchanging, unless the government executed efficient subterfuge and pulled the wool over people's eyes to create an identical result by sending two bills to Washington's desk on the same day instead of 1? Which would of course be hilariously easy in the 1800s.
|
On November 18 2017 04:04 IgnE wrote:Show nested quote +On November 18 2017 03:50 farvacola wrote:On November 18 2017 03:40 Danglars wrote:On November 18 2017 03:31 farvacola wrote:On November 18 2017 03:27 TheTenthDoc wrote:
It's hard for me to take people arguing the founding fathers didn't want any coercion from the federal government seriously when the necessary consequence of that is that the federal government cannot provide money to the states in any way without immortalizing those grants in perpetuity, since any removal of funds could then be coercive to states. This argument becomes especially compelling once one accounts for the independent budget decisions of the states made in contemplation of the temporality of federal funds. Many states slashed budgets and state-side funding knowing full well that the federal programs they turned to for funds could be dismantled; many of the states sucking hardest on the federal teet are also those that elect federal politicians that campaign on turning off the federal spigot, to make matters worse. On November 18 2017 03:29 Danglars wrote:On November 18 2017 03:13 farvacola wrote:On November 18 2017 03:08 Danglars wrote:
If you want a new constitution with broader federal power over the states, amend it or revolt and sign a new one. The only one in existence agreed to by the states is the current one. It respected abuse of power by a centralized authority. Today's operation of Washington DC and federal agencies shows it was right to try and curtail it. It would take novel length kwizach post to show how and why state rights were eroded and the pros and cons resulting from it. That's such a shit argument when huge components of the Constitution have been read out of existence by mere jurisprudence alone. The 9th Amendment can be construed as an incredibly broad grant of Constitutional federal power relative to the defense of rights infringed on by states, and yet, because it's hard to interpret, it basically isn't even acknowledged anymore. Oh yeah, totally ignore the Guarantee Clause too... This is where the lawblogz legal education has its limits; the Constitution is a very poor herald for much outside its contextual, iterative use by judges in service of their holding or as a barebones manual for basic federal processes. You're sneaking quite a bit in here. It's more a desire to achieve good ends through expansive federal power that justifies judicial, congressional, and executive overreach, rather than a "It's hard to interpret, let's just pretend it exists" type rationalizations you provide. A originalist and textualist reading of why it was included and passed in the bill of rights makes it obvious what it was and how it should be interpreted. Hell, Madison himself had to deliver a speech in the House of Representatives to assure Virginia that the ninth amendment would not be used for federal power. If there was no understanding that the text of the ninth amendment curtailed federal power, there would be no ratification by Virginia, no Constitution, no United States under that constitution. Likewise, the Guarantee's Clause (aside from protecting all states under invasion) was debated to protect citizens against ex post facto laws, bill of attainder, and those obvious transgressions. So you apply to Congress for relief if you think your state government is no longer a Republican Form of Government or is engaging in domestic violence (say mob rule). The founders feared kings in states or state monarchies that might affect the stability of the United States in general. Farvacola, do you want a king in your state and no attendant protections from that? + Show Spoiler +
You have a point if you refer to civil war constitutionality and jurisprudence. That's a big can of worms.
Where in the Constitution does it say that the Constitution is only to be interpreted in an originalist and textualist way? (by the way, originalism and textualism frequently conflict with one another, as is the case by the very terms of your explanation of the 9th Amendment's jurisprudence of non-existence) Just like written documents and contracts, the only agreement that matters is according to what signee and signer understand it to mean at the time of signing. They specifically included two amendment processes with the understanding that what they had written might have to change in the future. The alternative is deciding to make up what it means as we go along. You're familiar with the breadth of argumentation for and against a living constitution. I don't intend to repeat arguments you've already heard and rejected at length just for your personal pleasure. I bring it up because you thought the ninth amendment and the guarantee clause are some kind of smoking gun, which you haven't addressed, and just try to broaden. EDIT: The original meaning of the words as ratified very frequently goes along with using the actual words of the law to determine what laws mean. That they don't always agree is one reason why we should have limited judicial interpretation of laws to cases. Not this bullshit judicial activism that we have today. It's totally incoherent to on one hand bow to the logic of a 5-4 Supreme Court decision that is an inarguable expression of federal legal power while on the other argue that the totality of federal power is circumscribed by the Constitution and its amendment process. The latter is simply untrue and it doesn't help the matter to make overly-simple nods towards basic written contracts as though that explains anything. Like Igne intimated above, the "Social Contract" very clearly functions in a host of ways that render use of the term "contract" largely academic and not of much use in terms of clarifying the extent to which individuals are deigned to have surrendered some number of rights while retaining others at some fictional point in time that supposedly happens as one is born into his or her society. You yourself talk of Madison's speeches as though they have interpretive gravity only to then say things like "the only agreement that matters is according to what signee and signer understanding it to mean at the time of signing." This is the sort of selective invocation of supposedly hard principles that smacks of inconsistency such that any attendant interpretive framework falls apart before it begins. dangles has really gone off the rails here. i love his extratextual analysis of the ninth amendment's true meaning. i would really like to see, though, a full post by someone like danglars where they really attempt to be rigorous. then we could rate it on a scale of 1 to Scalia before busting out some Posner-esque breakdown
Good luck finding someone with sufficient thread experience of good faith argumentation to actually ask for a rigorous judicial philosophy from a non-lawyer.
You'll arrive at something between mostly originalism and mostly textualism and then who the fuck cares.
But nice troll on the social contract, anyways.
|
|
|
|
|
|
EPT
