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Fox
Joined: 04 Mar 2009
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 Posted: Wed Dec 23, 2009 4:34 pm Post subject: Conservatives and the Constitution |
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Article here.
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Sens. Jim DeMint (R-SC) and John Ensign (R-NV) announced yesterday that they would invoke an unusual Senate procedure � a �constitutional point of order� � to allow the Senate to rule by majority vote on whether the �Democrat health care takeover bill� is unconstitutional.
Significantly, neither DeMint nor Ensign cite a single judge, justice or reputable constitutional scholar who believes that health reform is unconstitutional. Instead, they rely entirely on a study by the right-wing Heritage Foundation, a radical �tenther� organization which has endorsed the view that Medicare, Medicaid, Social Security, the federal minimum wage, and the federal ban on workplace discrimination and whites-only lunch counters are all unconstitutional. Sen. Max Baucus (D-MT), rebuts DeMint and Ensign�s constitutional claim by citing numerous constitutional scholars � including right-wing law professor Jonathan Adler � who all agree that health reform is constitutional. Moreover, as ThinkProgress has previously explained, even ultra-conservative Justice Antonin Scalia disagrees with the tenther attack on health reform.
Sadly, DeMint and Ensign�s attempt to change the meaning of the Constitution by invoking a constitutional point of order is an all too familiar tactic. As CQ reports, Republicans often invoke this procedure to claim that bills they don�t like must therefore be unconstitutional. Sen. Tom Coburn (R-OK) recently invoked the procedure to claim that a $200,000 federal grant to an Omaha, Neb. museum somehow violated the constitution. Sen. John McCain (R-AZ) used it to protest a bill to enfranchise D.C. residents.
Raising a constitutional point of order is also the first step to invoking the so-called �nuclear option,� an elaborate set of procedural maneuvers Republicans dreamed up while they were still in the majority, that effectively declare the filibuster unconstitutional. Indeed, despite the fact that Ensign and DeMint now claim the right to filibuster anything the majority does, both senators believed the filibuster must be unconstitutional when it was being used against them. Ensign claimed that the Senate has a �constitutional obligation� to give President Bush�s most radical judicial nominees an �up-or-down� vote, and DeMint had even harsher words for Democratic senators who opposed majority rule:
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The obstructionists should go to the Senate floor, make their arguments, allow senators to draw their conclusions on her nomination and then let us vote. If their arguments are so strong, they should be able to convince a majority to agree. Otherwise, they are simply smearing the integrity of a highly respected jurist to score political points against the president, at the expense of vandalizing the Constitution. . . .
There is a reason Americans elected George W. Bush and a large Republican majority in Congress. The majority of Americans trusted our judgment on judicial nominees. There is also a reason Democrats are in the minority. Most Americans did not trust them to make these decisions. |
Now that DeMint and Ensign are in the minority, however, it simply must be the case that the Constitution protects minority obstructionism�and that bills opposed by the minority are unconstitutional. |
What's with the Conservative tendency to go around declaring things unconstitutional just because they don't like them? I'm reminded of the guy on this forum who insisted income tax was unconstitutional despite it being a part of the Constitution. This example is even worse than that, because they're now actively and feverently doing things they once insisted were tantamount to "vandalizing the Constitution."
I'm becoming more and more convinced that anyone with a visible passion for the Constitution is actually a fraud merely trying to hide behind what he or she considers to be a rhetorically impenetrable shield. After all, if you keep disagreeing with them after they've invoked the Constitution, they can simply dismiss you as unamerican. |
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kiknkorea
Joined: 16 May 2008
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| Posted: Wed Dec 23, 2009 6:08 pm Post subject: Re: Conservatives and the Constitution |
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| Fox wrote: |
| I'm becoming more and more convinced that anyone with a visible passion for the Constitution is actually a fraud merely trying to hide behind what he or she considers to be a rhetorically impenetrable shield. |
OK, you can (fittingly) start with the media. How many times have you heard their 1st Amendment arguement being invoked? |
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mises
Joined: 05 Nov 2007
Location: retired
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| Posted: Wed Dec 23, 2009 6:12 pm Post subject: |
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Marla, from ZH (and a T14/biglaw type) makes the argument that the bill suffers from "serious constitutional issues":
http://www.zerohedge.com/article/cbo-scores-own-goal
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Interestingly, the law does not actually regulate an activity- a key component of the Commerce Clause authority which the bill, of necessity, must invoke. Instead, it regulates an anti-activity. The act of not buying health insurance. It is easy to make light of this distinction. It is also quite foolish. This sort of "negative regulation" is incredibly dangerous. Moreover, the law itself mandates that individuals enter into a required contractual relationship with a private company. Even State automobile insurance requirements permit individuals to post a cash bond to meet their financial responsibility requirements (i.e. to self-insure). No such exception exists in the present legislation. In fact, given the price control and "community rating" aspects of the bill, it is entirely obvious that the statute would require many individuals (particularly healthy 20somethings like your humble author) to enter into overpriced insurance contracts to subsidize other citizens.
In short, Federal mandates of this kind not only have no precedent, they would seem to fly in the face of the most basic notions of freedom of contract. |
I don't know if a law that requires individuals to buy a product from a private firm violates the American constitution. I missed that day in my Canadian government and laws class. But, it does seem like breathtakingly stupid policy.
Also, it will cost 2.1trillion and not 848billion. Which seems high. Just a tad high. |
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mises
Joined: 05 Nov 2007
Location: retired
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Fox
Joined: 04 Mar 2009
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| Posted: Wed Dec 23, 2009 6:55 pm Post subject: |
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| mises wrote: |
| I don't know if a law that requires individuals to buy a product from a private firm violates the American constitution. I missed that day in my Canadian government and laws class. But, it does seem like breathtakingly stupid policy. |
It assuredly is a breathtakingly stupid policy. |
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Tiger Beer
Joined: 07 Feb 2003
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| Posted: Wed Dec 23, 2009 8:13 pm Post subject: |
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That pretty much defines classical conservatism as opposed to progressives.
Nothing should ever be changed, everything is GREAT and IDEAL just exactly as it is RIGHT NOW...(yeah, right).
Progressives...what we have right now could be better. |
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mises
Joined: 05 Nov 2007
Location: retired
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| Posted: Wed Dec 23, 2009 8:23 pm Post subject: |
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| Tiger Beer wrote: |
That pretty much defines classical conservatism as opposed to progressives.
Nothing should ever be changed, everything is GREAT and IDEAL just exactly as it is RIGHT NOW...(yeah, right).
Progressives...what we have right now could be better. |
Conservatives understand the limits of government. We don't think government can put a puppy under every xmas tree without screwing up millions of lives along the way. It's a realism thing. |
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Tiger Beer
Joined: 07 Feb 2003
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| Posted: Wed Dec 23, 2009 9:55 pm Post subject: |
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| mises wrote: |
| Tiger Beer wrote: |
That pretty much defines classical conservatism as opposed to progressives.
Nothing should ever be changed, everything is GREAT and IDEAL just exactly as it is RIGHT NOW...(yeah, right).
Progressives...what we have right now could be better. |
Conservatives understand the limits of government. We don't think government can put a puppy under every xmas tree without screwing up millions of lives along the way. It's a realism thing. |
You just described libertarians.
Libertarians seem to allow Conservative Republicans to speak on their behalf. But they shouldn't, as they really have very little in common...Ron Paul being laughed at the stage should demonstrate how far their true political cores differentiate.
Republicans/Conservatives seem to be of the more restrictrive freedom kinds...which in turn means a much larger government with more oversight over it's people, which costs money. |
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thecount
Joined: 10 Nov 2009
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| Posted: Wed Dec 23, 2009 10:06 pm Post subject: |
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| I don't know if a law that requires individuals to buy a product from a private firm violates the American constitution. |
We don't have precedent on the subject because up until recently it would have been unthinkable.
A non-paritsan analysis from the congressional research service will answer most of your questions regarding potential constitutionality.
http://assets.opencrs.com/rpts/R40725_20090724.pdf
Also:
http://www.npr.org/blogs/thetwo-way/2009/12/is_forcing_people_to_have_heal.html
My own personal thoughts?
We have previously mandated that people purchase from private industry, but so far it has only been in response to citizens exercising a privilege such as driving.
This would be the an unprecedented expansion of government power, mirrored perhaps only by the dramatic travesties of Wickard V. Filburn or Kelo V. City of New London. Between the expansions of commerce, eminent domain and now compulsory-purchase mandate powers, we are continuously going down a road to where people fear government, and not vice versa. |
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Ya-ta Boy
Joined: 16 Jan 2003
Location: Established in 1994
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| Posted: Thu Dec 24, 2009 1:03 pm Post subject: |
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| What's with the Conservative tendency to go around declaring things unconstitutional just because they don't like them? I'm reminded of the guy on this forum who insisted income tax was unconstitutional despite it being a part of the Constitution. |
My reading of this is that true conservatives don't resist change as such, but are more cautious about it, wanting to be practical. As you move farther over to the right you start to bump into people who are reactionary and have idealized the past-that-never-was and insist their dogma is reality. As the GOP has lost its moderate wing, these radicals have taken over the microphones, so we hear this nonsense about how their interpretation is 'the' interpretation. It was one of the more aggravating things in last year's election coming from the RP crowd. It's the same mind-set we see in the fundamentalist religions.
These are deeply nervous people. |
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ontheway
Joined: 24 Aug 2005
Location: Somewhere under the rainbow...
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| Posted: Thu Dec 24, 2009 1:17 pm Post subject: |
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Yata is confused because he lives in the 1800s on a single line that he thinks is a map.
He also thinks that Minneapolis, Des Moines and Houston are right next to each other, bacause that's where they are on his single line map of the US. |
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mises
Joined: 05 Nov 2007
Location: retired
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| Posted: Fri Dec 25, 2009 7:51 am Post subject: |
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| Tiger Beer wrote: |
| mises wrote: |
| Tiger Beer wrote: |
That pretty much defines classical conservatism as opposed to progressives.
Nothing should ever be changed, everything is GREAT and IDEAL just exactly as it is RIGHT NOW...(yeah, right).
Progressives...what we have right now could be better. |
Conservatives understand the limits of government. We don't think government can put a puppy under every xmas tree without screwing up millions of lives along the way. It's a realism thing. |
You just described libertarians.
Libertarians seem to allow Conservative Republicans to speak on their behalf. But they shouldn't, as they really have very little in common...Ron Paul being laughed at the stage should demonstrate how far their true political cores differentiate.
Republicans/Conservatives seem to be of the more restrictrive freedom kinds...which in turn means a much larger government with more oversight over it's people, which costs money. |
You're right. I do not like the word "libertarian". I am extremely fiscally conservative (more so every day). I do not think Canadian or American conservatives are conservative. Bush was many things, but conservative was not one. Ditto for Harper in Canada.
Fiscal conservatives might find benefit in a divorce from the conservative political organizations. Or, we might find that we will lose whatever small impact we presently have. Hard to say. |
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rocket_scientist
Joined: 23 Nov 2009
Location: Prague
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| Posted: Fri Dec 25, 2009 8:19 am Post subject: |
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| Conservatives milk the constitution like liberals milk tolerance and inclusion. |
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Koveras
Joined: 09 Oct 2008
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| Posted: Fri Dec 25, 2009 5:43 pm Post subject: |
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There's a lot of ambiguity in Conservatism. People like Yataboy who think 'true conservatives' are simply cautious folk - or who, like Tiger Beer, hold a more tendentious version of the same opinion - can be forgiven for their misunderstanding. After all, many people who might identify themselves as Conservative do indeed prefer the status quo to change, without asking if the status quo is in any way worth preserving. Tiger Beer identifies a vague 'classical conservatism'; while a Burkean Conservative (which species does not totally comprise the family of 'classical concervatism') can be construed, by someone who has no feeling for the subject, as a 'law and order' type opposed to change as such, one also finds principled communitarian and anti-egalitarian threads in his thought.
Dating from the same period is the Conservatism of Joseph de Maistre, noteworthy - pay attention, Fox - for his anti-Constitutional views. He was a harsh realist and proponent of natural law.
These are the first and truest representatives of self-conscious Conservative thought. For a host of reasons neither of them would support the American Constitution. Plop one of them in present-day America and you'd have a specimen more opposed to the status quo, and more in favour of change, than any progressive. |
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Kuros
Joined: 27 Apr 2004
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| Posted: Fri Dec 25, 2009 8:03 pm Post subject: |
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| Koveras wrote: |
These are the first and truest representatives of self-conscious Conservative thought. For a host of reasons neither of them would support the American Constitution. Plop one of them in present-day America and you'd have a specimen more opposed to the status quo, and more in favour of change, than any progressive. |
I'm confused, who does the 'neither of them' here refer to? Because I'm pretty confident a Burkean would not be opposed to the status quo.
| mises wrote: |
| Fiscal conservatives might find benefit in a divorce from the conservative political organizations. Or, we might find that we will lose whatever small impact we presently have. Hard to say. |
Possible perhaps in Canada. But in America, fiscal conservatives have nowhere to go. As Ya-ta has correctly pointed out time and again, the Electoral College binds America to a two-party system. Thus, fiscal conservatives can't wriggle out of it: either they must side with the party that refuses to restrict military spending, or the party that is unwilling to restrict social spending or entitlement creation. Of course, either party is perfectly happy to deficit spend; the only time in recent history that the American gov't hasn't outlived its means was under a mixed standard. Namely, when Democrat Clinton served as President and Newt Gingrich and Bob Dole marshalled a majority Republican House and Senate.
| Fox wrote: |
| I'm becoming more and more convinced that anyone with a visible passion for the Constitution is actually a fraud . . . |
That's fine, but please go further and try to discern which rights and protections in the Constitution these supposed frauds are defending. I think a meaningful Commerce Clause is important, but I have no doubt that the freedom of speech, assembly, and religion, as well as the procedural Due Process rights, are the most critical. The sticking point I have with Ron Paul is that he is a 'Constitutionalist' before he is a 'Classical Liberal.' And Constitutionalism appears to be as much about using a strong Constitution to limit the government as it does about upholding the Constitution. Because certainly, Ron Paul has his own ideas on the freedom to abortion, which admittedly is more ripe to attack as an implied right read into the Constitution (but one which I think is on firm footing) and especially on the Fourteenth Amendment. He also has strong feelings on jury nullification which appear to have more in common with 18th Century train of thought rather than how the Constitution has been interpreted for the past 200 years.
Nevertheless, Ron Paul is a very valuable member of the debate if only because he strongly supports even popular (if paradoxically not well understood, but assumed by Americans on a gut level) conceptions of the meaning of the Constitution. For example, Ron Paul has spoken out against the travesty of the Kelo decision. Yes, those were liberal judges who essentially ruled that the phrase 'public purpose' had such a broad meaning as to encompass anything, for what purpose cannot be given an economic rationale? I believe another poster has mentioned Wickard v. Filburn, a radical overturning of the Commerce Clause that took place in the doldroms of World War II. Its taken the court years to turn the tide on this ruling, and it has been extremely inconsistant. So, I don't think that Ron Paul is at all a fraud: I think he has more passion and understanding for the Constitution than most. But its not an ever-transparent document, and it becomes all the more obscure for the mountain of interpretations (try reading just the amendments and guessing how each passage would be interpreted from the wording, in many cases you'd be surprised) that have accumulated over the last 230 or so years. Its understandable that it should become a template and a symbol for political activism across the ideological spectrum. |
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