React Like It's 1805

by Eric Martin

One of the fortunate byproducts of the most recent wave of WikiLeaks revelations was that I came across Aaron Bady's thought-provoking blog - this due to the fact that a few of his eloquent examinations of the WikiLeaks mission were widely cited.

In this post, Bady discusses the normalization of the war footing that took hold on a permanent basis during the Cold War and has been difficult to shake ever since. This under siege posture has perverted several aspects of our society from, as relevant to the WikiLeaks debate, the tendency to overclassify material and rely ever more on secrecy to shield the actions of government (even the mundane or rightfully public), to budgetary imbalances due to the enormous costs of maintaining a standing army, as secured and defended by an extremely powerful Military-Industrial-Congressional-Complex.

As Bady points out, and as I have argued previously, maintaining a standing army wasn't always the norm in the United States - in fact, it was a possibility that caused great consternation for many of the nation's founders:

It can be difficult to get your head around how perverse this transformation has been, in the grand constitutional scheme of things. But it is. I’ve been reading Edmund Morris’ Colonel Roosevelt, and one of the naggingly strange things that strikes you in the lead up to WWI is how relentlessly pacifist* the USA was (at least until Wilson’s decision to enter the conflict)...

This is a very simplified version of a complicated story, of course, but taking an impressionistic Roosevelt-shaped snapshot of 1915 and comparing it to the present at least allows us to get a sense for how dramatically and unrecognizably different this nation has become, how far our daily political practice has moved from the presumptions and principles that inform its constitutional framework. People who claim to be “originalists” without expressing concern about the effect of a standing army on democracy are either disingenuous or uninformed, or both.

You probably already knew that. But one of the things people tend not to realize is that the founders weren’t just worried about standing armies because they felt like a powerful army would make civilian rule impossible (though certainly this was part of it). They also worried — and the irony of this kills me — that a standing army would be dangerous to a democracy because it would produce and necessitate Big Government. A permanent army requires a permanent transformation of the state: while a civilian militia could be mobilized in times of need, they believed* that the good thing about such a defense structure was precisely that it wouldn’t require the kind of permanent tax structure that a permanent standing army does. And the founders were not a little bit concerned about taxation, remember?

Which is why, for example, military appropriations were given a particular, special little feature in the constitution: unlike all other forms of appropriation, army funding was only to last two years. Which meant that every two years, when the nation direct-elected an entire new House of Representatives (and remember, the direct-elected two-year-term-serving ”the People’s House” was to be a populist counterbalance to the aristocratic, appointed-for-six-years Senate), the populist House would have to actively choose to re-appropriate for the Army.  If the burden had instead been placed on congress to repeal the army’s appropriation, a single element (say, an aristocratic senate) would be able to prevent such action from being taken. But the founders eventually settled on a design that was aimed to prevent exactly that scenario: by weighting the inertia of the system against a standing army — making it automatically expire every two years — the people were intended to have as direct a check on the military’s financial existence as possible, precisely because of the anti-democratic effect that a standing army was seen to have.

Indeed, our military posture does require big government, and the spending necessitated thereby has greatly inflated our levels of debt (and perpetual deficit spending).  However, few of the so-called small government advocates and deficit hawks, whether donning tri-corner hats in protest or not, turn to the biggest of all government programs when sharpening the trimming shears.  

As I've argued previously, it would be next to impossible to turn back the clock to the state militia structure that dominated prior to World War I, and it is not even clear that such a move - were it possible - would be prudent. Similarly, the level of classification and secrecy in a modern setting, with the increase in volume of government documents and advances in technolgoy, is going to be, rightly, farther reaching than the state of affairs that predominated centuries ago.  However, some semblance of balance must be restored, more structural obstacles erected and vigilance against overreach re-animated.    

* The author, rightly, concedes in comments that the term "pacifist" is qualified, and that its use in the present context elides the significant military activity of the United States in the Western Hemisphere prior to WWI including, without limitation, within our present day borders.

Comments

[bobbyp]

See also James Carroll's "House of War" for similar insights.

[Eric Martin]

Thanks. I just might (eventually).

[Sebastian]

"This is a very simplified version of a complicated story, of course, but taking an impressionistic Roosevelt-shaped snapshot of 1915 and comparing it to the present at least allows us to get a sense for how dramatically and unrecognizably different this nation has become, how far our daily political practice has moved from the presumptions and principles that inform its constitutional framework."

This is an interesting insight. The one I usually use to illustrate the point is that everyone understood that Congress didn't have the power to ban alcohol for the Prohibition without a Constitutional amendment. From our point of view that seems crazy. Congress couldn't ban booze?

[russell]

Congress couldn't ban booze?

There are some obvious parallels with things that are banned nowadays without a Constitutional amendment's sanction, but to be honest I don't think I've ever heard anyone claim Congressional power to ban booze.

Folks interested in other departures from the norms and daily political practice current at the time of Ye Olde Founders may also wish to read, or at least read about, Hamilton's reports to Congress and the "American System" based on them, that prevailed under the Whigs and Republicans from the late 18C through the 19th.

Strong central national bank, high tariffs to protect domestic industry, subsidies for industries we want to encourage, serious investment in infrastructure. Industrial policy on a national scale. State capitalism, as we say nowadays.

It's how we rolled for over 100 years. Like it or not, it made a bunch of rube farmers into a first-rank nation.

it would be next to impossible to turn back the clock to the state militia structure that dominated prior to World War I

I'm not convinced that it's next to impossible on the merits. Which is to say, I'm not convinced that we would be unable to defend the nation with a small, permanent, professional corps of officers and technical specialists, plus a permanent "militia" that was more or less the National Guard with universal participation.

Politically, probably a non-starter. On the merits, I think the nation would be safe.

[bobbyp]

"Congress couldn't ban booze?"

I have a slightly different take. With alcohol, the need for a Constitutional Amendment was probably driven more by its popularity and the politics of getting to prohibition (I mean if a 2/3 majority doesn't give you political cover, what does?). The states and the federal government had absolutely no problem regulating or effectively banning opium for instance (cf Harrison Act 1914).

This could be seen as part and parcel of the Arc of Complexity and the development of our modern industrial society...in order for it to work, it requires public regulation. It is simply too complex, nay unstable, to be left to its own devices, or perhaps it begs to be overseen as the symbiosis of the public and the private seeks completeness....like we had in the high Middle Ages.

One thing we do share with, say, Medieval times, is the narrowness of the fulcrums of power-once you have it, it's very hard to be dislodged.

The militarization of our country and our abject surrender to its needs fits this general theme.

God this is fun when you're half in the bag!

[liberal japonicus]

I'm wondering if you need to go the other direction, Russell. NJ and NY don't engage in shooting wars, (though I encourage everyone to find Ian Frazier's essay entitled Your face or Mine in Coyote v. Acme) so maybe moving past the nation-state to world government might be the ticket, though I can see problems.

Another interesting point would be this AP piece about the Marshall Islands

[Sebastian]

"There are some obvious parallels with things that are banned nowadays without a Constitutional amendment's sanction, but to be honest I don't think I've ever heard anyone claim Congressional power to ban booze."

I'm not sure what you mean. They clearly think they have the authority to ban pot, and it is functionally (in the sense of interstate commerce) the same thing.

[russell]

I'm not sure what you mean.

I mean that pot is the obvious parallel.

Not many folks even discuss whether Congress has the power to ban booze. They wouldn't dare try it. Not on Constitutional grounds, just because.

Pot's probably a better example, because we actually do ban it. And, we didn't always do so, and it wouldn't have always even occurred to us to do so.

Net/net, I was picking a nit, and now I'll stop doing so. Your point is a good one.

[russell]

modern industrial society...in order for it to work, it requires public regulation.

IMVHO, this is right on the money, because people are no longer basically self-sufficient in the way that they were prior to the emergence of the industrial economy.

Vanishingly few people draw their own water, grow their own food, make their own clothes, or build their own homes. Few people even know, personally, who it is that does those things for them. To a great degree, those things are no longer provided by anything recognizable as an actual person.

In general, we live at the end of complex supply chains, and absent a regulatory state we are at their mercy.

[RogueDem]

Russell's point about how few people grow their own food also has bearing on the prohibition question. Well into the 1800's most Americans made their own booze and considered it a god-given right, remember the Whiskey Rebellion. One reason all the pioneers grew apples was how easily those apples could be turned into applejack or hard cider.

I am sure it we had been smoking pot like we have been drinking for the last three thousand plus years, we would've assumed that a constitutional ammendment was needed for that as well. Ethanol has been a primary means of self-medication for Europeans for a very long time, from the book "Buzz" I recall a discussion of how the importation and availibility of tea and coffee may have been a crucial factor in the advancement of European culture as alcoholism had become endemic and the caffeine substitutes were more stimulative than depressant.

[Brett Bellmore]

"Not many folks even discuss whether Congress has the power to ban booze. They wouldn't dare try it. Not on Constitutional grounds, just because."

Haven't been following the FDA's http://www.nytimes.com/2009/11/14/health/policy/14fda.html?_r=1&adxnnl=1&adxnnlx=1292328142-RYDDJEjC9Q1cQ4uUydnQmA>latest antics, have you?

"I have a slightly different take. With alcohol, the need for a Constitutional Amendment was probably driven more by its popularity and the politics of getting to prohibition (I mean if a 2/3 majority doesn't give you political cover, what does?). The states and the federal government had absolutely no problem regulating or effectively banning opium for instance (cf Harrison Act 1914)."

You're kind of making his point for him. People back then really did understand that Congress couldn't ban alcohol. Just couldn't. Couldn't ban, pretty much anything. Not that it was politically infeasible, or needed cover. Today, the assumption of Congressional omnipotence has become so dominant you are having trouble putting yourself in their shoes, and accepting that they really didn't think Congress could do it.

I mean, look at the Harrison act, or the National Firearms act that was modeled after it: They're not bans. They're just really, really onerous taxes. There's a reason it was done that way: Because everybody understood that Congress couldn't ban things. But could tax them.

Look, for instance, at http://en.wikipedia.org/wiki/Linder_v._United_States>Linder v. United States. In that case about the Harrison act, the court said,

"Obviously, direct control of medical practice in the states is beyond the power of the federal government."

Or look at http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=300&invol=506>Sonzinsky v. United States: The federal government argued in court that the NFA was constitutional because it was a revenue act, rather than a ban. And pretty much conceded that an actual ban was beyond the power of Congress.

No, it really IS the case that, back then, everybody understood that Congress couldn't ban things. Now, only some people understand that... And they don't include Congressmen.

[McKinneyTexas]

Which is to say, I'm not convinced that we would be unable to defend the nation with a small, permanent, professional corps of officers and technical specialists, plus a permanent "militia" that was more or less the National Guard with universal participation.

Interesting thought. Still waiting for Eric's "Force Structure for the Next Fifty Years" piece. Would say more, but I'm in the middle of a fairly large trial and have barely been able to follow the various posts and comments. Really depressed not to have gotten in on Dr. S' piece on scientists and Republicans.

[Slartibartfast]

There's still time, McKinneyTx!

[ajay]

But one of the things people tend not to realize is that the founders weren’t just worried about standing armies because they felt like a powerful army would make civilian rule impossible (though certainly this was part of it). They also worried — and the irony of this kills me — that a standing army would be dangerous to a democracy because it would produce and necessitate Big Government. A permanent army requires a permanent transformation of the state: while a civilian militia could be mobilized in times of need, they believed* that the good thing about such a defense structure was precisely that it wouldn’t require the kind of permanent tax structure that a permanent standing army does.

I am very sceptical about this interpretation for one very good reason: there's no such prohibition on founding a permanent professional navy. In fact, the founders actually set one up. And a navy requires exactly the same sort of permanent tax structure that an army does.

I think the argument that an army, specifically, was feared as a danger to the republic is quite adequate to explain this.

[wj]

Perhaps the difference is that an army can go anywhere within the borders of the country, that is, it can be used as an instrument of the government to oppress the citizenry.

A navy, in contrast, is pretty much limited to moving around on the borders of the nation. It can move inward on certain rivers, but mostly it is a defense against external threats rather than something that can be used internally. Also, a navy requires much more capital investment than an army -- those ships, even in the late 1700s, could not be built overnight.

I'm not saying that that was necessarily their thinking. Just that it seems like a reasonable rationale for treating the army and navy differently. (In the modern context, an air force is more like a navy than an army: lots of capital investment needed, and no boots on the ground to concern the citizens.)

[Hogan]

(In the modern context, an air force is more like a navy than an army: lots of capital investment needed, and no boots on the ground to concern the citizens.)

Well, except that air forces have the land mobility of armies. You don't need boots on the ground to bomb and strafe your citizens.

__ Republic

__ Empire

Pick one.

[ajay]

wj: absolutely agree with that. But all those reasons reinforce the point that the opposition to a standing army had nothing to do with the expense of funding a standing army and everything to do with the risk of military oppression.

except that air forces have the land mobility of armies. You don't need boots on the ground to bomb and strafe your citizens.

As should now be tediously clear, you can't govern a country just by bombing and strafing its citizens.

[ajay]

Also, a navy requires much more capital investment than an army -- those ships, even in the late 1700s, could not be built overnight.

This is another good point. You couldn't really have a militia navy, not by 1790. Maybe you could have had one in 1590, but the divergence between civilian and military ship designs was too great by the eighteenth century - no upgunned merchant ship could have had a chance against a purpose-built man-o'-war.

[Ugh]

Brett: People back then really did understand that Congress couldn't ban alcohol. Just couldn't. Couldn't ban, pretty much anything. Not that it was politically infeasible, or needed cover.

Uh, maybe they were wrong?

[Eric Martin]

But, interestingly, our navy was really inadequate until Tom Jeff and the Barbary matters. Right?

[cleek]

a navy, at the time, was necessary to protect the merchant marine from the real threat of pirates.

an army could not help much with that.

[Phil]

As should now be tediously clear, you can't govern a country just by bombing and strafing its citizens.

You can, but your approval ratings tend to go right into the crapper.

[hairshirthedonist]

But with sufficient precision, you can bring them right back up again.

[Jacob Davies]

A navy also acted as a serious deterrent to invasion by European powers by threatening their ability to resupply and maintain communication with their New World armies.

[Ugh]

The American President gets plenty of high approval ratings for bombing and strafing citizens, just not, you know, American citizens (at least in general, you still might end up on Obama's list for targeted assassination, though don't count on it being carried out by bombing and/or strafing, though those are apparently the preferred methods for keeping American casualties low, except for, you know, those on the list).

[Der BlindSchtiller]

As should now be tediously clear, you can't govern a country just by bombing and strafing its citizens.

Can someone please drive down to DC, and let them all know? Plenty of people seem to think this is a grand strategy for Afghanistan.

[Hogan]

We're not there to govern Afghanistan. We're just there to keep someone else from governing it.

[russell]

This under siege posture has perverted several aspects of our society

When Adams was disturbed by criticism of his handling of the crisis with France at the end of the 18c, we passed the Alien and Sedition Acts. Within a couple of years, those were by and large discredited and rejected.

When Lincoln suspended habeas during an actual armed revolt, he was rebuked by the courts. He went ahead anyway, but the principal that habeas could not be suspended at the President's discretion was restored after his death.

We responded to a years-long wave of anarchist bombings, assassinations, and other acts of open terrorism with the Immigration Act of 1918 and the Palmer Raids. Then, within a couple of years, those were rejected by the courts and by law.

Even with the Cold War, there were the Church hearings and a strong popular resistance to Vietnam and proxy wars in South America.

Now we have a former President appearing on TV telling us all that damned right, he approved waterboarding. We openly run a network of extra-legal detention camps around the world. If the FBI wants to seize any damned piece of information about you, or any damned thing of yours whatsoever, it can do so by having an agent write a warrant for it, on his or her own authority, sometimes literally on a Post-It note.

It's been almost ten years since 9/11. We don't seem to shaking this one off.

[cleek]

We don't seem to shaking this one off.

it will take a generation or two. at least until the majority of the politicians elected were too young in 2001 to have been traumatized. and then add another generation for people to start thinking "maybe this constant paranoia is a bad idea. can we dial this stuff back a notch or two?"

restart the clock, if a new 9/11 happens.

[Sebastian]

"I am sure it we had been smoking pot like we have been drinking for the last three thousand plus years, we would've assumed that a constitutional ammendment was needed for that as well."

No, I think you really aren't understanding it. Less than 100 years ago it was commonly understood, by everyone in the political class, that Congress did not have the Constitutional authority to ban alcohol without an a special Constitutional amendment giving them that specific power, because the general powers didn't cover such things. As a result, because they wanted to ban alcohol, people pushed through all the hard work of passing a Constitutional amendment. This didn't have anything to do with some special status for alcohol. It was because Congress has not been given Constitutional power over intra-state commerce (at least not by the Constitution).

[Brett Bellmore]

"Uh, maybe they were wrong?"

I suppose it's possible that, for most of the nation's history, people simply didn't understand what the Constitution was about, and then some time in the early to mid twentieth century there was a collective "thud" of millions of people slapping their heads in realization that this "enumerated powers doctrine" stuff had no basis. That what they thought were words were just an "ink blot", after all.

I think it's somewhat more likely that, for most of the nation's history people DID understand that the Constitution didn't grant the federal government certain powers. And then in the early to mid 20th century the political class finally got fed up with not having those powers, and set out to make sure that the courts would stop enforcing those limits.

But, under either scenario, it really is the case that the Prohibition amendment was passed because people thought without it, Congress didn't have the authority to ban alcohol. Even members of Congress thought that. That really is why they did it, they didn't secretly hold modern notions of the reach of the federal government.

[DecidedFenceSitter]

It's been almost ten years since 9/11. We don't seem to shaking this one off.

I forget where I read in, probably some junk history/polisci book that it generally took something like two generations to integrate a conquered land - and that was two generations without major conflict. Long enough for those who remembered how it used to be to die out.

So honestly without there being a major change for MORE freedom, I expect that within another 30-40 years the current security state, perhaps with more effectiveness will be the normal.

[Duff Clarity]

Less than 100 years ago it was commonly understood, by everyone in the political class, that Congress did not have the Constitutional authority to ban alcohol without an a special Constitutional amendment giving them that specific power, because the general powers didn't cover such things. As a result, because they wanted to ban alcohol, people pushed through all the hard work of passing a Constitutional amendment.

You are making an assumption here that is incorrect, that politicians would only resort to an amendment if they could not pass Prohibition without one. They may very well have found an amendment, and the drawn out process of getting one enacted, useful in getting votes from millions of women given the franchise by state laws.

But even if your assumption was correct, you still haven't addressed the point being made in regards to pot (and other drugs).

Cocaine and opium were effectively outlawed by the Harrison Act, and this ban was upheld, before Prohibition. Afterwards, both pot and machine guns were effectively banned the same way.

For years, the courts held that the government could impose a tax and then either refuse to allow the tax to be paid except in very limited circumstances, or set the tax so high that the effect was an outright ban.

Was there something special about alcohol compared to cocaine, opium, pot or guns? That's what RogueDem's argument seems to be.

If there wasn't something special about alcohol, then Congress could have, without an amendment, legislated that the transfer of alcohol from one person to another required an alcohol tax stamp, and that these stamps would be made available at a cost of $1,000,000 apiece at the alcohol tax stamp office at the North Pole two times a decade, weather permitting.

Eventually the courts stopped ruling in favour of these tactics - the court became more restrictive about what the federal government could do in this area in addition to many others. The Prohibition-era public apparently didn't think the Espionage Act of 1917, the Sedition Act of 1918, or the Immigration Act of 1918 necessitated amendments, for example.

[bobbyp]

I think it's somewhat more likely that, for most of the nation's history people DID understand that the Constitution didn't grant the federal government certain powers. And then in the early to mid 20th century the political class finally got fed up with not having those powers, and set out to make sure that the courts would stop enforcing those limits.

Boy. Talk about grinding axes, or is it gears? You presume it ridiculous that the people wake up with a 'thud' of realization but then claim an entire 'class' has a similar inexplicable sudden awakening and resolutely sets out to overturn our heritatge and steal our precious bodily fluids. This is a terrible misreading of our history....but I guess... I forgot, somewhere during the 20's the professors at Harvard, a few Hollywood actors, and some members of the Democratic Party (like Al Smith perhaps?)suddenly all realized that they were "the political class" and should act accordingly.

What a touching bedtime story.

[Sebastian]

As pointed out above, the Harrison act was about taxation (it made a prohibitively high tax) and importation from outside of the borders of the United States.

"If there wasn't something special about alcohol, then Congress could have, without an amendment, legislated that the transfer of alcohol from one person to another required an alcohol tax stamp, and that these stamps would be made available at a cost of $1,000,000 apiece at the alcohol tax stamp office at the North Pole two times a decade, weather permitting."

Only INTERSTATE.

And why did they do all these things? Because Congress doesn't have a general power to regulate just any old thing. (Or didn't until recently).

[Duff Clarity]

Only INTERSTATE

The Harrison Act did not only apply to interstate transactions.

The Marijuana Tax Act did not only apply to interstate transactions.

Alcohol could have been regulated in the same way since UNITED STATES V. DOREMUS in 1919 had upheld this type of legislation, stating of the Harrison Act that, "The act may not be declared unconstitutional, because its effect may be to accomplish another purpose as well as the raising of revenue."

There had been earlier challenges to the Harrison Act, so it is certainly possible that Prohibition supporters wanted an amendment rather than a similar law, but by the time Prohibition was enacted there was precedent that would have allowed alcohol to be effectively banned at the federal level without one.

Congress has the power to tax, and in the first part of the 1900s, this was seen as the power to regulate just any old thing. The federal government's powers in this area were more restricted in the second half of the 1900s than the first. The federal government's powers in curtailing civil liberties were also more restricted in the second half of the 1900s than the first.

[bobbyp]

You're (that'd be me, bobbyp)kind of making his (Sebastian's) point for him. People back then really did understand that Congress couldn't ban..(redacted)...pretty much anything.

Well, I always thought the Missouri Compromise had some kind of problem....I just couldn't put my finger on it. Thanks, Brett.

[Sebastian]

"The federal government's powers in this area were more restricted in the second half of the 1900s than the first."

How so? Do you think the tax power has been restricted?

[ajay]

A navy also acted as a serious deterrent to invasion by European powers by threatening their ability to resupply and maintain communication with their New World armies.

This doesn't really pass the giggle test, I'm afraid. At no point before about 1890 would the US navy have offered any sort of serious deterrent to the major European powers. (And on the one occasion when a European power did try to invade, it succeeded without noticeable hampering from the US Navy.)

We're not there to govern Afghanistan. We're just there to keep someone else from governing it.

And we're succeeding. For the last ten years, we've kept everyone else from governing it.

[Hartmut]

Afghanistans is essentially anomic and, given the blood loss, one would expect it to be rather anemic as well. Some of the more radical libertarians would, I think, like the US to be more anomic as well.

[ajay]

Believing in the possibility of a stable and representative government in Afghanistan is like believing there are fairies at the bottom of your garden. But your garden is agnomic.

[Brett Bellmore]

I agree that, theoretically, Congress could have pulled the same stunt with alcohol they did with narcotics, and later some guns, implementing a ban through an outrageously high tax. The element of truth in your position is that alcohol was sufficiently popular that THAT might have blown the whole scam, and resulted in the courts finally abandoning their determination to not notice that an outrageously high tax was implemented in order to ban something. (Something they first tried not long before Prohibition, and were quite uncertain about getting away with.) The amendment was adopted because Congress didn't want to risk that.

But they didn't want to risk that, because they were perfectly aware that they were pulling something that wasn't really on the up and up. That's an awareness you don't much find in Congress today, where they just assume that they can do pretty much anything that pops into their heads, and are utterly shocked on the (increasingly) rare occasions where the courts tell them otherwise.

You really can't understand the history of the country if you assume that people always held modern conceptions of the role and power of the government. They simply didn't.

[russell]

You really can't understand the history of the country if you assume that people always held modern conceptions of the role and power of the government. They simply didn't.

I agree with this.

But I would add that you can't understand the history of the country if you think that the modern conceptions of the role and power of government were something that FDR pulled out of his butt in 1932.

They emerged in response to specific and concrete economic and social events. They were solutions to real, critical problems.

If we want to roll them back, we will still need to address the reasons they came about.

The modern bureaucratic state is a PITA, and I have more than a few issues with it myself. But it didn't emerge in a vacuum.

[Sebastian]

"They emerged in response to specific and concrete economic and social events. They were solutions to real, critical problems."

They were *proposed* solutions in response to specific and concrete economic and social events. The ones that FDR decided on are pretty much just the ones he decided on. Not necessarily the optimal ones. Not necessarily the good ones. Just the ones we got. Some of his centerpiece ideas (farm subsidies including destroying crops while people were starving for example) were horrific ideas then, have turned out badly since then, and are still around.

"They emerged in response to specific and concrete economic and social events. They were solutions to real, critical problems.

If we want to roll them back, we will still need to address the reasons they came about."

This doesn't excuse rolling them forward. This doesn't mean that because we needed say union rules to keep management/union violence down that we *have to* interpret the Constitution as allowing all Congress all regulatory power over everything.

[russell]

This doesn't excuse rolling them forward.

I don't care if we roll them forward or not. I have my preferences, mostly based on what seems to me to be common sense, but to be quite honest I'm not that invested in one political stance or another.

Whatever works. And by "works", I mean whatever best serves the interests of the people who live in this country. All of them.

My point is that saying folks in 1800, or 1850, or even 1900, had a different understanding of what the scope of federal responsibility should be is like saying folks in 1800, or 1850, or 1900 didn't watch television. Or didn't get their water from a tap that was connected to a water source 100 or 1,000 miles away, or didn't drive their nonexistent automobiles on highways built under federal sponsorship, or didn't light their homes with their nonexistent electric lights powered from an electrical grid built under the regulation and sponsorship of government.

They did, in fact, enjoy the use of other things provided to them by federal action. More so than folks seem to like to acknowledge.

But they also lived in an economy and a society in which folks were self-sufficient, or at most dependent only on local resources, in ways that, today, they are not.

So, what Brett says is true, but I'm not sure it's to the point.

That's my point.

[Tony P.]

Some of his centerpiece ideas (farm subsidies including destroying crops while people were starving for example) were horrific ideas then, have turned out badly since then, and are still around.

Many of the people who were "starving" in the Depression were FARMERS. A big reason they were starving was that The Free Market was paying them too little for their crops.

The other people who were starving were unemployed city folk who could not afford to buy the farmers' crops, even at a low price. They were starving NOT because of crop shortages, but because The Free Market paid them no MONEY.

I am always delighted to learn something new. So if it's true that Americans were going hungry in the Depression because of food shortages owing to Roosevelt "destroying crops", I would feel like an astronomer who just discovered a new planet. But I am prepared for disappointment on that score.

--TP

[Jacob Davies]

They were also a hell of a lot poorer than us. And the century in which we became vastly richer than them, in which poverty was greatly reduced, in which a true mass middle class came to exist, was also the century in which all of these things took place.

Correlation isn't causation but in many cases the most obvious causation runs right through those big government programs. The FDA, the NIH, the CDC, Social Security, Medicare, Medicaid, welfare programs of other types. You have to do some serious special pleading to find any other answer than Social Security for why poverty among the elderly is so low now.

[Jacob Davies]

Er, "these things" referring to the big government programs that are being complained about.

Editor plz.

[RobW]

One more point on the early Navy: in the event of foreign invasion, an army plus state militias could be raised relatively quickly. Ships, as noted, take time to build and if you haven't any to deter an invasion in the first place, you'll have no time to build them after an invasion.

Also, to reiterate and expand on cleek's point, the early US, like the colonies were, was thoroughly dependent on foreign trade. No nation could compete in global commerce without a navy to defend its merchants' ships, shipping routes, trading rights, etc. as incidents like the Barbary coast conflict demonstrated.

The taxes to build and maintain the fleet, iirc, were tarriffs on international commerce. Hence, to most folks invisible. Also directly paid for by the merchants who directly benefit from having a Navy.

And speaking of invisible, the Navy's expense was possibly more tolerable to most citizens because the ships simply weren't around much. Patrolling shipping lanes and escorting merchant fleets means they're gone most of the time and when in port they're mostly in major coastal cities.

The Navy also serves a diplomatic function literally showing the flag and reminding the rest of the world that, hey, we've got a Navy so don't mess with our shipping. Then there's plain old-fashioned gunboat diplomacy (trade with our merchants or we'll blow your port to pieces).

An army, on the other hand and as previously noted, is right there in plain sight at all times on US soil, potentially oppressive just by its presence and, unlike the Navy, serving no real purpose to the nation during peace time*.

The upshot: the Founders considered a Navy a vital component of a free-trading nation, necessary to its defense and economic growth, well worth the cost whether at war or not. They did not so consider a standing army.

*Peace defined as no declared war on our land. The Navy has its own ground troops of course, the Marine Corps. Accepted as not-a-standing-army since they were, you know, the Navy, intended for deployment overseas, and necessarily kept few in number anyway as there just wasn't that many ships. (The Few, The Proud...)

[Sebastian]

"My point is that saying folks in 1800, or 1850, or even 1900, had a different understanding of what the scope of federal responsibility should be is like saying folks in 1800, or 1850, or 1900 didn't watch television."

And my point is that if you want to change the Constitution, you should change it. The response in the 1900s was to actually *have* a Constitutional amendment when you saw that times had changed and the government needed a particular power.

I'm not arguing that things should never change. I'm just wondering why no one ever bothers changing the Constitution through the Constitutionally authorized changing process anymore.

[Ugh]

And my point is that if you want to change the Constitution, you should change it. The response in the 1900s was to actually *have* a Constitutional amendment when you saw that times had changed and the government needed a particular power.
I'm just wondering why no one ever bothers changing the Constitution through the Constitutionally authorized changing process anymore.

I'm not sure why we can't view this as, instead of "times have changed and the federal gov't needs a particular power so we should amend the Constitution", "times have changed so we should drop our cultural and other blinders to see what has been there all along."

I mean, let's assume the 19th Amendment had fallen one state short of the necessary votes and never been ratified and, say, Alabama still barred women from voting to this day. Would you say that a Supreme Court decision that struck down the Alabama law as an equal protection violation is illegitimate because people in the 1900s attempted to ratify the 19th Amendment and thus, apparently, such an amendment was needed to ensure that women could vote?

Or should we instead view such a SCOTUS opinion as a natural result of the equal protection clause only later revealed once society (or a significant portion thereof) dropped its "well, of course women shouldn't be allowed to vote" attitude (or maybe take Brown v. Board as an actual example)?

Same with the commerce clause, as the mobility of labor, capital, and goods increases and becomes increasingly "among the several States" (not to mention internationally), wouldn't the natural consequence be to increase Congress's power to reach places it had not before? Or to at least cause a re-evaluation of the limits placed upon the power in prior decisions?

[russell]

I'm not sure why we can't view this as, instead of "times have changed and the federal gov't needs a particular power so we should amend the Constitution", "times have changed so we should drop our cultural and other blinders to see what has been there all along."

There's the rub.

Not everyone agrees about what the text of the Constitution means. Not everyone agrees about what its authors intended. Not everyone agrees about the degree to which what the authors intended is relevant.

Not everyone agrees. And there isn't anyone who can stand, transcendently above it all, and referee the discussion. So, we arm-wrestle for it.

In the 1900's it apparently seemed like a Constitutional amendment was the right way to go about banning the sale of alcohol. But nobody had any such quibble with regulating the sale of opium or heroin. That did not require a Constitutional Amendment. Neither, some not-too-many years later, did it require an amendment to ban marijuana at the federal level.

The differences between those items is social, and cultural, and a matter of perception. Not much difference Constitutionally.

Did they just "get it right" with alcohol, and "get it wrong" with marijuana?

Congress is granted fairly broad powers in Article I Section 8, and many of them are stated fairly generally. It would be damned hard to find any commercial activity nowadays that doesn't occur "between states". For one simple example.

Life is different. So the scope and role of government has changed. If you want to roll back the scope and role of the current federal government, you need to address how the things that the federal government does now are going to get done.

And there are damned few cases where "they simply won't get done" is a good answer.

[Sebastian]

"It would be damned hard to find any commercial activity nowadays that doesn't occur "between states". For one simple example."

Growing something for your own personal use isn't commercial activity between states. Full stop. Failing to buy something is not commercial activity between states. Full stop. For two simple examples that aren't well accepted by liberals. Yet both are things that Congress does or is trying to do.

"Life is different. So the scope and role of government has changed. If you want to roll back the scope and role of the current federal government, you need to address how the things that the federal government does now are going to get done."

Pot would be legal in some states and the drug war wouldn't be as nasty.

That doesn't strike me as particularly awful.

States would have their own OSHA boards. Most do already.

That doesn't strike me as particularly awful.

"And there are damned few cases where "they simply won't get done" is a good answer."

There are very few cases where that is the only other option, right?

(BTW, we could do Constitutional amendments for the really really important ones, right?)

[Brett Bellmore]

"I mean, let's assume the 19th Amendment had fallen one state short of the necessary votes and never been ratified and, say, Alabama still barred women from voting to this day. Would you say that a Supreme Court decision that struck down the Alabama law as an equal protection violation is illegitimate because people in the 1900s attempted to ratify the 19th Amendment and thus, apparently, such an amendment was needed to ensure that women could vote? "

Yes, I would say that is EXACTLY how the courts should respond to the failure of an amendment to be ratified. They should take it as absolutely, categorically precluding them from ever interpreting the unamended Constitution to mean what the failed amendment was intended to make it mean. To take the opposite position essentially makes the power of states to refuse to ratify amendments futile. I'd go further: Taking the opposite position is intended to deprive the states of the power to block constitutional changes.

Equally, the courts should feel absolutely precluded from interpreting a ratified amendment so as to render it moot. Both ratifying, and refusing to ratify, an amendment must have consequences.

"I'm not arguing that things should never change. I'm just wondering why no one ever bothers changing the Constitution through the Constitutionally authorized changing process anymore."

There's nothing much to wonder about here: Amendments are originated by Congress, and once Congress realized that they could get all the 'changes' they wanted by just packing the judiciary with deferential judges, they didn't need the amendment process anymore. Why bother with an amendment the states might refuse to ratify, when the courts would give them any new power they felt like exercising?

[Phil]

They should take it as absolutely, categorically precluding them from ever interpreting the unamended Constitution to mean what the failed amendment was intended to make it mean.

In the particular hypothetical that Ugh offered, this is patent nonsense. The unamended Constitution could in no way be read by an intelligent human being as to prohibit women from voting, nor could it be read in such a way as to imply that equal protection doesn't apply to all citizens rather than all men.

The amendment say that the franchise cannot be denied to women. It doesn't give them permission to vote. For pete's sake.

The Constitution as currently amended states that the franchise cannot be denied to any citizen 18 or older. It doesn't therefore imply that it cannot be granted to any citizen between 16 and 18.

[russell]

That doesn't strike me as particularly awful.

As it turns out, I, personally, am basically in agreement with you on every particular you name in your last post here. My only point of disagreement would be that I can see an argument for OSHA at a federal level. That said, I also think many things OSHA regulates can reasonably vary by state and region.

I'm a lefty, which oddly enough is sort of orthogonal to statist. All "lefty" means, to me, is that public intervention in the economy is a perfectly fine thing. That has to do with the domain of things that the public sector can touch, not the degree to which it ought to do so. And it's probably only here in the good old USA that something that simple would put me on the left. Most places I'd probably be, at most, ever so slightly left of center.

To bring it all back home to the original post, I think both you and I can find common ground in finding the level of secrecy and privilege asserted by the executive to be excessive and wrong.

[Tony P.]

Yes, I would say that is EXACTLY how the courts should respond to the failure of an amendment to be ratified. They should take it as absolutely, categorically precluding them from ever interpreting the unamended Constitution to mean what the failed amendment was intended to make it mean.

Ever?? Ever is an awfully long time.

But even granting that ancestor worship (for that's what Brett's position amounts to) is not preposterous, I am curious: how far along does a proposed amendement have to get in order to be failed enough for the courts to consider its failure binding?

Incidentally, would Brett apply the same perpetuity rule to the Supreme Court's own precedents?

--TP

[Brett Bellmore]

What's your problem, TP? Never read Article V? An amendment fails, if it fails to be ratified. Period.

And, no, I don't think Supreme court precedents should be perpetually binding, except to lower courts. It's never too late to correct a mistake. But the courts are not entitled to treat the states' decision not to ratify an amendment as a "mistake".

[Brett Bellmore]

"The Constitution as currently amended states that the franchise cannot be denied to any citizen 18 or older. It doesn't therefore imply that it cannot be granted to any citizen between 16 and 18."

That's quite correct. It doesn't imply that, and states are free, under the Constitution, to lower their age of majority below 18. Which is rather different from saying that the Supreme court is free to mandate the states doing that, which is what I would deny.

Even in the hypothetical, where the 19th amendment hadn't been ratified, my rule wouldn't preclude states from voluntarily choosing to extend the franchise to women, and I'd certainly hope they'd have done so. It's just the Court that couldn't implement the amendment the states had refused to ratify, by interpreting the Constitution to mean what the states had refused to amend it to mean.

[Phil]

You're an insane person.

The obvious implication here is that, given that the ERA was never ratified, and despite all the other "equal protection" language in the Constitution which clearly and obviously applies to all citizens, states are free to treat the genders differently, and to deny rights under the law, on the basis of gender and nothing else. That they are free to have one set of laws for men and another for women.

Is that your position?

To believe that, using just the existing equal protection language in the pre-19th-amendment Constitution, the Court could not rule -- and should be explicitly precluded from ruling -- that women (or men, or handicapped people, or blondes, or people who don't speak English) cannot be denied the franchise is so ludicrously out of touch with reality, the mind boggles.

[Slartibartfast]

I agree with Phil's point, if not with the way he put it.

Listen, Brett: there were mistakes made in early American government that required (IMO) completely redundant amendments to the Constitution to rectify. You know, little things like ownership of other people and all, along with complete removal of all of the enslaved's collective civil rights. If it's your position that an amendment to the Constitution ought to have been necessary to make it explicitly clear that people weren't allowed to own each other, I think you should reconsider. And then reconsider again. Do that for a few years, and get back to us.

Ditto, as regards the deprivation of civil rights by gender, and possibly other things that I am too flabbergasted to consider at present.

However, I think comparison of THIS kind of thing with commerce clause application to healthcare is not a good one. Is it really the right thing to do to grant blanket, all-encompassing rights to the Government as we try to do with the people? Do you want to grant the people the same amount of power in opposition to, for instance, outlandish stretching of the eminent domain clause as executed in the Kelo decision?

Corporations are not people. The government is not a person. The rights and powers of the government are constrained by the Constitution, not guaranteed by it. The government, IMO, does not get the same slack as people do, or ought to.

It would be damned hard to find any commercial activity nowadays that doesn't occur "between states".

Oh, sure, if you're willing to reach, you can discover that the medical supplies that your tiny, in-state-only healthcare institution are made out of state, so you can mutilate the commerce clause to include them that way. Or that, well, they're subscribing to a patient database that's in another state. Or that they're seeing Medicare patients, and so of course they're getting reimbursed by the government, which is interstate commerce.

I think the problem, here, is that it's the commerce itself that should be regulated, and not the companies that might occasionally engage in it. A corporation or person should not get mousetrapped by the commerce clause just because it buys its internet from Bright House, as an example.

[Ugh]

Slarti: Oh, sure, if you're willing to reach, you can discover that the medical supplies that your tiny, in-state-only healthcare institution are made out of state, so you can mutilate the commerce clause to include them that way. Or that, well, they're subscribing to a patient database that's in another state. Or that they're seeing Medicare patients, and so of course they're getting reimbursed by the government, which is interstate commerce.

I think the problem, here, is that it's the commerce itself that should be regulated, and not the companies that might occasionally engage in it. A corporation or person should not get mousetrapped by the commerce clause just because it buys its internet from Bright House, as an example.

But see Katzenbach v. McClung:

Ollie's Barbecue was a small, family-owned restaurant that operated in Birmingham, Alabama, and that seated 220 customers. It was located on a state highway and was 11 blocks from an interstate highway. In a typical year, approximately half of the food it purchased from a local supplier originated out-of-state. It catered to local families and white collar workers and provided take-out service to African American customers.
...
Because some food served in Ollie's Barbecue originated out of state, the U.S. Supreme Court held that Congress had the power, under the Commerce Clause, to ban racial segregation in the restaurant.

Maybe that falls under your regulate the commerce not the companies distinction Slarti, but it's hard to disentangle the Commerce Clause from basic civil rights legislation, it seems to me.

[cleek]

Because some food served in Ollie's Barbecue originated out of state, the U.S. Supreme Court held that Congress had the power, under the Commerce Clause, to ban racial segregation in the restaurant.

which makes me think that wondering if we're interpreting the commerce clause too broadly is pointless. if a court was to say Yes, then much of what makes this country what it is today will be subject to dismantling.

we are where we are. wishing we had taken a different path 90 years ago is a waste of time.

[Eric Martin]

Phil: Posting rules.

[Slartibartfast]

Maybe that falls under your regulate the commerce not the companies distinction Slarti, but it's hard to disentangle the Commerce Clause from basic civil rights legislation, it seems to me.

I see that particular example as more like using a wrench as a hammer: wrong tool.

[Slartibartfast]

Expanding, the problem with using a wrench as a hammer when you really, really need to is that if you're the US legal system, the wrench get classified as "hammer" because you once chose to use it that way.

So now a quarter is a screwdriver, a screwdriver is a chisel, drift, or punch, and nail clippers become wire cutters/strippers.

In the worst case, a countershaft alignment tool becomes a countershaft, because you used it that way once. Unfortunately, it's somewhat different from the countershaft in terms of material (aluminum vs. steel alloy), tolerance and retaining methodology (i.e. none at all), which makes it a virtual certainty that it will fail while in use.

Have I overmade my point, yet?

[Ugh]

Which constitutional tool would you suggest they use?

[russell]

Oh, sure, if you're willing to reach, you can discover that the medical supplies that your tiny, in-state-only healthcare institution are made out of state, so you can mutilate the commerce clause to include them that way.

It's not much of a reach. And I personally am delighted that medical supplies made far from where I live, by people I do not know and who have no particular direct relationship or responsibility to me, are compelled to comply with basic standards for purity, efficacy, etc.

So, whatever.

When my old man was a kid, his family raised, grew, or shot most of what they ate. They traded eggs and surplus produce for stuff they couldn't raise, like coffee, salt, and sugar. They even ground their own corn meal, I've seen the stone mill, my uncle kept it and ran it off of a water wheel he built and ran with a garden hose.

My grandfather did odd mechanical jobs for whatever cash they needed. None of them were anything like full time, or of significant duration.

I've also been to the mill, now a museum, where my wife's people used to take their corn and wheat to be ground, on a straight barter basis, from their farms about 10 miles away.

Quaint, no?

All of this went on less than 100 years ago, and at the time it was dead normal. Lots and lots of folks lived that way.

People don't live that way now, by and large. As industrialization took place, more and more people became dependent on wage income, more and more people bought stuff instead of making it for themselves, more and more people lived in cities and had no access to the resources to grow, raise, or hunt their own food, get their own water, etc.

Government regulation over food, drugs, manufactured goods, housing, workplace conditions and safety, etc etc etc etc etc emerged in response to a *specific history of abuses* that were not readily solved at a local level.

That's why they are there.

A cabal of liberals did not invent them out of whole cloth in an effort to weaken the nation. They exist because the government, whether federal state or local, was compelled, kicking and screaming in many cases, to develop them in response to *things that actually happened*.

Maybe Seb's correct and there were wonderful alternatives available all along the way that we simply failed to choose. Whatever. We chose the ones that we chose at the time.

The modern state is larger in scope than it was 100 or 200 years ago *because life now is different*.

[Ugh]

russell - my guess is that Slart was objecting to regulating, via the commerce clause, the in-state only healthcare institution that purchased the medical supplies shipped across state lines solely because the purchased the supplies, and not to the regulation of the supplies themselves.

[Slartibartfast]

Whichever one is made for the task, Ugh. If there's not one made for the task, make one.

As of right now, the commerce clause seems to be propping up a great deal that isn't actually commerce. I can appreciate that you don't have a problem with this, but you being ok with it isn't really persuasive.

As I said: the occasional use of the wrench as a hammer I don't have a problem with. The problem is when the wrench goes in the hammer drawer, and gets used as one on a regular basis.

[Slartibartfast]

It's not much of a reach. And I personally am delighted that medical supplies made far from where I live, by people I do not know and who have no particular direct relationship or responsibility to me, are compelled to comply with basic standards for purity, efficacy, etc.

That's completely beside the point. The point is that, in this particular example, the out-of-state origin of the supplies could be used as a pretext for regulating the whole endeavor, not just the parts relating to the acquisition & sale of the supplies. Or: what Ugh said.

[Phil]

Eh, sorry, Eric. But I really do think that a statement to the effect of, "Absent a Constitutional amendment, states are perfectly free to deny women the franchise, and the Supreme Court should be precluded from ruling otherwise," goes beyond "opinions differ" to "U MAD, DOGG."

[Ugh]

Whichever one is made for the task, Ugh. If there's not one made for the task, make one.

Well, as russell notes up thread, there's the rub. I'm not sure there was/is a constitutional tool made for Congress to remedy the particular private discrimination at issue in Katzenbach v. McClung (or even Heart of Atlanta Motel v. United States).

I mean, I suppose you could look to a few other Clauses of Article I, Section 8 for support. Perhaps the taxing power, the power to provide for the "general welfare of the United States," or maybe the power to "define and punish ... Offenses against the Law of Nations." But would those be any less "stretched" by interpreting them to allow Congress to ban private discrimination? And I don't think the 14th A. gets you there as that deals specifically with state action, not private individuals.

Assuming there is no current tool, we're left with making one, which seems to have come in the form of a broad interpretation of the commerce clause.

[russell]

That's completely beside the point.

Fine.

Your reference to "this particular case" is apt. Because all of this stuff has to be discussed in the context of particular cases.

You think it's wrong that the feds regulate your local clinic using the fact that they purchase medical supplies from out of state as the pretext.

That's a reasonable argument.

Personally, I'd be fine with the feds regulating your local clinic simply because it is dispensing medical services to the public. Which, no doubt, puts my position beyond the pale from a "strict Constitutionalist" point of view.

Call me crazy, but that just doesn't bother me.

The reason the feds got into the business of doing stuff like this is because (a) it manifestly needed doing, and (b) the other possible actors weren't doing an adequate job of it.

My challenge to all of the folks who want to take us back to a strict reading of Article I, Section 8 is to demonstrate who is going to do the things the feds do now, and how are they going to do it.

Maybe your state will do a fine and dandy job of regulating local clinics. Maybe nobody will do it, and the local clinics will simply do a wonderful job of regulating themselves.

There's a reasonable historical record to indicate that there will be lots of cases where neither of those things are true.

You want to trim the sails of the feds, you need to explain how what they do now gets done. Or, at least, that's what I want to know.

[Sebastian]

"It's not much of a reach. And I personally am delighted that medical supplies made far from where I live, by people I do not know and who have no particular direct relationship or responsibility to me, are compelled to comply with basic standards for purity, efficacy, etc."

That seems to me an enormous reach. The idea that the commerce clause might authorize Congress to regulate every possible function of a company (or now person) that buys interstate traded paper cups is at least as crazy as what Phil is objecting to. If Congress wants to regulate the paper cups themselves, great. But the mere act of purchasing the paper cups shouldn't mean that you can now be caught up in every possible regulatory scheme that Congress could possibly be interested in. That isn't regulating the interstate commerce. If Congress wants to regulate the cups and medical devices and other things that are made far away, by people you don't know, and are traded into your state, fantastic. But the act of merely purchasing those products shouldn't subject you to every possible regulatory scheme Congress can think up.

[Slartibartfast]

I'd be fine with the feds regulating your local clinic simply because it is dispensing medical services to the public.

That, there, would be a reasonable excuse to regulate a clinic. Because it bought its supplies from a supply house that bought its supplies from another state...not so much. I know I just changed the game just a tiny bit, but it's only a tiny bit. And then a tiny bit more. And then a tiny bit more. Lather. Rinse. Repeat.

Look, you want a federal government that works well, clearly, and straightforwardly? Have its legitimate functions defined in a way that would not have made Rube Goldberg nod in approval.

[cleek]

Look, you want a federal government that works well, clearly, and straightforwardly? Have its legitimate functions defined in a way that would not have made Rube Goldberg nod in approval.

too late.

we have what we have.

[Slartibartfast]

we have what we have

Sure, until we turn it into something else.

Next year, the Clean Air Act will tell me I can't fart in bed.

[Ugh]

russell: I'd be fine with the feds regulating your local clinic simply because it is dispensing medical services to the public.

SlartiThat, there, would be a reasonable excuse to regulate a clinic.

Right, but that only gets you to the "commerce" part of Congress's power to
"regulate Commerce ... among the several States."

This: Because it bought its supplies from a supply house that bought its supplies from another state...not so much.

Is thought to be necessary to get over the "among the several States" hurdle. You also get a boost from the "necessary and proper" clause to help get there.

But, in the end, cleek's right, we have what we have, both in the written constitution and how it has been interpreted/ruled upon by SCOTUS, which has given an expansive reading to the Congress's power to act via the commerce clause.

[Ugh]

Next year, the Clean Air Act will tell me I can't fart in bed.

Or maybe mandate that you do so.

[Slartibartfast]

Or maybe mandate that you do so.

Every response to this that I can think of winds up being TMI.

[russell]

The idea that the commerce clause might authorize Congress to regulate every possible function of a company (or now person) that buys interstate traded paper cups is at least as crazy as what Phil is objecting to.

With the parenthetical "or now person", I believe we are now discussing the requirement in the HCR legislation that folks either buy health insurance or take a tax hit.

You're quite right, it's crap.

How did we get there? We wanted folks to not be dropped from insurance coverage when they actually got sick, and we wanted them to be be able to get coverage even if they had had an illness.

Since the "public option" was, for political reasons, absolutely off the table, that meant getting private insurance companies to give up recission and denial of coverage for prior illness.

They felt they could not make enough money without those "product features" unless they had some guarantee that everybody would be in the pool. And, apparently, they had a sufficiently large presence at the table that their point of view had some weight.

So, we have a mandate.

Because the mandate is constitutionally controversial, we are going to dress the mandate up like a tax.

Yes, it's a parade of BS. There are 300+ million people in this country, which means there are 500 million opinions about everything, which means a certain amount of BS is involved in getting any useful thing done.

In other words, what cleek said.

And if you want to complain about BS, you need to include the folks in the insurance, pharma, managed care, hospital, specialized medicine, and any number of other industries, all of whose special privileges have had to be gently and carefully massaged to get anything done.

Yes, it's all a great big mountain of crap. It's a wonder anything useful gets done at all. So, my position on stuff like this has become "whatever works".

YMMV.

What I don't see is how rewinding the last 100 years of public institutions and precedent is going to deliver us anyplace better.

[Countme--In]

"Next year, the Clean Air Act will tell me I can't fart in bed."

Yes, well, desperate wives will opt for a Federal response when local and State-level control have failed due to regulatory capture by the flatulent among us.

Certainly, individual control and private regulation have not lived up to the Founding Farters' originalist intentions and expectations.

I fear FEMA or even federal troops may have to be called in, but I haven't gotten wind yet of enough particulars of the case to make an informed judgement.

Some manner of evacuation of the surrounding environs and/or quarantine may be called for.

Should the case make it all the way to the Supreme Court, I suspect you will win 6-3, though I would expect, if he has any common decency left, that Judge Thomas will recuse himself.

However, he's never been one to turn the other cheek.

You could try a George Carlin-style nocturnal controlled release program, like so many of our corporate polluters, but even with stage-cough accompaniment, I doubt the people most affected will be able to handle it.

[Sebastian]

"Yes, it's all a great big mountain of crap. It's a wonder anything useful gets done at all. So, my position on stuff like this has become "whatever works".

YMMV.

What I don't see is how rewinding the last 100 years of public institutions and precedent is going to deliver us anyplace better."

Well first, it hasn't been established to work yet. So you're talking about an enormous expansion of government power going forward, not just ratifying things that you believe went well in the past.

Second, it didn't have to go this direction, and it isn't all the Republicans fault that it did. Democrats wanted to mix two different concerns together: getting uninsured people covered, and regulating large portions of the *already insured* market. They could have approached those as the two separate issues that they really are. Covering uncovered people didn't have to involve the overhaul of the whole system that Democrats seem to want. It could have involved offering Medicare to anyone without insurance at the actuarial premium. That wouldn't have involved a commerce clause problem *at all*. But they wanted a much more comprehensive tinkering with everyone's medical care (and that only as the beginning of more). That aim required the kind of crap that they actually did, which is probably unconstitutional under legitimate readings of the words, though how that will play out in the political branch known as the Supreme Court is anyone's guess.

So your "whatever works" dismissal seems like it ignores all sorts of political choices that could have been made. If the problems you see as so important that you are willing to consider allowing Constitutional interpretation on the issue to be what you admit is a big mountain of crap, doesn't the fact that there are apparent ways to deal with the issue that are do not force Constitutional interpretation to be a big mountain of crap strongly suggest that we should take those approaches instead?

If not, why bother having a Constitution? Why not just let Congress do what it wants?

[Ugh]

If the problems you see as so important that you are willing to consider allowing Constitutional interpretation on the issue to be what you admit is a big mountain of crap, doesn't the fact that there are apparent ways to deal with the issue that are do not force Constitutional interpretation to be a big mountain of crap strongly suggest that we should take those approaches instead?

I think the thought is that those approaches would not have "worked", and thus we have to turn to the mountain of crap.

And really, a big flaw in the Constitution is that it's way too hard to amend. There have been 27 amendments in its ~225 year history (let's assume away any procedural problems with the latest amendment). The first 10 might as well have been part of the original constitution as it would not have been ratified without them. Then you have the self-nullifying prohibition amendments. That gets you down to 15.

Of those 15, three (#13-15) were the direct result of the civil war, and several others deal with procedural or minor issues (12, 20, 25, 27). So, in my mind, you have 8 substantive amendments to the Constitution that didn't require a war between the states involving the deaths of hundreds of thousands of people. That's one every 28 years, and only one in the last 40.

So the system seeks other methods to accomplish things, and we end up with what we have today.

[Brett Bellmore]

I strongly disagree that the Constitution is too hard to amend. What's really going on, that we've only had one amendment in the last 40 years, (And that one only because it originated prior to those 40 years.) is that circumventing the Constitution has become so easy for Congress, that it doesn't NEED amendments anymore.

You don't need to amend a constitution the courts aren't enforcing anymore. There's no point to it. "Living constitution" style interpretation is an alternative to amendment, and it's an easier alternative.

"Eh, sorry, Eric. But I really do think that a statement to the effect of, "Absent a Constitutional amendment, states are perfectly free to deny women the franchise, and the Supreme Court should be precluded from ruling otherwise," goes beyond "opinions differ" to "U MAD, DOGG.""

You realize you've just declared the vast majority of the population for most of the nation's history, insane? Why do you suppose a super-majority of both houses of Congress voted for the 19th amendment? Why do you suppose 3/4 of the state legislatures voted to ratify it?

Because they understood themselves to be doing something completely pointless?

[liberal japonicus]

Brett, do you have examples of other countries that have amended documents similar to our Constitution on a regular basis? If a document similar to the Constitution were easy to amend, there should be lots of examples of just such behavior.

[russell]

I think the thought is that those approaches would not have "worked", and thus we have to turn to the mountain of crap.

My sense is that, regarding health care, lots of other possible approaches would have worked better than what we ended up with.

They just weren't feasible. Because a lot of different kinds of people live here, we all want different things, and nobody has enough of a political advantage over anyone else to impose their point of view on everyone else.

So we end up with bastardized legislative Frankenstein monsters, where everyone gets some bone thrown to them, but nobody gets everything they want.

So, perhaps I should amend my statement upthread. Instead of "whatever works", please read, "whatever is remotely feasible, that also achieves enough of a critical mass of what we're trying to do".

Which is already a huge hurdle, because we can't even agree about what we're trying to do, let alone how to do it.

The Constitution was a bloody hash from day one. Seriously, 3/5 of a person? And WTF is it with those weird extra commas in the Second Amendment?

It's a mish-mash from the get. But it was *the best we could get through the process*. And for "process" please read "giving enough to the folks who are holding their breaths until they turn blue that they decide to play ball".

It was the best we could do. And we worked with it. Then, and now.

We are where we are now because we are who we are.

I appreciate, and frankly share, folks' concern with not riding roughshod over the document. A lot of what goes on is, frankly, dodgy.

But politics is no place for purists. It just isn't. You have to deal with reality, and with what is actually doable.

[russell]

And in case anybody thinks this kind of stuff is a 20th C invention, I invite them to read Hamilton's Report On Manufactures, and then tell me where his recommendations are found in Article I Section 8.

The date of his report is 1791.

This discussion dates back to the founding of the nation. Nothing new here.

[Sebastian]

"So, perhaps I should amend my statement upthread. Instead of "whatever works", please read, "whatever is remotely feasible, that also achieves enough of a critical mass of what we're trying to do"."

But in the instant example, there are all sorts of incredibly feasible plans that would be Constitutional. I even mentioned one--extending Medicare to those who can't get insurance. It wouldn't have received fewer Republicans votes than the actually passed plan, would have been Constitutional and so far as I can tell would have been strictly preferable to what we got. So why do we have to triple down on the commerce clause to make it pretend that it reaches even so far as specific non-commerce?

[Phil]

Brett, I asked you a legitimate question, and I'd like an answer:

Is it your position that, given that the ERA was never ratified, that the various states are perfectly free to have one set of laws that applies only to men and another that applies only to women, with the latter having fewer rights? And, further, that the Supreme Court should be explicitly precluded from finding that such a practice would be unconstitutional?

If you don't answer, I'm going to assume that you know you're talking nonsense.

You realize you've just declared the vast majority of the population for most of the nation's history, insane?

Yes. They believed that only men should be allowed to choose the members of government, and that human beings should be permitted to own one another. Both of these beliefs are -- say it with me -- insane. Sorry if that hurts your fee-fees, but it's true.

[Phil]

It wouldn't have received fewer Republicans votes than the actually passed plan

How can you possibly know this?

[Brett Bellmore]

"So why do we have to triple down on the commerce clause to make it pretend that it reaches even so far as specific non-commerce? "

My opinion? We're in the end-game when it comes to constitutional government. One good push and it could be over. There are people in Congress who are trying for that push.

Sure, there were easier ways to get the uninsured medical care, but they want that "Game over!" so bad they can taste it. They test those boundaries every chance they get, in the hope of finding a weak spot.

"And in case anybody thinks this kind of stuff is a 20th C invention, I invite them to read Hamilton's Report On Manufactures, and then tell me where his recommendations are found in Article I Section 8."

That's Hamilton for you. Is anybody who's actually familiar with the founding unaware that Hamilton was the odd man out, in that he DID want a vastly more powerful government than the other founders?

[Hartmut]

The German constitution (that does not dare call itself that) also has a 2/3 majority requirement for change, although the states have their say over the second chamber (in essence the state executive) not the state legislature. The articles dealing with the Bund-Länder (federal level-state level) responsibilities are changed on a regular base to reflect changing conditions. But our federal and state parliaments are not filled up to the rim with corrupt millionaires (or their stooges resp.*), religiously and/or criminally insanes** and Jack the Rip van Winkles that choose to ignore that this is not the century of the fruitbat anymore, so the situation is not at all comparable to the US.
---
Concerning the female right to vote, the last Kanton of Switzerland did not allow it before 27th November 1990 against the male majority decision of April of the same year. Switzerland as a whole only did it in 1971 (and Liechtenstein in 1984). So please no one tell me that the civilized white male West is far enough advanced to make the idea that a female franchise not enshrined on the constitutional level could (not) be overturned a totally academic one.
I would not bet money that, given the chance, no US state would go back to Jim Crow and maybe even The Vote being restricted to white male property owners (with a rather large minimum size for said property). Some GOPster openly talk about it. They may (just may) compromise on introducing the Prussian three-class franchise instead. there would of course be one main objection to the latter: It's based on payed taxes and that would run against the iron principle that taxes are for the peasants not the nobles.

*exception for parts of the FDP
**exception for parts of Bavaria

[Brett Bellmore]

"It's based on payed taxes and that would run against the iron principle that taxes are for the peasants not the nobles."

I think that's a principle mostly embraced by Congressional committee chairmen...

Look, my point is not that I object to woman's suffrage. My point is simply that we have a process for changing the meaning of the Constitution, it's called "amending" it. It's illegitimate to change the meaning by 'interpreting' it to mean something that would never have been ratified, and doubly illegitimate to 'interpret' it to mean something which has just been REJECTED as an amendment. I'm glad the 19th amendment was ratified. But if it hadn't been, it would have been an outrage for the courts to circumvent that decision by the states. Just as it IS an outrage that they decided the states refusing to ratify the ERA would not be permitted to matter.

The courts should enforce both amendments, and the decision of the states to NOT amend. Changing the Constitution isn't their job. Enforcing the one which, for better or for worse we actually have, that's their job.

[russell]

I even mentioned one--extending Medicare to those who can't get insurance.

Fine with me. I would have preferred that to what we have now. IMO what we have now is a crazy quilt, just expanding Medicare would have been simpler, clearer, and probably cheaper.

How is it Constitutional? Where in Article I Section 8 is the Congress authorized to provide health insurance coverage for anybody? Where is the Constitutional mandate for Medicare *at all*, let alone for expanding it?

If we want to get strict about it, Medicare is one of the things that has got to go, because providing health insurance is not one of the explicitly enumerated powers of Congress. Period.

In any case, it's not what we got. We got the mandate, because that's the only way we could get buy-in from the private insurers on dropping recission and denial of coverage for prior illness.

Why they had so much input into the process is another question altogether. Don't get me started.

It wouldn't have received fewer Republicans votes than the actually passed plan

That's correct, because if I'm not mistaken the total number of R votes for the plan that passed was zero.

You telling me there would have been R support for extending Medicare? News to me.

That's Hamilton for you.

Yeah, crazy old Hamilton, author of most of the Federalist papers.

WTF does he know about the Constitution?

My point in mentioning Hamilton is simply to show that an expansive federal government is no 20th C innovation. People, and not just Hamilton, thought it was a fine idea way back at the beginning.

Jefferson and Madison weren't the only founders.

We've been having this same argument since before the country existed. I expect we'll have it right up until the end.

[Phil]

My point is simply that we have a process for changing the meaning of the Constitution

So which part of the pre-19th-amendment Constitution -- which, keeping in mind, guaranteed equal protection of the law to ALL CITIZENS -- allowed states to deprive women of the franchise?

Are you going to answer my question about whether states can have different systems of law for men and for women, or not? I really, really, really would like an answer.

You also do realize, also, too, that rejecting the 19th amendment might have meant that people felt the original language of the Constitution was sufficient to guarantee equal voting rights and that amendment would have been redundant. Right?

[Slartibartfast]

It's illegitimate to change the meaning by 'interpreting' it to mean something that would never have been ratified

That's one way of looking at it. Another way of looking at it is that the Founders were both blinkered and hogtied by the States, and so they were forced to compromise by putting certain provisions in the Constitution that run counter to the principles on which this country was founded.

I'm not talking about welfare or socialized medicine, here, I'm talking about capital-L Liberty.

So, when the 9th Amendment says "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people," I think it's a good thing to apply that to ALL of the people, don't you? Equally? I mean, that's what Liberty is all about, no?

I think the Constitution doesn't say nearly enough about the rights of citizens. I don't know if it was necessary to remove mention of those rights in order to maintain the grip of the slave states on their sources of income, or what. But if you read the Declaration of Independence (yes, I am aware that the Declaration is not binding on our legal system, but bear with me, please), you'll see that the whole reason we broke from England in the first place is that things like this were held as good and just values:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness

All men. Not so much a stretch to all mankind, I think.

That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it

Any form of government; even the one we are about to choose.

But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security

We had met the enemy, and they was us.

I don't have a general problem with interpretations of the Constitution that move in the direction of greater personal liberty, but I think it would be much better if these things had been scribed or amended in. That we had to use the commerce clause as a tool to chisel away at the equal rights issue is kind of a case in point that these things STILL are not in there. They should be in there, shouldn't they? Why is it that these things haven't simply been written in the Constitution in a straightforward way, and not supported by some legal house-of-cards that could be upset by SCOTUS?

Too hard, is the excuse. I think it's more like: the status quo works, for now, so there's no incentive to weld things together when the duct tape and baling wire seem to be holding for now.

[Sebastian]

I'm not sure how counterfactuals about women's suffrage help the case for the unlimited commerce clause. We did in fact pass a women's suffrage amendment. It did in fact alter the Constitution. Beating up on Brett may be a satisfying distraction, but it is just a distraction. You can't have a Constitution where the words are so plastic as to allow "To regulate Commerce with foreign Nations, and among the several States" means "power to totally regulate the lives of anyone who buys a paper cup that has traveled across state lines". Those words obviously don't mean that. Even stupid people can tell you that they don't mean that. Even people not steeped in Constitutional law can tell you that. And if we are pushing the legal system to give a 'legal' result where judges 'find' that the words mean something like that, we aren't engaging in a Constitutional process. If we do that, we are actively undermining the Constitutional process in the exact same way as people who say "if you don't have anything to hide why should worry about a warrant?" are undermining it. It is the *exact* same kind of crap that people who want court rulings that Islam isn't a religion for purposes of the 1st amendment are doing.

You are making tea-party level arguments.

That should be a lot more disturbing to you than it seems to be.

[Phil]

I'm not sure how counterfactuals about women's suffrage help the case for the unlimited commerce clause.

Your confusion may be attributed to the fact that some people are discussing something other than what you're discussing. My discussion concerns whether or not the failure to ratify a particular amendment precludes the Supreme Court from ruling on cases before it in a way which results in an identical effect as if the amendment had been ratified. It has nothing to do with the Commerce Clause or its relationship to healthcare reform.

Comment threads can sometimes have multiple discussions going on at once. Confusing one with another is perilous.