Patterico's Pontifications

6/28/2011

Thirteen Clear Factual Errors in Richard Stengel’s Essay on the Constitution (And I Am Looking for Your Help) (Update: My Letter to the Editor)

Filed under: General — Aaron Worthing @ 5:56 am

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

Late last week, I fisked Richard Stengel’s Time Magazine cover story  “One Document, Under Seige(update: click here for the one page version) but it deserves more discussion.  I consider it nothing less than a journalistic scandal that this piece was (1) a cover story, (2) written by their Managing Editor, (3) who serves in an organization dedicated to teaching other journalists about the Constitution, and yet it is rife with factual errors, including many that are obvious simply by reading the Constitution.

My mistake in the last post on the subject was trying to catalogue everything wrong with it, leading me to take issue with his philosophy, too and thus what got lost for some was the simple fact that Stengel was clearly factually wrong on many points, often when the facts could be determined by doing nothing more than reading the Constitution.

So this time, we are going to focus solely on the factual errors.  There are thirteen of them and like the lawyer that I am, I will start off with his most egregious error and end with the least egregious.  Here are the thirteen errors, in short:

  1. The Constitution does not limit the Federal Government.
  2. The Constitution is not law.
  3. The Citizenship Clause of the Fourteenth Amendment emancipated the slaves.
  4. The Citizenship Clause of the Fourteenth Amendment granted the right to vote to African Americans.
  5. The original Constitution declared that black people were to be counted as three-fifths of a person.
  6. That the original, unamended Constitution prohibited women from voting.
  7. Inter arma enim silent leges translates as “in time of war, the Constitution is silent.”
  8. The War Powers Act allows the president to unilaterally wage war for sixty days.
  9. We have only declared war five times.
  10. Alexander Hamilton wanted a king for America.
  11. Social Security is a debt within the meaning of Section Four of the Fourteenth Amendment.
  12. Naturalization depends on your birth.
  13. The Obamacare mandate is a tax.

When I am done with this post, I am going to make a bleg where I ask you to try to help get out the word about this egregiously incorrect cover story.  So stay tuned to the end (or jump ahead if you feel like it).

But first here, point-by-point, is proof that each one of those statements are errors.

False Claim #1: The Constitution does not limit the Federal Government.

The relevant passage:

If the Constitution was intended to limit the federal government, it sure doesn’t say so. Article I, Section 8, the longest section of the longest article of the Constitution, is a drumroll of congressional power. And it ends with the “necessary and proper” clause, which delegates to Congress the power “to make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Limited government indeed.

(Emphasis added.)  [Update: If you want to check the veracity of my quotes from Stengel's piece, I suggest you use this single-page version of the piece, and then perform a Control-F search.]

Proof that he is wrong: The Constitution is filled with limitations on Federal Power.  For instance, Article I, Section 9 says:

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.  [A.W.: They’re talking about the slave trade.]

The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

No Bill of Attainder or ex post facto Law shall be passed.

No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.

No Tax or Duty shall be laid on Articles exported from any State.

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another….

No Title of Nobility shall be granted by the United States[.]

And then there is Article III, Section 3, limiting what the government can do to a traitor:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

It should be noted that Corruption of Blood is a doctrine by which the family of a traitor would suffer because of their alleged corrupted blood, so this is limiting the government’s ability to punish the children of a traitor for his or her treason.

And then there is the Bill of Rights.  As I noted last time, Mr. Stengel considered them as of a piece with the original Constitution, an interpretation I concurred with.  Every single one of them represents a limitation on federal power, so it is sufficient to only quote a few of them:

Amendment 1

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Amendment 2

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

….

Amendment 9

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment 10

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.

So contrary to his suggestion, the Constitution does indeed limit the power of the Federal Government, a point most of us learned in elementary school.

False Claim #2: The Constitution is not law.

The relevant passage:

Originalists contend that the Constitution has a clear, fixed meaning. But the framers argued vehemently about its meaning. For them, it was a set of principles, not a code of laws. A code of laws says you have to stop at the red light; a constitution has broad principles that are unchanging but that must accommodate each new generation and circumstance.

(emphasis added)

Proof that he is wrong: Again, the Constitution itself contradicts this claim.  Article VI, Paragraph 2:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land[.]

And of course in my long fisking piece, I cite several passages from Marbury v. Madison that is on point as well, but the Constitution is enough.

False Claim #3: The Citizenship Clause of the Fourteenth Amendment emancipated the slaves.

The relevant passage:

In drafting the 14th Amendment, Congress was definitely not thinking about illegal immigration. At the time, the country needed a lot more immigrants, legal or otherwise. Congress was thinking more practically. It wanted to emancipate blacks and allow them to vote so that white Southern Democrats would not try to reverse the gains of the Civil War.

(emphasis added)

Proof that he is wrong: The amendment that emancipated the slaves was the thirteenth.  (Duh.)

And notice for bonus points that he is conflating slaves and black people.  Not all black people were slaves prior to the Civil War.  This is a running problem with him as we will see in False Claim #5.

False Claim #4: The Citizenship Clause of the Fourteenth Amendment granted the right to vote to African Americans.

The relevant passage: Eagle-eyed readers might have seen that falsehood in the last quoted passage from Stengel.  So here we go again:

The 14th Amendment reversed that. In drafting the 14th Amendment, Congress was definitely not thinking about illegal immigration. At the time, the country needed a lot more immigrants, legal or otherwise. Congress was thinking more practically. It wanted to emancipate blacks and allow them to vote so that white Southern Democrats would not try to reverse the gains of the Civil War.

(emphasis added)

Proof that he is wrong: The Fourteenth Amendment did not end the exclusion of African Americans from the franchise.  In fact, it specifically allowed for the exclusion to continue, although with a penalty.  From the Fourteenth Amendment, Section 2:

[W]hen the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

It’s dense language, but if you work through it you realize that it is saying that if you deny men over the age of 21, etc. the vote, then you have to reduce the state’s representation accordingly.  Furthermore, it is simply a fallacy to suggest (as Stengel apparently believes) that all citizens automatically vote.  An American-born child is a citizen, but cannot vote until he or she reaches a certain age.  And in 1868, when this amendment was ratified, women were not generally allowed to vote, and yet they were citizens.

Racial discrimination in the franchise was not outlawed until the Fifteenth Amendment was ratified in 1870.

False Claim #5: The original Constitution declared that black people were to be counted as three-fifths of a person.

The relevant passage:

The framers were not gods and were not infallible. Yes, they gave us, and the world, a blueprint for the protection of democratic freedoms — freedom of speech, assembly, religion — but they also gave us the idea that a black person was three-fifths of a human being

(emphasis added)

Proof that he is wrong: In fact, the infamous (and now inoperable) three-fifth clause did not declare that black people were to be counted as three-fifths, but rather slaves were to be counted that way.  Here’s the relevant portion of the Constitution:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

And notice how the slaves are mentioned in this very indirect way, calling them simply “other Persons.”  Other than what?  Other than free people, other than indentured servants, and other than Indians who were not taxed.  So only by process of elimination do you realize they were talking about slaves.

And no, not every black person living in that time were slaves.  And of course there is a deeper historical ignorance that this goes to.  Stengel appears to believe this provision dehumanized the slaves by counting them as only three fifth of a person, when in fact the true outrage was that they were counted at all when calculating representation (see my last post for a fuller explanation).  But I am sticking to easily verifiable inaccuracies.

False Claim #6: That the original, unamended Constitution prohibited women from voting.

The relevant passage: That is right, it’s another two-fer, where he had two errors in the same passage:

The framers were not gods and were not infallible. Yes, they gave us, and the world, a blueprint for the protection of democratic freedoms — freedom of speech, assembly, religion — but they also gave us the idea that a black person was three-fifths of a human being, that women were not allowed to vote[.]

(emphasis added)

Proof that he is wrong: Now, this time I can’t point to a specific clause of the Constitution because we are proving a negative.  So instead I ask you to look at the original Constitution, before the Nineteenth Amendment was added, and ask yourself if there is a single word that forbid women from voting?  It isn’t there.

Now, Section 2 of the Fourteenth Amendment allows for gender discrimination in voting without any penalty in representation.  But there is a world of difference between allowing something to be prohibited, and prohibiting it.  Simply put, the Constitution did not say what he claimed it did.

False Claim #7: Inter arma enim silent leges translates as “in time of war, the Constitution is silent.”

The relevant passage:

There is an old Latin phrase, inter arma enim silent leges, which roughly translates as “in time of war, the Constitution is silent.” But it’s not just in times of war that the Constitution is silent.

Proof that he is wrong: Ask any lawyer or expert in Latin.  This is one of many citations that state what I know off the top of my head.  What it says is: “in times of war, the laws are silent.”  Laws, not the Constitution.  The Romans didn’t talk about the Constitution, because they had none to talk about.  They only had laws.

I suppose you could stretch the word “laws” to include the Constitution, as one of our laws.  That is indeed what people mean when they suggest applying this doctrine in America.  But see False Claim #2: he doesn’t think the Constitution is law.

And don’t even get me started on the fact that he didn’t seem to understand that the phrase refers to the law being suspended in its entirety.  He seems to think it means to be silent on one issue.

False Claim #8: The War Powers Act allows the president to unilaterally wage war for sixty days.

The relevant passage: There is no one passage, but if you read the section on Libya, he never indicates once that he understands what the War Powers Act actually says.  For instance, he writes here:

May 20 marked the 60th day since President Obama launched military action in Libya. Speaker of the House John Boehner has asserted that the President is in violation of the War Powers Resolution, passed in 1973, which requires the President to withdraw U.S. forces from armed hostilities if Congress has not given its approval within 60 days.

Proof that he is wrong: Contrary to what he seems to believe, the War Powers Act states that the President may not introduce our forces into hostilities except if authorized by Congress (broadly speaking), or if we are attacked.  From the statute:

The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to

(1) a declaration of war,

(2) specific statutory authorization, or

(3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

So as you can see the President is not given a blank check to enter into hostilities, but only if given permission by Congress or in defense.  The famous sixty and ninety day deadlines apply solely to the defense justification.  Therefore the War in Libya was illegal from day one (unless you believe the President’s ridiculous claim that bombing tanks is not hostilities).  And if Stengel knows it was illegal from the get-go, he gives no indication.

False Claim #9: We have only declared war five times.

The relevant passage:

Since the signing of the Constitution in 1787, Congress has declared war exactly five times: the War of 1812, the Mexican War, the Spanish-American War and World Wars I and II.

Proof that he is wrong: The problem here is that he doesn’t understand what the Declaration of War Clause means in the Constitution.  It is not simply conferring to Congress the power to write a piece of paper called a “Declaration of War.”  The Constitution is concerned with substance, and not form.  The substance of the power “to declare War” (Article I, Section 8, Paragraph 10), is the power to authorize the President use the powers of war.  Therefore, any authorization will be sufficient.

For instance, in Mitchell v. Laird, 488 F.2d 611 (D.C. Cir. 1973), challenging the legality of the Vietnam war, the court wrote:

But the aforesaid question invites inquiry as to whether Congress has given, in a Constitutionally satisfactory form, the approval requisite for a war of considerable duration and magnitude. Originally Congress gave what may be argued to have been its approval by the passage of the Gulf of Tonkin Resolution[.]…  However, that resolution cannot serve as justification for the indefinite continuance of the war since it was repealed by subsequent Congressional action…. Apparently recognizing that point, the Government contends that Congressional approval has been given by appropriation acts, by extension of the Selective Service and Training Act, and by other measures.

We are unanimously agreed that it is constitutionally permissible for Congress to use another means than a formal declaration of war to give its approval to a war such as is involved in the protracted and substantial hostilities in Indo-China.

So in fact there have been many more declarations of war than the five times we have used a piece of paper entitled a “declaration of war.”  Recent examples included the authorization for military force issued in relation to the war in Iraq and the War on Terror generally.

False Claim #10: Alexander Hamilton wanted a king for America.

The relevant passage:

Alexander Hamilton wondered whether Washington should be a king.

Proof that he is wrong:

In fact, Hamilton said no such thing.  The closest he came to saying that was in suggesting that our Constitution include a lifetime appointment for the Presidency, at least according to Madison’s notes of the convention, Hamilton saying:

Let one branch of the Legislature hold their places for life or at least during good behaviour. Let the Executive also be for life. He appealed to the feelings of the members present whether a term of seven years, would induce the sacrifices of private affairs which an acceptance of public trust would require, so so as to ensure the services of the best Citizens. On this plan we should have in the Senate a permanent will, a weighty interest, which would answer essential purposes. But is this a Republican Govt., it will be asked? Yes if all the Magistrates are appointed, and vacancies are filled, by the people, or a process of election originating with the people.

It might be fair to say his vision of the executive was too close to a monarchy model for our tastes (and I would agree).  You might even call what he proposed an “elective monarch.”  But it is simply wrong to suggest that he wanted to make anyone a king without at least noting he wanted that person to be elected.

(It’s also a stretch to say he proposed that Washington be the king, but it’s within tolerance.  To play devil’s advocate, you could argue that everyone in the convention knew that Washington would be our first president, and therefore Hamilton was at least implicitly talking about Washington, even if not by name.)

False Claim #11: Social Security is a debt within the meaning of Section Four of the Fourteenth Amendment.

The relevant passage:

But the idea that we can default on our debt is not only reckless; it’s probably unconstitutional. No one is saying the debt is wise and prudent — far from it — but defaulting on it flies in the face of one of the few absolute proscriptions in the Constitution, Section 4 of the 14th Amendment: “The validity of the public debt … shall not be questioned.” The idea is that the U.S. shouldn’t weasel out of its debts. It does not say that we can’t undertake dumb obligations — the Constitution can’t prevent bridges to nowhere — but that we need to pay off the public obligations that we do set for ourselves, whether those are Social Security payments to retirees or interest to Chinese bankers.

(emphasis added)

Proof that he is wrong: Social security is not a legal debt.  Morally, you might feel “we owe them” and you might be right, but there is no bond in their hands, no promissory note.  It is simply a benefit paid to some Americans based on taxes collected from other Americans.  As such, it is no different from a number of entitlements, which can frankly be modified or repealed the moment we find the political will to do so (which is the trick, isn’t it?), as we did with Welfare in the 1990’s.

False Claim #12: Naturalization depends on your birth.

The relevant passage:

All around the world, there are basically three ways of acquiring citizenship: by birth, by blood or by naturalization. All of them depend on the circumstances of one’s birth.

Proof that he is wrong: While it is correct to say that gaining citizenship by being born here, or by being born of Americans abroad, is gaining citizenship because of the circumstances of one’s birth, naturalization has nothing to do with birth.  Any person born anywhere in the world of anyone’s parents who is not a citizen can come to America and become a citizen.  Of course it is a colossal pain to do it, but it can be done and it is about your tolerance for red tape rather than your birth.

False Claim #13: The Obamacare mandate is a tax.

The relevant passage:

Supporters of Obamacare note that it’s not a mandate but, in effect, a tax, imposed on people who do not buy health insurance. And that it’s not universal; people who are on Medicare and Medicaid, for example, don’t need that coverage.

Proof that he is wrong: Now, first, I admit that the passage is ambiguous as to whether he believes it is a tax, as is the case throughout his discussion of Obamacare.  But at the very least, it seems like it would have been a good time to mention that it is not a tax, right? And this isn’t just my opinion.  Literally not a single court in America has found the mandate to be a tax.  That is, even when upholding the law, the courts have refused to call it a tax.

And bluntly, the basic principles of statutory interpretation lead us to that conclusion.  To borrow Stengel’s phraseology, if the mandate was intended to be a tax, the law sure doesn’t say so.  Judge Vinson wrote a separate opinion discussing whether the penalty was rightfully considered a tax and I summed up his findings at the time as follows:

  • The act called it a penalty, not a tax.
  • Earlier versions of this law, and similar proposals called it a tax.  So as they went through their drafts, they changed the word “tax” to “penalty.”
  • The law enacts a number of taxes and labels them as taxes, but not this alleged “tax.”  This is an example of expressio unius, a concept I explain here.
  • The findings of fact (in the statute) invoked Congress’ power under the commerce clause, but not the taxing power [in relation to the mandate].  Meanwhile the taxes in the act were justified under the taxing power.
  • When the CBO ran its cost estimates, tallying how much the law would cost versus how much revenue it would raise, it didn’t include any money from the mandate.  In other words, the CBO acted as though the mandate would raise absolutely no revenue at all.
  • “[T]he Act lists seventeen ‘Revenue Offset Provisions’… and … it further includes a section entitled ‘Provisions Relating to Revenue’….  However, the individual mandate penalty is not listed anywhere in them.”

Thus when you put all of that together, the evidence is overwhelming that it is not a tax, but a penalty.

——————————–

How You Can Help.

So, there you have it, thirteen glaring factual errors, listed with the most egregious errors first.  I consider it no less than a scandal that so many clear, egregious errors was allowed in a cover story. It is all the more shocking because very often the falsity of the claims could have been verified by simply reading the Constitution. This is inexcusable for a publication of Time’s stature.

So if you agree with me, that this is scandalously bad, let me suggest that you guys try to help me raise awareness of the issue.  For instance, you can go to the article and fill the comments with a version of my list:

13 Objectively false statements in Stengel’s Article on the Constitution.

  1. The Constitution does not limit the Federal Government.
  2. The Constitution is not law.
  3. The Citizenship Clause of the Fourteenth Amendment emancipated the slaves.
  4. The Citizenship Clause of the Fourteenth Amendment granted the right to vote to African Americans.
  5. The original Constitution declared that black people were to be counted as three-fifths of a person.
  6. That the original, unamended Constitution prohibited women from voting.
  7. Inter arma enim silent leges translates as “in time of war, the Constitution is silent.”
  8. The War Powers Act allows the president to unilaterally wage war for sixty days.
  9. We have only declared war five times.
  10. Alexander Hamilton wanted a king for America.
  11. Social Security is a debt within the meaning of Section Four of the Fourteenth Amendment.
  12. Naturalization depends on your birth.
  13. The Obamacare mandate is a tax.

Positively spam them until they have to pay attention.  Or you could even go to where I left a substantially similar comment and “like” that comment, raising its prominence.  If a comment is liked enough times they might be more likely to pay attention.  Or you can email the “editor,” (not sure which editor we are talking about) here.

In all communications, be polite, and stick to the facts, so they cannot dismiss you as a kook.

And you might spread this message to other sites.  I am deliberately trying to create enough of an outcry so that they at least have to issue the mother of all corrections.  Indeed, I believe that someone should be fired over this.  They are entitled to their own opinions, but they are not entitled to their own facts.

So please, pretty please, will you help me with this?

Update: I wrote a letter to the editor at the link above.  Here’s the text of it:

Dear Sir or Madam,

Time’s cover story of June 23, 2011, entitled “One Document, Under Siege” by Richard Stengel falls below any journalistic standard for accuracy.  Of course as an opinion piece, there is some leeway on disputed points, but some facts are just facts.

I have counted thirteen egregious and inexcusable errors in Mr. Stengel’s piece.  Many of these errors could have been detected simply by reading the Constitution itself.  It is dismaying to see that in the annual history issue.  Those errors are:

  1. The Constitution does not limit the Federal Government.
  2. The Constitution is not law.
  3. The Citizenship Clause of the Fourteenth Amendment emancipated the slaves.
  4. The Citizenship Clause of the Fourteenth Amendment granted the right to vote to African Americans.
  5. The original Constitution declared that black people were to be counted as three-fifths of a person.
  6. That the original, unamended Constitution prohibited women from voting.
  7. Inter arma enim silent leges translates as “in time of war, the Constitution is silent.”
  8. The War Powers Act allows the president to unilaterally wage war for sixty days.
  9. We have only declared war five times.
  10. Alexander Hamilton wanted a king for America.
  11. Social Security is a debt within the meaning of Section Four of the Fourteenth Amendment.
  12. Naturalization depends on your birth.
  13. The Obamacare mandate is a tax.

I prove that these statements were false, here: http://patterico.com/2011/06/28/thirteen-clear-factual-errors-in-richard-stengel%e2%80%99s-essay-on-the-constitution-and-i-am-looking-for-your-help/

I consider it to be nothing less than scandalous to see so many egregious errors in the piece.  Ideally heads should roll over this error.  At the very least a significant correction should be issued.  Time should rightfully be embarrassed that this was published, as a cover story no less.

I thank you for your time and consideration,

Aaron Worthing

[Posted and authored by Aaron Worthing.]

203 Responses to “Thirteen Clear Factual Errors in Richard Stengel’s Essay on the Constitution (And I Am Looking for Your Help) (Update: My Letter to the Editor)”

  1. So as you can see, i created a more focused attack just on the serial inaccuracies that Stengel published. And yeah, i am looking for your help, because i want to see them forced to at least admit they made these screw ups.

    Also needless to say, if you catch any typos, etc. let me know. the commenting community here makes me smarter. :-)

    Aaron Worthing (e7d72e)

  2. What do you expect from the Progressives of Time? Facts don’t matter — just the narrative.

    here is the real story, why do Liberal Progressive wish to destroy (by changing) the single greatest engine ever created in the liberation of man?

    Liberation from both material depravity and liberation from autocracy.

    Liberalism is a mental disorder for many and a means to power for a few.

    Sponge Bob Square Pants (786e37)

  3. haven’t looked at all 13, but some this sounds like the type of quibbling lawyers do that doesn’t really advance the ball, e.g.,

    claim #5, quote from article, “but they also gave us the idea that a black person was three-fifths of a human being…”

    yes, the Constitution doesn’t say “black people,” or “negros”, but it did give us the CONCEPT that slaves (who were overwhelmingly black) would count as 3/5th of a person. This isn’t really controversial, is it? No one was worried about some random Swede that somehow became enslaved (if that could ever happen).

    similarly, with Claim #1: “False Claim #1: The Constitution does not limit the Federal Government.”

    seems like he is arguing that despite the intent of the founders, the Constitution really doesn’t limit the federal government in application. I thought the whole reason the 10th Amendment was drafted was because people were afraid the Constitution didn’t include any such explicit limitation.

    milowent (bc04ac)

  4. Women in New Jersey were allowed to vote up until around 1800. There was no Constitutional bar to women voting, it was up to the individual states to qualify their voters.

    Chuck Bartowski (e84e27)

  5. milowent

    yes, all slaves were black, not all black people were slaves.

    and he is not talking about what it says v. application. He specifically says that it doesn’t say it is limiting the federal government. read the passage i quoted from him for that point.

    Aaron Worthing (e7d72e)

  6. Your “False Claim #8″ is incorrect. You may interpret the War Powers Act to limit the power of the President to enter US armed forces into hostilities “only if given permission by Congress or in defense”, but your personal interpretation is not the generally accepted interpretation of 50 USC 1541(c). That clause is generally interpretted as a policy statement (i.e., Congress’s interpretation of the Constitution), not an active part of the law intended limit the President’s ability to introduce US armed forces where he wants to. See the OLC’s discussion in AUTHORITY TO USE MILITARY FORCE IN LIBYA, footnote 1 ( http://www.justice.gov/olc/2011/authority-military-use-in-libya.pdf ), which cites numerous prior OLC opinions, as well as the legislative history of the Act, to the effect that the policy statement set forth in 50 USC 1541(c) “is not to be viewed as limiting presidential action in any substantive manner.”

    Now, perhaps you think the OLC is wrong in its longstanding interpretation of that clause. But to state that Stengel is “clearly factually wrong” simply ignores the entire history of interpretation of the Act. It undermines your entire case, and makes you look foolish.

    A.S. (23bc66)

  7. AS

    lol sorry, the OLC can’t overrule clear statutory language and that is crystal clear.

    The best they can do is claim that the statute is unconstituitonal. But then you can’t claim you are complying with it, only that you are justified in ignoring it.

    Aaron Worthing (e7d72e)

  8. I cannot stand lawyers, and lawyer-ish people. ;-)

    JD (85b089)

  9. Well, crap, JD, what are you doing at this blog, then?

    I suppose next you will hang out at Volokh’s place. :-)

    (For those that don’t know, JD and I are friends. He is teasing me and I am teasing him back.)

    Aaron Worthing (e7d72e)

  10. Aaron, can you add the page/paragraph number for where you found the items you are critical of? While I admire your effort, my guess is that this will get a big yawn out of our media darlings, part of the reason is Time being a much lessor player today (rightly so) than say 30 years ago.

    BT (74cbec)

  11. I read the thing. Check your inbox for the minor corrections I thought you might consider.

    Awesome blog post. This and especially the one before on this topic and just great.

    I feel like a chump that I can barely cobble together a tiny fraction of this content, but I’ll try!

    Dustin (c16eca)

  12. “False Claim #13: The Obamacare mandate is a tax.”

    On this one, in his defense, he did say it is “in effect” a tax. Your arguments about how it is not in name a tax don’t really address that. But given his carelessness elsewhere, I don’t think this was an intentional distinction he was trying to draw.

    stone (f22ca9)

  13. yes, the Constitution doesn’t say “black people,” or “negros”, but it did give us the CONCEPT that slaves (who were overwhelmingly black) would count as 3/5th of a person. This isn’t really controversial, is it?

    There’s the additional point that this 3/5th provision was there to help slaves. Without it, their states would have had dramatically increased representation, which they would have used to subjugate slaves.

    . I thought the whole reason the 10th Amendment was drafted was because people were afraid the Constitution didn’t include any such explicit limitation.

    If you read his article, I think he makes clear he’s counting the first ten amendments in with ‘the constitution’.
    But anyway, I do agree many are under the impression this says slaves are worth 3/5th of a non slave.

    Dustin (c16eca)

  14. BT, i will put this in the post, but it might be easier to go to the print version and do a control-f “find” to find each part i cite from his text.

    http://www.time.com/time/printout/0,8816,2079445,00.html

    Aaron Worthing (e7d72e)

  15. There were only five wars in which the House has passed a formal Constitutional Declaration of War: the War of 1812, the Mexican War, the Spanish-American War, WWI, and WWII. All other conflicts did not involve a formal declaration of war.

    However, in WWI and WWII war was declared on more than one nation on various dates. I believe the total when this is added in comes to 11 times the US has declared war (Germany and Japan were separate declarations), but for only 5 “wars”.

    Dozens of military engagements short of formal war have been declared. Then there was the Civil War, which was not considered a foreign war, and the Revolutionary War, which happened prior to the Constitution.

    Amphipolis (b120ce)

  16. Dozens of military engagements short of formal war have been declared – I meant authorized by Congress, not declared.

    Amphipolis (b120ce)

  17. “and that is crystal clear”

    It is, but not in the way that you are reading it. The “crystal clear” wording of the text of that clause is Congress’s interpretation of the Constitutional powers of the President (which should be afforded no more weight than the co-equal Executive Branch’s interpretation of the Constitution). That’s why it is in a section entitled “Purpose and Policy” and why it reads that such powers “are exercised only” pursuant to Congressional action or in a national emergency.

    By any plain English reading of the text of the clause, it cannot be interpretated as an active part of the law. If Congress wanted to make it an active part of the law, it would have written that the President’s powers “may not be exercised except” pursuant to Congressional action or in a national emergency (or the like).

    The words “are exercised only” is descriptive; if Congress wanted to make the passage substantively binding — that is, prescriptive — it would have written “may not be exercised except”.

    The larger point remains, however, that your position on this is far out of the mainstream. Which is fine, but don’t expect anybody with even a modicum of knowledge about the War Powers Act, much less Time magazine, to take it even remotely seriously.

    A.S. (23bc66)

  18. And then Andrew Jackson just went and grabbed Florida.

    stone (5dcae9)

  19. I am not sure that AS and its typical leftist claptrap blather could be any more mendoucheous.

    JD (b98cae)

  20. AS

    > By any plain English reading of the text of the clause, it cannot be interpretated as an active part of the law.

    Are you joking. This seems pretty active to me: “are exercised only pursuant to.” i mean its a weak way to put it, i’ll grant you that, but it has the same effect as your proposed language “may not be exercised except”.

    > The larger point remains, however, that your position on this is far out of the mainstream.

    And in complete agreement with Senator Obama (but not President Obama). I mean there is that.

    Aaron Worthing (e7d72e)

  21. But it does appear that stone/imdw and kmart now have a new leftist playtoy here.

    JD (d48c3b)

  22. stone

    i don’t know if he had an authorization to do, but look it was a national emergency. where else were we going to retire to?

    Aaron Worthing (e7d72e)

  23. Obama complained that the Constitution was weak because it didn’t say what the government should do, i.e., that the government must support the people.

    This re-evaluation of the Constitution is rather biased. Why aren’t they attacking:

    –The Fourth Amendment prohibition against unreasonable search and seizures. England gets along fine without it;

    –The Fifth Amendment right against self-incrimination. Ask Mickey Kaus. He’s been attacking this for 30-40 years.

    Arizona Bob (aa856e)

  24. On the 3/5ths issue.

    Since membership in the House of Representatives is apportioned according to population, Southern States wanted slaves fully counted along with all other residents to increase their voting strength in Congress. All States have only 2 Senators, but more residents gives a State or region more votes in the House.

    The Northern States opposed counting slaves at all in order to limit the number of representatives from the Southern States and thereby dominate the House.

    The Southern States finally agreed to accept the 3/5ths compromise formula on the condition the new nation’s capitol city would be located in the South.

    That’s how slaves came to be counted as 3/5ths of a resident and Washington DC came to be founded on the banks of the Potomac and not in Philadelphia, or New York or Boston.

    ropelight (5337da)

  25. hold on! Not all slaves were black. There were white slaves back in the bad old days. They don’t get alot of press for obvious reasons.

    Tsepes (2fe5bd)

  26. JD – On the contrary, I am a fairly conservative Republican (only voted for a Democrat for federal office twice in my life). And I disagree with Obama’s ludicrous Libya mission at this point (if he want’s to take out Khaddafi, just do it; stop pussyfooting around). But Aaron’s position on the War Powers Act is, IMO, way out there.

    A.S. (23bc66)

  27. Tsepes

    really? honestly never heard of that. i would love a citation if you had it.

    A.S., JD,

    Let’s not be too quick to label people as permanent enemies. For instance, John Yoo agrees with A.S.

    Aaron Worthing (e7d72e)

  28. Yes, reading basic English is way out there.

    JD (318f81)

  29. “And in complete agreement with Senator Obama (but not President Obama).”

    Actually, no. Senator Obama’s (but not President Obama’s) position on the Constitutional powers of the President is Congress’s position on the Constitutional powers of the President as expressed in 50 USC 1541(c).

    But we don’t know what Senator Obama’s position was on whether the War Powers Act’s statement in 50 USC 1541(c) was intended to be descriptive or prescriptive. That is, we don’t know whether Senator Obama believed that 50 USC 1541(c) is statutory limitation on the the President independent of any Constitutional limitation.

    A.S. (23bc66)

  30. Oh, good Allah. That is what I was referring to above, AW. Obama, and Biden foe that matter, were quite clear on this. Plain Engrish.

    JD (318f81)

  31. And while slaves were counted at 3/5ths for representation, indians were not counted at all.

    SPQR (26be8b)

  32. Arron, type “white slaves in colonial America” into your search engine. You’ll find quite a few references.

    ropelight (5337da)

  33. rope, btw you are right about 3/5, and i mentioned that in my last post on this POS article.

    Aaron Worthing (e7d72e)

  34. BTW, I’ll add that, it’s a bit odd that Aaron dings me (and OLC) for ignoring the “crystal clear” words of the War Powers Act (with respect to alleged error #8). In the very next item (error #9), he states that the one cannot simply read the crystal clear words of the Constitution, which states that Congress has the power to “declare War”, which it has done only 5 times (in those partiuclar terms). With respect to the “declare War” provision of the Constitution, apparently it is no longer sufficient to simply read the crystal clear words of the text. Seems to me that Aaron’s position on whether to merely look at “crystal clear” words of the text is inconsistent.

    A.S. (23bc66)

  35. with respect to the “declare War” provision of the Constitution, apparently it is no longer sufficient to simply read the crystal clear words of the text

    Nowhere do those apparently marvelously sparkling words say you have to use the words ‘declare war’ to declare war. No more than congress would have to say ‘I abridge speech’ to be in violation of the first amendment, etc.

    Declare war is a clear description of an action, not a requirement for how that action is labeled to make it real. We’ve been in more than 5 wars, after all.

    Dustin (c16eca)

  36. A.S.

    the constitution doesn’t say “Congress can issue a declaration of war.”

    Instead it says congress has the power to declare war.

    And as i said, the constitution is more concerned with substance than formalities. see mcculloch v. maryland. statutes are treated differently.

    Aaron Worthing (e7d72e)

  37. er, dustin said it better, actually.

    Aaron Worthing (e7d72e)

  38. You do have to use the words “I declare a thumb war” prior to a thumb war, though. That is a clear requirement.

    MayBee (081489)

  39. maybee

    my niece cheats on that all the time.

    Aaron Worthing (e7d72e)

  40. The Constitution does not limit the Federal Government.
    The Constitution is not law.

    Obviously this idiot never heard of the concept of enumerated powers. As for the constitution not being law, it takes a special type of stupid to make such an assertion. Somewhat ought to send him a copy of the basic organic law of the United States of 1878.

    Social Security is a debt within the meaning of Section Four of the Fourteenth Amendment.

    No it is not. Not my opinion but the opinion of the SCOTUS in 1960. Congress can amend or eliminate the program at any time so the court ruled. its just a universal program and hence not a contractual obligation like a bond.

    The Obamacare mandate is a tax.

    Not according to Obama, Pelosi and Reid when they passed it. So democrats are now lying in the appellate court that it is a tax when the word does not appear in the bill. Verbal gymnastics of calling a penalty a tax when there is no penalty for not paying the penalty or mechanism to collect the penalty. Even if it were a tax it would be an impermissible tax so therefore its not an enforceable tax. Don’t have time to look at the rest of this fool’s assertions. To think that Time was once a respected news magazine.How the mighty have fallen low.

    cubanbob (409ac2)

  41. You’ll have to cut off her funding, Aaron. Or impeach her.

    MayBee (081489)

  42. You should seek to get the attention of Fox News. Get O’Reilly or Hannity to cover it, then TIME won’t be able to ignore it.

    aunursa (323789)

  43. How can you cut off funding to something that has never been funded?

    JD (a33bb2)

  44. JD- I think all Congress has to do is declare the words “I defund thee”.

    MayBee (081489)

  45. “This is inexcusable for a publication of Time’s stature.” I think you are thinking too far in the past when it had stature. The legacy media has lost its stature by abusing its ability to keep news that doesn’t follow the narrative out of print. If you say stature at all, say “stature, such as is left”.

    Jeff Mitchell (481f2a)

  46. cuban

    > No it is not. Not my opinion but the opinion of the SCOTUS in 1960

    if you have a citation, i would appreciate it. i just went by the fact that i know what a debt is and is not.

    Aaron Worthing (e7d72e)

  47. aunursa

    Its funny you say that… *bites tongue because it might not work out…*

    Aaron Worthing (e7d72e)

  48. aun

    er, that last comment implied something even more awesome than is being contemplated.

    Aaron Worthing (e7d72e)

  49. This cartoon copmes to mind:

    http://xkcd.com/386/

    (Somebody on the Internet is Wrong)

    It’s not like you can convince somebody at Time that their managing editor made 13 errors in a discussion of the Constitution. Yes, you should try, but plan on the possibility that they won’t really admmit error.

    Stengel lost me at #1. Really? The Constitution doesn’t limit the Federal government?

    ukuleldave (e546ca)

  50. Am I misunderstanding something in your otherwise excellent list?

    I think there is a contradiction between Item 2, “The Constitution is not law,” and Item 7, “Inter arma enim silent leges translates as ‘in time of war, the Constitution is silent.’”

    You correctly point out, in response to Item 2, that the Constitution is indeed law. You also state, correctly, that the actual translation is that the law is silent in time of war. Combined, these items mean that the Constitution is silent in times of war, as are the laws that flow from it.

    The original contradiction is indeed his, but I think it’s a minor error. The correct attack is the refutation of the claim that the law, and Constitution, are or should be silent at any time, not just in time of war — if in fact that claim is incorrect. I suspect he’s wrong about that, but I am ignorant enough that I can’t disprove it.

    My guess, though, is that although certain laws have been suspended in certain limited ways in wartime, this was either allowable in times of true emergency (such as temporarily imposing martial law in time of insurrection or riot), or the government was usurping powers it did not rightly have.

    At no time I’m aware of has the Constitution, as a whole, been suspended over the course of an entire war. No, not even the Civil War, except against those in rebellion, who had themselves rejected it.

    The Constitution has been ignored and badly warped, stretched, and tattered, and not just in time of war, but those actions by the government were invalid. They did not invalidate the Constitution itself.

    In essence, he’s arguing that since the government has ignored the Constitution in the past, we no longer need pay it heed.

    Wrong. We, The People, need to enforce the Constitution against the government.

    The Constitution does not belong to the agents of the government, to follow or not as they see fit. is ours. It is ours, plainly written, so that when the government exceeds its boundaries, we can call it out, and rein it in, no matter what its legislators, executives, and judges say.

    The Constitution is ours. Not theirs. Not Stengal’s, as he has with this article placed himself in opposition to it.

    And I, for one, do not want it suspended at any time, especially in time of war. That is when we need it the most.

    DJMoore (dfc510)

  51. #48 Aaron

    Good luck.

    aunursa (323789)

  52. In a similar vein, from our betters at CNN:

    Toobin: We have the oldest written constitution of any democracy in the world and uh it’s only been amended 27 times and it’s stood us in very good stead but I think, you know, it is not sacrosanct and it is a good idea to think about what should have been done in the first place and what– how you can improve it.

    [cut tape]

    Zakaria: … For example people point out that, uh, the second amendment is a grammatical mess, whatever you may think of the right to bear arms.

    Toobin: It’s nearly incomprehensible as a sentence.

    Zakaria: Right.

    Toobin: Yes.

    ian cormac (72470d)

  53. uk

    yeah, maybe i am butting my head against something here, but its worth a try.

    Aaron Worthing (e7d72e)

  54. Ian – it is really old, too.

    JD (d48c3b)

  55. As young master Klein, points out, at least a hundred years old,

    ian cormac (72470d)

  56. 13 original states, 13 egregious errors. Ah, symmetry!

    Icy Texan (9d44d1)

  57. I just trudged through 250 comments on the Time article (yours was in the 190s, Aaron). Only a handful of agreeing leftists and they had nothing of substance to say. What’s sad is, Time will continue on it’s merry way and act like all the dissenting voices were never raised.

    Good one, Aaron.

    PatAZ (e77303)

  58. Now, I think the article is garbage and this guy is an idiot, but – if I were to argue in his favor, I would point out that some of what you are stating are “facts” from the constitution, is not exactly what he said.

    For instance:

    The framers were not gods and were not infallible. Yes, they gave us, and the world, a blueprint for the protection of democratic freedoms — freedom of speech, assembly, religion — but they also gave us the idea that a black person was three-fifths of a human being, that women were not allowed to vote

    I would argue that this passage doesn’t say that the constitution prohibits women from voting, but that the framers believed women shouldn’t vote. In other words, he is not attacking the constitution per se so much as the beliefs of those who wrote the constitution (which is a common tactic for lefties).

    As far as Obamacare being a tax – that is open to debate. I certainly don’t see it that way, but we have to wait for the Supreme Court to rule on it before we can say whether it is a “fact”.

    My point being, you have enough solid unarguable errors in here that you should not water it down with the stuff that can be argued.

    Monkeytoe (5234ab)

  59. monkey

    as for the tax thing in no way do they treat it like a tax. seriously, read the list of the ways they are treating not like a tax. it is literally impossible for congress to have made it clear that this was a financial penalty rather than a tax.

    Aaron Worthing (e7d72e)

  60. Good work documenting another big step in TIME’s effort to become a better-salaried version of NewsWeek.

    At least The Nation TELLS you it’s leftist. TIME and NewsWeek purport to be neutral-viewpoint “straight news” sources.

    And yes, you’re right that it’s an added disgrace that TIME put this on its cover — and bylined it from its M.E.

    Mitch (890cbf)

  61. as for the tax thing in no way do they treat it like a tax. seriously, read the list of the ways they are treating not like a tax. it is literally impossible for congress to have made it clear that this was a financial penalty rather than a tax.

    Comment by Aaron Worthing — 6/28/2011 @ 10:50 am

    I agree with you, but they are making the argument in Court that it is a tax and I think that one could credibly claim it is a disputed issue rather than a “fact” either way.

    Monkeytoe (5234ab)

  62. And, as a follow-up to my previous, this is an opinion piece rather than news article (although its facts should still be correct) so where something can be claimed to be disputed rather than a fact, regardless of how weak the argument is, it muddies your point about the other factual errors.

    If this was a news article and he was putting that forward as a “fact”, it would be a bigger issue.

    Monkeytoe (5234ab)

  63. Meanwhile, in the real world, Garrett Epps rips “originalism” to shreds and gives Uncle Thomas an overdue kick in the ass.

    You wait for Aaron Worthing to tell you about it? Don’t hold your breath.

    The News You Won't Get Here (0692b1)

  64. Arguing it is a tax now flies in the face of the fact that they stated it was a penalty when it was under debate. Period. They didn’t want to flagrantly break the no new taxes on this that makes less than the evil rich, and in order to do so, had to characterize this as a penalty. I guess you could argue it is a tax on being alive.

    JD (531017)

  65. “the News” a cowardly sock puppet strikes again. BUNNIES.

    Oh, and you are demonstrably a racist.

    JD (531017)

  66. Do you not have a job?

    Was it really necessary to spell out in enormous detail that which was already fully explained in the single sentences in your list?

    My God. It’s full of stars.

    JHC (437b87)

  67. @ JD

    “Oh, and you are demonstrably a racist.”

    Just like you then?

    The News You Won't Get Here (0692b1)

  68. Not at all like me, you cowardly lying f@cker. Leftist use that term and mean it, I am mocking you, aggressively, when I use it. At you are unable to tell the difference is no surprise. But thanks for admitting you are a racist.

    JD (531017)

  69. Seriously, this twit, takes Justice Taney’s opinion, which is legendarily apocalyptically
    bad, a real schutcheon on Jackson, btw as representative, of 19th Century Jurisprudence.

    ian cormac (72470d)

  70. I think it is cute how the cowardly sock puppet plays BUNNIES and points to an Atlantic article written by a creative writing professor.

    JD (531017)

  71. True, JD, not surprisingly it is Leonard Pinth
    Garnell level, very bad writing, which seems typical
    in the Atlantic nowaday.

    ian cormac (72470d)

  72. Was it really necessary to spell out in enormous detail that which was already fully explained in the single sentences in your list?

    Of course. People are not as well educated on this subject as they ought to be. Even someone much more informed than Richard can refresh themselves by reading Aaron’s two posts on this.

    What’s the beef with getting the facts as clear as possible?

    Dustin (c16eca)

  73. Stone and News have “messed” you up pretty good the last couple days JD, maybe you needa breather son.

    King Ghidorah (4de175)

  74. actually i think the comparison to dredd scott, although harsh, does make a certain amount of sense.

    taney used extraneous information to read in to the constitution something that just wasn’t expressed. like at all. i mean this wasn’t like the fifth amendment privilege, which you could say by reference incorporated the body of law that came before it. the first amendment was never read to incorporate the attitudes that thomas ascribed to it.

    likewise, the constitution didn’t say black people couldn’t be citizens and they were not treated that way anyway. at most there were plenty of racists who felt that black people weren’t real americans. indeed the first use i have seen of the term “african american” was by racists trying to suggest they were not real americans. but that was’t expressed in the constitution, period.

    i think bluntly thomas’ dissent was pretty bad, and i frankly lost some respect for him yesterday reading him. and i have been one of the people defending him. i think both he and breyer are letting their desire for a certain outcome overcome the deeper values in the constitution.

    Aaron Worthing (e7d72e)

  75. Just a technical note: proving a negative doesn’t always mean that you can’t point to an example. There are two types of quantification for these sorts of claims:

    1.) Existential (“there exists”). Disproving an existential claim “There exists X such that P(X)” means proving its negation, “For all X, ~P(X).” Here it is not enough to cite a counter-example; you would have to run exhaustively through all possible X’s and show that for each one, P(X) fails to hold. (In your example, running through, say, every sentence and showing that its semantic content differs from ‘women are disenfranchised’.)

    2.) Universal (“for all”). Disproving a universal claim “For all X, P(X)” means proving its negation, “There exists at least one X such that P(X).” In this case, to prove the negative/negation, you do cite a counter-example; to disprove the claim “all Senators are white,” you need merely to find a Senator who isn’t white.

    Predicate logic, whee!

    CliveStaples (9073b6)

  76. You earned my respect, Mr. Worthing.

    The News You Won't Get Here (0692b1)

  77. yes, I’ll admit it wasn’t his best work,

    ian cormac (72470d)

  78. One more for you. In his piece Stengel writes, “A new focus on the Constitution is at the center of our political stage with the rise of the Tea Party and its almost fanatical focus on the founding document.”

    The founding document was the Declaration of Independence, not the Constitution. This guy has no clue.

    Jake (828c6f)

  79. and correct me if I’m wrong, but IF Obamacare is ruled a tax, doesn’t that invalidate the entire law? Tax bills must originate in the House, not the Senate. This bill was passed by the Senate and ‘deemed’ passed by the house afterwards.

    Jake (828c6f)

  80. Sorry, Aaron. Ace explained that

    If they retracted an entire article, by a credentialed head of the National Constitution Center, as entirely wrong in almost every claim it made, they’d look, what’s the word?, pretty stupid and uneducated.

    So it’s unlikely Time will offer a correction.

    Though it’s amusing to consider how Time is reacting to this today.

    Dustin (c16eca)

  81. News

    well, i think that is why Scalia’s emphasis on plain text is better. original intent, as a doctrine, allows for all kinds of nonsense like what thomas tried to do and Taney did do.

    at the same time, i think taney himself didn’t seriously believe what he was writing. Dredd Scott was a blatantly politically decision. How do you know it? Easy. If Dredd Scott was not a citizen and thus not entitled to sue at all, then the case is over. There was no need to reach the merits, you can just say, “he’s not a citizen, the end.”

    But instead, Taney decided he HAD to talk about the Mo Compromise, even though by his own reasoning the question was not before them. That was an act of blatant politics and undermines any claim that he was merely trying to read the law.

    Aaron Worthing (e7d72e)

  82. Dustin

    either they will correct it and look like a bunch of idiots, or they won’t, and look like stonewalling idiots.

    either option is fun.

    Aaron Worthing (e7d72e)

  83. What’s sup with the recently blizzard of sock puppets, and serially dishonest multiple-banned asshats?

    JD (29e1cd)

  84. Aaron,

    I think you are giving away too much in your refutation of his most egregious error- that the Constitution does not limit Federal power. Referring to the specific sections of the Constitution that do limit Federal power as you do is fine, but there is a much stronger implicit limitation inherent in the document. The very fact that Article 1, Section 8 exists as an enumerated list of powers demonstrates that Federal authority is limited. Were the Federal government truly able pass whatever laws it deemed “necessary and proper” (without the limiting “for carrying into Execution the foregoing Powers”) then the Article 1, Section 8 list, and indeed most of the Constitution would have been superfluous. A list of powers implicitly means that powers not included are not granted.

    This also explains the purpose of the 9th amendment, which was clearly written to avoid the same issue with regards to the Bill of Rights.

    History Prof (7baf47)

  85. History

    well, it is true that the greater limit is what is implicit in the unamended constitution and made explicit in the 10th: all powers not granted are denied.

    Aaron Worthing (e7d72e)

  86. The Supreme Court has already ruled that Congress can adjust Social Security benefits at any time they like, and that recipients have no property rights to any set benefits. This was built into the original Social Security act from the get-go, in section 1104.

    See Flemming vs. Nestor for the supreme court case.

    Ernst Blofeld (ece636)

  87. Also, Time’s “stature?” They’re a hollowed-out shell, as with so many others of the old institutions. I think starting in the 80′s a lot of the grand old dames passed to the control of people who did not, in fact, know as much as they thought they did, or as much as their predecessors who built the institutions did.

    Ernst Blofeld (ece636)

  88. Social security is an insurance program and a welfare program. It’s certainly not a debt not even in the definition of the IRS. A debt is made when funds lent are promised to be paid back. There is also a negotiability implicit in the word debt. Any attempt to remove negotibility from a promise to pay amounts to a bet or wager. Good job on pointing out these fallicies. However, I fear that you are preaching to the choir.

    Carl Lewis (4eccaa)

  89. ==either they will correct it and look like a bunch of idiots, or they won’t, and look like stonewalling idiots==

    Aaron–the third option is for Stengel to claim that a sockpuppet falsely and without his knowledge submitted the Constitution piece to Time under his name for the purpose of embarrassing him. He can demand a retraction and have the story pulled.

    Yeah, that’s the ticket.

    elissa (2eec7e)

  90. elissa

    Weiner almost would have gotten away with that, if it weren’t for us meddling kids. :-)

    Aaron Worthing (e7d72e)

  91. I find it ironic that Mr. Stengel asserts early is his essay that the Constitution is nothing but principles, and not, per se, laws and then proceeds to write how the Constitution changed the nature of the legal standings of slaves, women etc.

    Was there no one in editorial who caught that contradiction?

    His positions are not scholarly (obviously) but political. You notice that he claims the Constitution is a set of principles when the document is explicitly against what he advocates politcally. Yet when the Consitution agrees with his political views it then becomes a law changing document.

    This was a very poorly researched and written article. Of course it went to print in Time because it served a political purpose rather than an interesting scholarly discussion.

    JCELEPHANT (92dde1)

  92. Dear Mr.Worrying and to all those reading my opinion, although I agree with the fact that Time magazine has definitely misinterpreted the constitution I want to remind you and others that the constitution has been denied by our government practically since the day it was written! We live in a country with a government that does whatever it wants regardless of what the constitution says. Please tell me of a time our country’s history that our government actually did abide by the constitution. The fact is the constitution means nothing today and the only way out for those of us who feel repressed by our existing government is to threaten the government with secession. If they do not abide by the constitution then we need to break “the political bands that bind us”. This time they can’t blame it on slavery!!!

    Albert (27c0b4)

  93. Commendable job!

    What the real issue is, that tends to get lost in argument is, why are they daring to attack the constitution in the first place, unless they intend to relegate it unimportant and disregardable ? On that alone , they are to be excoriated. Fisking, however commendable merely plays into their hands.

    “How dare they!” works better with the voters.
    Logical arguments -seldom ever.

    Don L (0270e7)

  94. Your comment on Social Security as an “entitlement” seems wrong to me. Payments (taxes) by individuals and their employers were to fund this program. Instead, our elected officials spent the money and replaced it with Treasury certificates that cannot be traded on the open market, merely redeemed with new tax dollars. If officers of a private corporation would have committed anything close to this gross negligence, there would be trials and prison time involved. Why are our elected officials not held to similar standards?

    WHolsman (c59277)

  95. President Obama is a noted Constitutional Scholar. How fun would it be if someone in the WH press corps asked Mr. Carney for Barry’s opinion about a few key aspects of the Time article.

    Would POTUS be forced to say Stengel acted stupidly, or would he back up Stengel’s views, I wonder? Also. how might BO respond to this in a presidential debate situation? I do hope we get the opportunity to find out.

    elissa (2eec7e)

  96. Zakaria: … For example people point out that, uh, the second amendment is a grammatical mess, whatever you may think of the right to bear arms.
    Toobin: It’s nearly incomprehensible as a sentence.
    Zakaria: Right.
    Toobin: Yes.
    Comment by ian cormac — 6/28/2011 @ 10:01 am

    “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
    Or, in Jersey Shore language:
    “A well tanned body, being necessary to our ability to score hot chicks, our right to go to the tanning salon, shall not be infringed.”
    Or, in modern syntax:
    “Because a skilled militia is necessary to keep our land free, nobody shall infringe the people’s right to own and carry guns.” (the assumption being that in order to have a well trained militia, people need their own guns for practice purposes)

    Not that difficult.

    wooga (ce34af)

  97. Well done indeed. I did post on Time magazine’s website your list.

    Harrison (95a546)

  98. Zakaria and Toobin want it to be a grammatical mess because they want it to very clearly say, “When the State wants to raise a militia, the State shall issue Arms as it chooses”.

    MayBee (081489)

  99. I think the article was a very accurate description of the Constitution…for someone ‘educated’ by ‘Constitutional’ law professor Barack Obama.

    The Constitution as unlimited grant of power? It is difficult to be more stupid. And it is rather impossible to argue with someone who insists the sun is not hot.

    Chicago Law (9184cb)

  100. Not that it is any news to anyone who actually paid attention in his or her high school history class, but the 3/5 was a compromise. The free persons of the north did not want the southern states, where persons were enslaved, to have votes proportional to their population so long as those persons remained enslaved. The South thought it should be representation proportional to population because that would have given the southern states more powers. This is something that the left has turned exactly on its head. The real intent and effect of that provision was to punish the south for slavery by depriving it of votes in congress in some proportion to the number of their residents who were enslaved.

    Susan Salisbury (ad40c0)

  101. Susan

    that’s exactly right. i touched on that in my longer piece on him, linked toward the beginning of this piece.

    Aaron Worthing (e7d72e)

  102. The mention of Zakaria opining on this subject irks the carp out of me. I do think he’s smart and occasionally I find Fareed’s insights on mid-east history and foreign policy to be well worth considering due to his unique background. However, as a relatively well educated direct descendant of people who have lived on US soil since before the Civil War (on one side) and since 1870 on the other side of the family–I really do not appreciate being lectured to about the Constitution and US history by the likes of Fareed Zakaria.

    elissa (2eec7e)

  103. Btw, we are up to 123 likes of my comment on the piece itself. sweet! keep it up!

    and the comments are getting very harsh over there. sweet!

    Aaron Worthing (e7d72e)

  104. So wait, are you saying that Time Magazine is lying about the Constitution?
    What are the odds?

    Littlemac (ea5cae)

  105. Aaron,

    I just want to thank you for putting this together. My blog has a smaller, less butt-kickingly awesome rebuttal, but to see a list of factual errors in a ‘major news magazine’ is stunning.

    Thank you for this. Keep up the good work.

    Washington Nearsider (5756e3)

  106. I’d say fourteen errors, making one of those sentences a three-fer.

    but they also gave us the idea that a black person was three-fifths of a human being, that women were not allowed to vote[.]

    Yup. It was those darn framers who gave us the idea that women were not allowed to vote. Before the framers, why, women were voting all over the place. I tell you, there wasn’t a single government that didn’t give women suffrage. Tsarist Russia? Women voting. Ancient Athens? Women voting. Genghis Khan? You bet he let women vote. I mean, throughout human history it was just assumed that women should be allowed to cast ballots. No one gave it much thought. But, then the framers came along and put a stop to that with the revolutionary concept of male-only suffrage.

    JSchuler (a07b09)

  107. JSchuler, well played.

    SPQR (26be8b)

  108. Absolutely epic. You need a Facebook “like” button. Really.

    MDS (bbc730)

  109. Now 193 likes for Aaron’s comment – including mine.

    Brother Bradley J. Fikes, C.O.R. (a18ddc)

  110. What people fail to grasp is in this article on the Constitution in Time magazine is an author with a post-modern way of think and looking at the world.

    The task he is about to do is subject the U.S. Constitution to a post-modern view using the Progressive Ideology as his general theory.

    The key components of Post-modernism:
    1) There is no objective truth – everything is relative.
    This means that laws can be ignored as needed, word definitions are plastic and only exist as a means to spur others to action. Morality is also relative depending on the immediate needs of the moment. There are no absolute ‘facts’ – ‘facts’ are plastic and change as needed. “It depends on what the meaning of ‘is’ is…”

    2) It relies on the use of Inductive Reasoning to find truth.
    You always start with a general theory and then work down to the specific ignoring any ‘facts’ that do not support your general theory. “We need to borrow to get out of debt.” If a ‘fact’ does not support the theory than the ‘fact’ is not really a fact.

    Since putting these two components into a logical equations will in most cases lead to false conclusions it is incumbent on post-modern thinkers to have a backup plan to persuade. Hence the devolution to ad hominem attacks, half-truths, obfuscation and inveigling to achieve consensus on any specific course of action.

    And these false conclusions lead to failure. We are at the end-game of decades of post-modern thinking politicians and their decisions.

    When dealing with a post-modern thinker you need to do some critical analysis. First, what is the general theory they are working from. In this case the general theory is Progressive Ideology.

    Second, we need to then identity all the facts that someone using Deductive Reasoning would consider relevant to the discussion. Mr. Worthing has done a yeoman’s job of just that.

    And reading the responses the post- modernist’s fallback plan is in full view.

    RichInIowa (bf5ecd)

  111. If the Founders didn’t intend for the Constitution to limit the power of the federal government, then why in hell would they go to the trouble of writing and ratifying the constitution in the first place? They could have instead issued a declaration that the president, congress, and the judiciary can do what they want, pass any and all laws they want, and rule on the laws any way they want. But no, they instead had a Constitutional Convention that intentionally laid out a plan of checks and balances that limit what each branch of government can do, and how each branch can check and balance the power of the others.

    peedoffamerican (ee1de0)

  112. What kind of a person wakes up in the morning and thinks he know better that our founding fathers? Reminds me of the dolt on youtube who thinks the electoral college is a bad idea. They would better serve their fellow man (and here for the post-literate generation I am using “man” as synecdoche for mankind) by being ground up for fertilizer.

    thestalkinghorse (c94dc3)

  113. Aaron, this is fine work! You know who would probably feature this story? Janine Turner is all about founding principles and primary documents. Give her a buzz: http://www.janineturner.com/blog/

    gp (194249)

  114. brother

    we blew past the 200 mark. 218 and counting. literally it is the most “liked” comment by a long shot.

    Aaron Worthing (73a7ea)

  115. really, seriously guys, this is great. i am looking at his site, and you guys are making it impossible to ignore.

    Really great work, guys. Keep it up.

    Aaron Worthing (73a7ea)

  116. Stengel’s essay is maddeningly imprecise at times, but he is not entirely wrong with #3. The 14th Amendment was written in response to the Black Codes passed by former Confederate states that kept former slaves in a state of something like serfs. They were not being permitted to vote or even leave the plantations, in spite of having been “freed.”

    So while the 14th Amendment didn’t liberate former slaves from slavery — the 13th did that — it did liberate them from onerous state laws intended to keep them in a position of servitude.

    I don’t believe Stengel said the 14th freed anyone from slavery; you just read that into it.

    The 14th was also intended to address the Dred Scott decision, in which the SCOTUS had claimed the authors of the Constitution meant for the rights of citizenship to belong only to whites. Justice Taney had written that African Americans were “beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect.”

    So the 14th makes plain that citizenship is not conditioned by race, and that states may not interfere with the rights of citizens of the United States without due process of law. Of course, the 15th Amenddment was passed later to clarify voting rights. Stengel is correct that at the time the 14th was ratified, immigration was not an issue.

    Barbara O'Brien (4d667b)

  117. Like almost everyone reading this, I used to “know” (because I had a typical “liberal” American education) that slaves were equated to 3/5ths of a person.

    However, read the relevant paragraph:

    Representatives and direct Taxes shall be apportioned…according to their respective Numbers…, three fifths of all other Persons.

    It is crystal clear, it is not equating the person as 3/5th of a person.

    It is apportioning representation based on a fraction a population.

    Aaron, you let him off too lightly on this one. Your own description seems shaded towards ascribing 3/5ths personhood on some persons.

    mockmook (f4fcfb)

  118. It is apportioning representation based on a fraction of a population.

    mockmook (f4fcfb)

  119. Our nation was founded on the concept that WE THE PEOPLE held all the power and rights, and the constitution consisted of the few enumerated powers on loan to the government. Just read the words of Madison in the Federalist Papers who clearly states that the powers delegated to the Federal government by the constitution are FEW AND DEFINED and that all other powers are given to the states and public.

    deerjerkydave (164d4d)

  120. I think you’re wrong on point 12. I believe your statement, “Naturalizaion depends on your birth”, oversimplifies the point made in the article, which is that all of the three paths to citizenship “depend on the circumstances of one’s birth.” Certainly one of the circumstances of one’s birth is the site thereof. Your restatement of the article’s point is overbroad. (One could also argue that “Naturalization depends on your birth.” is a tautology.)

    Rich Thomas (94796c)

  121. I don’t have time to comment more fully at this moment, but this is a great example of someone missing the forest for the trees. In item #1 alone, he completely misses the point of the Time article. There are some limits on governmental power, though they are few in number, and are mostly limited to what kinds and how severe legal punishment may be. The question of what Congress has the authority to do as a legislative body is as the Time article stated – near limitless, especially given that the Congress can amend the Constitution itself.

    I’d be more impressed with right-wing tools like the author of this drivel if they were as similarly up-in-arms when BushCo. was making an absolute mockery of the Constitution during his presidency.

    Rick (e96a84)

  122. No Rick, Congress cannot amend the Constitution by itself. It takes 2/3′s of each house, plus 3/4′s of the states to amend the Constitution. You sir are an idiot.

    peedoffamerican (ee1de0)

  123. And furthemore libturd, ever hear of the Enumerated Powers Clause?

    peedoffamerican (ee1de0)

  124. #120: reading is hard.

    Simon Jester (c320de)

  125. Rick–
    I may have misinterpreted your intent but your comment sort of seems to conflate/relate the Times article with President Obama’s recent actions (since you also brought up George W. Bush). That is interesting. In reading the Times article did you view its content as a defense of President Obama as opposed to its being merely an academic essay on the American Constitution?

    elissa (2eec7e)

  126. Another mistake.

    “Jefferson, like many anti-federalists…..”

    Jefferson was never an anti-federalist. While he was in France when the Constitution was written, he was in communication with James Madison during the Convention and supported the Constitution.

    The anti-federalists were against the passage of the Constitution.

    Brian Stuart (a2f561)

  127. The question of what Congress has the authority to do as a legislative body is as the Time article stated – near limitless, especially given that the Congress can amend the Constitution itself.

    Comment by Rick — 6/28/2011 @ 5:27 pm

    Why do they need to amend the constitution if they have nearly unlimited power?

    The reason there is a constitution is because government needs restraints (according to our “stupid white racist” founders).

    mockmook (f4fcfb)

  128. It’s good for me to hang out in a “think tank”. I am learning all kinds of new things. I used to think I knew the constitution “pretty good”, you guys are challenging me think a bit more critically. Thankyou.

    The Tamandua (4de175)

  129. Logic doesn’t seem to be Rick’s strong suit.

    ∅ (e7577d)

  130. I’d be more impressed with right-wing tools like the author of this drivel if they were as similarly up-in-arms when BushCo. was making an absolute mockery of the Constitution during his presidency.

    Comment by Rick — 6/28/2011 @ 5:27 pm

    Rick, don’t be a jerk.

    You don’t know what Aaron’s views were on any constitutional problems related to the Bush administration. You didn’t name any (you probably would have if you could have), but Aaron is very principled and not afraid to criticize a Republican who deserves it.

    Just calling him a tool and asserting his a partisan hack without any evidence is pretty ridiculous, especially if you’re actually satisfied with the quality of the Time article.

    Dustin (c16eca)

  131. Rick

    > The question of what Congress has the authority to do as a legislative body is as the Time article stated – near limitless, especially given that the Congress can amend the Constitution itself.

    They can’t do it all by themselves.

    Aaron Worthing (73a7ea)

  132. tired of fleas and Ricks?
    for Rick-free experience
    try new haartzz mountain®

    ColonelHaiku (eb5392)

  133. Re: Obamacare provision: penalty v. tax. They had to write it in as a penalty because it cannot be a tax under Art. 1. Sec. 9, Cl. 4:

    “No Capitation, or other direct, Tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken.”

    The only reason we have an income tax is because the 16A specifically authorized it.

    ColoComment (defc15)

  134. One more bit of sloppy arguing from False Claims #3 and #4:

    ” It [Congress] wanted to emancipate blacks and allow them to vote _so that white Southern Democrats would not try to reverse the gains of the Civil War_.”

    I’d be interested in knowing what Zakaria had in mind with the part that I put between the underscores. What gains is he talking about? Last time I checked, the Civil War was about keeping the South from leaving the Union, and the gains that the North got from that war was keeping the South in the Union. Somehow I doubt that keeping blacks from voting would cause those Southerners from somehow seceding again.

    Then again, such sloppy reasoning probably comes from a view that the Civil War was all about slavery and freeing the slaves.

    SinisterMatt (211bee)

  135. cuban

    > No it is not. Not my opinion but the opinion of the SCOTUS in 1960

    if you have a citation, i would appreciate it. i just went by the fact that i know what a debt is and is not.

    Comment by Aaron Worthing — 6/28/2011 @ 9:28 am

    Aaron I’m dead tired so i’ll pass on the cite in detail for the moment but here is a link the summarizes the point I was making:

    http://www.ssa.gov/history/nestor.html
    Case Name: FLEMMING V. NESTOR 363 U.S. 603
    Case Name: FLEMMING V. NESTOR 363 U.S. 603

    NO. 54. ARGUED FEBRUARY 24, 1960. – DECIDED JUNE 20, 1960. – 169 F. SUPP. 922, REVERSED.

    cubanbob (409ac2)

  136. monkey

    as for the tax thing in no way do they treat it like a tax. seriously, read the list of the ways they are treating not like a tax. it is literally impossible for congress to have made it clear that this was a financial penalty rather than a tax.

    Comment by Aaron Worthing — 6/28/2011 @ 10:50 am

    The staffers who actually wrote the bill made it very clear in the bill’s language it isn’t a tax since they knew perfectly well if it was called a tax it would have instantly declared unconstitutional as an impermissible tax. For the penalty portion of the bill to be a legal tax the constitution that Stengel claims to be of no meaning would have to be amended to permit this tax, just like the income tax need an amendment to be permissible.

    cubanbob (409ac2)

  137. The Times® piece was unforgiveably bad, especialy from someone with much more knowledge than I.

    Er, “Claim #12: Naturalization depends on your birth” – if you are already a citizen, can you apply for naturalization? If not, then yes – it depends on not being born a citizen. Well, unless you have previously renounced citienship somehow and wish to resume it.

    - – - –

    nit pick: George Washington (somewhat reluctantly) was the first President under the Constitution – there were several Presidents under our earlier US national government.

    John A (2c4f8d)

  138. The point that strikes me in false claim #3 is the argument that the fourteenth amendment should be understood, not in terms of what it says, but in terms of what Congress was thinking, or of what they wanted it to mean. A little thought should make clear what a dangerous and pernicious line of argument this is. A law, or constitution, is what it says. Once one accepts that what it says can be subordinated to what is agreed that the people who framed it were thinking or intending, then any enshrined rights and safeguards can be overturned.

    Richard Briscoe (d93835)

  139. ColonelHaiku rules!!!

    Rick, sadly, just drools.

    Icy Texan (b03c80)

  140. First the caveat: I did not read the comments (No time!)

    Now the text:
    Aaron,

    I found your analysis (the original and the current one) spot on, good work and so on. However, I do feel that you are taking a hard road when trying to ‘out’ Stengel for his errors. I don’t know if you are trying to hit some symbolic magic by listing thirteen errors, but you are hurting your own case.

    To whit: you can make a stronger case by leaving off anything that delves too deep into modern political divides. By listing, say, Obamacare (13), you turn off any reader that is pro-obama, they will simply tune you out. Now, here, that isn’t much of a problem but you ARE sending this to the Times. A simple, non-partisan, destruction of Stengel’s “facts” would be more likely to be read and acted upon.

    Secondly, I think leaving off more debatable points would make the remaining points stronger. The naturalization argument, for example: I don’t know what Stengel meant with his comment exactly, but I’m willing to believe that a case could be rationally made that ‘not being BORN a citizen of the US’ is, in fact a circumstance of birth that is overcome by naturalization… By including points that are more debatable than factual, you provide potential distractions.

    Just a thought.

    Spike (36439a)

  141. What’s a “Time Magazine”?

    JC (7ef00a)

  142. spike

    lol, you know that this is the reduced version of this, right? The fisking i linked to above had all of this in it, but 1) without the handy structure, and 2) with alot of discussion of the philosophy involved, too.

    I frankly prioritized them by what I felt were the strongest points (i.e. his worst and least debatable errors) first. The last one is last precisely because the proof is “involved.” I do think #13 is beyond reasonable debate, given that none of the courts have upheld it and the statutory evidence is so powerful. Indeed, in the Virginia litigation they have stopped even arguing that it is a tax, so the Obama admin’s lawyers have partially conceded the point.

    But I think the prioritizing mostly offsets your point, but hey, reasonable minds can disagree, and I greatly appreciate even stylistic critique.

    Aaron Worthing (e7d72e)

  143. It is sad, to the point, that Henry Luce’s flagship publication has gone, Aaron, they must
    insist ‘I see four lights’ when there is clearly not, then again they seriously entertained the illusion that Obama was the new FDR. among many
    heresies to fact and common sense.

    ian cormac (72470d)

  144. ian

    btw, i am amazed that the four lights reference is so popular.

    it goes to show you that when Star Trek: Tne Next Generation finally hit its stride, it was a pretty dang good show. That was a good enough episode that even non-fans end up learning about it, almost by osmosis, sort of like how everyone knows the story of frankenstein, but not everyone has read the book or even seen the movies.

    Aaron Worthing (e7d72e)

  145. Much like the season bookends involving the Borg, they were among the better episodes, when they entertained the utopian elements, the series faltered.

    The larger problem is that this totally blinkered
    worldview, is so pervasive, that no editor flagged, and this view will be transmitted to many impressionable minds, including the youngest
    and most uninformed. Then again, I grew up on Schoolhouse Rock.

    ian cormac (72470d)

  146. The stars at night are
    big and bright, deep in the heart
    of Icy Texan

    ColonelHaiku (eb5392)

  147. “TIME magazine probably publishes many facts… but since it’s founding in the early 20s I have been on the spot eight or nine times when something that wound up as a news story in TIME happened. Not once—not once—did the TIME magazine story match what I saw and heard.”

    -Robert A. Heinlein

    TANSTAAFL (bb1ee7)

  148. btw, let me stress that alot of you have provided helpful supplementary information and if things go well, this will end up helping in a big way.

    I wanted to thank all the commenters for this.

    Aaron Worthing (e7d72e)

  149. I’d be more impressed with right-wing tools like the author of this drivel if they were as similarly up-in-arms when BushCo. was making an absolute mockery of the Constitution during his presidency.

    Comment by Rick — 6/28/2011 @ 5:27 pm

    President Bush actually went to Congress and got authorization for the wars in Iraq and Afghganistan.

    Obama, not so much.

    TANSTAAFL (bb1ee7)

  150. I’d be interested in knowing what Zakaria had in mind with the part that I put between the underscores. What gains is he talking about?

    Freeing the slaves from their Democrat masters.

    See Crow,Jim and Klan, Ku Klux.

    TANSTAAFL (bb1ee7)

  151. Rick, you wouldn’t happen to be the chairman of some “institute” of studying the Constitution? Because you seem as ignorant of its contents as Stengl.

    SPQR (26be8b)

  152. >> When the CBO ran its cost estimates, tallying how much the law would cost versus how much revenue it would raise, it didn’t include any money from the mandate. In other words, the CBO acted as though the mandate would raise absolutely no revenue at all.

    Did they also assume nobody would pay the penalty??

    How can you score the bill without factoring this in?

    I think one reason Congress did not call the Obamacare penalty a tax is that they didn’t want the normal IRS collection rules to apply – even the withholding of a tax refund.

    I think what you wrote is pretty good, but not perfect.

    At one place you could make it better by pointing out that this claim that Social security is a debt was litigated, and the Supreme Court ruled against that interpretation in, I believe, 1940.

    However that may only mean that Congress can reduce or cancel future Social Security payments.

    Some people are now circulating the idea that it does cover social Security because of the clause in the 14th amendment that goes “debts incurred for payment of pensions” But this is deliberately misleading, because it only includes pensions incurred for service in the Civil War.

    Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

    Sammy Finkelman (907727)

  153. http://www.samefacts.com/2011/06/politics-and-leadership/the-debt-ceiling-and-the-14th-amendment-everybody-wins/

    An argument for blowing past the debt ceiling. (what law is more important?)

    Sammy Finkelman (907727)

  154. Well done, and impressive, my friend.

    I was looking at this comment snippet:

    Zakaria: … For example people point out that, uh, the second amendment is a grammatical mess, whatever you may think of the right to bear arms.

    Toobin: It’s nearly incomprehensible as a sentence.

    Zakaria: Right.

    Toobin: Yes.

    Well … the delcarative part of it isn’t a gramatical mess. It is quite clear:

    the right of the people to keep and bear Arms, shall not be infringed.

    Redheads, having a reputation for being easily incensed, the right of the people to keep and bear Arms, shall not be infringed.

    Water, being particularly wet, the right of the people to keep and bear Arms, shall not be infringed.

    Thunderstorms, being awfully rumbly, the right of the people to keep and bear Arms, shall not be infringed.

    The takeaway from all these, to me, is –

    the right of the people to keep and bear Arms, shall not be infringed.

    philmon (e11595)

  155. sammy

    i would love to see an example of someone claiming that bit about pensions applied to social security, just for giggles.

    Aaron Worthing (e7d72e)

  156. The real point, is the Chinese will one day, tire of this farce, and say ‘there’s no soup for you’

    ian cormac (72470d)

  157. It takes one to know one.

    ropelight (de9bde)

  158. Epic ass kicking. Well done patriot. We need more of your ilk.

    Syrin (1b9ee8)

  159. Re the 3/5th clause vs slaves:
    Not all slaves were black. Numerous whites were also held in slavery in Colonial America, especially Irish and Scottish War prisoners. It was only after the demand for labor exceeded the supply of (white) slaves was the Royal Company of Africa created to meet the demand with slaves from Africa (blacks).

    On a side note, the very first slave owner in America was Anthony Johnson who, in 1654, won a Court case involving 1 of his indentured servants (John Casor) and the Courts agreed that Casor should be retained in service for life (a slave.
    Johnson, the very first Slave Master in America…was black.

    KellyJ (84ebcd)

  160. I began having payments to Social Security withheld from my earnings in 1958, and such payments into the system continue today, although I am now receiving payments myself—no one ever asked my if I wanted to have the payments into the system witheld–it was a unilateral action on the part of the Federal Government—the way I see it the govt placed me into a contractual relationship with itself as to the receipt of my current payments (albeit it was a contract of adhesion, as I had no choice in the creation of the relationship)—the govt’s obligation was contigent upon me reaching an age of eligibility (something of a favorable position for them when they had me flying combat missions in RVN and Laos in ’69-’70, as it wasn’t clear whether I would reach that age)–at any rate, I did get old enough to vest payments BACK OUT of the system—if that doesn’t constitute a debt, it’ll do ’til a debt gets here—

    Jack (97c995)

  161. #154, KellyJ, is correct. Antonio the Negro was one of the first Africans brought to Virginia in 1621 and sold to a tobacco planter as an indentured servant. By 1635 he had served out the term of his indenture and thus became a free man, he took the name Anthony Johnson to mark his new status.

    Johnson moved to Virginia’s Eastern Shore, acquired land and prospered. He also bought several black indentured servants of his own. When one of them went to work for another farmer claiming his term of service with Johnson had expired, Johnson took the case to court, which held, as KellyJ noted, that John Casor should be held in servitude for the term of his life, thus becoming the first slave.

    ropelight (d202c0)

  162. the assumption being that in order to have a well trained militia, people need their own guns for practice purposes

    That’s actually not right: you’re still thinking of the people and the militia as two separate things; you’re thinking of the people simply as the pool of potential recruits to the militia, which is a separate entity. That’s not right: People with guns are the militia. That’s what “militia” means: an armed populace.

    Milhouse (ea66e3)

  163. What kind of a person wakes up in the morning and thinks he know better that our founding fathers?

    Why not? What makes them so special? I think I know better than they did, and I think some of the things they put in the constitution were damned stupid. But that doesn’t change what it says. They wrote the thing; I didn’t. So it says what they wanted to put in it, and not what I would have. And that’s why their opinions and thoughts are important and mine are not.

    Milhouse (ea66e3)

  164. Reminds me of the dolt on youtube who thinks the electoral college is a bad idea.

    It is. It’s a bloody stupid arrangement, that hasn’t worked as intended since 1796. But stupid or not it’s the law, and the only way to change it is to get 2/3 of each house of Congress and 38 state legislatures to agree.

    Milhouse (ea66e3)

  165. There are some limits on governmental power, though they are few in number, and are mostly limited to what kinds and how severe legal punishment may be.

    You jest. Have you read the damned thing?

    The question of what Congress has the authority to do as a legislative body is as the Time article stated – near limitless

    On the contrary, the constitution lays out a list of all the things Congress can do; anything not on that list, it can’t do. That’s a huge limit.

    especially given that the Congress can amend the Constitution itself.

    Excuse me? What the hell are you talking about? Do you even know?

    when BushCo. was making an absolute mockery of the Constitution during his presidency.

    Really? How and when did it do that?

    Milhouse (ea66e3)

  166. The only reason we have an income tax is because the 16A specifically authorized it.

    Garbage. There’s no constitutional problem with a tax on wage income, and nobody has ever suggested that there is a problem. And there’s really no problem with a tax on other income either, but a temporary majority on the Supreme Court once came up with a cockamamie theory that taxing rent, interest, and dividends amounted to a direct tax, so Congress and the states amended the constitution to make a specific exception and allow them to be taxed. No court today would have made that decision in the first place. And nor, I think, would any court at the founding have done so.

    Milhouse (ea66e3)

  167. Some people are now circulating the idea that it does cover social Security because of the clause in the 14th amendment that goes “debts incurred for payment of pensions” But this is deliberately misleading, because it only includes pensions incurred for service in the Civil War.

    They’re just plain misquoting. The clause reads “debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion”. As you say, it refers specifically to Civil War pensions, not to any pensions. But it goes further than that: it didn’t protect Civil War pensions either; it only protected debts incurred to pay those pensions. Congress could at any moment have changed or canceled all Civil War pensions, if it had chosen to, and nobody could have challenged it. All the clause means is that if the government borrows money to pay Civil War pensions, then Congress can’t decide to cancel the loans and stiff the lenders. That’s all.

    Also note that while neither Congress nor any other part of government may question the debt’s validity, the treasury still can’t pay it if Congress fails to appropriate money for it. And it can’t borrow more money to pay it, without Congress’s permission. The USA can default on its debts, it just can’t repudiate them.

    Milhouse (ea66e3)

  168. Contrary to popular misunderstanding, not all slaves were black, nor even most. There was a law in England for several centuries [i]requiring[/i] “loitering” Irish and Scotts be sold in the US, aystralia and Central/South America as slaves; this continued in the US until England ended the practice in 1839
    http://www.africaresource.com/rasta/sesostris-the-great-the-egyptian-hercules/the-irish-slave-trade-forgotten-white-slaves/

    Google “Irish Slaves in America” for the sad truth

    Dave (e56b1f)

  169. heh.

    I guess this reinterpretation gig is a trend now.

    Dustin (b7410e)

  170. Words fail, Dustin, it’s like there is a competition, to be more and more absurd, Schama in the Daily Beast, Dionne in the Post, I guess
    Kristof, will render the Times verdict,

    ian cormac (d380ce)

  171. I agree, Ian. It’s certainly beyond me to articulate just how wrong that is. RSM takes the direction I’d take. Just point and sarcastically note the unbelievable arrogance of such a fundamentally unpatriotic and self serving twisting of history.

    Aaron did the unthinkable by painstakingly explaining every damn thing he could find that was wrong. As we can see, there’s a real thirst for someone who can stand to do that.

    Dustin (b7410e)

  172. Somewhere in the comments above, the author of this brilliant article states that “yes, all slaves were black, but not all blacks were slaves.”

    This is not true, not all slaves were black. There were white slaves as well (another “forgotten” piece of our history).

    While this is hardly “authoritative” evidence, keep doing research on the subject and you’ll find your authoritative articles: http://www.africaresource.com/rasta/sesostris-the-great-the-egyptian-hercules/the-forgotten-white-slaves-part-ii-nehesy/

    Mad Jen (c2f998)

  173. Probably why the framers didn’t use racial descriptions in the Constitution, but the word “enslaved” instead?

    Mad Jen (c2f998)

  174. mad jen

    well, thanks. its greatly appreciated.

    Aaron Worthing (e7d72e)

  175. Brandan FitzSimons, the retired editor and publisher of three Wick Communications newspapers in Arizona and a naturalized citizen of the United States always carried a copy of the U.S. Constitution in his coat pocket.
    Too bad Time managing editor Richard Stengel doesn’t do the same or if he does he forgot to refer to it before writing his editorial on the U.S. Constitution.

    Robert E. Kimball
    retired editor and publisher of the Nogales International and the Weekly Bulletin in Santa Cruz County, AZ

    Robert Kimball (72be1d)

  176. Wow! Not a single one of this was a factual error so much as a difference of opinion or interpretation of the article. And actually, your quote on naturalization is missing half a sentence from what was actually in the article. Was that an accident, because it seemed like a pretty handy part of the sentence to leave out. Anyway, every last one of these objections boils down to you don’t like the way he put the information. Your most legitimate complaint seems to be that he fails to distinguish between slaves and blacks in the civil war and reconstrution eras.

    Now to be fair, everyone is entitled to their opinion, and I am glad you posted yours. I love a balanced presentation, which often requires my own research. I just think you should take a step back from presenting your interpetation of the constitution as fact and any opposing as unsound. You obviously believe in an implicit interpretation of the constution, while the article seems to be based on an implied interpretation. That fundamental difference alone is bound to lead the conflict as it has for over 200 years, but it still does not justify representing your interpretation as fact and the author’s as inaurate. There are several other examples in your piece of mere differenes of interpretation- For example:

    You have the quote right there that the constitution AND the laws of the united states are the supreme law of the land. By stating the constitution apart of the laws, does that not imply the laws have their own document? Would it not be reasonable to interpret from this that the constitution is more a managing document? After all, it is all up to interpretation, as the supreme court constantly reminds us.

    Another example:
    The article does not stated that we have only declared war 5 times. It states that congress has only declared war 5 times. You and he are arguing the same point-the need for a declaration of war is antiquated and generally ignored. Why you see the need to fight about a point you agree doesn’t make sense to me, other than that it is consistent with the rest of the attack.

    That’s all I have for now. Thank you for your time and opinion. It gives me hope for our nation’s future that there are still enough people around who can have this conversation in an educated and cordial manner.

    -Danni

    Danni (5f987f)

  177. Danni, it is an explicit interpretation that Aaron is speaking of here. And what it “boils down to” is we don’t like the way that Stengel misrepresented factual information.

    You criticize Aaron for leaving something out in his quoting the part of the article on naturalization, but provide no proof whatsoever that any meaning was changed.

    Oh, and what YOU conveniently left out is that the Constitution reads: “This Constitution, and the laws of the United States which shall be made in pursuance thereof … shall be the supreme law of the land.” How convenient that you left out “in pursuance thereof” in your quest to delineate a distinction without a difference.

    Bottom line: you’re telling Aaron that he’s wrong because you believe the COTUS to be a ‘living breathing document’.

    Icy Texan (b4db98)

  178. Icy,

    I’m not telling Aaron he is wrong. In this argument it is almost impossible to be wrong. We are arguing over interpretations of the constitution, which the pure existence of the supreme court proves that the constitution is open to constant reinterpretation. I do apologize for not better stating the concrete details I cited. On a cell phone @ 2 am my cut and paste ability was a little limited. When I get to a computer I will follow up.

    I am not at all telling Aaron he is wrong. His interpretation of the constitution is a very popular one. I just don’t feel that he should present his opinion as fact and therefore any opposing interpretation as factually unsound.

    I do find it a little strange that in your comment you seem to oppose the concept of the constitution as a living breathing document, but just as is Aaron, you are entitled to your opinion and interpretation.

    Thank you for your comment. Again, I find it very exciting that there is still a group of people in this country familiar enough with the constitution to have such a discussion.

    -Danni

    Danni (b543a9)

  179. Danni, given that Stengl’s claims are objectively false from the very text of the Constitution and Amendments, it is not a matter of interpretation.

    SPQR (26be8b)

  180. The article in question was an opinion piece, not a news article. I keep reading accusations of inaccuracy, but have yet to read anything here to support anything other than a difference of opinion. As a country, we really need to move past attacking opinions as right or wrong, and focus on finding the value of each opinion in order hopefully eventually implement a stinger interpretation that is more. Relevant to the times. I would really challenge this forum to move away from trying to identify right and wrong, and work towards finding a solution.

    Danni (b543a9)

  181. That’s because you are not paying any attention, Danni. These are not differences of opinion, they are objectively false factual claims by Stengl.

    SPQR (26be8b)

  182. SPQR – there are none so blind as those who refuse to see.

    JD (0d2ffc)

  183. Danni, the existence of the US Supreme Court proves no such thing. “Reinterpretation” is not and never can be an fig leaf for upholding acts by the legislative or Executive branch which intrude on the rights of the people. The Constitution limits the powers of government and preserves the rights of those it was properly established to preserve.

    Moreover, we’re not required to manufacture reasons for the court’s existence, or to accept uninformed speculation, the Founders were quiet clear in their intentions.

    In Federalist #78, Alexander Hamilton wrote the following: (bold emphasis added)

    …It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

    Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

    ropelight (69434e)

  184. WOW! Thank you for that! This is what Aaron should have used to substantiate his stance that the framers in fact intended the constitution to be law. I would have to say that the rest of the document goes to support my comment on the judiciary. I made no such comment that the justices were to interpret the constitution based on their beliefs, only that they are in place to constantly interpret the constitution. I absolutely agree, as I stated previously, that the interpretations need to remain relevant. This absolutely consistent with the stated intention here that the judiciary is in effect the means by which the people interpret. Now as to if that is actually the reality is a whole other argument.

    Thank you for that. There are a few other federalist papers I think I will reread now. Again, I think the discussion should shift from right v. Wrong to more forward thinking and focus on the future. I understand that the framers could not have possibly foreseen several of the issues crippling our nation today, but they were intelligent men attempting to give future generations tool for success. How do we get back to that? When to we stop petty attacks over difference of interpretation and come together to move our country forward?

    Danni (b543a9)

  185. Rational person – 2+2=4

    Danni – that is just your interpretation, your opinion.

    JD (6e25b4)

  186. Danni, contrary to your repeated assertion, the Supreme Court is not there “…to constantly interpret the constitution.” SCOTUS is there to interpret the law in accordance with the Constitution. Notice the difference? Anything else has the potential to erode the rights of the people, and must be opposed.

    Arron was right to point out Stengle’s serial misrepresentations. Stengle is plain wrong on the facts, demonstrably so. And, Stengle’s misrepresentations are made worse by his previous 2 years as head of the National Constitutional Center. He knows better, but he mortgaged his personal ethics in service to a collectivist political agenda.

    Aaron substantiated Stengle’s deceits and then and hung the shameless hack out to dry, naked and exposed.

    ropelight (69434e)

  187. Rope,

    You continue to seek out a fight where there isn’t one. By design there is no clear right and wrong in constitutional interpretation. I am glad you seem to have gotten out of this what you wanted; a crucifixion of a man’s opinion. I would like to see you move on to more constructive input, but to each his own I suppose.

    JD,

    EXACTLY!! Thank you for understanding the difference between interpretation and fact. I have stated my opinions as an interpretation of what I have read and what I learned in my brief stint as a law student. I am arguing neither the implicit nor explicit interpretations of the constitution that seem to lie at the foundation of this argument, but only that we should see our opinions and interpretations for what they are-opinions and interpretations.

    Thank you all again. This an excellent and relevant discussion for our times.

    -Danni

    Danni (c568c8)

  188. Danni is kinda slow.

    JD (109425)

  189. “You continue to seek out a fight where there isn’t one.”

    Danni – Reread your first comment. You sought out a fight.

    You still fail to comprehend Stengel’s factual errors which are indeed different than differences of opinion. People here know that. You are not educating or fooling anyone.

    Bring a better game next time.

    daleyrocks (bf33e9)

  190. I am looking forward to the day that we as a society are less obsessed with right and wrong and more interested in solutions. That’s cool. This group is obviously only interested in preaching to the choir, of which I am not an identified member. I haven’t really expressed any of my own opinion other than that on the role of the supreme court. I think both sides have very valid points. I do lean further one way than the other, but I have a feeling it is not the direction you all seem to assume.

    I have apparently touched a little of a nerve by asking a group of people to see differences of opinion for what they are. As I read through the comment after getting involved in the discussion, I see that others have raised similar points to my own. I don’t see what the fuss is now. It isn’t like everything I have said hasn’t been said before. Much like the issue between the two articles, it seems to be an argument over how I am saying it vs. What is being said. Open your minds just a little. Difference of opinion is a good thing. Embrace it. Learn from it. Grow from it. Okay I will confess to being a bit of a hippie, but we have got to get away from standing ground so firmly that we are all at a stand still. The overall point of the original article seems to have been missed here entirely and replaced with a petty argument over how it was phrased.

    My only objective here was to join a discussion regarding two articles that I found enjoyable and interesting. I have been sorely disappointed by the defensive nature of the forum, but also appreciated the citations brought by rope.

    Just as a note, I joined this discussion while staying up with my vomiting 5 yr old after a day at the hospital while my grandfather had bypass surgery. I thought it might be a nice escape into a topic I enjoy. That is neither here nor there but maybe a little perspective for a group of people who seem to have a real hard time with what they interpret as a different opinion. Again, I haven’t actually given my opinion on the topic.

    Enjoy your sermons to your shrinking choir. Ignore there is no congregation. I am off the the hospital and real life. I won’t be back.

    -Danni

    Danni (c568c8)

  191. To say that Danni is “kinda slow” is like saying that water is kinda wet.

    “there is no clear right and wrong in constitutional interpretation”
    – What is it, then? Flavor of the month?

    “[Aaron's] stance that the framers in fact intended the constitution to be law”
    – My ‘stance’ is that they wrote in the document itself (Article VI, clause 2) that it IS law. Sorry to burst the bubble on your interpretation.

    “We really need to move past attacking opinions as right or wrong”
    – You are incorrect about that.

    Icy Texan (b4db98)

  192. In order to solve a problem you need to do the right thing, not the wrong thing.

    Icy Texan (b4db98)

  193. Why is it that leftists always subject us to their bibble babble of there is no right or no wrong? Or the claim that we are unwilling to consider differences of opinion? This idea that Danni is open to some kind of broad interpretive nuance that we are unable or unwilling to comprehend is BS. Stengel was wrong on the facts. Objectively.

    JD (6e25b4)

  194. Danni, you are a fraud. You pretend to just want to avoid fights, all get along etc. But the reality is that you just want to cover for a man who wrote an opinion piece, while claiming expertise, that made many objectively false claims. Claims that were refuted conclusively by the text itself.

    Why? To muddle the political debates, that’s why. Not to “look forward” but to attempt through falsehood to discredit people who rely upon the political institutions of this nation.

    And that’s not a legitimate exercise and your little pretend “let’s all get along” act is a fraud.

    SPQR (26be8b)

  195. Big group hug for Danni!!!!!!

    daleyrocks (bf33e9)

  196. Sounds like Danni is picking up his ball and going home.

    Ya gotta love him, though, for his “I’m not expressing any opinions of my own; however, all of you are wrong,” line of reasoning.

    Icy Texan (b4db98)

  197. Icy – I can’t hear you. You are a member of the shrinking chorus, but I am not expressing any opinions. Racist.

    daleyrocks (bf33e9)

  198. Danni is a turd.

    I’m beginning to despise Anne Coulter and her shilling for the GOP establishment left.

    DohBiden (d54602)

  199. My chorus isn’t shrinking …

    … it’s cold outside.

    Icy Texan (b4db98)

  200. Brave Sir Danni ran away. :(

    Oh well. Another lefty troll that, in the final analysis, had absolutely nothing constructive to say — unless it is now considered Constructive to lob ad homs.

    Icy Texan (c32a09)

  201. I too think it ill advised to toss in the tax example, which many constitutional scholars have argued is correct, even if a few judges (not the Supreme Court) didn’t accept that it is.

    Taxes can be intended to be penalties; they need not be primary about revenue. It IS revenue — you pay money to the government. Since we can’t tell how many people will have to pay, how could it be determined when determing the cost of the legislation? The law prevents other means other than reducing it from your tax rebate to collect it. You won’t go to jail or anything for not buying insurance. It is determined by income.

    Joe (11a4a6)


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