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December 13, 2010

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I say we propose a 28th amendment that reads as follows:

"All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."

If it doesn't get ratified, we can get rid of congress, right?

Sebastian: Beating up on Brett may be a satisfying distraction, but it is just a distraction.

"Distraction", says Seb, as if reading or commenting on ObWi is a business or profession of some kind.

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"

"Totally regulate the lives", says Seb, as if erecting strawmen is not a "distraction".

You are making tea-party level arguments, says Seb.

I can't be bothered to track back to see who "you" is that Seb is addressing, so I can't in good conscience accuse Seb of a "personal" attack. I merely snort derisively. At no one in particular, mind you.

--TP

""Totally regulate the lives", says Seb, as if erecting strawmen is not a "distraction"."

That isn't a strawman, read the thread.

I think we are doing the eggshell walk around the question whether everything that is not explicitly allowed is forbidden or whether everything not explicitly forbidden is allowed. US politicians (and lawyer accomplices) had that discussion more or less openly since at least 9/11.
As for Medicare etc. I would put that under the 'public welfare' clause.
Let's not open the 'the airforce as an independent branch is unconstitutional' discussion again though*
As far as the 'all men are created equal' goes, I do not think that at the moment of writing that down the writer thought about any male/female implications but used 'men' as the standard synonym for 'human beings' as opposed to 'animals' (which again implies that humans are not animals).
Women got their feet in some doors legally because the writers of some statutes simply forgot to explicitly exclude them and judges chose to follow the letter as written ignoring the invisible words between the lines. The reaction to that could either be to accept it or to change the statute in question**. If the female franchise was not explicitly banned in the original text, then those omitting that have only to blame themselves since other countries took that 'precaution'.
---
Again I think that the US constitution could work quite well, if not applied to USians.

*which I always took as only semi-serious or as an example of consequences-not-foreseen-and-what-to-make-of-them.
**a common third way was of course to bully the women in question until they gave up (though some did not). That was the favorite tactic used by universities.

"I think we are doing the eggshell walk around the question whether everything that is not explicitly allowed is forbidden or whether everything not explicitly forbidden is allowed."

I think we're doing an eggshell walk around the fact that we've got the 10th amendment to tell us that, for the federal government it's "everything that is not explicitly allowed is forbidden", and for the states it's "Everything not explicitly forbidden is allowed".

Basically modern commerce clause and "N&P" jurisprudence exists to write the 10th amendment out of the Constitution, stand it on it's head.

What a feast! My deep appreciation to Brett and Sebastian for SO much comment-worthy material: it's enough to make me wish that the Debacle of '07 hadn't destroyed my retirement, as I would much rather compose responses than spend another long day on my feet for 'minimum-wage-plus'.

Sadly, I cannot address Sebastian's seemingly-compulsive disingenuity, nor Brett's logical discontinuities, as I'd like. I can only rush back to work, my ibuprofen drip firmly in place, and hope I'm awake enough on my return home to come back & cheer on those who hold up the mirror to the lies and the lied-to in my absence.

Wassail!

Oh, and I must point out my amusement that Tenthers seem NEVER to have anything to say about the NINTH Amendment.

Hat-tip to Brett for reminding me to mention,,,,

we've got the 10th amendment to tell us that, for the federal government it's "everything that is not explicitly allowed is forbidden", and for the states it's "Everything not explicitly forbidden is allowed"

Somewhere in that explanation, the bit about "the people" got left out. Why do you keep forgetting about the rights of the people, Brett?

9th and 10th Amendments needed a bit more meat behind them, I think. Like an explicit acknowledgement that the rights of the people apply equally.

I agree with all of Eric's post, as is typically the case. Good post, Eric!

Russell:

[...] 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. [....]

See here if interested, and this link is not redundant.

bobbyp on December 13, 2010 at 10:08 PM:

[...] "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). [....]

Yes. Practicality tends to trump theory more than not in politics, and specifically in a significant majority of Congressional acts, and bills eventually passed and signed into law by the President.

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