Patterico's Pontifications

3/30/2011

WAPO: The Supreme Court is Not Filled With (Conservative) Political Hacks

Filed under: General — Aaron Worthing @ 6:40 am



[Guest post by Aaron Worthing; if you have tips, please send them here.  Or by Twitter @AaronWorthing.]

I missed this yesterday as I was dealing with a sick car, but the WAPO had an excellent Editorial Board Opinion on whether the Supreme Court is filled with politicians in judicial robes.  They were discussing the then-impending oral arguments in the Walmart class action case, writing:

It’s easy in cases such as this one to try to caricature justices as political players in search of a desired result. Easy, but wrong, as a recent spate of decisions show[].

Within the past few weeks, the Supreme Court, with conservative justices in agreement, rendered decisions that caused corporate America to groan. In one case, the justices sided with an employee who claimed his employer retaliated against him after he made a complaint. In another, they unanimously gave a green light to investors who sued a drugmaker accused of withholding information about serious side effects linked to one of its products. And the court, in a decision written by Chief Justice John G. Roberts Jr., an appointee of George W. Bush, rebuffed AT&T’s argument that it was entitled to “personal privacy” in order to shield certain information from public view. The chief justice, with tongue firmly planted in cheek, wrote that the court hoped “AT&T would not take it personally.”…

Justices are not devoid of points of view, and their “judicial philosophies” help steer them to certain results. There will be cases in which the justices appear to split along ideological lines, and the Wal-Mart case may very well be one of them. Debate and disagreement over the merits of a decision are understandable; not so painting justices as mere political hacks camouflaged in judicial robes.

And really it’s a pretty good opinion, and I recommend reading the whole thing and possibly even the links in it.  But it’s funny that their defense against charges that the Supreme Court is politically biased consists solely of defending conservatives against the charge of always siding with big business.  Yes, early in the editorial, in a part I don’t quote, they wave a hand at the concern of liberal activism but nothing in the meat of their argument seems to be aimed at dispelling that concern.  There are no citations of specific cases where liberals broke the liberal mold.

Mind you, these cases do exist.  The “liberals” on the court do not reflexively rule on the “liberal” side in every matter as defined narrowly in the case in front of them (more on that in a moment).  So why no discussion of those cases?  Perhaps the WAPO just doesn’t believe that the charge against liberals is serious enough to merit a defense.  Which is a dubious belief (if that is their reason), but that doesn’t mean they don’t believe it.

Now you see me accuse justices now and then of activism.  But let me flesh that out a little bit.  Even the activists do not simply think, “what do the liberals/conservatives want this time?  Okay, let’s give them that.”  That is because what the left or  right wants at any given moment is very often unprincipled.  This is largely the product of coalition politics, where often utterly contradictory political movements are grouped together under the banner of “left” or “Democratic” or “right” or “Republican.”  For instance, there is a deep contradiction between the left’s support for the privacy doctrine in relation to abortion, and their support for Obamacare, which is captured well in this photoshop:

A case in point was Rumsfeld v. FAIR.  In that case, a number of universities were refusing to allow military recruiters on campus in protest of the Don’t Ask, Don’t Tell policy.  However, federal law stated that Department of Defense money was conditional upon such access—i.e. no access, no DOD money.  That policy was referred to as the Solomon amendment.  But FAIR, which represented the universities, wanted to have its cake and eat it, too, by excluding military recruiters and still getting DOD money.  The argument they put forth was this.  This was a “boycott” and thus a form of speech, and thus the Solomon Amendment placed an unconstitutional condition, supposedly, on the receipt of those funds.

Liberals lawyers I knew at the time predicted victory for FAIR, but I recognized that what they were asking the court to do was deeply unprincipled.  After all, these same liberal commentators believed that Title IX of the Civil Rights Act of 1964, which held that educational institutions that received federal funds could not discriminate based on race, gender and a few other traits, was constitutional.  By what principle could you say it is unconstitutional to take away federal money from universities that excluded military recruiters, but at the same time say it is constitutional for the federal government to take away funds from universities that excluded black people?  So I predicted at the time that even the liberals on the court would have a hard time siding with FAIR, and history bore me out.  The decision was unanimous and indeed they specifically cited a decision upholding Title IX as precedent:

Congress’ power to regulate military recruiting under the Solomon Amendment is arguably greater because universities are free to decline the federal funds. In Grove City College v. Bell, … we rejected a private college’s claim that conditioning federal funds on its compliance with Title IX of the Education Amendments of 1972 violated the First Amendment. We thought this argument “warrant[ed] only brief consideration” because “Congress is free to attach reasonable and unambiguous conditions to federal financial assistance that educational institutions are not obligated to accept.”… We concluded that no First Amendment violation had occurred— without reviewing the substance of the First Amendment claims—because Grove City could decline the Government’s funds.

So to the extent that a justice is an activist (which, contrary to what one nitwit thinks, is commonly defined as refusing to follow the law, including the constitution and has nothing to do with honoring precedent), it’s not about blowing around in the wind according to whatever the liberals or conservatives want this week.  To the extent that they are activists, they are taking the long view.

[Posted and authored by Aaron Worthing.]

116 Responses to “WAPO: The Supreme Court is Not Filled With (Conservative) Political Hacks”

  1. I think all of the justices start from the point of what outcome they’d like to see, and from an emotional perspective. They then try to figure out how to get to their desired outcome.

    Sometimes, as in the case you mention, they conclude it’s too much of a stretch to get to where they emotionally want to be, and they don’t push the envelope. But I’d argue that this happens primarily where the stakes aren’t too high; in more ‘important’ cases, they’re far more willing to do whatever they need to in order to justify their decision (Bush-v-Gore, Texas sodomy case, and, yes, Obamacare).

    steve (369bc6)

  2. steve

    well, i think in the end Kennedy was being consistent in his belief in the right of privacy. he upheld roe and struck down bowers.

    As for Bush v. Gore, no, i really don’t think the conservatives were just trying to find a way for bush to win.

    And needless to say, we won’t know how they will rule on obamacare, yet.

    Aaron Worthing (e7d72e)

  3. DEcisions written by Breyer and Sotomayor, respectively, I think Scalia was probably threading the needle too closely in the Saint Germain dissent,
    but Kelo, and the whole raft of detainee cases were
    much worse examples

    narciso (b545d5)

  4. Um, precedent can be law – court rulings having the effect of law, are law.

    SarahW (af7312)

  5. sarah

    the ultimate touchstone of constitutionality is the constitution itself, not what the Supreme Court said about it.

    I didn’t say that. Hugo Black did.

    Aaron Worthing (e7d72e)

  6. Steve is an apparent endless spring of inanity.

    JD (3dfbdf)

  7. You know that caricature of the Court, we presented you with, well it’s not true, and I’m citing two decisions by the other blocs.

    narciso (b545d5)

  8. They might not all be hacks, but I would certainly level the charge against Alito. In his case simply a pro-government hack rather than a liberal or conservative one.

    Soronel Haetir (c12482)

  9. There are 4 hard core leftists on the court, 3 of them unqualified females and one them, Ms. Ginsburg, is without doubt a Bolshevik. She should be presiding over show trials in North Korea.

    Douglas (392f36)

  10. steve, I think few of the justices really match your description. Except for Kennedy, who I think does. Reading the incoherent Lawrence v. Texas decision leads one to think that.

    SPQR (26be8b)

  11. Steve is a coke head.

    DohBiden (984d23)

  12. haetir

    well, okay give an example of alito’s pro-government hackery.

    Aaron Worthing (e7d72e)

  13. Oh, I’m being called names, my feelings are hurt, how can I ever recover from such a devastating attack? DohBiden should pat himself on the back for coming with such an incredibly witty comment.

    SPQR: I don’t think Lawrence was incoherent, my argument with the decision is the rationale the majority came up with.

    AW: really disagree with Bush-v-Gore. the majority’s rationale is something I would have expected the liberals on the court to have come up with (in support of Gore). Using our own arguments against us, one can’t really argue that the framers intended equal protection to apply to how people counted hanging chads, can we?

    If my hypothesis was incorrect, then how come we don’t see more cases of a Justice complaining about their role being an impartial umpire, about having to vote a certain way, as was the case with Roberts in the DC Metro case, or with Thomas voting to uphold a law he would vote against were he a legislator? That this doesn’t happen more often is evidence, I believe, that the Justices are quite happy with their votes, that they are able to vote in a way that doesn’t leave them unhappy.

    steve (369bc6)

  14. Can anybody translate what steve is saying?

    daleyrocks (9b57b3)

  15. Steve

    > Using our own arguments against us, one can’t really argue that the framers intended equal protection to apply to how people counted hanging chads, can we?

    I think as an original matter, it is almost certain that the equal protection and due process clause does not apply to elections. if it did, they wouldn’t have needed the 15th amendment or section 2 of the 14th.

    But the fact is that the S.C. has said that for well over 30 years prior to bush v. gore in the “one man, one vote” cases, a matter STILL hotly contested before the S.C. I don’t recall any of the conservative justices advocating for those cases to be overturned. And i don’t see how it is any more appropriate to apply the EPC to the distribution of representation in congress, but not the standards by which a vote is or is not counted.

    The truth is, however, I think the majority was really thinking of the case much more in the terms Rhenquist laid out in their dissent. But Kennedy and O’Conner were not willing to call the Florida S.C. activists, which was what was necessary to apply the rhenquist argument.

    I will also note that 7 of the 9 justices found an EPC violation, and the 2 liberals who found an EPC violation merely differed over the solution.

    Wholly apart from the law, that inequality was unjustifiable indefensible. there is no good reason why a dangling chad should count at one table in the office, but not at another.

    [edited after the fact. –Aaron]

    Aaron Worthing (e7d72e)

  16. That all being said, unless steve is a sockpuppet for someone who deserves this kind of abuse, let’s lay off the personal insults. I would rather confront and disabuse them of their argument, than just insult them.

    Aaron Worthing (e7d72e)

  17. “I would rather confront and disabuse them of their argument, than just insult them.”

    A.W. – If you can’t understand the argument, how can you disabuse them of it?

    daleyrocks (9b57b3)

  18. Aaron: I think you’re making my point. There is no good reason why standards should vary from table to table or from county to county, but is such clearly unconstitutional, and especially in the context of what was previously considered to be violations of due process? I view the decision as an example of how the Justices twisted things to come up with their desired outcome…. and not all that differently than how the court rationalized Roe, Lawrence and (I can’t remember the case, Hamdi?) the rights of non-American captives during wartime held offshore.

    As for the liberal justices in Bush-v-Gore, given that they knew they were going to get stuck with Bush winning, joining in on the underlying issue was an example of their turning lemons into lemonade. They got stuck with Bush but they got a huge expansion of what constitutes due process, something that is going to come back to bite a lot of conservatives in the future.

    steve (369bc6)

  19. steve, I can’t believe you would say that if you had ever read Lawrence. Lawrence was incoherent to anyone trying to read it from a constitutional law point of view. I’ve never even seen a defender of the decision claim it was a well written opinion. It never even described the standard it was applying. You had to read Scalia’s dissent to understand what Kennedy was writing.

    SPQR (26be8b)

  20. No, Steve, there was no incongruity, in that decision, now Roe was a abomination predicated on fraud, Lawrence is equally without foundation, and don’t get me started on the Hamdi through Boumedienne

    narciso (b545d5)

  21. I am still curious about those conspiracies to get us into a war in Iraq, and the conspiracy to allow the Twin Towers to be attacked.

    JÐ (d56362)

  22. It’s the Stonecutters JD, just deal with it,

    narciso (b545d5)

  23. As someone who liked the outcome in Lawrence, and who believes (largely) in the standard set out in the California Marriage Cases for determining when a class should have heightened scrutiny, Lawrence was a mess: it didn’t explain the standard it was applying at all.

    This is pretty much generally agreed among people who study the law relating to sexual orientation. Lawrence kinda-sorta claimed to be applying rational basis review while clearly doing nothing of the sort, and as a result it’s totally unclear what kind of review the court would use in other sexual-orientation-discrimination cases.

    aphrael (e0cdc9)

  24. Don’t you see what he was saying, JD? You don’t? Well don’t you see what he was saying?

    /summary of steve

    In steve’s defense, my read of his comment is that Roe and Lawrence are examples of twisted rulings for a predesired outcome.

    I’m not sure I understand Steve’s point about the liberals having the last laugh in Bush v Gore, since they didn’t write the majority, binding, decision.

    Dustin (c16eca)

  25. Oh wait, I think I get it. He thinks it was incorrect for the feds to tell Florida what due process was, and so the conservatives wound up doing the antifederalists a favor.

    That’s a fair point, though it’s clear to me that the Florida supreme court was indeed violating the EPC. It’s the kind of thing I hate seeing the feds do, but it was utterly justified in this extreme case. And it was worth it. Thank God Bush was president instead of Gore.

    Dustin (c16eca)

  26. Steve

    > but is such clearly unconstitutional, and especially in the context of what was previously considered to be violations of due process?

    you sentence structure is a little hard to understand, but if you are asking if the court would have found these things to be violations of due process otherwise… going by memory, i don’t believe they ruled based on due process, but equal protection. And yes, i think they would have.

    Aaron Worthing (e7d72e)

  27. I dislike Lawrence not because I mind the political outcome, but because I think it was a political outcome. It was an issue that states should have been allowed to decide differently. Over time, that political issue probably would have spread throughout the country in the way that worked the best.

    Even though Lawrence overturned unbelievably stupid laws that I see no point in having, it also overturned the right to have stupid laws, which is pretty important if you don’t have absolute faith in the judicial branch.

    Dustin (c16eca)

  28. Daley

    > If you can’t understand the argument, how can you disabuse them of it?

    Well, i hope you didn’t think i was responding to you specifically. i mean i understood him that time, but later i had trouble myself.

    Aaron Worthing (e7d72e)

  29. “There is no good reason why standards should vary from table to table or from county to county, but is such clearly unconstitutional”

    “I view the decision as an example of how the Justices twisted things to come up with their desired outcome”

    steve – I fail to follow. If it was unconstitutional, where was the twisting?

    daleyrocks (9b57b3)

  30. “I view the decision as an example of how the Justices twisted things to come up with their desired outcome”

    steve – Sending the case back to Florida and telling the Florida Supremes to stop embarrassing themselves and follow their own rules constitutes twisting in what manner?

    daleyrocks (9b57b3)

  31. I find it amazing we still have butt hurt Miss Havisham Democrats still spreading revisionist history about the Bush v. Gore decision ten years later.

    daleyrocks (9b57b3)

  32. Mr Worthing, please! Of course the Supreme Court is filled with conservative political hacks, as will be noted the next time they take a decision with which the editors of The Washington Post disagree.

    As far as the cases you mentioned, there’s a simple explanation. The Koch Brothers called the Chief Justice, and on some cases where Justice Kennedy came down on the liberal side, the Chief Justice was instructed to have the other conservatives agree, as camouflage.

    The realistic Dana (3e4784)

  33. Daleyrocks: I wasn’t saying it was unconstitutional, I was asking AW if he thought it was. For the record, and to help anyone who is stumped by my prose, while there isn’t a good reason to count chads differently, I don’t think it rises to an unconstitutional violation. it’s like the french fry case: distasteful but not unconstitutional.

    Dustin: re: liberals having the last laugh. They knew they were going to lose, but in voting the way they did, they helped greatly expand the definition of violations of due process (a 7-2 vote on the underlying vote is more significant than a 5-4). A number of wags have argued that this expansion is going to come back and bite conservatives in the rear someday.

    steve (369bc6)

  34. Steve

    > while there isn’t a good reason to count chads differently, I don’t think it rises to an unconstitutional violation.

    The only reason why i don’t think the original constitution covers it, is because i don’t think the EPC applies to voting at all.

    But if it DID apply to voting, yes, I think it would absolutely be justified. It is only that one tiny disagreement I have with what the whole surpreme court has believed for decades. other than that, i think the decision was right.

    Aaron Worthing (e7d72e)

  35. A number of wags have argued that this expansion is going to come back and bite conservatives in the rear someday.

    In what way? I’m not saying your prediction is wrong (how could I?) but if some conservatives tried to treat Americans unequally, in order to obtain a political benefit, maybe they deserve for this decision to bite their asses.

    For the most part, conservatives want everyone treated to classic liberalism (to be equal before the law). That’s the fundamental crux of them being ‘conservative’ and liberals (who want everyone equal in results thanks to different treatment by the state) being different.

    I don’t see conservatives clamoring for only some counties to have voter ID and clean rolls. They want that even where there’s no apparent problem. I don’t see conservatives clamoring for immigration to be legal for some races. They want that in absolute terms. I don’t see conservatives clamoring for red states to have better gun laws than blue states.

    See what I mean? I’m confused about how they would be screwed, even though I understand the concern of the feds having discretion over a state’s equal protection. And yeah, I’m shifting from due process because I don’t know what exactly you mean.

    Dustin (c16eca)

  36. “I wasn’t saying it was unconstitutional, I was asking AW if he thought it was.”

    steve – OK. To be clear. Your position is that counting votes in the same election but using different procedures for the count within the same area where the election is being contested is not unconstitutional.

    Did I state that correctly? If not, what did I get wrong? Please restate it.

    daleyrocks (9b57b3)

  37. I’m not (wait for it) a legal scholar and it’s been a while so my memory is a bit fuzzy, but the argument I remember is that liberals could use the precedent to attack, for example, one county having fancier machines than another on the grounds that voters were affected differently. Another prophesy was that this would be used to (further) attack school districts receiving different amounts of funding, again on the grounds that this deprived kids in the poorer districts of an ‘equal’ education (and note the quotes are meant to indicate that I don’t equate a quality education with the amount of money being spent)

    steve (369bc6)

  38. steve

    > but the argument I remember is that liberals could use the precedent to attack, for example, one county having fancier machines than another on the grounds that voters were affected differently

    And i am telling you that this was already a problem before bush v. gore.

    Aaron Worthing (e7d72e)

  39. I know it was, but now they have a 7-2 decision behind them. Was it really worth having Bush win?

    steve (369bc6)

  40. one county having fancier machines than another on the grounds that voters were affected differently.

    That is probably a legitimate point, steve. And I have to say, in my experience, this would bite democrats in the ass. I would love it if urban polling centers were extremely efficient, and I have seen first hand those who don’t want that because it allows polling centers to be forced open late by judges… and then magically ballots are discovered after the rest of the state shows a democrat with a vote deficit.

    Yes… all polling centers in a state probably should do things similarly to avoid problems. It’s a bit of a stretch from Bush v Gore, but it’s an honest stretch.

    Personally, I want paper ballots, slow counting that isn’t reported to anyone but a central silent authority, and sting operations to expose fraud. I have a longer list than that, too.

    Dustin (c16eca)

  41. steve

    you are literally not understanding my words. equal protection had been regularly applied to voting for YEARS prior to that ruling, with virtually no conservative dissent. that is true in and out of the supreme court. look up the one man, one vote cases. seriously!

    Aaron Worthing (e7d72e)

  42. Was it really worth having Bush win?

    Are you kidding? This extremely weak problem that doesn’t bug anybody? Bush legitimately won the election in 2000, so of course it’s ‘worth having Bush win’ legally, too. This is what a democratic republic is all about.

    And Bush was a superior president to the alternative.

    Dustin (c16eca)

  43. steve

    it was an outrage against justice to have the “intent” of a voter discerned by panels dominated by democrats. you are quick to assert that the S.C. was ruling based on its desired results, but you think those election officials are immune to that temptation?

    Aaron Worthing (e7d72e)

  44. Aaron: I know of what you write. My point, which I am obviously having great difficulty expressing (my failing, not yours) is that Bush-v-Gore was (1) a huge expansion of precedent, (2) unsupportable from the perspective of ‘what did the authors of ‘equal protection mean?’ (there weren’t chads in those days), (3) an example of what I believe to be the so-called conservative judges inventing a right out of whole cloth in order to arrive at their desired outcome, and (4) likely to come back in ways not to our liking.

    That’s all.

    steve (369bc6)

  45. Nobody was pure. Not the voting officials, not the Florida Supreme Court and not the US Supreme Court.

    And Bush was good, but only in the alternative(s). The same as would have been the case with McCain.

    steve (369bc6)

  46. And I think steve’s point is even easier to debunk by asking democrats if they think this benefit of potential lawfare against unequal ballot procedures is a great enough gain for the left that it makes Bush winning the election a net win for the democrats.

    My guess is that they would rather Bush not have won. As Aaron notes, these legal issues were around already.

    Florida’s democrats were nothing short of outrageous enemies of honest elections. Nothing short. They thought electing Gore justified stealing the votes of thousands of Florida soldiers, manipulating recounts to give some districts a greater representation than others, and tilting the counting process.

    I would condemn them if they were doing this for Bush instead of Gore.

    Dustin (c16eca)

  47. Steve

    > a huge expansion of precedent,

    no, it wasn’t.

    > unsupportable from the perspective of ‘what did the authors of ‘equal protection mean?’ (there weren’t chads in those days)

    there was voting, duh.

    > an example of what I believe to be the so-called conservative judges inventing a right out of whole cloth

    except that the cloth was already there. i mean its like as if you pretend that Planned Parenthood v. casey created the right to abortion, instead of merely affirming it and applying it.

    and since this was not an expansion, it is not likely to bite us in the @$$ later.

    > The same as would have been the case with McCain.

    no, no. Mccain had terrible qualifications, too, imho. bluntly palin was more qualified, which is more of a statement of how unqualified the rest were, rather than praise for palin.

    Aaron Worthing (e7d72e)

  48. This is interesting. Steve thinks that keeping one party from utterly manipulating an election to tilt towards them doesn’t violate equal protection or my human right to a vote. It’s ‘inventing a new right’ to have an honest election, because they didn’t have hanging chads in 1789.

    But the constitution doesn’t list what few rights I have. It protects the rights that I always had. In 1789, or 1789 bc, people had the right to equal treatment by their government, because all men were created equal. This is the justification behind the republic coming into existence in the first place.

    Sure, the constitution doesn’t specify that the government can use space gold to finance plasma laser disintegration of all methodists, but it’s still unconstitutional.

    Dustin (c16eca)

  49. And this is why Aaron is annoyed that Obama claims Qaddafi lost his legitimacy to lead. Obama is a purported constitutional scholar, and thus should have figured out that dictatorships are never legitimate. Our rights don’t come from governments or diplomacy, and Obama’s confession that he thinks Qaddafi had been legitimate exposes this most fundamental difference between ‘liberalism’ and classic liberalism.

    Dustin (c16eca)

  50. Only in the 40 watt range, Dustin.

    narciso (b545d5)

  51. Okay, I’m not going to be able to convince you all that Bush-Gore was a case of conservative justices gone wild.

    I note your collective defense of the conservative justices is a mirror of the left’s defense of the liberal leaning justices, where Lawrence and Roe and Hamdi were not only the right decision, they were principled, the polar opposite of ‘judicial activism’ and anyone who disagrees is a hack and subject to ridicule.

    steve (369bc6)

  52. Conservative justices gone wild???
    What part of that 7-2 vote did you miss?

    AD-RtR/OS! (b8ab92)

  53. Steve

    > I’m not going to be able to convince you all that Bush-Gore was a case of conservative justices gone wild.

    yeah, because it has nothing to do with the facts.

    Aaron Worthing (e7d72e)

  54. I note your collective defense of the conservative justices is a mirror of the left’s defense of the liberal leaning justices,

    Then you note something that isn’t true, steve. You have studiously ignored the discussion, and draw false and lazy equivilances.

    You make the assertion this is justice run wild, and you are the one who has to back that up with something more than your imagination about invented rights to a vote or equality before the law.

    Are you the guy who danced around being a truther yesterday? You sound like you know you’re wrong, but can’t admit it.

    Dustin (c16eca)

  55. “I’m not going to be able to convince you all that Bush-Gore was a case of conservative justices gone wild.”

    steve – I don’t think so.

    You have not actually explained an expansion of precedent from the case.

    You are blatantly ignoring the court’s spanking of the Florida Supremes for not following their own state constitution and law.

    With arguments like those, not much chance of persuasion.

    daleyrocks (9b57b3)

  56. steve – I note you did not answer my question @36.

    Why are you against fair elections?

    daleyrocks (9b57b3)

  57. “Are you the guy who danced around being a truther yesterday?”

    Dustin – To be fair, steve was saying also that we should not waste our time with Pigford because they were much bigger wastes of government money to look at, without offering any specific proof mind you. The documented fraud and illegality in Pigford did not matter to steve.

    daleyrocks (9b57b3)

  58. “…After all, these same liberal commentators believed that Title IX of the Civil Rights Act of 1964, which held that educational institutions that received federal funds could not discriminate based on race, gender and a few other traits, was constitutional.”

    I’d say the issue there is is that the federal government has no enumerated power to tax me for the purpose of taking my money and giving it to some alleged educational institution, period.

    At least I can’t think of any such enumerated power that would allow that.

    They have the power to tax for…

    “To provide and maintain a Navy;”

    …that purpose, but where do they get off taxing me just because they think universities ought to have more dough?

    “The Supreme Court is Not Filled With (Conservative) Political Hacks”

    If by conservative you mean right wing/in favor of limited Constitutional government, I’d say that was the understatement of all time.

    Dave Surls (8d673a)

  59. Dave, Article I Section 8 says Congress has the power to:
    lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States

    So, is giving money to educational institutions providing for the general Welfare?

    At the very least, it’s not clearly excluded; it depends on how broadly you read the phrase ‘provide for the general Welfare’.

    aphrael (e0cdc9)

  60. “Was it really worth having Bush win?”

    Like it or not we don’t have a constitutional method to determine what to do when we have an election that is too close to call, and a political party that, at one time murdered thousands of people in order to rig elections, immediately starts bitching and moaning about it.

    So, the mighty SCOTUS pretty much has no choice, in a case like this, except to rule based on expedience. The only other option is to let the Jim Crow Party invent creative ways to recount votes until their boy wins.

    Dave Surls (8d673a)

  61. “…it depends on how broadly you read the phrase …”

    and that seems to be the problem, doesn’t it?
    The “Living Constitution” needs to go on a diet so it isn’t quite so “broad”.

    AD-RtR/OS! (b8ab92)

  62. “So, is giving money to educational institutions providing for the general Welfare?”

    I think that one has been pretty much done to death.

    I suppose I could give the pro forma response, that there isn’t much point in enumerating powers if the Congress can do anything it pleases, subject to a possible presidential veto, under the general heading of “it’s good for the general welfare”. As a matter of fact, I know I could give the pro forma response, ’cause I just did.

    However, if that’s the way you want it, just don’t start complaining if someday 270 Congresscritters and the POTUS have a bad brain day, and decide that it would somehow be good for the general welfare if Dave Surls enslaved aphrael, and, because you had committed some sort of crime, like jaywalking or something (so it would be legal under the 13A for you to be enslaved) you wound up being my personal property for life.

    Could happen, you know.

    Stuff like that has happened before.

    Besides, I don’t think it’s one bit good for the general welfare to take my money and give it to some college program that then siphons it to stone-cold traitors/commie ratbags in the university system, like say Ward Churchill or Bill Ayers. I think that’s real bad for the general welfare (not to mention real bad for my personal welfare, which trumps the general welfare every single time, when it comes to things that are mine by right)

    Dave Surls (8d673a)

  63. Dave – the general welfare clause doesn’t allow Congress to do whatever it pleases. It allows Congress to spend on whatever it pleases.

    That is, it authorizes the spending of money on education; it doesn’t authorize requiring me to get an education.

    This is a fairly fundamental distinction. The other grants of powers control what Congress can make regulations about. It’s a restricted list with restricted powers. The spending clause, on the other hand, authorizes spending on anything which is colorably part of the general welfare.

    Who decides if it’s part of the general welfare? Not you or me: that’s generally left to the legislature, unless it’s so clearly not part of the general welfare that a court feels compelled to step in.

    aphrael (e0cdc9)

  64. “At the very least, it’s not clearly excluded…”

    Thanks to the good ol’ Declaration of Independence and the good ol’ Tenth Amendment that’s pretty much a non-issue.

    The DOI says that the only just powers that ANY government has are those delegated to them with the consent of those who are governed.

    And, the Tenth Amendment says that the only powers the United States government has are those delegated to it by the Constitution.

    That being the case, we aren’t obligated to specifically exclude governmental powers.

    Dave Surls (8d673a)

  65. AD – the living constitution stuff isn’t about the breadth of the spending clause; that’s been viewed as having basically no boundaries ever since the early nineteenth century, and fairly uncontroversially so. The basic fight today regards the breadth of the commerce clause.

    Note that the boundaries of the spending clause and of the commerce clause can be, and are, different … because “general welfare” and “interstate commerce” have different definitions.

    aphrael (e0cdc9)

  66. Dave: sure. But we delegated the power to spend money to promote the general welfare. It’s a very, very broad grant. Anything can be part of the general welfare, really, unless it’s specifically excluded.

    aphrael (e0cdc9)

  67. “Dave – the general welfare clause doesn’t allow Congress to do whatever it pleases. It allows Congress to spend on whatever it pleases…”

    Well, that’s a mighty big comfort!

    So, if I want to make you my slave (assuming Congress is willing to go along with the idea), I guess I’ll just have to point to the preamble as a legal justification, since for sure having you work for me at cut rate wages, will promote the general welfare…IMO, anyway.

    You might not like it, but hey, we all have to make little sacrifices in order to promote the general welfare.

    Dave Surls (8d673a)

  68. What does the preamble have to do with anything?

    I’m not pointing to the preamble. I’m pointing to a specific grant of power in Article I. Congress is authorized to spend money on anything which promotes the general welfare.

    aphrael (e0cdc9)

  69. __________________________________________

    they wave a hand at the concern of liberal activism but nothing in the meat of their argument seems to be aimed at dispelling that concern.

    It’s related to the biases of various journalists that make them label some person or cause “ultra-conservative” but rarely, if ever, label some person or cause as “ultra-liberal.”

    Mark (411533)

  70. I am still curious about those conspiracies to get us into a war in Iraq, and the conspiracy to allow the Twin Towers to be attacked.

    Steve went strangely silent.

    JD (0b7af0)

  71. “What does the preamble have to do with anything?”

    It’s another part of the Constitution that liberals like to point to and say: This means we can do anything we want to, on account of anything we do promotes the general welfare.

    And thus, the state is able to steal my money via the tax system, give that money to some feckless university, that in turns gives the money to Ward Churchill…in order to promote the general welfare.

    Dave Surls (a05694)

  72. Serendipity reporting in.

    I’ve been dipping in and out of Adams’ History of the US the last few days, and came across the “State of the Union” message he sent to Congress in 1806 (not called that back then, but that’s what it was) [I think it was 1806; don’t have the book in front of me]. He proposed a somewhat extravagant program of internal improvements, including roads and new colleges funded by Congressional appropriations, and rounded this off by the observation that the Constitutional amendment necessary to allow Congress to make such appropriations could be easily passed and ratified by the states.

    So, seventeen years after the adoption of the Constitution, one of the Founders officially recognized that such spending powers were not authorized by the Constitution as it reads, then and now, since no such amendment was ever passed. And this particular Founder, while serving as President, was willing to allow the Constitution to be trampled on when it served his ends (most notably, the Louisiana Purchase and the Embargo).

    kishnevi (510a0a)

  73. he sent to Congress in 1806
    “He” being Jefferson.

    Sorry for the confusion.

    kishnevi (510a0a)

  74. I personally feel the President is the most naturally gifted orator since JFK. When he speaks, he is very compelling. I still feel this nation needs socialized medicine across the board. I know, I know, baby steps… But I can still hope.

    Spritz Pearls (80cc24)

  75. That’s utterly incoherent “Pearls”.

    SPQR (26be8b)

  76. Define incoherent, SPQR(?)

    Spritz Pearls (80cc24)

  77. Naturally gifted orator apparently means reads TelePrompTer in proper cadence while remembering to turn to the left and the right.

    JD (0b7af0)

  78. spritz

    right, because our socialized education system is working so well, let’s apply that to our health and very lives. *rolls eyes*

    Aaron Worthing (73a7ea)

  79. If you ask me the best thing we could do is just amend the Constitution and take that “general welfare” nonsense out of there.

    Too vague.

    Gives the libbies what they think is carte blanche to do anything they please.

    Dave Surls (a05694)

  80. I once got a doll for Christmas that when you pulled a string that came out of her butt she talked. So I guess the doll was a gifted orator, too.

    elissa (b329f9)

  81. That was funny, Elissa.

    Spritz Pearls (80cc24)

  82. “I personally feel the President is the most naturally gifted orator since JFK.”

    I personally feel that JFK was a blithering idiot, who spewed nonsense pretty much every time he opened his mouth, and when he wasn’t busy spewing, almost bungled the United States into an all-out nuclear war with the Soviets, after good old Jack launched a sneak attack against the Godless commie hordes infesting Cuba, on account of they stole a couple or three sugar cane plantations belonging to U.S. citizens, like they shouldn’t oughta done.

    I hear he cheated on his wife very chance he got, and actually did Marilyn Monroe a time or two, which I guess is why lefties of the day liked him. Infidelity and promiscuity being a couple of cardinal lefty virtues, if I understand their moral system correctly.

    I mean they must have had SOME reason to like the guy, and that’s all I can come up with.

    Dave Surls (a05694)

  83. I’m not your “garden variety” democrat. As I said yesterday, I’m old school “Harry S. Truman kinda democrat.
    I oppose “gay” marriages and am pro- death penalty. I live in a capital punishment state, and feel its’ a stern punishment, that fits a “heinous crime”. I read what you guys posted about that “cockroach” Polanski. I’m on your side! I wanna see that “chickenhawk” making license plates at Corcoran or Quentin for at least a decade or so. I don’t want his ilk on the streets any more than you do. I didn’t know that democrats and so-called lefties had a corner market on infidelity though. You kinda lost me on that flight of irrelevancy.

    Spritz Pearls (80cc24)

  84. “…That is, it authorizes the spending of money on education; it doesn’t authorize requiring me to get an education…”

    You see, that’s the basic problem.
    1- Where is it enumerated that Congress has the authority to spend money on education?
    2- If they can require you, under penalty of law, to purchase health insurance, then can they not impose that same law against you for failing to acquire an education.

    It IS all about the scope of Congress’ powers, both in law and expenditure.

    AD-RtR/OS! (e05ee5)

  85. Elissa, I had a G.I. Joe doll with kung-fu grip. Bad, bad finger…

    Spritz Pearls (80cc24)

  86. More performance art.

    JD (0b7af0)

  87. I’m “green” with envy..

    Spritz Pearls (80cc24)

  88. Shirley you can’t be serious,

    narciso (b545d5)

  89. Yes, I am serious. And don’t call me Shirley!

    Spritz Pearls (80cc24)

  90. Or late for cocktails.

    Spritz Pearls (80cc24)

  91. AD-RtR/OS, I’ve quoted the section above. The very first enumerated power in Article I, Section 8, is the power to “lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States”.

    If it’s part of the general welfare, Congress has the power to collect taxes and pay for it.

    Now, the question about the mandate goes to whether Congress has the power, under its enumerated power to regulate commerce, to require you to buy something. I certainly agree that if it has the power to compel me to buy health care, it has the power to compel me to get an education. But that power, if it exists, arises under a different clause than the power to pay for my education.

    Let’s flip this. On what basis do you find a restriction of the power to “lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States”? Where in the Constitution is that limited in any way?

    aphrael (fe2ce4)

  92. Kishnevi, there was a debate between Hamilton (and the Federalist/Whig tradition) and Jefferson on this matter. (Note that you erred above, as Adams was not president in 1806). Hamilton, and the Federalists and later the Whigs, thought that the spending power included spending on internal improvements. Jefferson, and the D-Rs, thought it didn’t.

    aphrael (fe2ce4)

  93. “Pearls”, do you own a horse?

    SPQR (26be8b)

  94. Dave: amending the constitution to remove “general welfare” would be an effective way to change the constitution.

    What do you believe Congress is authorized to tax and spend on, given the existence of the clause granting it the power to “lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States”?

    What is the basis for the limits you would impose?

    aphrael (fe2ce4)

  95. No, but I have a nifty skateboard.

    Spritz Pearls (80cc24)

  96. “Pearls”, if you are going to troll, you ought to own a horse. Or ask how magnets work.

    SPQR (26be8b)

  97. Pearls of wisdom SPQR? Strange how “incoherent” your post is.

    Spritz Pearls (80cc24)

  98. If a guy shave all his hair except from eyebrows and eyelashes, how much weight could he lose?

    JÐ (6e25b4)

  99. No, aphrael it’s the interpretation of what Congressman Conyers calls ‘the good and plenty
    clause’

    narciso (b545d5)

  100. “What do you believe Congress is authorized to tax and spend on…”

    Things that are specifically listed in Article 1.

    A navy, post offices, post roads, etc.

    It doesn’t make much sense to say that Congress can tax for any purpose whatsoever (as long as they agree that it’s for the general welfare, whatever that means) and then list a bunch of specific powers/duties Congress has, and then say that any power not delegated to the United States is reserved to the states and people. Gibberish offends my sense of propriety, and that package of propositions is gibberish.

    But, I’d rather just amend the Constitution (taking out the general welfare stuff) than spend two plus centuries arguing about whether Congress has the power to tax for any purpose it pleases (not to mention all the other powers the feds exercise without regard to what the Constitution says) which is what we have done, while the government grows and grows and grows.

    Dave Surls (a05694)

  101. Comment by aphrael — 3/30/2011 @ 7:00 pm

    Until the 2nd-half of the 20th-Century, Congress did not find itself in the Ed business, and the promotion of education was within the police powers of the Several States. And just where in that clause does it explain that funding education is within the “promotion”, or the “providing”, of the General Welfare?

    It is expansive readings such as yours of the un-enumerated powers of Congress (must be found in emanations from penumbras) that have resulted in the situation we find ourselves in today – a Government that tries to be all things to all People, and generally fails at everything it does within the Domestic front. The only reason we have any success at all in Foreign Affairs is due to the vesting of power within the Executive to conduct those affairs – you cannot conduct Diplomacy, or War, with 535 CiC’s.

    AD-RtR/OS! (e05ee5)

  102. Comment by aphrael

    When I mentioned Adams, I didn’t mean John Adams. Besides writing The Education of Henry Adams and a couple of other classics, Henry Adams–grandson of John Quincy and great grandson of John–wrote The History of the US During the Jefferson and Madison Administrations (I think that’s the full official title.) It’s rather heavy on the diplomacy, but has a whopping good narrative of Burr’s conspiracy and the War of 1812, among other things.

    But it was Jefferson who delivered that 1806 message.

    Jefferson, and the D-Rs, thought it didn’t
    And it was Jefferson’s party which eventually became the modern Democratic Party, while the Grand Old Party (which, being founded after the Democratic Party is really the Grand Newer Party) arose from the ashes of the Whigs and Federalists.

    And, as I referred to above, Jefferson himself was not hesitant about acting beyond the limits of the Constitution when he wanted to.

    kishnevi (1b86f1)

  103. “…the Grand Old Party…arose from the ashes of the Whigs and Federalists.”

    Sounds messy.

    Dave Surls (a05694)

  104. As a starting point for a limit on the Federal governments ability to expend funds.

    1 – No transfer or payment to any individual or corporation of individuals for any purpose or reason except fair market wage for labor performed, or fair market price paid for services or product, or fair market rent for real property.

    2 – No transfer or payment to any state or munincipality for any reason except fair market rent for property used by the Federal government.

    3- As the National Defense is the most important of Federal functions, no less than 70% of all Federal expenditures shall be directly for the purpose of National Defense.

    Have Blue (854a6e)

  105. Dave Surls: ah, but the “general welfare” is specifically listed. There’s a list: elements a, b, c, d, and e. It seems to me to be a bizarre construction of the english language to read the first element in the list as being limited by the subsequent elements, unless the language of the list specifically indicates it.

    Congress is allowed to spend money to provide for the common defense and the public welfare. It is ALSO allowed to establish post offices and post roads.

    Otherwise, Congress would only be allowed to provide for the common defense by doing the things specifically listed, which doesn’t include building a fence along the border.

    If “common defence” is large enough to include things off of the list, then “general welfare” must also be – and including things off of the list is the natural reading of the language. the “common defence and general welfare” clause is a seperate enumerated power.

    aphrael (9802d6)

  106. And just where in that clause does it explain that funding education is within the “promotion”, or the “providing”, of the General Welfare?

    General Welfare is, like many other terms in the Constitution, not defined. Since there’s no definition, we have to look at extrinsic evidence, just like we would for any other undefined term. (What is an Offenses against the Law of Nations, for example?).

    It seems to me that the reasonable way to determine what the phrase means is to look at colonial / early state constitutions which use the phrase “general welfare” and see how the revolutionary-era governments interpreted the phrase.

    I haven’t done this research. My impression is, however, that the state governments construed it fairly broadly. Which makes sense to me: it’s a fairly broad phrase.

    The response to this is that the Constitution was intended to be erecting a government of limited powers. And that’s true … but there’s also no language in the Constitution whatsoever which limits the phrase “general welfare”, and one of the limited powers specified was to tax for the purpose of providing for the general welfare. I don’t see how you can legitimately infer a limitation, not present in the document, on this grant of power -> other than by looking at what the phrase was considered to mean at the time as shown by evidence from the actual behavior of other bodies limited by similar binding language.

    aphrael (9802d6)

  107. Have Blue: that’s a very nicely stated set of policy preferences. I fail to see how the Constitution compels them. Article I Section 8 does not limit payments to market wages for labor or market prices for services/product or market rent for property; nor does it prohibit intergovernmental transfers; nor does it require that 70% of expenditures be directly for the purpose of national defense.

    All of which is to say: you’ve listed a set of principles which you think should govern the behavior of Congress, as a matter of policy. But you haven’t listed a set of principles which must govern the behavior of Congress as laid out in the founding law.

    aphrael (9802d6)

  108. kishnevi, fair enough. I was confused by this:
    been dipping in and out of Adams’ History of the US the last few days, and came across the “State of the Union” message he sent to Congress in 1806

    which states that Adams sent a State of the Union message in 1806. That’s an error no matter which Adams you were discussing, and Henry Adams couldn’t have sent Congress a State of the Union message. :)

    I do find it bizarre that I assumed you were discussing John Adams and the possibility that you meant JQA never entered my mind. :)

    aphrael (9802d6)

  109. Congress did not find itself in the Ed business

    Arguably untrue. When Congress opened up federally owned land for development, while it sold most parcels, it specifically granted the states (and in some cases the territories) certain parcels as school lands. Giving the states lands which could otherwise have been sold, for that purpose was a subsidy for the construction of schools.

    It’s a difference in degree from the modern student loan system, and a difference in mechanism, but: both operate as government expenditure (in one case of federally owned land, in the other case of federally owned money) to subsidize education.

    The obvious first order response to this is that the federal government didn’t buy the land it donated to schools with the proceeds of taxation => which is, of course, untrue as to any lands not in the possession of the federal government in 1783, which is to say, everything west of the Mississippi.

    The second-order response to this is that the acquisition of lands, and therefore the tax expenditure, wasn’t done for the purpose of subsidizing schools. That’s true enough, but the grant of federal property to the states for school purposes was done for the purpose of subsidizing schools.

    aphrael (9802d6)

  110. aphrael at 107 – That list was a set of policy preferences and would absolutely require an amendment to enforce.

    Have Blue (854a6e)

  111. Have Blue – fair enough. :) Dave and I have been talking about how to interpret what’s already there, so I was puzzled by your interjection.

    I disagree with your policy preferences, but that’s a topic for another day. :)

    aphrael (e0cdc9)

  112. The granting of money by the feds for education has had two direct effects. The first, in both primary and secondary education, is the skyrocketing of costs, far beyond the rate of inflation as people scurry to spend the dollars. The second, found primarily in primary education, is the utter failure all that money to make any improvement. In fact as the government spends more money standards and success falls.

    Have Blue (854a6e)

  113. Wait a minute. I don’t see in the first of the enumerated powers any authority to spend at all; all it gives Congress is the right to tax for a list of purposes, including promoting the general welfare. Spending must be authorised by one or another of the other powers, and I don’t see a general welfare clause among them.

    Milhouse (ea66e3)

  114. Milhouse: the enumerated power for taxing also allows Congress to “provide for the common defense and the general welfare”. That is to say, the taxing clause is worded in such a way as to allow the proceeds from the taxes to be spent on the common defense and the general welfare.

    Unless you want to argue that taxing can provide for defense and welfare without concomitant spending, which strikes me as being implausible.

    aphrael (fe2ce4)

  115. “Dave and I have been talking about how to interpret what’s already there”

    I don’t like to have to interpret (on account of I’m slow, stupid, easily led, and frequently confused), I like to have laws that are clear and precise. Makes it easier for numbskulls like me to understand.

    When I see vague blather like “due process”, “general welfare” and other nitwittery of that sort in the law, I immediately want to rip that law up and write a new one, one that actually means something, and I want to do it before liberals can take advantage of the poorly written sections to advance the cause of socialism.

    Article one of the Constitution lists a few powers that Congress has, and I want their activity limited to doing those things, and only those things, unless the amendment process is utilized to add new things they can do.

    If they want to tax to raise money for a navy, that’s fine, because that’s in the Constitution. If they want to tax to raise money for a national life insurance/pension program that’s not fine, because that isn’t in the Constitution.

    Allow Congress to tax for the purpose of providing for the “general welfare”, and the next thing you know federal expenditures will go from 2.5% of GDP to 25% of GDP in the space of a hundred years (which is exactly what they did do between 1910 and now, thanks to the liberals). Then, in another century you’ll be up to 50%, and at that point, you’ll be essentially a communist country. Between federal, state and local spending, the government will totally control all economic activity (except whatever black markets exist), and that’s a real, real, real bad idea.

    Dave Surls (ac8a14)

  116. the enumerated power for taxing also allows Congress to “provide for the common defense and the general welfare”.

    Where does it say that? I’ve read it and read it, and all I can see is a power to tax for those purposes. Appropriating money for those purposes isn’t authorised by this clause; it must therefore be authorised by some other clause or they can’t do it.

    Milhouse (ea66e3)


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