Entitlement and Welfare Spending Catch-all

nevermind! : )

But you were just arguing recently that we should ignore a whole clause of the Constitution, that it was superfluous.

You can't have it both ways, dude. Either they knew what they were doing, or they didn't. If they did, then we shouldn't be ignoring clauses in the Constitution. If they didn't, then this doesn't fly.

Beg pardon? Do you mean the idea that the 10th Amendment simply restates other parts of the Constitution and adds nothing to it? That's not just my opinion, that was the opinion of James Madison who *introduced* it as an Amendment, but they put it in anyway, to make people with your fears feel better. I don't think I said it should be *ignored*, but that it's not adding anything new. It's just saying "Yeah, we're Federalists". It does *not* say that states' rights over-ride federal, or that anything not specifically enumerated is left to the states, which I believe was your argument.

If it's not that, I'm not sure what you mean here. Really, you could cite a bit more specifically even when it's hard to find a quote. In both cases, however, yes, they knew what they were doing. It is obviously possible to apply new reasoning to various clauses, which is what I warned against above. That's what I believed you were doing. We'll have to see if that aspect (the 10th) plays into the ACA in that way; it has not been construed that way that I'm aware of, but hey, these guys have a revisionist approach going, so we'll see.

I am absolutely certain that if you went back and told the Founders that the Commerce Clause was going to be used as justification to force everyone in the entire country into buying health care contracts, they would A) laugh in disbelief, and B) immediately clarify that Congress has the power to regulate commerce, but not force it into being. And if they heard about the other ways it's been abused, they might even scrap it completely.

And I'm absolutely certain you are wrong about many of the Founders. So what? Where does that get us in terms of reality? You think people are being forced into health care, I think that everyone uses it eventually, that's a difference in opinion. But the history of the Commerce Clause? That's law now, precedent based on interpretations, and our opinions are not really meaningful in that context. We are practically dependent on the actions of the Court and Congress to decide the issue, now that it's before them.

And one of the most fundamental legal principles we have is that if Congress wrote something into law, they did it for a reason, and that any reading of the law that makes part of it superfluous, is, by definition, a bad reading.

This applies far more strongly to the Constitution itself.

I keep citing this, but James Madison disagrees with you.

I find, from looking into the amendments proposed by the State conventions, that several are particularly anxious that it should be declared in the Constitution, that the powers not therein delegated should be reserved to the several States. Perhaps words which may define this more precisely than the whole of the instrument now does, may be considered as superfluous. I admit they may be deemed unnecessary: but there can be no harm in making such a declaration, if gentlemen will allow that the fact is as stated. I am sure I understand it so, and do therefore propose it.

This is in fact a clarification of the notion of unenumerated powers, which I know you detest, but which do in fact exist intentionally. Do you argue then that Madison's is "a bad reading", since he regards the 10th as, in his words, superfluous?

It does *not* say that states' rights over-ride federal, or that anything not specifically enumerated is left to the states, which I believe was your argument.

Yes, it does. In the clearest language possible, that is exactly what it says. If it's not explicitly granted to the Federal government, the Federal government does not have a power, period.

"Explicitly"? The 10th does not use that word, and Congress rejected explicit enumeration of federal powers, both in the original constitution and in the 10th. Unenumerated powers are an accepted, intended part of constitutional law. There's wording that protects states from federal co-opting of unenumerated state rights; there's wording that gives the federal government the right to use the appropriate means to reach a legislative end, even if those means are not explicitly enumerated. When the two come into conflict, the federal usually wins.

You can deny that, but that makes it no less real. The truth is that we are a federal state, and the federal government can pass laws that violate state laws and even state constitutions, and that's not only legal, but intended.

So, was Madison guilty of a "bad reading" of his amendment? I don't think so. Superfluous means it repeats things stated elsewhere, in this case, not that it should be ignored in the sense of "pretend it's not there". I hope that's clear now.

I don't know whether it is a good thing or a bad thing, but most Canadians do not have these discussions about our constitution.

I find comparing the constitutions of the two countries very interesting because Canada was created in 1867, only shortly after the American Civil War. There was a LOT of discussion about how the powers should be allocated between the federal government and the provinces in the light of that horrific war. If you are curious, in the end we got a stronger federal government out of it. For example in Canada, any power not given to a province is automatically a federal power.

You what, that is probably a topic for a different thread. Maybe I'll start a constitutional comparison thread...

Robear, Madison lost the argument. Citing quotes from the loser as evidence that your interpretation is correct is pretty disingenuous.

edit: In other words, Madison brought this stuff up at the time, and the rest of the people writing the Constitution thought he was full of it, enough to override him and get that language inserted.

So quoting him on this subject is a perfect example that your view is wrong. We HAD this argument, 230ish years ago, and your side LOST. Madison said it was superfluous, and the majority of those involved said he was full of sh*t.

Ergo, your position is categorically incorrect, and you should drop it. The 10th Amendment is not superfluous, it is there for the purpose of making extremely explicit that if the Federal government was not granted the power to do something, in writing, by the people, through the process of amending the Constitution, then the Federal government cannot do it.

Enumerated powers are the entire basis of our government, of our way of life... the idea that you are a free man, and the government may only insert itself into your life in certain clearly delineated ways, is the absolute cornerstone of what makes America America. That's why we're different and special, and you want to throw that out the f*cking window to solve a problem that was created by the government IN THE FIRST PLACE.

If they didn't demand emergency healthcare for everyone, then there would be no issue. It's a manufactured crisis, and manufacturing the crisis, and then claiming that it can use its Commerce powers to force people into contracts to mitigate that manufactured crisis, is laughable.

Pulling back a touch to your argument Robear, while the courts have pretty well settled on allowing the Commerce Clause to be used as justification for doing an end-run around around the 10th amendment, there is solid and legitimate argument to be made against it. It is, in fact, controversial. Your argument (as I read it, correct me if I am wrong) that it is no longer controversial or arguable because of the courts' decisions to allow the federal government to expand its powers using the CC is what we are taking issue with. Yes, historically it has been used. No, that doesn't mean everyone is simply going to shrug their shoulders and let it drop. It can still be fought in court, decisions can still be reversed, etc.

As a reminder, here is the original question that spurred this tangent:

SixteenBlue wrote:

The U.S. constitution is almost entirely made up of limitations of the federal government, not enumerations of their powers. If it were designed to be a list of exactly what the federal government should do it wouldn't be written that way. I've asked this on here before but no one has answered: Why do people think the federal government's power should only be what's in the constitution?

That the federal government's power has expanded beyond the Constitution's listed scope is a fact, true. That does not mean that it is no longer a legal/political topic up for debate, with solid legal grounding on the side of those who oppose that expansion.

There is an interesting example that may be useful here. The 18th amendment was passed, essentially prohibiting the production, sale, and transport of alcohol. Following the ratification of the 18th, the Volstead Act was passed. This act gave the 18th amendment the teeth necessary for enforcement (legal definition of intoxicants, authorization for state and federal agencies to enforce the ban, etc.). The Volstead Act would not have been legal on its own, since the courts had not at that time changed the interpretation of the Commerce Clause. If the CC had been intended to allow the federal government to cover the myriad powers it does today, why wasn't it used for Prohibition?

In fact, a great deal of the trouble in the late 20th and early 21st centuries can be directly traced to that ridiculous reinterpretation of Commerce. The entire Drug War comes from that, and there's no possible way that getting health care today could ever, ever make up for the horrors of that quite literal war.

Malor wrote:

Robear, Madison lost the argument. Citing quotes from the loser as evidence that your interpretation is correct is pretty disingenuous.

edit: In other words, Madison brought this stuff up at the time, and the rest of the people writing the Constitution thought he was full of it, enough to override him and get that language inserted.

So quoting him on this subject is a perfect example that your view is wrong. We HAD this argument, 230ish years ago, and your side LOST. Madison said it was superfluous, and the majority of those involved said he was full of sh*t.

Ergo, your position is categorically incorrect, and you should drop it. The 10th Amendment is not superfluous, it is there for the purpose of making extremely explicit that if the Federal government was not granted the power to do something, in writing, by the people, through the process of amending the Constitution, then the Federal government cannot do it.

Madison *introduced* the Amendment to Congress. He felt it was not necessary, because there was no provision for the federal government to step too deeply into local matters, but he went ahead to mollify the Anti-Federalists, who favored a loose confederation like that in the earlier Articles. That's called compromise, Malor, not defeat. The Federalists succeeded in much of their agenda, including empowering the courts to review passed laws, establishing a national bank, encouraging fiscal responsibility in government, and supporting federal law over state's rights. They also, in the form of John Marshall, supported a wide reading of enumerated rights. I can understand why you don't like them, but saying they lost is a bit premature.

If you want to understand defeat, then the fact that the Anti-Federalists originally demanded the use of the word "explicitly" in regards to powers granted the federal government in the Amendment (and in the Constitution) is important. They lost that; Congress would not give them the position you've staked out, that *only* enumerated powers can be claimed as federal. The Articles of Confederation limited the federal government to the powers "expressly granted" to it; the Constitution did *not*, and as long as you insist that federal power is limited to that "explicitly" granted to it, you're just wrong. It's revisionist. It goes beyond whether the 10th is superfluous or not, to just adding things to the Constitution. Unenumerated powers are found in federal usage from the earliest days of the Republic.

Madison was worried that the federal government would reach too far into the local powers, but felt that the Constitution was already strong enough to prevent that. As Kraint noted, the 10th has for some periods in history been used as if it were different somehow, but that keeps getting turned around. The last time that happened was in the 30's, when the current interpretation - that's it's essentially inactive, or superfluous - came into play. It's been pretty consistently treated that way since then, which is a long run. Kraint is right - it can be argued with. But claiming that only powers "explicitly" granted are valid is wrong, and misses a lot of the strengths of the federalist system we have today.

Enumerated powers are the entire basis of our government, of our way of life... the idea that you are a free man, and the government may only insert itself into your life in certain clearly delineated ways, is the absolute cornerstone of what makes America America. That's why we're different and special, and you want to throw that out the f*cking window to solve a problem that was created by the government IN THE FIRST PLACE.

Again with the mind-reading. Yes, enumerated powers are important, but so are unenumerated ones - implied powers. Both exist. No, I don't want to through either out the window, but at least I acknowledge that both exist.

If they didn't demand emergency healthcare for everyone, then there would be no issue. It's a manufactured crisis, and manufacturing the crisis, and then claiming that it can use its Commerce powers to force people into contracts to mitigate that manufactured crisis, is laughable.

That's the conspiracy theory take, sure. But other understandings are more plausible. There's much more to health care costs than the funding of emergency healthcare.

Kraint wrote:

Pulling back a touch to your argument Robear, while the courts have pretty well settled on allowing the Commerce Clause to be used as justification for doing an end-run around around the 10th amendment, there is solid and legitimate argument to be made against it. It is, in fact, controversial. Your argument (as I read it, correct me if I am wrong) that it is no longer controversial or arguable because of the courts' decisions to allow the federal government to expand its powers using the CC is what we are taking issue with. Yes, historically it has been used. No, that doesn't mean everyone is simply going to shrug their shoulders and let it drop. It can still be fought in court, decisions can still be reversed, etc.

That's true. But an end-run around the 10th is an end-run around the Constitution itself, in my opinion. My argument is that the 10th does not *change* anything in the Constitution; it *reiterates* existing limits in a more explicit way.

The problem is that those limits are not enough for many people, who would rather see stricter limits on federal power. So they go ahead and argue that because it was added to the Bill of Rights, somehow that *changes* the other limits, or lack of limits. Look at Malor - he uses the 10th to argue that the federal government is limited to "explicitly enumerated" powers, rather than enumerated and implied powers. The latter is the actual fact of how it's interpreted, and it's important to remember that. That won't go away even if specific cases succeed in using the 10th as a limiting clause. That's the angle I'm going for - we can't use to 10th to create new limits on Congress, or insert imaginary language into the Constitution. The Constitution's powers are *not* limited "explicitly enumerated" ones. Congress had the chance to do that, and refused it, and that's just history.

I tried to touch on some of the changes in interpretation in an earlier post.

That the federal government's power has expanded beyond the Constitution's listed scope is a fact, true. That does not mean that it is no longer a legal/political topic up for debate, with solid legal grounding on the side of those who oppose that expansion

Yes. But explicit enumeration of powers - ie, no implied powers - is not one of those solid legal grounds.

There is an interesting example that may be useful here. The 18th amendment was passed, essentially prohibiting the production, sale, and transport of alcohol. Following the ratification of the 18th, the Volstead Act was passed. This act gave the 18th amendment the teeth necessary for enforcement (legal definition of intoxicants, authorization for state and federal agencies to enforce the ban, etc.). The Volstead Act would not have been legal on its own, since the courts had not at that time changed the interpretation of the Commerce Clause. If the CC had been intended to allow the federal government to cover the myriad powers it does today, why wasn't it used for Prohibition?

I am by no means an expert on this stuff, but it seems to me that while the courts were busy listing out what was and was not "interstate commerce" (which had grown to exclude things like manufacturing and mining and monopolies) in lieu of actually applying the clause as written, an Amendment was required. The Volstead Act was called for in that Amendment, and because the Amendment was an actual addition to the Constitution, the commerce clause was not needed (and it certainly avoided a lot of litigation). As the interpretation of the commerce clause changed away from attempts to explicitly list every case where it applied or did not, it's usage widened. I'd say if we tried Prohibition today, it *would* be based on the commerce clause, rather than done as an amendment.

Note that the Volstead Act would not have been *needed* without the 18th Amendment, so it's kind of weird to say it would not have been legal on it's own. It would not have *existed* without the 18th.

Sure, interpretations change over time. But Malor's position goes well beyond this one issue. We can disagree on whether the interpretation is correct - and we may see it change in the near future once again - but we can't add words to the Constitution. That's just not a reasonable way to support an argument.

What's interesting here in your example, Kraint, is that the 21st is the only amendment to *bypass* the state legislatures and bring an amendment directly to the public to be decided (well, except that about 10 states refused to actually consider it). That can certainly be construed as more Federalist than Anti-Federalist, as it removes the state governments entirely from the process, and the ones that were ticked off reacted to prevent direct participation by voters in the decision. It also devolved power over alcohol sales to the states, many of which devolved it in turn to their subordinate jurisdictions.

So, one way to read this is that by bypassing states' rights, the 21st returned power to the states, thereby enhancing states' rights, in the face of actions by some states to prevent citizens exercising their Constitutional rights. Yeah, this stuff is so simple...