@Tolstoy, what's your alternative to an interpretationist model? I mean, you can only make laws so specific. At some point you need a human being to come in and interpret them and decide whether something counts or not. It's pretty much the core model of English and American law.

Invictus, do you not realize that to a non-Christian, Catholic mythology is just as sill as Mormon mythology? Whose culture are you talking about you narrowminded fool?

Yes. Things have changed in the last 250 years. What was necessary and proper then is not the same as today. However, it is within the Court's powers to decide these things. Technically speaking, the Court, on its next abortion-related case, completely reverse itself and make all abortions illegal. The remedy for Court action, as stated, is a Constitutional Amendment. If you think the Court has gone too far, start the process of sponsoring an Amendment that would explicitly restrict whatever you don't like.

We are not locked in stasis as if 1789. Our democracy evolves, our society evolves. Tolstoy, I suggest you do some reading of the cases involved, and it may help you understand.

As I've said previously, even cases in which I don't care for the outcome, I can at least see the line of reasoning. Scalia is notorious for this.... even when I think he's dead wrong, I'd never want to actually try to take on his logic... the man is quite brilliant.

So its not surprising that our framework for governmental powers has changed in 250 years of growth. We started as a most agricultural society, largely rural, with no major expenses or responsibilities, and are now (for good or ill) the most powerful nation on Earth. Naturally, our method of governing ourselves changes. This should not be shocking to anybody who has even a smattering of schooling in history.

"The weak Articles of Confederation government lacked the power to intervene in commerce and the economy, and the country desperately needed a government that could."

That's certainly the Hamiltonian interpretation of history, but there were actually a great many people who were perfectly happy with the Articles and wanted no (or only minor) changes to it. Remember, everyone at the time had just got done fighting a powerful government with the power to intervene in commerce and the economy, and were as a result just fine with the 'weak' government laid out in the Articles. Patrick Henry, for instance (governor of Virginia at the time) refused to participate in the Constitutional convention because he "smelled a rat", knew that a great sellout of the principles of the Revolution was in the works, and wanted nothing to do with it. Ratification was a long and arduous process, with some states having to be dragged into the new Union kicking and screaming.

"That power to regulate could certainly be read (and has been read) to allow Congress to ban drugs or alcohol, or to enact the New Deal and the Great Society."

Do you really think John Adams and the rest of the constitutional convention had Social Security, the SEC, or HUD in mind when they wrote the constitution, and that they expected future legal scholars to divine this intention from vaguely defined powers to regulate interstate commerce?

@groverloaf:
I liked Paul O'Neill's plan for Social Security Reform. That is what he wanted to do with the surpluses instead of the gigantic tax cuts. Essentially, for the first 18 years of someone's life, the government puts $2000 into a fund in their name. This is invested in some very safe way...either government bonds, or maybe a total market fund. You leave that money in to just keep gaining until the person is 67, and then it pays out like Social Security until it runs out.

Here:
"One new proposal emerging from the national debate on how to overhaul Social Security could make every American a millionaire at age 65.

Paul O'Neill, President Bush's first treasury secretary and a former chief executive officer of aluminum giant Alcoa, proposes having the government stake every American baby at birth to an investment savings account. By the time the child retires, the account would contain $1 million or more. The idea is drawing attention from an unusual coalition of lawmakers from both parties, liberals as well as conservatives.

To move away from Social Security's chronic funding problems, O'Neill suggests that the government put $2,000 in a special investment account for every newborn American. The government would invest $2,000 more each year until the child reaches 18.

The money would be invested in a conservative index of stocks and bonds and couldn't be touched until retirement. The investment would grow at a compounded rate, meaning that as the value of assets in the account grows, profit would be reinvested so the account would grow even more. Without adding a single cent beyond compounding after the child turns 18, he or she would retire at age 65 with $1,013,326 in the account, O'Neill said.

''If you do the arithmetic, the $1 million would provide an annuity of $82,000 a year for 20 years,'' O'Neill said in an interview.

O'Neill assumes a 6 percent annual return on investment. He calls that figure conservative since it represents the worst performance to date of any 25-year cycle on Wall Street."

From this site:
http://brothersjuddblog.com/archives/2005/02/bring_back_paul_oneill.html

Just off a quick search.

It would have to be inflation adjusted. The plan actually turns out to be pretty cheap, since there aren't really that many kids under 18. It is like $10 billion a year or so. The expensive thing is that you would have to switchover, and that would mean picking an age and paying the catch-up on those before it.

Tolstoy, this is a lovely intellectual argument you have there.

One, its irrelevant what X or Y person was "thinking" when they wrote the Constitution. It was written. We go on the document itself. It was deliberately written vaguely in order to give it flexibility to adapt and deal with conditions as they changed. As I've said... this is not the same country it was in 1789. Things have changed. As a result, our methods of governing ourselves have also changed. This is not to say that we live in a perfect political realm, but we're doing fairly well for ourselves, all things considered.

Also, I do take exception to referring to people educated in law as some kind of priesthood. That implies both a belief system, and some kind of orthodoxy. Law is a science, and law conclusions are reached in a logical way. If you want to know more, all you must do is educate yourself. And to imply there is some kind of orthodoxy... you should attend some of my law classes. The debates get both fiery and brilliant. Its quite enjoyable, even when I passionately disagree. And then the instructor forces us to argue the other side, and we learn quite a bit more.

That, by the way, is an excellent way to prepare for debate (and I imagine anybody who did debate in HS would know this already). Think about who you're arguing against, figure out their line of reasoning, and start trying to take it apart. Mental flexibility and the ability to see where the other side is coming from is the key to these things. :)

@Stukus - I'm not opposed to legal interpretation as a whole - I agree that laws can only be made so specific, and after a point judges must make judgments. My problem is that the Constitution is 'interpreted' in ways that are in complete opposition to the original intent of the founders. Mr. Klein is correct in that it is not 1789, but neither is the constitution supposed to bend and twist at every whim as it has for most of the last 100 years.

@Jack_Klein - It is telling that you suggest I go read case law. By doing so, you are essentially conceding that the constitution doesn't mean what it says, and that reading it is a waste of time. I'm already familiar with all of the cases you've cited, and I agree that they say what you say they say. My point is that the rulings for the most part are so far removed from what the constitution says and the original intent of the framers that they either cannot be taken seriously, or the constitution is essentially dead. Do you really think George Washington or Thomas Jefferson thought the Federal Government had the power to draft a law that would've put them both on death row as 'drug kingpins' for the hemp crop they grew on their own land, for their own personal/business use and sales within the state of Virginia?

There is a process for making serious changes to the Constitution - by constitutional amendment. That process has not been followed since the Progressive era for any but the most superficial changes; of all the constitutional amendments passed in the last 75 years, only one was controversial (the 24th - and then only in the Southern states for which it was intended, which did not have the numbers to to prevent its ratification). But every year the federal government assumes dozens of new powers, supported only by 'interpretations' of the constitution.

Jefferson wrote that the federal government was to be "bound down from mischief by the chains of the constitution". Instead, today the constitution is 'interpreted' to give it power over everything from toilets to space exploration to protection of the Delhi Sands Flower-Loving Fly (a hideous pest which cost the government of my county tens of millions of dollars, even though it is not native to the area). Do any of you members of the legal priesthood really feel that the constitution is today a real impediment to the usurpation of new powers by the federal government? The federal government doesn't need a new constitutional amendment to assume new powers - all it really needs is to make sure the constitutional challenges are heard by ambitious federal judges who can be offered promotion to a higher court in exchange for favorable 'interpretations'.

As for the subject of amending the constitution to deal with new issues: it is almost impossible to amend the constitution for any issue of real controversy, since the requirements for an amendment are so high. That was done deliberately, to make sure that serious changes had widespread support throughout the Union. Controversial issues should be handled at the state and local levels. Today, however, since the constitution is never (or hardly ever) an impediment to legislation, most controversial issues are 'settled' by whoever can get 50%+1 votes of the congress (and the rest are settled by executive fiat, but that's another subject). That is not a healthy way to govern a large state, and is why we have such a serious problem with factionalism today.

"One, its irrelevant what X or Y person was "thinking" when they wrote the Constitution. It was written. We go on the document itself."

Are you saying Legislative Intent has absolutely no bearing on the development of case law? I'm confused. Like I said, I'm not a member of the priesthood, but I do recall from speaking to people who are that Legislative Intent is one of the factors judges are supposed to take into account in making case law.

"Also, I do take exception to referring to people educated in law as some kind of priesthood. That implies both a belief system, and some kind of orthodoxy. Law is a science, and law conclusions are reached in a logical way. If you want to know more, all you must do is educate yourself. And to imply there is some kind of orthodoxy... you should attend some of my law classes. The debates get both fiery and brilliant. Its quite enjoyable, even when I passionately disagree. And then the instructor forces us to argue the other side, and we learn quite a bit more."

Uh, there is an orthodoxy. You're telling me I'm ignorant of it and need to educate myself. I don't doubt there are arguments in some of your law classes, just as there are no doubt arguments among seminary students. But there are many things both groups take on faith and do not dispute (how many in your law classes, for instance, take the arguments of the Tax Protest movement seriously?). Like the broad latitude judges have to 'interpret' the law.

I'm conceding no such thing. You're expressing a major hostility towards the legal profession here. Case law has mattered and has been relevant for effectively the entire history of the western world. Hell, English common law is based entirely on precedent without much in the way of written anything.

The Court rules on controversies that the Founders couldn't have imagined. That is why it was written relatively open-ended and vaguely.... because they knew they couldn't be specific enough to cover every eventuality.

Societies change. To stand against this is to stand against the progression of the human race.

To think that a society doesn't evolve, and that the way we did things "back in the good old days" is reactionary at best, and deluded at worst.

Jack_Klein - I think what Tolstoy (and some of the other on here) are arguing is that instead of using that instead of using judicial activism to rewrite the law and reinterpret the constitution to fit the agenda of those who want increased federal power, if society changes (as you put it) then the constitution can be changed to reflect that change (if the change is truly universal). However, what has happened, in my opinion, is not that society changed and the government reflected that change, but that the federal government (in all branches) decided that it wanted to usurp more power for itself the "easy" way, rather than change the constitution. As a result, it was not that the change in government reflected a change in society; rather a change in government effected a change in society.

And yes, there are controversies the Founders "could not have imagined". However, things like welfare were certainly well known to them (the Roman Empire had welfare), as was abortion (practiced for a long time before the advent of the United States), and any of a host of other topics. Within the past 250 years or so, while there have been great technological advances, it is not like there are a ton of "new" political ideas of which nobody was aware previously.

Societies do indeed change. When have I said they do not? Where we differ is that you apparently believe the law ought to change easily and quickly by judicial diktat with every fad and trend, where I believe it ought to change only after the most careful deliberation and through a difficult amendment process. I don't doubt that, even with the strict requirements for passage, a constitutional amendment authorizing the establishment of the Social Security system or national unemployment insurance would pass today. That is the process that was intended and needs to be followed. But it isn't.

"The Court rules on controversies that the Founders couldn't have imagined. That is why it was written relatively open-ended and vaguely."

But it *isn't* written open-ended and vaguely. The powers of the congress are clearly spelled out in Article 1 Section 8. It is true that the Founders could not have imagined our modern world and all its legal needs, but that does not mean that the constitution should be ignored. There is a process for updating it; I believe that process should be followed. You obviously disagree and hold to the notion now in vogue that the ICC and General Welfare 'clause' empower the federal government to do whatever the hell it wants without any real check on its power.

I know and understand what you're saying about English common law and precedent. I don't entirely disagree. But where written constitutions exist, I think they ought to be taken seriously, and not be 'interpreted' every time they become inconvenient to one or another political interest. If that makes me a reactionary, I'll wear that label with pride.

Whoa! That took off quickly.

@ Jack_Klein --

You're liable to see me counterprotesting those Westboro "Baptist Church" traitors with you. First Amendment my ass. If it wasn't for soldiers' sacrifices, there wouldn't be a First Amendment. Rights are meant to be respectfully maintained and defended. Not sodomized and abused.

They fit into the same category as Larry Flynt, our friendly smut peddler. If we ensure that people like him, and people like the Westboro people have their freedom of speech maintained, the average citizen need not worry.

Don't get me wrong. I think they're scumfucks. But even scumfucks have rights in this country.

Under that logic, I can stand on a street corner and start preaching racism. Would my First Amendment still be valid when the NAACP showed up and sued me into the ground?

Well, mostly yeah. Plus, the ACLU would probably offer to represent you.

Long as you didn't advocate violence, you're set. If you just talked about how you think Purple people shouldn't be allowed to live near you, and that you're afraid they're going to steal all our hampsters, thats fine. Nutty, but legal.

And yes, the ACLU would take that case. They took a case like that, the Skokie case involving the American Nazi party wanting to do a parade in Illinois.

Hell, I'd take that case once I actually finish law school. :) I'd also tell you that you're an asshole. :P

The incumbent always wins unless the economy gets worse.

I don't think the economy will get worse, so Obama will win.

Therefore it doesn't matter who the GOP puts out.

What will be more interesting is to see if there is any significant support for third parties due to the Tea Party.

Sorry if that has all been said. I can't really read through 163 comments.

@ Thuc

I think the Tea Party will go for the Libertarians. But if the GOP leadership can unite with the Tea Party and other grassroots groups, than the left should wet their pants.

@TMW:
Heh, the tea party is the Republican party base. The majority of the tea baggers still approve of Bush, and if that doesn't tell you something...

What's wrong with Bush? The media did a good job of making him look like an ass, but what did he do that was wrong? (other than NCLB)

@ TMW
NCLB was horrible yes and off the top of my head two other things were wrong:
Tax Cuts from 2001+ account for half our current deficit: http://www.cbpp.org/cms/?fa=view&id=966
Medicare Plan D: http://www.econbrowser.com/archives/2010/03/speaking_of_lia.html Those numbers are in Billions, as in 7.5 trillion dollars it cost taxpayers. Way more than everything Obama has done combined.

Where was our Liberal media during all of that? Rooting for the Iraq war.

Anyway, he did a good job of making himself (and all Americans) look like an ass without help from anyone else and I'm not a Bush hater at all.

So, you're saying that tax cuts are bad?

Tax cuts while there's a major war on is a bad idea. Bush can in with a surplus, rightly gave it back in tax cuts (personal opinion), and then spent way beyond that surplus to put us in an obscene deficit. That opened the door for Obama's dangerous levels of spending which threaten our nation with bankruptcy.

So yeah, it is possible for tax cuts to be bad if they're not accompanied by a reduction in spending. That just leads to us borrowing more and more money from the Chinese.

I'll say the tax cuts were a bad idea. I didn't like it then, and when I look at the deficit now, I still don't like it.

@Invictus
Actually, if you look at the spending, Bush's tax cuts and his spending are what were dangerous. Obama's spending has been minor by comparison.

The latest report of the causes that came out estimated Obama's policy moves at about 7 percent, and the stimulus at about 3 percent. The continuation of Bush's policies that were supposed to end at 20 percent. Bush policies, such as Medicare part D, the Iraq war and the tax cuts at 33 percent. The recession makes up for the rest.

I guess you could blame Obama for continuing Bush's policy in Iraq and extending some of the tax cuts. Though, he was attacked by the same idiots for ending some of the tax cuts that have been attacking him for the budget deficit.

The vast majority of Bush's spending was for the war, which is completely nessecary.

Oh boy, Master Warrior's last comment is going to create a lot of discussion, I'm sure.

Why Stukus? TMW, in his infinite yet paper thin wisdom, has declared it necessary. How can any discussion possibly ensue?