Senate The Supreme Court

Discussion in 'Community' started by Ghost, Oct 9, 2011.

  1. Kimball_Kinnison Force Ghost

    Member Since:
    Oct 28, 2001
    star 6
    Quite honestly, when I read Silberman's opinion, it reads more like he knew it was going to the Supreme Court anyways, and so he basically punted it.

    I strongly recommend Ilya Somin's take on the DC Circuit's ruling. He does a good job of summarizing many of the points that I've tried to make.

    Kimball Kinnison
  2. Jabba-wocky Chosen One

    Member Since:
    May 4, 2003
    star 8
    Let me make sure I understand your argument here. You understand there are patients (in certain conditions) whose first line of treatment will be an emergency room that is across state lines. You acknowledge that when a patient crosses state lines for treatment at a hospital, but then calls up with questions once returning, they are literally being cared for across state lines. You realize that hospital systems have common leadership that operates across state lines, and that it's not uncommon to have resources and staff that move between them.

    In light of all that, you say the controlling fact is that one particular building does not move across state lines? Does American Airlines also not engage in interstate commerce, because their headquarters isn't a Transformers robot that can literally uproot itself and walk to a different state? This seems sort of absurd.

    We can't really deal in counter-factuals. But I'm not sure that yours in particular is very true. The fines in question are a few hundred dollars, and tax increases of at least as much are already on the table. More importantly, though, conservative media outlets have already accused PPACA of raising taxes. Obviously, Democrats preferred not to label it a tax. But given how much political capital was invested, I have a hard time imagining they might not have pushed ahead with it anyway, if there were no other choice.

    Not really. I understand that this is a popular view among conservatives, but it's actually what's under legal contention, hardly an established fact. The opposing view is that, besides being entirely consistent with previous Commerce Clause rulings, this is a special case, because one cannot truly abstain from participation in the market for healthcare. Thus, "non-participation" is not even an applicable term. Because of this special status, an affirmative ruling here would have virtually no impact on the broader understanding of the Commerce Clause, which in every other known case applies to commerce that one can abstain from.
  3. Kimball_Kinnison Force Ghost

    Member Since:
    Oct 28, 2001
    star 6
    There is a big difference between a question being asked, and providing treatment. Most people would define providing medical treatment as actually examining a patient or performing a procedure. Last I checked, you have to actually go to a hospital/provider in order to get treatment.

    It doesn't matter whether a person had to travel 5 minutes or 500 miles to get to the hospital. They are receiving treatment at the hospital, which hasn't moved.

    Your American Airlines analogy is horrible, because American Airlines' product involves actually moving company assets (you know, the actual, physical airplanes) across state lines. Hospitals don't do that. At most, you could claim that some medical transport services do provide services across state lines, but individual hospitals don't. (And most hospitals don't provide their own medical transport services. They contract out to others for that.) Hospitals provide their services in a fixed location in a single state.

    If anything, your horrible analogy shows how weak your argument is. If I operate a roadside lemonade stand, does it suddenly cross state lines just because someone visiting my neighborhood from out of state stops to buy a glass? Not in the slightest. The lemonade stand is in a single location and not a matter of interstate commerce.

    As the legal saying goes, hard cases make bad law.

    It always starts out with a "special case", but invariably that "special case" is used as a justification for a "general case" farther down the road. The Constitution doesn't make an exception to the Commerce Clause for "special cases". Either it's within the scope of Congress's authority to compel people to participate in commerce, or else it isn't. The argument that health care is a "special case" is just a smokescreen to really say "we want it to be allowed, and we don't care what the Constitution actually says about it."

    Kimball Kinnison
  4. Jabba-wocky Chosen One

    Member Since:
    May 4, 2003
    star 8
    Not really. Health care providers can bill insurance companies for having a phone conversation with a patient. They also have to document such phone calls. And if they give the wrong advice, they can be sued on that basis. From a legal, financial, and logical basis, then it's treatment. Because treatment is using one's expertise to help a person get better/maintain their health.

    It doesn't matter whether a person had to travel 5 minutes or 500 miles to get to the hospital. They are receiving treatment at the hospital, which hasn't moved.

    The "product" of American Airlines, as you phrase it, is a service. That service is transporting people long distances by air. It also falls clearly within the definition of interstate commerce. The point of my analogy was to illustrate how absurd it was of you to conflate buildings with businesses. A site of service is not necessarily the same thing as the service itself.

    Indeed. We could also discuss home health agencies that operate in multiple states, or, again, physicians in hospital networks that service patients in more than one area. Etc.


    Judges are compelled to make their rulings on the basis of the facts of the case at hand. As you say, the this power is or is not allowed by the Commerce Clause. But it is entirely valid to consider whether in this particular case, it is allowed because there's no such thing as "non-participation." Whereas there is no place for rejecting an otherwise sound ruling only because you have some paranoid fear that it would initiate some slippery slope of legal pronouncements that end two centuries from now with us all welcoming our fascist ant overlords. All your imagined fears and fantasies are not on trial here. Only this one particular law, and the meaning this one particular ruling about it--in the quite restrained context justification was offered--would have.
  5. Kimball_Kinnison Force Ghost

    Member Since:
    Oct 28, 2001
    star 6
    Except it's not an "otherwise sound ruling" because the Commerce Clause has already been stretched pretty much past its breaking point.

    For decades, Congress has tried to used the Commerce Clause to get around the fact that the federal government doesn't have a general police power like the states do. For over 50 years, it's been abused more and more, until US v. Lopez in 1995 struck down the Gun Free School Zones Act saying that the Commerce Clause is supposed to be an actual limit on Congress' powers, not an unlimited grant. (Yes, they re-passed the law adding a minor hook to interstate commerce, but that law has not faced Supreme Court review to see how it holds up.) The same principle led to the Court striking down part of the Violence Against Women Act in 2000.

    The Supreme Court has never held that Congress has the authority to regulate a person's refusal to participate in a form of interstate commerce. It has never stated that Congress has the authority to compel the purchase of any product under the Commerce Clause. (The one case I can think of where Congress has compelled the purchase of a product goes back to the Second Militia Act of 1792, which required every member of the militia to arm himself with a certain amount of ammunition and a suitable firearm. However, that was justified under the Militia Clause, not the Commerce Clause.)

    Your interpretation isn't authorized by long-standing case law. The individual mandate is a completely new and novel idea beyond the bounds of any existing case law. It is the largest expansion of the Commerce Clause since Wickard v. Filburn.

    You say that "there is no place for rejecting an otherwise sound ruling", except that you are acting as though Congress has the power to do whatever it wants by default. It doesn't. The default is that Congress is prohibited from doing anything except for what is specifically authorized by the Constitution. "Obamacare" goes beyond any bounds previously considered authorized.

    Kimball Kinnison
  6. Jabba-wocky Chosen One

    Member Since:
    May 4, 2003
    star 8
    Well, we can have an agreement of sorts there. Certainly, nothing like this has ever previously been authorized by the courts. But I would point out that it's not really been forbidden, either. We're on entirely new ground. It will be interesting to see how the Supreme Court Justices resolve the tensions between these sorts of modern, unforeseen exigencies and the limited guidance offered by the original documents. I guess we'll wait to see how oral arguments go.
  7. Kimball_Kinnison Force Ghost

    Member Since:
    Oct 28, 2001
    star 6
    The problem with that argument is that the Constitution isn't a document of "Everything is allowed, except what is prohibited". Rather, it is exactly the opposite. Everything is prohibited to the federal government, except for the specifically enumerated powers specified in the Constitution. That's the entire point of the 10th Amendment.

    The state, on the other hand, have the exact opposite arrangement. Under the 10th Amendment, everything not granted to the federal government, and not specifically prohibited to the states, belongs to the states. That is why the states have a general police power, but the federal government does not. It was never granted to the federal government, and never prohibited to the states.

    Moreover, the Commerce Clause has already been stretched to the breaking point. Originally, it was designed to address only the actual act of commerce between the states (i.e. the moving of goods or the providing of services across state lines). It was never meant to be a parasite that attaches itself to anything and everything that has ever moved between states, and then never lets go.

    For example, under the expansive interpretation of the Commerce Clause, the federal government should be able to regulate how homes are built if even one nail in the entire building ever crossed state lines, or even if the metal that the nail was made from crossed state lines. (That was the exact criteria used, for example, in passing the Gun Free School Zones Act of 1995, to overcome the ruling in Lopez.) Quite frankly, that interpretation makes no sense whatsoever except as a clear attempt to compensate for the fact that the federal government was not given a general police power. It's an attempt to create a loophole specifically so the federal government can do something that it doesn't have the power to do.

    As a general rule, if you are looking for a loophole to get something done, then it's probably not the best idea in the first place. By reinterpreting things to create a loophole, it damages the Constitution's basic principles of limited, enumerated powers. That, in turn, undermines the liberties and freedoms of every citizen.

    The PPACA suit is trying to do the same thing: reinterpret the Constitution to create a loophole rather than accept the limits placed on the federal government. The problem there is that even if it is a worthy cause, once you open that door, it is almost impossible to close it again. This time it might be a worthy cause, but what about next time? Or the time after that?

    If you want the federal government to exercise a general police power, then amend the Constitution to grant it such power. Don't stretch the Constitution past the point of breaking just because you don't like how it limits things.

    Kimball Kinnison
  8. Jabba-wocky Chosen One

    Member Since:
    May 4, 2003
    star 8
    I won't comment about previous cases, as I don't really have a dog in that fight. However, I would object to the notion that PPACA was about trying to create a loophole. The justification for considering healthcare as a subject of interstate commerce is fairly robust, and we began to touch on some aspects of it just a few posts ago.

    You are correct that the Constitution grants certain enumerated powers. But its drafters were not omniscient, and the reality is that their chosen language does not always make it clear how these powers apply to situations that were basically inconceivable in 1776. If it were a simple or obvious task, we should hardly need the sort of expertise collected in the Supreme Court to figure it out. This is one such instance of that kind of complexity. Unlike really anything else--and certainly unlike anything previously presented to the courts--there's a logical case to be made that one cannot forego participation in healthcare spending. How this ultimately impacts our understanding of the Commerce Clause is an open question. There's no reason to presume some great conspiracy to erode the founding documents, as opposed to conceding that we have genuinely stumbled upon a novel and as of yet unexplored point of constitutional law.
  9. Kimball_Kinnison Force Ghost

    Member Since:
    Oct 28, 2001
    star 6
    Just because healthcare in general may be a subject of interstate commerce doesn't mean that Congress has the authority to regulate anything and everything associated with healthcare. By that logic, Congress can regulate my son's lemonade stand (assuming he had one) just because lemons have to be imported to Virginia from Florida. That removes any meaningful limit imposed by the Commerce Clause, and it ceases to be a limited, enumerated power. It then becomes a general police power, which was not granted by the Constitution.

    No, the drafters were not omniscient, but they didn't have to be. They specifically created a process to address those situations where the enumerated powers were insufficient. It is found in Article V and outlines exactly how to amend the Constitution to address those situations.

    The Constitution was never meant to be a static document, but it was meant to be a conservative one (in the sense that it is resistant to change). It is completely changeable if enough political will exists to do so.

    The problem here is that Congress wants to overstep the limits currently written into the Constitution without actually getting those limits changed. I have no problem with you proposing an Amendment to grant the authority to Congress, but I have a problem with trying to essentially rewrite the Constitution on-the-fly because you don't like the limits that are placed in it.

    That might be a logical case for why the Constitution should be amended to allow a general police power (which would allow this sort of individual mandate), but that isn't a logical case to say that it already provides the functional equivalent of a general police power. If you want the additional power, then propose an Amendment to grant it, and we can debate it from there. Don't give a convoluted argument to claim that the Constitution already allows it, and always has.

    Kimball Kinnison
  10. Jabba-wocky Chosen One

    Member Since:
    May 4, 2003
    star 8
    Again, though, I would point out that you are the only one who contends that PPACA requires a general police power. Those that authored the law were quite specific about its Constitutional validation, even including it in the text of the bill. It has also, at this point, been argued multiple times in federal court. Nowhere have they asserted a general police power.

    I appreciate your view that "non-participation" represents a meaningful distinction that would radically alter the meaning of the Commerce Clause to ignore. Frankly, though, there is no support for this view. The Supreme Court has never commented on whether this concept is meaningful or not. If it isn't, then PPACA supporters are largely correct, and there is nothing wrong with the law. If it is, then conservatives are correct, and the law will have to be revised.

    Regardless, though, this is not a settled question. There's nothing about the clear language of the Constitution that suggests much about it either way. Your talk about the need for a constitutional amendment is misguided, because it's not at all clear anyone is trying to expand powers beyond the scope of what is currently allowed. The only thing that is certain is that they are attempting to expand powers beyond what has previously been exercised. There's a considerable gulf between those two, and figuring out which is which is why we have a Supreme Court in the first place.
  11. Kimball_Kinnison Force Ghost

    Member Since:
    Oct 28, 2001
    star 6
    Actually, it is beyond anything that has previously been authorized, which means that the default position (under the principle of limited, enumerated powers) is that it is prohibited. That is the only logical interpretation you can take on a matter of ambiguity under the 10th Amendment.

    If you actually read the court cases so far, the argument is that it does exercise a general police power. They justify it by pointing to the Commerce Clause, but the real basis in their arguments is in the Necessary and Proper clause. (They are, in effect, claiming that a general police power in this matter is "necessary and proper" to regulate interstate commerce relating to health care.) Most of the arguments, though, have focused on how the individual mandate is necessary to make the prohibition on denials due to preexisting conditions work. What is missing is the second part of that clause: a demonstration that it is a proper exercise of power under the Constitution.

    The N&P clause is based on a common doctrine of agency law, called principals and incidents. Essentially the principle is that there are two types of powers granted to an agent: principal powers that are explicitly granted, and incidental powers that are implied and needed to carry out the principal powers. Incidental powers cannot be equal to or greater than principal powers. Once common example of the difference is if I grant you the power to manage my property, then the power to rent it out to someone else is incidental to the power to manage it. However, the power to sell my property is greater than the power to manage it, which means that it cannot be incidental to the power to manage the property.

    I highly recommend this article from the Yale Law Journal to help explain the difference between a power that is necessary and one that is proper.

    The police power is generally defined as "the inherent authority of a government to impose restrictions on private rights for the sake of public welfare, order, and security." The power to compel action is part of the general police power. Everything else must be conditioned on a specific grant of power. (For example, the power for the 1792 mandate for members of the militia to provide their own arms and a minimum amount of ammunition and powder is based in the specific grant of power to regulate the militia, and only applied to militia members.)

    The power to regulate commerce is not the same thing as the pow
  12. Darth-Seldon Force Ghost

    Member Since:
    May 17, 2003
    star 6
    RE US v. JONES:
    We can likely expect a decision by May or June. Based on the briefs and the tenor of the oral argument questions, I'd expect that a majority would find the use of GPS surveillance 24/7 for a month to constitute a search under the meaning of the Fourth Amendment. Having said that, there will likely be a lot of separate opinions. Part of the problem is applying the two-pronged Katz test to these scenarios.
    If the majority goes with it being a search, Alito and a few others will likely dissent.
    Interesting to see if they require a warrant with probable cause to affix a GPS device or if this will be a reasonable suspicion standard. Also whether they address a terror exception (something analogous to a FISA court.)

    RE HEALTH CARE
    It will be sustained (individual mandate an all.) Well without the parameters of the commerce clause.
  13. DarthBoba Manager Emeritus

    Member Since:
    Jun 29, 2000
    star 9
    Gonna go ahead and call this one now: The language in the NDAA that either does or does not, depending on who you ask, allow indefinite military detention of US citizens. The language in question (sec. 1031 and 1032) is set up to be intentionally vague and was designed with a court decision in mind. Obviously won't be between now and January 1st, but you can bet the ACLU or another civil-liberties organization is going to bring this to court.
  14. Jabba-wocky Chosen One

    Member Since:
    May 4, 2003
    star 8
    Kimball, your argument is at some level meaningless. Unlike modern legislation, the founding documents don't come with any sections or glossaries that give exact definitions to the terms used therein. The things that are "explicitly allowed" are themselves lacking any fixed meaning. What qualifies as "interstate commerce" to be regulated? Does it include some guy growing wheat on his farm that only he intends to eat? I wouldn't know. The Founders didn't agree amongst themselves on such questions, and often over the course of a lifetime, more than few came to disagree with their own earlier position (eg Madison). For you to simply project your own answers onto the Constitution, even with the pedigree of intellectual rigor, doesn't really make sense. At least not if you intend to present it as the only valid or reasonable interpretation.
  15. Kimball_Kinnison Force Ghost

    Member Since:
    Oct 28, 2001
    star 6
    The entire purpose of having written laws is to fix them so that they cannot change based on the whims of those in power. The entire point of written communication is to take an idea or concept and place it in an immutable medium, so that it can't change. The meanings of words may change over time, but that doesn't mean that the idea that was actually written down changes with those meanings. It is that idea, not the words itself, which is the basis of law. Writing it down is merely the attempt to communicate it in a way that the rulers cannot later claim it is something else.

    If Shakespeare had written "Let us be gay", you cannot claim that he was advocating that we all perform homosexual acts. While today the word "gay" has meanings associated with homosexuality, that was completely outside the understanding of the word in the context it was written.

    I fully admit that there are some levels of uncertainty surrounding the exact meaning of the ideas communicated by the Constitution, because there was no single consensus on the meaning of the words used. However, that doesn't mean that it can mean whatever you want it to mean. You still have to try to interpret the words in the context in which they were written. You cannot simply say that they now mean something else, something completely beyond what anyone involved in writing the document expressed.

    If you want to argue that the Constitution allows what you want, then you need to express that historical context that supports your interpretation. Where is your historical support? You cannot simply point to previous court rulings, that point to earlier court rulings, and so forth. Like in the children's came of "telephone", that can distort the ideas into anything you want. You need to go back to the source and its context, and support your ideas from there.

    I can do that for everything I've claimed. Can you?

    Kimball Kinnison

    EDIT: To summarize, I hold my position not because I decided the result I wanted and found a justification for it. I hold my position because I have done my best to research the history and issues to see what the best logical interpretation is within the historical context. If you feel you have a better grasp of the historical context, then please share it. Give me evidence that my historical interpretation is flawed, or that there is a better one available (better meaning more supported by historical evidence, not more in line with the results that you want).

    But don't just give me some crap excuse of how the meanings of things change over time. To me, that is a tacit admission that you can't support your arguments on the basis of the historical evidence, which means that you aren't working within the bounds expressed by the Constitution.

    My goal is to reach the best understanding of the ideas enshrined in the Constitution, and the follow it. If you think my position is wrong, then give me evidence to support why I should change it.
  16. Jabba-wocky Chosen One

    Member Since:
    May 4, 2003
    star 8
    I didn't say that the "meaning of things change over time." I pointed out that all your doing is accusing everyone you disagree with of "changing the meaning of Constitution." This, rather than even admitting as a distant possibility that perhaps not every point is perfectly clear, and your prior understanding might be incorrect.

    We could, though, point out flaws in the originalist argument. For instance, why can't I rely on precedent from previous rulings? This is how common law systems work. Historically, the American colonies operated under common law both before and after independence, and the system enjoyed wide popular support. The drafters of the Constitution and other early important figures in American history made no real move to displace it. How then you do suppose to violate the clear intentions of our earliest officials in the name of defending them. While you may be concerned about "games of telephone" they quite evidently were not--or at least not to nearly the same degree.

    I could go on with others, but my general point is as follows. Originalism is merely one of many schools of constitutional interpretation. While it has certain strengths, there are also clear weaknesses. Your dismissal of rival interpretive methodologies rests on a bunch of ridiculous slippery slope arguments that have never actually proven true, despite having decades or centuries to come to pass.

  17. Kimball_Kinnison Force Ghost

    Member Since:
    Oct 28, 2001
    star 6
    What other interpretive framework provides clear standards for how to interpret it? Pretty much any other framework reduces down to justifying whatever the bias of the judge wants to justify.

    Originalism is the only school of interpretation that actually goes back to the entire purpose of a codified law in the first place. Codified laws are one of the two key discoveries/inventions that allowed modern civilization to develop (the other being a combination of the plow and domesticated animals). The entire principle behind a codified law is that it is fixed and cannot be changed unless you actually rewrite it. Its meaning doesn't change based on the whims and desires of whoever is in power, and it is meant to be understood by everyone.

    I didn't say that you can't rely on precedent from previous rulings, but that you cannot simply point to those previous rulings as your basis. Ultimately, everything has to derive back to the actual text of the Constitution as understood within the historical context in which it was written. Previous rulings can help guide the ruling, but the final judgement needs to be based in the historical context and not the chain of precedents that came after it.

    Any other framework becomes completely subjective. If you try to base your interpretation in "social justice", you run into the problem that everyone will define it differently. If you argue that it needs to be reinterpreted to fit our times, then how do you define what standard you use to interpret it? How can you objectively say that the Constitution allows or prohibits something? The more subjective you make Constitutional interpretation, the more you reduce it to the will of whoever is on the Court. That changes our system of government from a representative democracy into a judicial oligarchy, where the law becomes whatever the judges want it to be, based solely on their personal opinions.

    The law is the foundation of society. When you make that foundation subjective, you turn it to sand, and you lose the stability that a foundation is supposed to provide.

    Kimball Kinnison
  18. Obi-Wan McCartney Force Ghost

    Member Since:
    Aug 17, 1999
    star 5
    Whose version of originalism do you accept Kimball? It's not as if the founders all agreed and had a singular version or understanding of the constitution. At the end of the day, even two "originalists" might come to a very different conclusion on the law based on their own reasoning and logic, and both may be perfectly valid and sound opinions. Even originalism is a subjective standard that can be coloured by a judges bias.

    At the end of the day, law is not like religion. There is no singular truth. There is no perfect interpretation. Law is a man-made creation, and you should be careful not to elevate it or view it the way you would a religious text. The law is flawed because men are flawed. The founders didn't even agree about whether to have a bill of rights, and even then you can tell it was written a way that was deliberately ambiguous. The constitution is a work of compromise, which is really the whole point of the great American government experiment.

    That being said, I do agree with you Kimball, you should view the plain language of the constitution when starting a constitutional analysis. Where there is some disagreement as to what the constitution means, you then turn to the Supreme Court and other appellate opinions. If you find that those opinions do not adequately resolve the issue, looking to historical documents like the federalist papers is or congressional reports would be a good next step. If that also fails you, then going back to pre-constitutional common-law or even british common-law might also be an option.

    Certain terms in constitutional law have an evolving application, (the indecency standard or the notion of "cruel and unusual" both come to mind). Moreover, a lot of 1st amendment law falls into that catagory. The right to free speech was never intended by the founders to cover television, radios, or the internet, but no one would argue that such speech isn't protected. The meaning doesn't change, but the application has to adapt to the changing world while retaining the spirit of the original principle. Do we all agree on that?
  19. Jabba-wocky Chosen One

    Member Since:
    May 4, 2003
    star 8
    This is one of the more patently ridiculous comments in the thread. In fact, most any school of textual interpretation can produce reliable, predictable rulings with the same frequency as originalism. If whatever biases are inherent in said method are applied to every case (as they would be, if such biases are supposed to be inherent to the analytic method), you still get clear standards with clear outcomes. Conversely, as McCartney points out, originalism carries with it it's own collection of biases and subjectivism.

    No one minds that your favored methodology is originalist. But it's ridiculous of you to try and dismiss all others as invalid for flaws that originalism also has, and which are in fact inherent in any method for interpreting a text.
  20. Kimball_Kinnison Force Ghost

    Member Since:
    Oct 28, 2001
    star 6
    I don't hold to a specific branch of originalism. Instead, I try to look at the historical information surrounding a specific issue and try to find what the best, most logical argument available out of all of it is. I then try to follow that logical argument to its conclusion as it applies to the situation at hand.

    I have long admitted that you can make historical arguments that go in different directions. (Look at Scalia and Thomas. Both tend towards originalism, but they often come to different results.) However, what I strongly object to are people who argue for constitutional interpretations that have absolutely no historical basis in the Constitution itself. Instead, they base it in a series of interpretations built upon interpretations, built upon even more interpretations.

    I would say that you have a lot of that backwards. If you want to understand the plain text of the Constitution, you need to look at the historical context first. Prior opinions might help point you towards that historical context, but you cannot rely solely on those to answer your questions. Similarly, you can look to pre-constitutional common law, but only as a means to understand the historical context.

    If you turn to other opinions before you turn to the actual historical context, you are again playing that game of "telephone".

    Interpreting the Constitution should first and foremost be an exercise in history. When you are researching a historical matter, you always want to get documents as close to the source as you can. You don't turn to a 2011 writer's opinion about what a writer in 1830 said about what a Jesuit monk wrote in 1600 about Charlemagne taking power in 800 if you want to get the proper context. Instead, you look for the historical documents as close to Charlemagne's time as you can get, with a strong emphasis on primary sources where possible.

    Similarly, if you want to understand the historical context of the Commerce Clause, you shouldn't turn to a judge's opinion in 2005 (Raich), which was based on another judge's opinion in 2000 (Morrison), which was based on another judge's opinion in 1995 (Lopez), which was in turn based on another judge's opinion in 1942 (Wickard), interpreting what was written in 1787 (Article I Section 8). You look back to the source material, then to contemporary sources, and work forward from there.

  21. Obi-Wan McCartney Force Ghost

    Member Since:
    Aug 17, 1999
    star 5
    I'm not going to disagree with your approach, as I'm assuming it also incorporates reading all of the aforementioned caselaw as part of your analysis before coming to your conclusion. I can also respect that you base your own understanding of the text based on your historical analysis and don't give much credence to Court opinions, you are free to agree and disagree with judicial opinions. (Just as an aside though, I feel like in many cases involving constitutional interpretation, the justices do include historical context as part of their discussion.) However, I hope that you understand we are a common-law country, and that ultimately someone has to make the final call on constitutional construction, and in our system it is generally the Supreme Court, and in general I hope you respect judicial opinions as law (even if you disagree with some of them).

    EDIT: Both contemporary sources and Supreme Court decisions are merely the opinions of educated men. The only reason I stress the Supreme Court opinions is because they have the force and weight of law. For practical purposes, the SC opinions tell you what the law is as applied today. However, that's not to say that reading the contemporary sources can't help one put together a persuasive case that some of those opinions were wrongly decided.

    I think an example here would help make your point a little clearer. I think I know what you're getting at but I'm curious as to what specifically you are referring to.

    Ok, I'll give a few examples here (which I know you can pick apart, but hopefully you'll get the overall point). So with the first amendment, certainly you can appreciate that (or at least that one could argue that) the government has the authority to regulate new technologies. If I'm not mistaken the federal government regulated radio and TV from their early days, and in fact created a uniform system that preempted s
  22. Kimball_Kinnison Force Ghost

    Member Since:
    Oct 28, 2001
    star 6
    As I've said in that very post, prior opinions might help point you at the proper historical context, but you cannot rely solely on them. You need to base any ruling directly in the historical context in order to avoid that old game of "telephone".

    Consider the Commerce Clause, as an example. (This article by Randy Barnett provides a good background on the historical context of the clause.) As Mr. Barnett points out, there is not one single source connected with the text of the Constitution itself, the Constitutional Convention's notes, or the ratification conventions from the various states indicating that "commerce" was intended to mean "any gainful activity", as opposed to "trade" or "exchange". In fact, a plan to grant such a power proposed by Alexander Hamilton was outright rejected by the Convention. Hamilton later went on to discuss the Commerce Clause in the Federalist Papers, but he did so in the narrower sense. Based on the historical evidence, the Commerce Clause was fairly clearly meant to give the federal government the power to regulate the actual act of moving goods and providing services across state lines. It was not intended to cover the manufacture of goods, nor was it meant to continue in its authority after the goods or services had finished moving across state lines.

    Contrast that with the slow evolution of the meaning of the Commerce Clause, such that it is now argued to allow the government to regulate (for example) a firearm manufactured in Connecticut in 1911, which was then shipped to Virginia and hasn't left that state in any way since then, merely because it once resided in another state.

    It got that way because one ruling slightly expanded the interpretation of "commerce", then the next ruling based its interpretation on that ruling (rather than the original context), and expanded it a little more, and so on. Many of those rulings were made for good intentions (such as to oppose racism during the Civil Rights era), and many were politically expedient (such as the infamous "switch in time that saved nine"), but neither of those reasons makes them any more correct from a historical standpoint.

    [quote=Obi-Wan McC
  23. Jabba-wocky Chosen One

    Member Since:
    May 4, 2003
    star 8
    Kimball, I appreciate you posting an example, but I don't feel like it elucidated much. In particular, your gun laws example discussed the "spirit" of the law in a case where we were only a few years removed from the original drafting. Thus, the application question could be and in fact was easily predicted by those who first designed it. A number of points we're discussing (in particular, both PPACA, and the post from Obi-wan McCartney that you are replying to) hinged on situations that could not have been foreseen at the time the relevant passages were composed.

    You thus left out a lot of the meat of discussion. How would discovering the spirit of the law work in situation that was a bit more analogous to what was actually being debated?
  24. Kimball_Kinnison Force Ghost

    Member Since:
    Oct 28, 2001
    star 6
    Except that my example, while modern, doesn't rely on anything other than what is in the public record. You don't have to ask any of the drafters of the bill what they intended to see the changes they made. The legislative history of that bill is available to the public, for all to see. You can look at it yourself here.

    Similarly, we have a host of contemporary documents regarding the drafting of the Constitution. In addition to the Federalist Papers, there are a variety of notes from the Convention. We have the records of various state ratifying conventions. The list can go on and on.

    We have a library of information that we can use to better understand the historical context of the Constitution, to get to the spirit of the law.

    With all of those sources available, it's hard to claim that we can't determine at least an outer boundary of the spirit of the law. As the article from Randy Barnett I linked to points out, none of those sources at all treats "commerce" as "gainful activity", but rather as "trade" or "exchange". If you want the Commerce Clause to act as a general police power, you then need to present evidence that such intent was there in drafting the Clause.

    Moreover, the Constitution currently provides two very simple answers to problems that couldn't have been foreseen at the time: Article V and Amendment X. They specifically allowed for the ability to change the powers of the federal government as needed by providing a process to do so. Meanwhile, they left powers to the states to handle those things that the federal government was not empowered to handle.

    Just because you think that the government should address a problem doesn't mean that it has the power to do so. In this case, the federal government lacks that power, but the states do have that power. That is the key to our federalist system, and is an important separation of powers to maintain balance in the nation.

    Kimball Kinnison
  25. Jabba-wocky Chosen One

    Member Since:
    May 4, 2003
    star 8
    Yes, we understand your originalist argument of PPACA. You've made it at least four times in this thread over the past week or two. But again, part of what we're getting at is why we should accept originalism as the preferred mode of Constitutional interpretation in the first place. It's not as if it's a pre-existing scholarly standard--its' not a view held by the majority of constitutional scholars, current Supreme Court justices, nor of even of the Court's conservative wing. So there really needs to be some broad justification of the standard, if you want others to adopt it.

    Part of that justification is explaining potentially problematic areas. One logical weakness in a method that purports to discover the "original intentions" of the founders is dealing with situations in which there was no "original intention" because it was not originally foreseen, nor could it have been.