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February 17, 2012

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And since I'm on a roll (or not), even some of the provisions that seem clear are likely not on closer inspection. Take Article V, which reads: The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

What does that last clause mean? I think it means that 3/4 of the States can't get together to amend the Constitution so that, e.g., Texas gets only 1 Senator (or 3 Senators, for that matter). But what if 3/4 States vote to abolish the Senate altogether? Okay? I suppose since all States now have 0 Senators that's okay, but do you really think that's what the Founders meant?

Or suppose 3/4 of the States voted to change the name of the Senate to Parliament, and then provided that Texas got only 1 member while every other state got 2, is that okay under Article V? After all, there's no longer a "Senate" and thus no State has been deprived of its "equal Suffrage in the Senate" without consent.

What does even the 19th Amendment mean?

What part of (,) don't you understand?

What Ugh and sapient said. (russell who? ;^) ...I kid, of course.)


But what if 3/4 States vote to abolish the Senate altogether?

Or, vote to make Senators elected directly, by popular vote, so that states per se have no suffrage at all.

I ask Brett to give me a clear, unambiguous definition of "cruel and unusual punishment," and he never, ever, ever does.

Cue The Comfy Chair!!

I keep hunting (!) for the A. Whitney Brown commentary from Saturday Night Live where he says at one point that we're in this together because a bunch of white slave owners didn't want to pay their taxes, but can't seem to find it.

I recall the history teacher in Dazed and Confused reminding her students on the last day of school in 1976 to remember what they were really celebrating come the Bicentennial on the 4th of July - a bunch of rich, white slave owners not wanting to pay their taxes.

"But perhaps no one has seriously put up an amendment on an important issue in recent memory because they know there's no chance of it ever passing? As I've noted before, there hasn't been a "real"* amendment since 1971."

I'd argue that no one bothers because it is much *easier* to try to appoint pet judges who will rule your way. You don't have to explicitly take difficult stands, you don't need to convince many people, you never need to subject it to a vote, you don't even have to admit that the issue is important to you. Why in the world go through a publicly accountable amendment process? Politicians hate public accountability, so they will do anything they can do avoid it.

This actually brings us neatly back to marijuana and the history of booze prohibition. Constitutionally you needed an amendment to ban alcohol. It was clearly understood that the powers of the federal government, while vast, didn't extend that far and that to get it at a federal level you needed an amendment. But now, the government doesn't blink an eye.

The ERA is also instructive, but in almost the opposite way you think. It was proposed in 1923, back when people thought amending the Constitution was important. It has also been almost entirely read into the equal protection clause making the political impetus for it almost entirely symbolic.

The ERA is also instructive, but in almost the opposite way you think.

How do you know what I think?

It was clearly understood that the powers of the federal government, while vast, didn't extend that far

Can you expand on this a bit, please?

The feds regulated lots of things before the Volstead Act and the 18th Amendment.

a bunch of rich, white slave owners not wanting to pay their taxes.

C'mon now, there were also a bunch of New England tea smugglers tired of having the East India Company undersell them.

Phil, I was responding to ugh, not you. But to the extent that I can read your words, I can see that you offered it as a counter-example, while I see it as an example.

Russell, "Can you expand on this a bit, please?"

I'm not sure what you want me to expand on. The point I'm making is that it was well understood that whatever the precise limit of federal power was, it didn't extend so far as the power to ban the trade and consumption of a substance (even if you call that 'regulating commerce'). Since they wanted to ban the trade and consumption of alcohol, they did the proper thing when the Constitution didn't allow something that they wanted to do, and amended it.

They added "After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited. "

Interestingly, what was then seen as a cornerstone of progressive policy making, is now seen more as moral busybodies in action.

Also interestingly, the repeal went through the state convention process (the only one to do so), because the state legislature process was considered to be beholden to the Temperance Leagues but the issue was important enough to go around legislative gridlock and appeal directly to the state voters.

"You see, this is sort of my point. The Constitution is a short document. It includes vague and general statements like "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;""

You see, this is sort of MY point: You claim that "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;" is somehow vague and general. But it's quite specific on several points: It's commerce that's being regulated. Further, it's a specific subset of commerce.

And yet, we get the Court, under the guise of interpreting that clause, permitting the regulation of things which are not commerce, or which if commerce, are not part of that specific subset of it. Contravening such specific language as makes up almost the entirety of the clause!

IOW, it may be general, but it ain't THAT general.

The problem here, I think, is once you view ambiguity as a license to claim a document means what you want, everything is going to look ambiguous. Even things most people would find perfectly clear.

Constitutionally you needed an amendment to ban alcohol. It was clearly understood that the powers of the federal government, while vast, didn't extend that far and that to get it at a federal level you needed an amendment.

I'm no great student of history in general, nor Prohibition specifically, but might an amendment have been "necessary" to avoid prolonged legal challenges from established monied interests in the alcohol business, the analog of which did not exist where it came to marajuana? Might that have been more a matter of a political calculation than a purely constitutional one?

it was well understood that whatever the precise limit of federal power was, it didn't extend so far as the power to ban the trade and consumption of a substance

The Pure Food and Drug Act was 1906. That's a pretty substantial federal claim on regulating substances intended for public sale and consumption.

Why was that OK, but banning the manufacture and transport (not the consumption, in fact) of alcohol required an amendment?

Sebastian: I'd argue that no one bothers [to try to amend the Constitution] because it is much *easier* to try to appoint pet judges who will rule your way. You don't have to explicitly take difficult stands, you don't need to convince many people, you never need to subject it to a vote, you don't even have to admit that the issue is important to you. Why in the world go through a publicly accountable amendment process?

But you end up trading the certainty of an amendment for the hope of finding out that an appointed judge is sympathetic to your position, not to mention that judges are appointed by POTUS (with Senate advice and consent) so we're getting to tertiary (or more) degrees of indirectness here for a regular legislator, whereas voting on an amendment is a direct way of expressing a view.

Politicians hate public accountability, so they will do anything they can do avoid it.

But there are accountability moments every 2, 4, 6 years, with people running against one another. It's not like we're choosing from a bunch of people whose only public statement is that they believe in "Truth, justice, and the American way," no? No politician ever takes a firm stand on one thing or another?

This actually brings us neatly back to marijuana and the history of booze prohibition. Constitutionally you needed an amendment to ban alcohol. It was clearly understood that the powers of the federal government, while vast, didn't extend that far and that to get it at a federal level you needed an amendment. But now, the government doesn't blink an eye.

"It was clearly understood" by....? Everyone? 80% of the population? 80% of eligible voters? 80% of the judiciary? Some other % of any of those groups/some other group? Lochner, in 1905, was a 5-4 decision. Wickard in 1942 was 8-0. Obviously those aren't directly on point, but I think nevertheless illustrate that the scope of federal government powers was a source significant dispute, well more than 100 years ago and were not "clearly understood." Indeed, 1905 will mark the halfway point in post-Bill of Rights America in just a few years.

The ERA is also instructive, but in almost the opposite way you think. It was proposed in 1923, back when people thought amending the Constitution was important. It has also been almost entirely read into the equal protection clause making the political impetus for it almost entirely symbolic.

It hasn't been "read into" the equal protection clause, it's always been there. Why should we pay fealty to the ignorance of prior generations?

Brett: You see, this is sort of MY point: You claim that "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;" is somehow vague and general. But it's quite specific on several points: It's commerce that's being regulated. Further, it's a specific subset of commerce.

And the "necessary and proper" clause? IIRC the point in Wickard was, even assuming Roscoe was not engaged in commerce or interstate commerce, that if Congress could not regulate his conduct (and those similarly situated) it could not in fact regulate interstate commerce, and thus regulating Mr. Wickard's conduct was a "necessary and proper" application of the commerce clause power.

Russell, what you said about England not having a constitution is not ecaxtly accurate. Please see; http://en.wikipedia.org/wiki/Constitution_of_the_United_Kingdom for a basic primer.

Ugh, there's a standard principle of interpretation, (I forget the latin.) that says, "To list is to exclude." The interstate commerce clause lists the sorts of commerce Congress may regulate. There would be no point in listing particular sorts, if Congress were permitted to regulate other sorts.

You're just making excuses, as the Court did, to transform the "interstate commerce" clause into the "regulate" clause. You want the Constitution to suddenly start permitting Congress to regulate things which are neither commerce nor interstate?

Amend the damn document to say Congress has that power. It's the necessary and proper clause, not the convienent and eh clause.

Russell, the food and drug act of 1906 was for a completely different purpose that outlawing consumption. In fact, the purpose was to make consumption safe by ensuring proper labeling and manufacturing (i.e. no poisonous adultrants).

See prohibition says thou shalt not. FDA 1906 says thou shall if thou wisheth and the feds shall make it safe.

Hijack the commerce clause a few times for expediency, and then wonder aloud, years down the road, that: by golly, everything looks muddy.

"But there are accountability moments every 2, 4, 6 years, with people running against one another..."

Oh please. Grasping at straws are we? You have to know that dog won't hunt. With such a dismal array of candidates to choose from you can't be serious. They all work for the same boss any how. So throwing them out does nothing other than keep them in.

"Hijack the commerce clause a few times for expediency, and then wonder aloud, years down the road, that: by golly, everything looks muddy."

Precisely

the food and drug act of 1906 was for a completely different purpose that outlawing consumption.

First of all, the 18th did not outlaw consumption. It outlawed the manufacture, sale, transportation, and import/export of intoxicating liquors.

The feds had long claimed and exercised the power to regulate or even ban certain commercial activities. So, I'm not seeing how the amendment was required for the purpose of establishing the federal authority to do so in the case of alcohol.

I'm not saying it's not there, I'm saying I don't see it.

Hence, my request for the expansion.

Russell, what you said about England not having a constitution is not ecaxtly accurate.

The UK has no written Constitution. They have lots of documents, and lots of common law, and lots of established practice.

But no written Constitution.

From your cite:

No Act of Parliament can be unconstitutional, for the law of the land knows not the word or the idea

From an 1819 case of some renown regarding the necessary and proper clause (emphasis supplied):

We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional

You're free to disagree with that, of course.

You're just making excuses, as the Court did, to transform the "interstate commerce" clause into the "regulate" clause. You want the Constitution to suddenly start permitting Congress to regulate things which are neither commerce nor interstate?

Well it says "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

What is your interpretation of the use of commerce "with" foreign Nations and Indian Tribes and how that differs from the use of "among" in respect of the several States? And how do those differences feed into the N&P clause? And how do changes in factual circumstances feed into the former/latter/both?

I'm not making excuses (I am, after all, just an a$$ on the intarwebzzies), I'm just saying your conclusions are not manifest.

avedis: Oh please. Grasping at straws are we? You have to know that dog won't hunt. With such a dismal array of candidates to choose from you can't be serious. They all work for the same boss any how. So throwing them out does nothing other than keep them in.

Why don't you run for office then to rearrange the dismal picture? Heck, suck up to the "boss" and then turn around and bite him/her in the a$$ when you're in. Show the world the farce of American "democracy"! It might be refreshing.

Russell,

The need for an amendment is obvious. As recently as a hundred years ago or so people took the Constitution seriously. They did not assume, as many do today, that the feds can just make any law they want to. Nobody believed that the federal government held the power, under the Constitution as originally written, to ban the production, distribution, and sale of alcohol. Congress and the states had to amend the Constitution.

They could have amended the Constitution to merely grant the federal government the necessary power, leaving it to Congress to decide whether to actually pass such a law. This was the route taken, for example, with the income tax.

But that would have required the battle to be fought twice, once to pass the amendment and once to pass the law. And it would have left Prohibition vulnerable to repeal by a majority in Congress plus the President.

So the proponents wrote the ban right into the Constitution, which required another amendment to repeal it.

"Why don't you run for office then to rearrange the dismal picture? Heck, suck up to the "boss" and then turn around and bite him/her in the a$$ when you're in. Show the world the farce of American "democracy"!

I've thought about it. Might yet happen.

So, which of the originalists is going to define "cruel and unusual punishment" for me? You've all got a direct pipeline, apparently, into the eternal minds of the Founders, so let's hear it.

Oh, also, can you define "due process" while you're at it? And "unreasonable searches and seizures?"

They did not assume, as many do today, that the feds can just make any law they want to.

Who are these many? Are any of them commenting on this blog?

Nobody believed that the federal government held the power, under the Constitution as originally written, to ban the production, distribution, and sale of alcohol.

Got a cite for that?

"Got a cite for that?"

I'm sure I can find one. Most thorough histories of the temperance movement and prohibition offer that explanation.

"Who are these many? Are any of them commenting on this blog?"

They are all around us. The silent majority that does nothing while our rights are taken from us. As for whether or not any are commenting here, I would say that a review of this thread indicates that some are.

avedis: The need for an amendment is obvious. As recently as a hundred years ago or so people took the Constitution seriously. They did not assume, as many do today, that the feds can just make any law they want to.

Contrast this with Brett's suggestion upthread of a revolution should there be some sort Constitutional repudiation. Why would people bother to revolt if they don't take it seriously?

I've thought about it. Might yet happen.

Well good on ya then!

But that would have required the battle to be fought twice, once to pass the amendment and once to pass the law.

Look, not to pile on, but first came the 18th Amendment, then came the Volstead Act.

And there wasn't that much of a battle. The 18th passed 46 states to 2, and Volstead passed the House 287-100, was vetoed by Wilson, and then his veto was overridden.

So, Wilson excepted, both the Amendment and the law appear to have had a lot of support.

I'm hearing a lot of "everybody knew" and "it was widely accepted" and "of course" but none of us were actually there at the turn of the 20th C.

So if you're going to assert that the idea that the feds could ban the production and sale of some consumer good was a remarkable novelty, then maybe some kind of documentation would be good.

Like, was there any strong argument *at the time* that it was unconstitutional? If that exists, it should be pretty easy to find, and would give evidence that *at that time* it was widely believed that the feds had no such authority.

There are lots of reasons folks might like to back up their policy with an amendment, other than a need to establish the federal authority to pass a given law.

Hey, first off, I am not Brett. I often agree with what he has to say, but some times I do not. I am actually concerned that these days anyone can do whatever they want to the Constitution and no one would would care enough to act in opposition. Heck, we have an allegedly liberal POTUS who asserts he has the right to summarily assassinate US citizens who are merely suspected of certain things, like terrorism. In fact he not only asserts this right, he has acted out and exercised it. You will still vote for him, right?

As for a revolution resulting from amendments to the big C, this did not happen exactly as Brett envisioned. However, there was, as a result of the 18th, a widespread glorification of disrespect and disregard for the law, cultural impacts of which we are still experiencing to this day, as well as the development of a hugely powerful criminal syndicate. So there was some form of revolution; albeit on the backside as opposed to the front side of the amendment. Now I am grasping at straws in defense of Brett :-)

russell, you need to show that the federal govt did indeed outlaw certain consumer goods prior to the first quarter of the 20th century. I don't think you can. Therefore banning a good, especially one as popular as alcohol, would, indeed, be a novelty. BTW, I'm using all the commas I want, in the way I want.

As noted, none of were around when these events were taking place much less involved in the actual processes. All any of us can do is read history and speculate.

"Look, not to pile on, but first came the 18th Amendment, then came the Volstead Act."

You apparently missed my point. The amendment made it illegal and the act specified how the illegality was to be enforced.

What i was originally refering to with, "But that would have required the battle to be fought twice, once to pass the amendment and once to pass the law." was passing an amendment that gave the feds the power to generally make things - anything along the lines of consumer goods - illegal and then pass a separate law making alcohol production, sale, etc illegal. That's two fights to make alcohol illegal.

What they did was one fight to make it illegal.

russell, you need to show that the federal govt did indeed outlaw certain consumer goods prior to the first quarter of the 20th century.

No, really, I don't, and I'm not chasing that rabbit down the hole.

Seb started the booze thing with this:

Constitutionally you needed an amendment to ban alcohol. It was clearly understood that the powers of the federal government, while vast, didn't extend that far

Followed by:

it was well understood that whatever the precise limit of federal power was, it didn't extend so far as the power to ban the trade and consumption of a substance

Bolds mine.

My point is not that the federal government had banned lots and lots of consumer products prior to Volstead.

My point is that, if it was as well and clearly understood at the time that Prohibition was an unconstitutional expansion of federal authority, I would expect to see some discussion of challenges to the amendment on constitutional grounds.

Like, when folks more recently pushed for an anti-flag-burning amendment, there were challenges on 1st amendment grounds.

I do not see a record of challenges to the 18th on Constitutional grounds. So, I find Seb's claims about contemporary understandings of the limits of federal power to be questionable.

If you'd like to answer my actual question, that would be great, but I'm not really interested in jumping through seventy nine other hoops.

People have had lots of different understandings of the limits on federal power, beginning in 1789 and continuing right up to today. Assertions that something is "obviously" unconstitutional, or that the text "obviously" means one thing or another, ignore the actual history and the actual facts on the ground.

It's great that you feel strongly about your point of view, but that doesn't make your argument convincing.

"No, really, I don't, and I'm not chasing that rabbit down the hole."

I suspect because you're pretty certain you're not going to find a rabbit down that hole.

"I do not see a record of challenges to the 18th on Constitutional grounds."

Why would you expect there to be a record of challenges to a constitutional amendment on constitutional grounds? What grounds would that be? That it wasn't properly ratified?

People had varying view of the extent of federal power, but it's no use pretending that the current view of the extent of federal power was even remotely mainstream prior to the early 20th century. You can't get around the fact that they DID go to the rather considerable trouble to amend the Constitution for Prohibition, but not for the war on drugs. That just flat out makes no sense, unless a rather different conception of how much power the federal government had was dominant at the time.

Sure, there were probably some people back in the 19th century who thought Congress could do pretty much anything under the guise of regulating interstate commerce. There were people who thought they were Napoleon, too.

Brett and Avedis are both correct that in the 20th century, the role of the Federal government (through Supreme Court decisions) expanded substantially, and that the Interstate Commerce Clause was an important area where this happened.

The question is, on the whole, was this good or bad? Why do we want to go back to the 19th Century? The first two-thirds of the century was an argument over whether slavery was okay if certain states enjoyed it, and whether the rest of the states had to enforce the "rights" recognized by the slave states. The last one-third of the century was an adjustment period after a devastating war was fought on that issue. Meanwhile, the Native American population was being annihilated, the railroad and oil barons were developing monopolies, and the welfare of workers was ignored. It was all mitigated by the fact that there was a whole lot of land that the government was handing out to people for free if they were hardy enough to make use of it. The U.S. came into the 20th century trying to adjust its economy from a slave-based society to one based on paid work (where exploiting industrial workers was the middle path). Was it really all that lovely? Just because drugs weren't banned?

Basically, after 1932, the Federal government asserted more centralized power and, in doing so, became strong enough to lift the country out of poverty, prevail in a brutal world war, create an economic powerhouse (with the interstate highway system), and eventually support a civil rights movement whose classes of beneficiaries continue to be added to this day.

And we're talking about "devolution"? Why? Because we want to be a bunch of banana republics, some of which we can smoke lots of pot, and others of which we can shoot a lot of guns?

Seems (to me) like a high price to pay. Sorry if I just don't understand.

"No, really, I don't, and I'm not chasing that rabbit down the hole."

Yeah. You do. Because if there is no rabit in that hole, and there isn't, then your whole premise falls apart; which is another way of saying, "what Brett said".

"My point is not that the federal government had banned lots and lots of consumer products prior to Volstead."

Well go on then, please name some. Thanks.

"The question is, on the whole, was this good or bad? Why do we want to go back to the 19th Century?

And we're talking about "devolution"? Why? "

The problems of slavery and the treatment of Indians, while horrendous by any standards, wasn't the result of an interpretation of the Constitution. It was the result of those out groups not being considered fully human, let alone citizens, by white christian culture of the time.

Are we devolving from a Constitutional perspective? Yes, absolutely. As I said, the POTUS that probably 99% of OBWI commenters will vote for a second term because he is the best of the options boasts of summarily killing US citizens on mere suspicion. Civil rights erode at an increasing pace, even under this "liberal" POTUS.

"My point is that, if it was as well and clearly understood at the time that Prohibition was an unconstitutional expansion of federal authority, I would expect to see some discussion of challenges to the amendment on constitutional grounds."

and, if that is your point, then you don't have a point.

Maybe the smart money knew it could make out like bandits on bootlegging and everyone else was intimidated by the need to appear righteous; not to mention the need to court the political wave of the times that icluded the arriving women's voter block.

Who cares?

What is this philosophy of russell? 100 million lemmings can't be wrong? The wise founders said stop, there's a cliff ahead, but the lemmings went over it anyhow and thus the founders are proven wrong? By that thinking slavery would be fine. Warrantless wire tapping would be ok. ........whatever hysteria grips the nation would be just fine and dandy as long as there are no serious legal protests. And they say *I* devolve into anarchy?

sapient, the socialist govt of China has also been able to do great things in a short period of time. Remarkable, really.

Still, I do not want to live under such a system.

Like I said, one can always become an expat if disenchanted with what our country is supposed to be all about per the document that lays it all out.

I suspect because you're pretty certain you're not going to find a rabbit down that hole.

Correct. To my knowledge, the feds did not ban any consumer product prior to Prohibition. They did lots of other things, but banning the manufacture and sale of a consumer product was not one of them.

My MF'ing point is that I'm not seeing any evidence that it was well or clearly understood in 1919 that federal power did not rightfully extend to banning the production and sale of alcoholic beverages.

Can you demonstrate that it was? Because I'm not freaking seeing it. Seb has asserted it, but I don't see it, anywhere.

Why would you expect there to be a record of challenges to a constitutional amendment on constitutional grounds?

Are you saying there has never been a challenge to a proposed Constitutional amendment on Constitutional grounds?

it's no use pretending that the current view of the extent of federal power was even remotely mainstream prior to the early 20th century.

That isn't a claim I'm making.

There are quite a number of things that are dead normal now that were not mainstream prior to the early 20th C.

That's one of the reasons the current-day mainstream view of the limits of federal power isn't what it was in 1800, or 1850, or 1900. For better or worse.

Because if there is no rabit in that hole, and there isn't, then your whole premise falls apart

Please feel free to state what you understand "my premise" to be. Because I'm not sure I've advanced one.

For the record, it's been asserted in this thread that it was widely understood in 1919 that federal power could not extend to banning the production and sale of alcoholic beverages. And, that that common understanding was why it was necessary to amend the constitution.

What I'm asking is for someone - anyone - to support that assertion from the historical record.

I'm making no claims about what the limits of federal power should, or should not be. I'm not advancing any 'premise'. Sebastian made an assertion, and from my understanding of the historical record, I don't think the assertion is supportable.

If anyone would like to address that point, I'm interested.

Not from the point of view your personal preferences, not from your assumptions about what the founders thought. From the freaking historical record. Of that particular time.

There are about eighty seven million reasons why the federal government has expanded from what it was in 1800 to what it is now. In My Very Humble Opinion, a will to tyrannical power is not very high on that list. Your opinion may differ.

To my eye, personally, the history of the feds getting involved in regulation is more or less a record of them jumping in, often fairly unwillingly, to try to avoid having the bed be well and truly besh*tted.

Even Prohibition, as asinine an exercise as that was, was an attempt to address an actual problem. It just wasn't a problem that was well addressed by a constitutional amendment.

But, that's just my observation.

Either way, it's freaking moot, because what we have now is the product of 200 plus years of history. If you think you're going to unwind that, you have another thing coming. If you're holding out for the federal government we had in 1800, you're not going to get it, because we don't live in the world we lived in in 1800.

If anyone has examples of folks contemporary with Prohibition objecting to it because it represented an undesirable and unconstitutional expansion of federal power, I'd love to see them. I'm not saying they don't exist, I'm just saying I don't see them.

And since I don't see them, I am not convinced that folks at that time shared a widespread common understanding that Prohibition represented, specifically, an unusual expansion of federal power.

Thank you.

and finally, russell, it occurs to me that you have even less of a point than i thought you did at first. In fact it is so less of a point that it is negative in value and works against your own argument.

the reason there was an amendment was also because there was a recognition that there was no constitutional authority or leeway to do what they wanted to do. You cannot object on constitutional grounds to something that you are writing brand spanking new into the constitution.

If I want to write a law that says that people with blond hair and a height of 6' 2'' or greater are "uber citizens" and have a right to sieze any property they desire from others not meeting those qualifications, then you can challenge the law on constitutional grounds.

On the other hand, if i want to write an amendment to the constitution that says the same, then I must recognize that I can't write a legal law and need to change the very foundation of law itself in order to to enact what I want. I must realize that the current constitution doesn't allow me to do what I want to do. I have to change the constitution.

Can it be any clearer?

you have even less of a point than i thought you did at first.

Yes, quite right. The penny drops.

I'm not advancing any theory at all about the limits of federal power. Not here, and not at the moment, anyway.

I'm asking a question about Seb's assertion.

Sorry it took so long for that to occur to you.

You cannot object on constitutional grounds to something that you are writing brand spanking new into the constitution.

Well yeah, you can, and people have. Go look and see, Google is your friend. Start with "proposed amendments to the US constitution".

There have been some doozies.

yes, russell. a lot of amendments are proposed. Very very few are passed/ratified. it all depends on the mood of the nation, the alignment of interests, the alignment of the stars.......those that do not pass are simply not voted for by the necessary majorities. Can you point to any proposed amendments that were shot down based on constituional law? I don't mean just lip service or noise from the peanut gallery. I mean an actual legal challenge that killed the proposed amendment. I don't think there are rabbits in that hole either.

Here. Money quote:

Opponents maintain that giving Congress such power would essentially limit the principle of freedom of speech — enshrined in the First Amendment to the United States Constitution and symbolized by the flag itself.

There have also been amendments proposed to:

Ban interracial marriage. These were challenged due to conflicts with the 14th Amendment.

Insert language explicitly acknowledging a Christian god into the preamble to the Constitution. These was challenged on 1st Amendment grounds. Likewise, numerous amendments explicitly exempting school prayer from 1st Amendment restrictions on establishing religion.

Seriously, you can find this stuff with just a few minutes' effort.

Also:

I mean an actual legal challenge that killed the proposed amendment.

As we all know, this is not how amendments to the constitution are challenged. They are put to votes. Since the purpose of an amendment is to change the basis on which the law is made, mounting a 'legal challenge' is sort of beside the point.

The substantive argument raised against VOTING FOR the amendments I've cited above is that they were in conflict with other rights or conditions guaranteed elsewhere in the existing Constitution or its amendments.

So, challenged on constitutional grounds.

What I would expect, if there was some widespread contemporary consensus that Prohibition represented an unprecedented and up-until-then unconstitutional expansion of federal power, would be some record of challenges to the 18th BASED ON THAT PREMISE.

Examples of that may exist, but I have looked and have not found them.

If you are aware of any, I'd appreciate your pointing me to them.

If not, perhaps it's time to put this thread to rest.

No bans prior to the dictatorship of Frankie Roosevelt? I suggest some here delve into the history of opiate bans and the Harrison Act of 1914. The subsequent court interpretations are especially juicy....those crazy early 20th century guys and their activist courts!

Why, it's as if they just made sh*t up....Just like John Marshall did.

This thread=


It also occurs to me that Sebastian and Brett may want to have a conversation about the ERA. Sebastian appears to be saying that its failure is indicative of the fact that the rights it purported to outline were by then already understood to be read into the existing language. Brett has previously stated that the failure of the ERA absolutely forbids the government from acting as if it had passed - i.e., protecting the righs outlined in the amendment. And when pressed on whether those rights were covered under existing equal protection language, respondent refused to answer.

Controversy!

I suggest YOU delve into the history of the Harrison act. http://druglibrary.org/schaffer/history/e1910/harrisonact.htm>Here's the text.

Find the ban there? Because I see a tax. Yes, a tax which was, historically, intended to be abused as a de facto ban. But it was written as a tax, and why?

BECAUSE THEY KNEW THEY DIDN'T HAVE THE POWER TO BAN THINGS.

I mean, seriously, I quoted the AG saying just that, a couple pages back.

I had a long comment prepared, and then saw avedis had put it all much more succinctly. Indeed, there isn't much point in arguing with you, you're incapable/unwilling to admit when you face evidence that contradicts you, like the prohibition amendment.

But then, what would you expect? Your whole position is based on not letting the words force you to admit something means something you don't like. Why wouldn't we expect that to extend to this argument? Once somebody goes full Po-Mo, words are useless.

And, show me where somebody argued that the Anti-Miscegenation amendment was actually argued against on the basis that, "Hey, you can't amend the Constitution that way, it would be unconstitutional."

Rather than, "Hey, we just went to the trouble of passing the 14th amendment, no, we aren't interested in carving out exceptions, go away." Which is not a constitutional argument, it's a policy objection.

The problem here is that a strong (all powerful?) problem solving federal govt is fundemental to the liberal perspective. That is why words and facts are not getting through. There is a need to believe versus rational thinking.

Witness sapient being enamored with FDR's programs* and subsequent military and economic achievements; which he thinks are the result of increasingly expanded federal powers.

As I said, there is no doubt that centralized authority can mobilize a country to achieve great progress; just as it has in China or just as it did in Nazi Germany. The allure is hard to resist.

Note: at this point we already have the massively consequential problem of defining "progress".

However, that is not what the USA is supposed to be about because with that concentration of power comes a lot of negatives - or potential negatives - as well.

The liberals here want the concentrated power of a strong fed as long as it uses that power to do what they want. They then hope that they can use legislation and votes to ensure that it does, indeed, use the power to continue to produce their desired outcomes. They forget the double edge sword of their form of govt. People with opposing views on law and govt can also then use legislation and votes to do what they want. In fact, they do.

I have been saying for several election cycles - maybe the last 25 years - that there is no difference between libs and conservatives. Both want to hijack unconstitutional power to further their vision of govt and society. Both make us ultimately less free. And both are wrong from the perspective of the founders.


* I am for public works programs and think they would be a good solution at this time. I do not see where public works for a limited time frame is unconstitutional

Better red than dead!

If everyday consumption of these weren't banned by the Federal Government, I could win this thread with a bang:

http://www.balloon-juice.com/2012/02/28/from-way-downtown-bang/

Oh, they aren't banned yet?

Well alright, my next new entrepreneurial mission: Set up a privately run cross-country rail-gun target range. My range would permit the paying public to use six rail guns placed along the eastern edge of the Colorado plains.

The targets would be in other states. Talk about flyover country, whooee!

Rail gun #3 would be sighted for the Carolinas, should they opt in -- and given the Constitutional proclivities in them thar parts (concealed railguns will be permitted in bars in South Carolina at the very least), I expect full cooperation at least from some localities in those states.

The FAA might object, but unless you're a fan of anagrams, I (popping my bifocals up and down over my eyes here to focus) I don't believe an "F" and two "A"s in that particular order come within spitting distance of each other in the Founding documents.

Yes, yes, interstate commerce quibbles and all but my feeling is that, at the very least, the contents of carry-on baggage should be regulated by the states, nail clippers a no-no over Pennsylvania, but dynamite concealed in a turban good to go for the more adventurous types in Idaho.

We're going to need a Judge to sort all of this out.

I'd suggest lawyering up.

1924-Heroin Act

I want an attorney.

Rather than, "Hey, we just went to the trouble of passing the 14th amendment, no, we aren't interested in carving out exceptions, go away." Which is not a constitutional argument, it's a policy objection.

OK, I see it now. Amazing that I mistook one for the other. Perhaps it was the fact that "we just" represents a fifty-year span of time that confused me.

The liberals here want the concentrated power of a strong fed as long as it uses that power to do what they want.

Who's a liberal here?
How do you know what "the liberals" here want?

We're now at the "you're a poopyhead, no you're a poopyhead" stage, so maybe it's time to give it a rest.

We need a new toy. Maybe I'll post a front-pager on corporate personhood....

I love me a bold statement extolling the inviolability of the Constitution, or any wrought-in-stone document, followed immediately by an asterisked footnote pleading for exception.

It's like a ten-point diet plan, followed by a footnote noting: "Any reference to forbidden sweets, desserts, or carbohydrates in the above plan does not preclude wolfing down three cupcakes with custard filling and sprinkles on top per day.

The Interstate Highway System and much of the work of the Bureau of Reclamation and the Army Corps of Engineers are constitutional only in the sense that we make sh*t up as we go along and we wouldn't know what to do with all of the concrete we'd have to jack hammer out if we insisted on literal interpretations, though I'm pretty sure Clarence Thomas would tell us where to shove it, but only in written form.

As the droll Ben Franklin pointed out when asked "What have you wrought, sir?"

"Given the weaselly, general language we were able to agree on after the fellas and I nearly came to blows numerous times, a Republic, depending on which Judge before whom you bring your case.

If your only Judge is God, your conscience, and the commas in the Second Amendment, this is going to be one hell of a rodeo!"

There is a need to believe versus rational thinking.

Ay, there's the rub. A country founded by an elite class consisting of Enlightenment toffs, slave owners, and bean counting merchants who consciously excluded a majority of the population from political power placed their dead hand on the future due to our inability to change The Word. And those whose political agenda miraculously dovetails with their interpretation of The Word retreat to the Sacred Text and give us their never ending exegesis about what The Words Actually Say despite the fact that there have been bitter disputes about What The Words MEAN since they were written.

There has not been presented one scintilla of evidence that we are "less free" today than in the past, and in fact, I would argue that more people today are more free than in the past. This is an incontrovertible fact.

So yes, it pisses me off to be lectured to by wordsmithing fundamentalists with a political agenda, who miraculously "know" what I think, who ignore vast swaths of our political history, and decry the loss of their freedom to own (certain kinds of) guns or ingest (certain kinds of) drugs.....and...that's....it? Because they have proved that we are no longer an agrarian nation? Freedom is gone! Really?

I refuse to answer any more questions without my attorney present.

The problem here is that a strong (all powerful?) problem solving federal govt is fundemental to the liberal perspective.

Really? I thought the problem here was that a purported common understanding of federal power at the time of prohibition was in dispute.

The fact that an amendment was passed doesn't mean that there needed to be one to ban alcohol from a purely constitutional perspective. It simply means that that was the method chosen, and that could have been for a number of reasons.

Russell's assertion is that you'd need to show some evidence of the common understanding at the time of federal power Sebastian et al assert existed. As demonstrated, amendments can be challenged on constitutional grounds, especially if people have a common understanding that the amendment is in conflict with the constitution as it exists without that amendment.

What I don't see anyone saying on this thread is that the alcohol ban was a good thing, just because it was an exertion of federal power, or that it would have been a good thing if it were done without an amendment.

But go on arguing with imaginary liberal opponents who are just in love love love with federal power, if that makes you happy.

All power is a double-edged sword. I think liberals do get that, and worry about what expansions of power will cause down the road (such as the assassination policy). I certainly worry about that. And yet, if I lived in a swing state, I would vote LOTE as normal, and that means Obama. I don't live in a swing state, though, so I get to toss Gary Johnson a vote. :)

A few wrap-up points, and then I'm done:

I think strict originalism, much like biblical fundamentalism, has problems. Because the Constitution (while clearer than the many-times-translated Bible) had a group of authors who disagreed about things and occasionally committed the sin of being vague.

I have some sympathy for the Brett/Avedis position here, but only to a point. There *are* parts of the Constitution that are ambiguous. People's understanding of words and norms change over time. Hence "cruel and unusual" might mean witch burning at one point, and might mean any form of corporal punishment at another point.

I *do* think that the 2nd Amendment is sufficiently clear as to need changing before you can ban weaponry (though I don't see a safety class requirement as out of bounds, though I'm sure Brett sees that as "infringement"). It needs updating, since we've developed a lot more weapons since 1789. Said updating should be cautious and keep the right of self-defense firmly in mind.

I'm less sympathetic to the claims regarding the commerce clause. Seems to me that with modern transportation & communication, more and more of commerce is interstate (and international). I'm not saying there was never overreach, but I think the claims are overblown.

I don't think it's a coincidence that a lot of the things under discussion on this page have been from the early 20th century: the USA was out of land it could steal from the NAs, and was starting to fill up. Population growth was impressive. We were becoming increasingly urban. And that puts pressure on a system designed for a far more agrarian, sparsely populated society with a dangerous frontier.

Any reference to forbidden sweets, desserts, or carbohydrates in the above plan does not preclude wolfing down three cupcakes with custard filling and sprinkles on top per day.

I like that diet.

Except, being the effete coastal elitist snob that I am, I want creme brulee and tiramisu. With a nice port and a double decaf espresso.

Come the revolution, those things will be the mandatory snacktime treats in all of our state run resettlement camps.

You will learn to love your serfdom!

Via Charles Pierce, we revisit Utah, where last we saw the leading online porn subscription State proposed legislating only abstinence-only sex education (so much for hands-on learning) in the schools:

http://www.foodsafetynews.com/2011/02/bill-proposed-in-utah-to-exempt-state-from-new-fda-law/

e. coli representatives have yet to comment on the proposed law, but the off-the-record gut feeling among e.coli from the other 49 states is that their brethren in Utah will quickly adapt to facilitate local cramping.

They are observing events in Utah closely.

This twist in states rights/food safety may also take e.coli's attention away from a long-running internal dispute, to wit, what the hell is the purpose of the period after the e.

Salmonella, for its part, objects to any regulation at any level of government whatsoever, believing that the Constitution trusts that individuals can make their own determinations regarding food safety with a simple sniff test while bent over the open refrigerator in their bathrobes at 2:30 in the morning.

Is that the meatloaf left over from Sunday dinner? Let's see, it's Wednesday and it seems to be moving, or do my eyes deceive me.

Too bad the FDA guidelines regarding squirming meatloaf are out of print.

Nice summation, Rob. I am generally in agreement.

Bottom line, no one has told me why it is Constitutional to outlaw cannabis. I say it is not and that laws to that effect are over reaching by the feds.

Also, if you don't like the Constitution or feel that as originally written it is no longer applicable to modern issues, you don't get to simply ignore it or pervert it. Rather, you must hold a convention and amend it.

Let's say we agree that federal bans (on anything) are unconstitutional.

So let's say CA legalizes but AZ does not. People in AZ go over to CA to buy and bring it back. Is there a federal role there, or do the AZ Staties just need to hang out on the border, searching people's cars, at which point we have to talk about the 4th amendment, right?

Imports of cocaine from South America to states where it's banned: federal role? Interdiction on the high seas and whatnot?

Amazon starts selling pot over the internet... do the Feds have a proper oversight role there? To what extent? Say CA has laws regarding safety/purity/potency that Oregon does not. There is a dispute. This escalates to the Feds at some point, right?

Bottom line, no one has told me why it is Constitutional to outlaw cannabis. I say it is not and that laws to that effect are over reaching by the feds.

I think it depends on the execution. I don't like the ban, but I don't know that a ban, in and of itself, is unconstitutional. I'd say there are all sorts of constitutional rights being trampled in the current execution of the ban, and perhaps that any effective ban is a practical impossiblity without violating a number of fundamental constitutional rights (not that the current ban is even effective while violating people's rights, so imagine the ban being effective with further contraints than are now imposed on the government).

So the constitutional question may be academic, leading us to the same anti-ban position, if for slightly different reasons.

(But, hey, it's a blog, so it's all pretty much academic, anyway.)

Speaking of the 4th, here is the text:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Right off the bat, I see the word "unreasonable." That's going to be a shifting target, right there, just like cruel and unusual.

The bit about warrants is more specific, which is nice.

So, does one need a warrant for any search? It isn't clear to me just from the amendment. Present practice in the drug war seems to be "no, come up with probably cause on the spot and search away." The person being searched can refuse to consent and challenge the findings (if any) in court.

I feel like I'm missing something (or lots of somethings here).

"This escalates to the Feds at some point, right?"

No. i don't think so.

Someone buying cannabis in CA and bringing it back to a state that outlawed it is a state problem. Yes, the feds can regulate (note "regulate" as opposed to "ban") interstate commerce, but I don't see where any formal commerce has taken place in your example.

I am no lawyer by any measure - yes yes, I know, that is painfully obvious - however, I am an economist by education and employment. Maybe my education provided me with an unbalanced slant on things constitutional, but in my course of study we looked at the economic reasoning behind the founders' design and regulating interstate commerce was for the purpose of ensuring sufficient uniformity in economic transactions such that the nation could enjoy unimpeded trade between the various regions. The feds role was to be one of facilitator of trade.

That is decidely different from the role of uniformity of moral issues across states.

Also, if you don't like the Constitution or feel that as originally written it is no longer applicable to modern issues, you don't get to simply ignore it or pervert it. Rather, you must hold a convention and amend it.

I love the Constitution, and feel that it is applicable. I just think that it's subject to interpretation to make it a viable foundation for modern law. So quit trying to own it just because you disagree with the concept of judicial review.

I would really enjoy being the sole authority as to what the Constitution means, but since that's not going to happen, the system we have is next best. Obviously, government works best when good people are running it. We all have a responsibility to elect good people. There is no possible way, in any governmental system, to get away from the fact that people, ultimately, run it.

And yes, if AZ is so worried about some CA grass (get back Jo Jo) then it is incumbant on AZ to establish check points at its own cost and to adhere to the federal constitutional law concerning search ans seizure; which shouldn't be too hard to do given how that law has been bludgeoned to death as of late.

As I keep emphasizing, people have run to the federal skirt hems out of fear of various boogey men and/or laziness and in doing so have empowered the federal beast way beyond what was ever intended. Warrants are not needed for much of anything these days. You can be wiretapped, searched, have your property siezed and be killed all without warrant or due process and all that is needed for justification on the govt's part is that, in the opinion of their officers/agents you might be or be associated with some class of boogeyman. And pot smokers are boogeymen.

"We all have a responsibility to elect good people. There is no possible way, in any governmental system, to get away from the fact that people, ultimately, run it"

Easier said than done and the framers knew that power corrupts; which is why we have a Constitution.

OK, sapient. Then explain to me by what interprative logic cannabis is illegal. Explain to me the logic behind warrantless wiretaps. Explain to me how a POTUS gets to summarily execute suspected US citizens.

Because that is where we have ended up with your preferred process of law making.

OK, sapient. Then explain to me by what interprative logic cannabis is illegal. Explain to me the logic behind warrantless wiretaps. Explain to me how a POTUS gets to summarily execute suspected US citizens.

Not sapient here, but I don't think there needs to be interpretive logic by which cannabis is illegal, rather interpretive logic by which the federal government (that is congress) can make it illegal. (And that's a separate question from whether it should.)

On the other two, I'd say those practices are prohibited, so we agree.

I'm not really sure I understand how russell's appeal for evidence works in retrospect when he seems to want to exclude the best evidence available.

You seem to be working through the modern norm--if the general assumption is that the Constitution doesn't currently allow something, we should *try to get the assumption changed*. That norm leads to lengthy discussions about what the current assumption is.

They were working through a completely different norm--if the general assumption is that the Constitution doesn't currently allow something, *we should amend the Constitution*.

That norm doesn't lead to even short discussions about what the current assumption is. They just accept that the assumption is there, and move to amend it.

We're pretty clearly in Holmes' "listen for the dog that didn't bark" kind of scenario.

The Temperance Leagues were a powerful political force, tightly allied with the law and order movement. Even back in the early 1900s, it was understood that getting legislation passed was amazingly easier than passing a Constitutional amendment. I'm pretty sure we all agree on that.

So, lets look at common understanding as a continuum and examine it at three points: the hard federalist point (absolutely everyone understood an amendment to be necessary), the hotly contested point (everyone understood there to be a strong dispute about whether or not an amendment was necessary), and the hard centralized point (everyone understood that an amendment was clearly not necessary).

Assuming we know nothing about the actual state of the understanding, can we make assumptions about how the debate would play out depending on where it was?

I'm pretty sure we can. If the general understanding was at the hard centralized point, we probably wouldn't have seen an amendment at all. Amendments, even back then, were hard to pass. Legislation was easier. If it was merely a tactical move (to lock prohibition in once won) we would have seen it play out similarly in the states and at the federal level (amendments in both places). But in actual fact, we typically see legislation, not state constitutional amendments at the state level. We also would be likely to see federal legislation first and the lock in second. If general opinion was close to or at the hard centralized position, we wouldn't see much debate about the constitutionality of prohibition laws, because their constitutionality would be obvious.

If the general understanding was at or near the hard federalist point, what would we have seen? We would have seen a two pronged-approach. The Temperance leagues would try to pass prohibition legislation in the states as they gained power, and attempts to pass an amendment for a federal rule. This is in fact the strategy actually taken by the Sons of Temperance (call for national amendment and push for local legislation in 1856), Anti-Saloon League (great success 1900-1913 at passing legislation on the local level, then at their conference pivoting to support for a national amendment), and the National Temperance Council (formed for the purpose of passing a national amendment and demands for an amendment submitted to Congress by the Committee of 1000 in 1913).

If the understanding was close to or at the hard federalist position, we wouldn't expect to see much debate about the constitutionality of a federal prohibition because its unconstitutionality (without amendment) would be obvious.

The only time we would see debate about the constitutionality of Congressional prohibition would be if it were an actually contested issue. In that case I would have expected the prohibition forces to mirror their enormous success at the local level by attempting to pass legislation through Congress and additionally I would expect to see many arguments about the Constitutionality of such legislation, with a third prong being an attempt to pass an amendment to avoid the problem.

Russell, you seem to be asking for evidence of the type which would exist only if the constitutionality of a Congressional Prohibition were a live issue. The evidence of the two major localized Temperance groups (Sons of Temperance and Anti-Saloon League) is that they enormous success at passing local legislation, and when they wanted to go national they immediately pivoted to making an amendment. If an amendment wasn't widely thought to be necessary why not just continue their highly successful methods? The national organization founded around Temperance (National Temperance Council) was formed around the idea of an amendment. Why not model after the highly successful local temperance leagues and go for legislation?

My answer to that question is that they didn't do so because it was well understood that they couldn't.

You seem to want evidence BEYOND their enormous change in tactics which shows that they thought so. But if the hard federalist assumption was in place, what further evidence would you expect?

Why not model after the highly successful local temperance leagues and go for legislation?

While I get your larger point and see the logic in it, this particular question may simply come down to local political dynamics being different and that what states and other localities can do through legistlation under state constitutions without arousing significant and resourced opposition is simply not the same as what can be done the same way very easily at the federal level. The localities where they were successful may well have been the first chosen - low hanging fruit, if you will - based on the lack of local opposition.

(But, as I wrote before, I'm no great student of history in general or the Prohibition Era specifically, so I could be way off here.)

Did I see above that Russell is going to do another post on the "corporations are people" grift?

Start here: http://www.marketwatch.com/story/grantham-wonders-if-marx-was-right-after-all-2012-02-29?siteid=bigcharts&dist=bigcharts

Jeremy Grantham, like Warren Buffet, is one of my favorite capitalists and an amazing mutual fund manager. He was a pioneer in investing in emerging countries.

Now, by claiming that Marx and Engels may have been fairly accurate in their critique of capitalism's soft spots, he risks being called an anti-American Commie tool by the usual suspects, who probably socialize more of their risks and losses before breakfast that the rest of us put together and are the same ones who call George Soros a Jew hater.

We're nuts.

Some of Marx's criticisms of capitalism (especially mid-19th century capitalism in Britain) seem bang-on to me.

His prescriptions, however, not so much. I think he rejected the idea that the owners would compromise. Basically, I think he thought something like the New Deal was impossible (and, in fairness to the man, there has been a faction that has fought tooth and nail against the ND from the get-go) and, therefore, the whole thing would come crashing down.

Instead of the "pure" capitalism of the 19th century (which wasn't actually very pure), we ended up with a mixed economy. It's a bit of a muddled mess, but overall its story is one of success (even if, at present, there are worrisome trends). Marx, I think, made a mistake common amongst economists (sorry, avedis): he made an assumption, and that assumption was wrong.

No problem, Rob. Everyone needs to have a starting point when working up there manifestos.

I think Marx will be proven correct in the long run.

Easier said than done and the framers knew that power corrupts; which is why we have a Constitution.

OK, sapient. Then explain to me by what interprative logic cannabis is illegal. Explain to me the logic behind warrantless wiretaps. Explain to me how a POTUS gets to summarily execute suspected US citizens.

Explain to me, avedis, how the Constitution will enforce itself without people. It is an amazing document; trouble is, it's a document. It doesn't have a celestial spirit that comes forth and forces people to do whatever [you or] somebody says it means.

Regarding cannabis, if I were interpreting the Constitution, I would say that growing your own marijuana on one's own property for one's own personal use is absolutely untouchable. Once somebody starts selling it for U.S. dollars, especially if touting it as a "remedy," that person is subject to regulation. But even if there are some issues about which I disagree with the Supreme Court, so what? I benefit from having a stable society that accepts a certain amount of "government" - especially since I can use all of my free time to lobby for whatever type of change I want to have happen.

Regarding warrantless wiretapping, I'm against it (depending on the circumstances). People who agree with me are challenging the law in court. I'm willing to live with the ruling.

Regarding killing a person (American citizen or otherwise) who publicly declares himself allied with an enemy with whom we're at war (military force having been authorized by Congress), a person who creates a fortress beyond the reach of any functional legal regime, a person who is engaged in soliciting American youth to kill themselves in order to kill a whole lot of other people with them, including other American citizens: sure, I support the government's right to target those people as enemies. Doesn't that discussion belong on a different thread? In fact, hasn't that discussion happened on a different thread?

By the way, I would also have supported a government (or state) action whereby a police officer might have killed that guy who was in the midst of shooting those kids in the Ohio school

Assuming we know nothing about the actual state of the understanding, can we make assumptions about how the debate would play out depending on where it was?

We can, but it seems to me that it would make more sense to try to get more information about the actual state of the understanding.

It's not like there isn't a pretty robust historical and legal record for that time.

What you're saying hangs together, but it's premised 100% on speculations drawn from your own imagination. As far as I can tell.

What strikes me about that period, from my admittedly limited knowledge of it, is the enormous confidence folks had then that government could, and should, step in and solve social problems. It's not called the "progressive era" for no reason.

Why an amendment, rather than a law?

Since we're speculating, I'd say that an amendment presents a stronger bar to reversal. The drys had been working for Prohibition for decades, they were determined to have it, and they were determined to have it stick. They may simply have assumed, correctly as it turns out, that once their preference was enshrined as an amendment, it would be damned hard to change it back.

Much like folks nowadays want an amendment, rather than a law, against gay marriage, or flag-burning, etc etc etc. It just makes it harder to reverse when the political tide turns.

As I say, speculation, but it seems as plausible as your argument, and is consistent with other things we actually *do* know about the time.

Anyway, as always, I appreciate your thoughts. No snark.

That all depends on what you mean by him being proven right.

I think he (like most of us!) better at pointing out flaws than proposing solutions/predicting outcomes.

If I recall correctly, one of the key requirements for Marxist utopia is the removal of scarcity as a concern. That, right there, strikes me as unlikely. Even though we get increasingly productive/efficient, resource constraints remain. Population growth ensures that (and if we reduce population somehow, I think we'd have a different problem given our economic model requires growth).

I remember Asimov imagining societies that basically used robot slaves to do everything and the humans lounged about doing whatever they wanted. It reminded me of Marx. Nice phantasy, I say, but unlikely unless you find the secret of unlimited free energy. In the golden age of SciFi, that was supposed to be nuclear power (FORWARD, OUR BRIGHT ATOMIC FUTURE!), but reality has turned out to be somewhat different.

Given scarcity, humans will do what we've always done: fight over who gets what. Hoard stuff. And in that reality, it's hard to see capitalism being replaced with a superior system. It might evolve some (as it has already), but it's a bend-not-break situation (so far).

Time will tell.

Given scarcity, humans will do what we've always done: fight over who gets what. Hoard stuff. And in that reality, it's hard to see capitalism being replaced with a superior system.

At the risk of sending the thread totally over the cliff, I'll observe that both scarcity and human nature have been around for at least 100,000 years. Scarcity likely much longer.

Human society that we would recognize - settlement, agriculture - is about 10,000 years.

Capitalism - depending on how you count, 250 to 500 years.

Far from being the inevitable result of human nature and physical reality, it's kind of a novelty. Humans have arranged things lots of other ways, for very long times.

Capitalism - depending on how you count, 250 to 500 years.

Guess that depends on how you define capitalism. Trade, money, etc. - better go to Rome or Greece or Mesapotamia. Been around for a long time.

Itals go away!

This is true, Russell, of course.

And so it's entirely possible to say "I think capitalism will be replaced by something else/better." I shouldn't have said "it's hard to see capitalism being replaced." OVERSTATEMENT ALERT.

I mentioned it matters what avedis means, exactly, by Marx being right, because Marx had a specific outcome in mind.

So I amend: capitalism may be replaced (or evolve into something else) - that's entirely plausible. Indeed, in the long run, it's likely. I just don't think the result with look much like what Marx dreamt up.

Trade, money, etc. - better go to Rome or Greece or Mesapotamia. Been around for a long time.

Trade and money != capitalism

Guess that depends on how you define capitalism.

I'd say there's something we recognize today as the full menu of capitalism. Some of the items on the menu have been around for while and others not so much. (I've heard that the Chinese invented pasta, though they probably can't therefore be credited with inventing Italian cuisine.)

When did the first publicly owned, stock-issuing corporations come about?

Well, if capitalism is defined as stock exchanges, it began in 1602 with the Amsterdam Stock Exchange. But there was a long road between "settlement, agriculture" and stock exchanges. The history of manufacturing, trade, and banking is quite a bit longer than that. Maybe that doesn't qualify as "capitalism," but it's more complicated than hunting, gathering and farming for a small community.

I wasn't trying to define it, just picking a point about as good as any other where one might say capitalism came into more or less full flower. It was an evolution for sure, so picking a particular birthday is going to be somewhat arbitrary.




"We can, but it seems to me that it would make more sense to try to get more information about the actual state of the understanding."

Well I think I actually do have a pretty good feel about the actual state of the understanding based on how federalism court cases were being ruled on in initially the New Deal (which is AFTER the prohibition) and based on the fact that Wickard ended up being such a shock (AFTER the prohibition and after the court packing threat). FDR got what he wanted, but I didn't realize it was even remotely controversial that what he wanted involved A CHANGE in the balance.

So I find the whole discussion confusing. Prohibition is pre-New Deal. I didn't realize that it was controversial that at a very minimum there were very big changes in the understanding of the Constitution at that time.

"Much like folks nowadays want an amendment, rather than a law, against gay marriage, or flag-burning, etc etc etc. It just makes it harder to reverse when the political tide turns."

No, I think you're defining that improperly. People want a flag burning amendment *because they can't make a law on it*. They already tried to make a law on it, and it passed. The Supreme Court (correctly in my opinion) said that laws against it are unconstitutional. They NOW want a flag burning amendment to overrule that interpretation by explicitly making it an exception to the 1st amendment.

They want an amendment against gay marriage *because the full faith and credit clause probably means that without an amendment a marriage in one state should be honored by all*.

While I disagree with BOTH of those proposed amendments, I respect the fact that they take the Constitution seriously--if it says one thing and they don't like it, amend it.

So I don't really buy your alternative explanation.

So I don't really buy your alternative explanation.

Well, as noted, it was just speculation on my part. And, as you note, my examples from the late 20th C aren't really good examples to apply to the early 20th C.

The late 19th C, beginning with the Interstate Commerce Act in 1887, through the early 20th C was a pretty active period for federal regulation. So, IMVHO and only IMVHO, it would not be surprising to find that folks at that time were not disturbed by claims that the feds could regulate, or even ban, the manufacture or sale of alcoholic beverages.

Maybe the reaction to FDR's programs during the New Deal are indicative of attitudes 10 or 15 years earlier. I don't know.

What I was interested in was some example *contemporary with Prohibition* that would demonstrate the widespread and well understood assumption that the feds had no power to do something like Prohibition, without the amendment.

There are tons of examples *from that period* of the feds regulating anything that couldn't be nailed down. So, I remain unconvinced.

And, I'm happy to leave it at that.

"And, I'm happy to leave it at that."

Seems OK to me. I'd add a bit to suggest that the temperance movement, emboldened by their success at the state and local level went for, and succeeded in getting, the whole enchilada because they could count votes (not yet banned by FDR) and figured it would get through the Constitutionally mandated hoops.

Given this is rather recent history, there should be a written record of political back and forth as to the efficacy of or strategizing about going for an Amendment vs. simply a federal "ban" which, as has been pointed out ad nausem, can be accomplished in any of a variety of ways (taxation, licencing, etc.).

Actually, when you delve into it (the religious fervor, the progressive politics),
http://www.questia.com/PM.qst?a=o&d=98503656>I feel most here would be quite interested to read more about the political and social events of that time wrt this issue

I believe you'll see that the politics were a bit more complicated than some of us seem to assert so blithly.

Not just happy, but determined...

When I said that Marx is probably correct in the long run I was referring to his prediction regarding the death capitalism and his reasons for it.

Some of his other ideas, not so much correct. For example the communist utopia that would replace capitalism is outlandishly unrealistic, though a pleasantly amusing thought.

Rather than a marxist progression toward utopia, I predict war and revolution amidst repeated attempts to return to feudalism. Ultimately, strong dictators will win out with varying levels of benevolence; or lack there of. This all in the next hundred years.

People don't want freedom and they don't want to get along. They want leaders to blindly follow and idols to worship. This they will receive.

"Not just happy, but determined..."

LOL. Indeed.

"I respect the fact that they take the Constitution seriously."

Respectfully disagree. This takes a living document, exhalted beyond reasonable reason for many bad reasons in some quarters (just my opinion)...yet somehow still a workable written framework in this modern day, and would turn it into a legislative laundry list of pet peeves.

It does the majesty and genius of the Constitution a great disservice and is an attempt to end run the give and take of day to day politics as disasterous as that interaction ofttimes is.

The ultimate inversion of reality: Actually using Article V is an act of disrespect towards the Constitution it's part of. Lying about what it means, OTHO, that's ok.

"Regarding killing a person (American citizen or otherwise) who publicly declares himself allied with an enemy with whom we're at war (military force having been authorized by Congress), a person who creates a fortress beyond the reach of any functional legal regime, a person who is engaged in soliciting American youth to kill themselves in order to kill a whole lot of other people with them, including other American citizens: sure, I support the government's right to target those people as enemies."

BTW, those were the allegations. How do you know they are facts? They need to be proven in court. Unless you think the judiciary system is passe and, as a living breathing document, we can decide to enact laws to circumvent the extensive language in the Constitution dealing with criminal charges, arrests and prosecution.

As a practical matter, the people killed under the living breathing expanded executive orders could have been captured and made to stand trial.

There is also a very terrible very troubling precedent being set. More of that living breathing stuff, I guess.

You shouldn't get to toss the law of the land aside for expediency's sake. But if writing such actions off as the result of living breathing makes you feel better, then good for you.

Here's what I find persuasive about Seb's and Brett's points, sort of combined - it's one thing to try to pass an amendment that contradicts what's already in the constitution and another thing that puts in something that just isn't there at all.

In other words, the constitution didn't say "Congress shall not ban...." I just didn't say explicity that it could. So it is different than passing amendments that would allow the federal government to ban or do something that it was explicitly prohibited from banning or doing by the constitution.

"So it is different than passing amendments that would allow the federal government to ban or do something that it was explicitly prohibited from banning or doing by the constitution."

Sorry, but no, not really.

If it's not in the document then the govt doesn't get to do it.

If it's prohibited by the document, then the govt doesn't get to do it.

It's the same thing.

Why? Because the document clearly states that it describes what the govt can do; everything that it can do. Therefore, if not described, it can't do it.

It would have been impossible to document in detail prohibitions against every possible idiotic/evil policy/law that future generations could conceive of.

When there is mention of things that are prohibited to the govt, the purpose is mostly to detail the right way versus common wrong ways.

In either case, if the govt wants to do it and the document doesn't say they can, then they need an amendment that says they can.

It's really simple.

Unless you just don't like it. Then you can become impenetrably obtuse and pretend that it's highly complex and confusing and living and breathing and morphing and that up is down........

....in which case we'd have about as evidence against you being against amerika as we had against Awlaki concerning actual involvement in actual terrorism (as opposed to merely writing anti-amerikan opinion pieces) and we will fly a drone up your ass and terminate your argumentation.......except we won't because the guys in control of the drones think the same way you would in that case and maybe you'd get to begin a lucrative career as a DC wonk.

Things have a funny way of working out.

This is not a warning and I don't want to come across as the heavy here, but when you toss around words like "impenetrably obtuse" and "pretend", it's going where the ice is a bit thin. I didn't say anything when there was the tag team match on sapient with various claims of him purposefully presenting flawed stats, and that seemed to have passed, but now that it is coming up a second time, I just want to ask _all_ of you to cool it a bit and play nice. Thanks.

No problem LJ. You are right. I will try again, more civily.

The C has clearly stated 17 things that fed govt can and must do (please see Article 1 Section 8). These 17 are very straightforward except the 17th; which just says that govt can make laws as necessary to carry out the first 16 responsibilities. The first 16 responsibilities are not at all ambiguous.

I then refer anyone who is still confused at this point to the Tenth Amendment, which states "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

There is a tricky comma in there. However, I do think that the 10 amend is also unambiguous.

LJ, I understand the point you're making. I'd simply point out that the possibility of civil discourse depends not only on civility, but also on language. By which I mean, not the type of language that you employ, but that you be willing to use language as language. Not just as noise.

At some point, when somebody is deploying all the po-mo, you have to recognize that they've decided to make civil discourse impossible themselves, by refusing to let language function. What do you say then? Seriously?

Do you resign from the field, and let them spike the ball in victory?

Do you just go on arguing, as though they're letting language function?

No, seriously, what do you do, if you can't say "purposely obtuse", or anything else that suggests what they're actually doing?

po-mo?

po-mo!

Perfect!

Saw that a couple times on this thread and had no idea what it meant. Now I have learned a new urban term that very aptly describes certain subculture-esque set of styles and attitudes that I encounter here and there.

http://www.urbandictionary.com/define.php?term=pomowanker

An entire list of ways to employ the term.

It's really simple.

Thanks for clearing that up.

Here's a poser for all of the "it's simple" crowd. Article I, section 8, the first of the enumerated powers:

The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States

Can Congress institute a tax to subsidize health insurance for the population of the United States?

If not, why not?

Clearly the power to tax is there. So, the issue is what is covered by "general welfare of the United States".

Kindly explain what is and is not covered by the phrase "general welfare", and lay out precisely why something like health insurance would or would not be included in it.

And if you wish to make claims about what the founders, or any of the hundreds of other folks since the founders who have spoken authoritatively on the topic, obviously did or did not understand that phrase to cover, I'd appreciate a cite.

You don't like po-mo, I don't like ventriloquism.

If it's really simple, this should take you all of three minutes. But take as long as you like.

Thanks.

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