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Old 10-25-2015, 10:37 PM
 
2,303 posts, read 2,124,600 times
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As a reminder, one of the most important parts of any debate is to remain civil with the people you are debating. Attack the Position, not the poster. If you believe someone is wrong, provide what you believe to be the truth, don't simply call them wrong.

Also, there is also no need to "call out" other posters expecting them to reply. Make your point, and they will reply.

Last edited by Jeo123; 10-26-2015 at 09:26 AM..
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Old 10-26-2015, 09:47 AM
 
Location: Asia
2,758 posts, read 983,959 times
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Quote:
Originally Posted by Reynard32 View Post
Which is why they wanted to have as little to do with actual democracy as possible. They went to great lengths to insulate the players in their new government from the nonsense poison and palaver of the masses. To those who invented the phrase, "We, the People", it meant educated, wealthy, white male land-owners. Others need not apply.
Actually, the original draft stated We, the States (actually, it listed all of the then-existing States). This was amended to instead read, We, the People, out of practicality. You see, the Framers could not be sure that all of the States would agree and ratify the document, and thus revised We, the States to read instead, We, the People.

See James Madison commenting on this in response to concerns raised by Patrick Henry:

PATRICK HENRY AND JAMES MADISON DEBATE STATES
Quote:
There are a number of opinions, but the principal question is whether it be a federal or a consolidated government.... I conceive myself that it is of a mixed nature; it is in a manner unprecedented; we cannot find one express example in the experience of the world. It stands by itself. In some respects it is a government of a federal nature; in others, it is of a consolidated nature. Even if we attend to the manner in which the Constitution is investigated, ratified, and made the act of the people of America, I can say, notwithstanding what the honorable gentleman has alleged, that this government is not completely consolidated, nor is it entirely federal. Who are the parties to it? The people - but not the people as composing one great body, but the people as composing thirteen sovereignties. Were it, as the gentleman asserts, a consolidated government, the assent of a majority of the people would be sufficient for its establishment; and, as a majority have adopted it already, the remaining states would be bound by the act of the majority, even if they unanimously rejected it.... But, sir, no state is bound by it, as it is, without its own consent. Should all the states adopt it, it will be then a government established by the thirteen states of America, not through the intervention of the legislatures, but by the people at large. In this particular respect the distinction between the existing and the proposed governments is very material. The existing system has been derived from the dependent derivative authority of the legislatures of the states; whereas, this is derived from the superior power of the people. I wish this government may answer the expectation of its friends and foil the apprehension of its enemies. I hope the patriotism of the people will continue and be a sufficient guard to their liberties. I believe its tendency will be that the state governments will counteract the general interest and ultimately prevail.
Its true that the times and morals and culture and custom were all different back then. But, I believe it fallacy to ascribe sinister motives where evidence of the contrary exists in abundance.

Last edited by Jeo123; 10-26-2015 at 10:07 AM.. Reason: Please don't make entire paragraphs links.
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Old 10-26-2015, 10:33 AM
 
Location: Jamestown, NY
7,841 posts, read 6,925,596 times
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Quote:
Originally Posted by Salmonburgher View Post
Based on the apparent ignorance so many Americans illustrate when speaking or posting regarding the Constitution, I suspect that most students in high school (and lower grades) do not learn about the Constitution.

That said, I know that my son took a class in Government in high school. However, it was an AP class and I do not know whether all students took a similar class.

Anyway, I am often astounded by the ignorance illustrated so often wrt our Constitution and the history behind its drafting and ratification.
That's because too many people slept through that part of HS/college history classes when the US Constitution was discussed and have never actually read it, especially the Amendments. Then, they listen to talking heads and politicians whose ideas jibe with their own, and take these cretins' claims about what the US Constituion says and means at face value. It's laziness or a serious lack of critical thinking.
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Old 10-26-2015, 11:23 AM
 
14,813 posts, read 18,821,557 times
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All these Moderator cut: people claiming to be "Constitutional"
and I still haven't heard one of them pointing out that "Supreme Court judicial reviews" are unconstitutional.

The Supreme Court and Judicial Review

The Supreme Court of the United States spends much, if not most, of its time on a task which is not delegated to the Supreme Court by the Constitution. That task is: Hearing cases wherein the constitutionality of a law or regulation is challenged. The Supreme Court's nine Justices attempt to sort out what is, and what is not constitutional. This process is known as Judicial Review. But the states, in drafting the Constitution, did not delegate such a power to the Supreme Court, or to any branch of the government.

Last edited by Jeo123; 10-26-2015 at 12:10 PM..
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Old 10-26-2015, 11:46 AM
 
3,530 posts, read 2,175,605 times
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I'm always surprised to see people question the existence of hagiography of the constitution. I wonder what country they live in.
Quote:
Originally Posted by Dopo View Post
All these geniuses claiming to be "Constitutional"
and I still haven't heard one of them pointing out that "Supreme Court judicial reviews" are unconstitutional.

The Supreme Court and Judicial Review

The Supreme Court of the United States spends much, if not most, of its time on a task which is not delegated to the Supreme Court by the Constitution. That task is: Hearing cases wherein the constitutionality of a law or regulation is challenged. The Supreme Court's nine Justices attempt to sort out what is, and what is not constitutional. This process is known as Judicial Review. But the states, in drafting the Constitution, did not delegate such a power to the Supreme Court, or to any branch of the government.
It's arguable how constitutional judicial review is, but the fact that Congress or the states have never passed an amendment to clarify it is de facto acceptance of the practice as constitutional.
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Old 10-26-2015, 01:32 PM
 
Location: Seattle Area
1,716 posts, read 1,492,914 times
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Quote:
Originally Posted by Cape Cod Todd View Post
People forget how good they have it in America until their rights are whittled away.
Exactly what rights have you lost so far?
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Old 10-26-2015, 01:48 PM
 
3,217 posts, read 1,632,957 times
Reputation: 1840
It's hard to believe that there are people that would like to tear up the Bill OF Rights so that the government can have complete control of your life. They call it an outdated document. Is the idea of freedom outdated?

Do you really want law enforcement to be able to come into your house without probable cause or a warrant?
Do you want to be made to testify against yourself with no Miranda law?
Do you want to possibly be prosecuted for having an opinion and expressing it in public?
Do you want to be 100% governed by federal law with your states laws taking a back seat?
I can't believe anyone is in favor of giving up freedoms for more government control.
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Old 10-26-2015, 02:43 PM
 
3,460 posts, read 1,697,715 times
Reputation: 2201
Quote:
Originally Posted by Terryj View Post
The most perverted use of the powers by the federal government under Article 1, Section 8 is the Commerce clause, what is this clause: “To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;” This clause has done more damage to the States than any other clause in the Constitution, this is the clause that most progressives hang their hat on. There is a problem with their interpretation of this clause and that is with the word "AND".
Justice Clarence Thomas, made the statement about the "commerce clause": Congress has the power to regulate ______________ with foreign nations. What ever you insert in the blank space can apply to the States, if it doesn't fit, it doesn't apply. You see, the framers of the constitution saw the states as being separate and sovereign but united under a common central government, so trade within the States had to be handled just the same as trade with foreign countries.
This is where we get the ACA, can we tell another country who they must insure for health care, can we tell another country how much corn they can produce, how to regulate their industries. This is where the perversion is taking place.
Your real problem is with the "Necessary and Proper Clause" of Article I, section 8: "The Congress shall have Power ... To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

Especially when combined with the Commerce Clause, this Clause gives Congress wide-ranging authority over economic activity. This has been very routinely used by Congress, noncontroversial from a constitutional perspective, since the early 1940s.

Quote:
Originally Posted by Salmonburgher View Post
The Constitution expressed the ideal of equally-created peoples and liberty. Sure, it took a long time to realise those ideals, but, they were indeed contained in the Constitution. Claiming that Americans were slow to follow the Constitution is no valid criticism of the Constitution. It is an indictment of the American people for failing to live up to those lofty ideals.
The Constitution also expressed support for slavery. So, after a lot of history, we changed it. American slavers were following the Constitution, and the People and their Constitution share responsibility for its weaknesses.

Quote:
Originally Posted by Salmonburgher View Post
I never understand from where this notion arises.

I bet you'd feel differently if SCOTUS tomorrow decides to deprive you of your inalienable rights.
It arises from Article III and Article VI. The judicial power is vested in the Supreme Court, which decides Cases and Controversies arising under, inter alia, the Constitution (Article III). The Constitution is the Supreme Law of the Land (Article VI). Thus, when cases arise under the Constitution, the Surpeme Court must decide cases while applying the Constitution as the Supreme Law of the Land, i.e., laws contrary to the Constitution cannot stand.

Quote:
Originally Posted by Salmonburgher View Post
Do you believe the men/women on SCOTUS are infallible? I certainly do not. And neither did many of our FF. They predicted, with concern, that the judiciary would become corrupt and political and that it would misinterpret the proper intent of the FF.

For this reason, many of the FF opined that the judiciary is not in fact the final arbiter of the Constitution. This is the very reason that the FF wrote the Constitution so that The People could amend the Constitution. The People are the final judges of what is and what is not Constitutional.
While they are not infallible Supreme Court Justices are appointed by the President, confirmed by the Senate, are legal experts, and are tasked with exercising the judicial power of the United States (Article III).

Quote:
Originally Posted by Salmonburgher View Post
Flexible means that the Constitution can be amended. It does not mean or suggest that in interpreting the plain and clear meaning of the text that broad meaning can or should be applied where the language is deliberately specific and narrow in nature.
Constitutional text needs interpretation. The plain text of the Constitution includes the judicial power and Constitutional Supremacy.

Quote:
Originally Posted by Salmonburgher View Post
Everything written by the FF states that the purpose of the Constitution is to LIMIT and RESTRICT the powers of the federal government, and that the federal government shall only have those powers that are specifically enumerated and delegated to the federal government.

Don't believe me? Let's look at what James Madison (aka the Father of the Constitution) wrote re the General Welfare clause:

With respect to the words "general welfare", I have always regarded them qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.


And the Constitution includes the Commerce power and the Necessary and Proper power for the Congress. Those powers provide considerable authority over economic affairs.

Quote:
Originally Posted by Salmonburgher View Post
Arguing that the FF wanted us to loosely interpret the Constitution is factually incorrect. Still don't believe me? Let's look at what James Wilson from Pennsylvania stated regarding the Necessary and Proper Clause, which he proposed! James Wilson in 1787 stated regarding the words he placed into the Constitution - The gentleman in opposition strongly insists that the general clause at the end of the eighth section gives to Congress a power of legislating generally; but I cannot conceive by what means he will render the words susceptible of that expansion. ... for, when it is said that Congress shall have power to make all laws which shall be necessary and proper, those words are limited and defined by the following, "for carrying into execution the foregoing powers." It is saying no more than that the powers we have already particularly given, shall be effectually carried into execution..
The "foregoing powers" includes the Commerce power.

Quote:
Originally Posted by Salmonburgher View Post
The only reason to have a written Constitution is to limit government. A government can protect or take away the rights and freedoms of its citizens. The Declaration of Independence states that all men are created equal and that they are endowed by their creator with certain unalienable rights such as life, liberty, and the pursuit of happiness. The DOI then advises that the reason for government is to secure these rights, but warns, too, that governments can be destructive to this purpose. The FF knew that government was necessary. But, they also feared the tendencies of governments and men to seek power and strip away the rights of man. They knew that any government that they would agree to had to be LIMITED. The Constitution expresses the agreement of our FF to be united under a federal government that was expressly limited in its powers to doing only those things that the several States could not well do on their own.
A written constitution can also "constitute" a government, which the American Constitution does. The government the Founders agreed to is powerful, but limited.

Quote:
Originally Posted by Salmonburgher View Post
We're not arguing whether SCOTUS has the power of judicial review. SCOTUS gave itself that power early on in our history. We are instead discussing the original intent of the FF and the purpose of our Constitution. I am well aware that over the years, as was predicted by our FF, our federal government has grown in power and become ever-increasingly tyrannical. That is a fact I do not deny. I only argue that it is incorrect to assert that our FF wanted us to interpret the Constitution in a loose manner. It is abundantly clear that the opposite is true and that our FF were terrified of a powerful central government, as all governments are prone to tyranny.
The Supreme Court has that power in the Constitution--Articles III & VI. That is a strict interpretation of the Constitution.

Quote:
Originally Posted by Salmonburgher View Post
Thus, the FF sought to draft a Constitution, the purpose of which was to LIMIT and RESTRICT the power of the new general (federal) government and to secure the rights of the People and the States.
The purpose of the Constitution is to form a limited federal government. But not one so limited (like the federal government under the Articles of Confederation) that it cannot govern. There are a lot of powers assigned to Congress in the Constitution, and additional powers are assigned to the President and to the Supreme Court.

Quote:
Originally Posted by Reynard32 View Post
Ahem! It was never either the effect or intent of the founders to restrict rights or powers to those that were specifically enumerated. That is all radical invention and alteration suggested by latter-day ultra-rightwing enemies of the US Constitution -- people who abhor its flexibility, open-endedness, and quite deliberate plasticity. In reality, it is as true today as in the days in which the document was first drafted that what is implied by the Constitution is equally as important as what is enumerated. The retrogrades of the time having been marginalized out of national necessity by those whose names we remember, the Constitution ended as, and remains, an essentially LIBERAL document. This is why extremists from the far-right feel such a need to attack and redefine it.
Representation was considered an important limitation on government by the Founders. Madison thought that nearly all rights could be protected simply from the representative form of government. I agree with you that the Constitution is a small-"l" liberal document--a document designed for flexibility.

Quote:
Originally Posted by Reynard32 View Post
The Commerce Clause was and still is essential to effective national government. The federal government at the time was rendered all but powerless in dealing with international trade and finance, as the words of our diplomats and national officials were all subject to the often crazed whims of state and local legislators. It was pointless to try to negotiate anything with the United States when in fact the states were not at all united and operated as self-serving independent fiefdoms.

And of course, the actual problem that a typical brain-washed reactionary of today will have with respect to the Commerce Clause is that 250 years worth of technology have made almost everything classifiable as part of interstate commerce. This is of course not relevant IN ANY WAY AT ALL to the purposes of the clause, merely to the scope and scale of its coverage and applicability. Wickard v. Filburn was in fact correctly decided whether latter-day sociophobes or other right-wing America-haters bother to agree with it or not.
+1

Note that the Constitution makes treaties with foreign nations superior to State law and State constitutions (Article VI).

And +++1 on Wickard v. Filburn.

Quote:
Originally Posted by Reynard32 View Post
You're a couple of hundred years behind the times.

Marbury v Madison
Still further back, really. Judicial review is enshrined in the Constitution, at Articles III & VI.

Quote:
Originally Posted by Mircea View Post
Then you should know that the committee meeting notes hold more sway.

The US was established as a federal republic, not a unitary State.

No, it hasn't. The intent and purpose of the Commerce Clause is clear from the committee meeting notes.

That would be incorrect, and a misinterpretation of the Clause.
The US is a federal republic, "federal" referring to the national government.

The "committee meeting notes" presumably refer to the notes of delegates to the Constitutional Convention. They are not authoritative interpretations because they represent, at best, one delegate's notes on particular subjects.

We usually start with the plain text when engaging in interpretation. So it is with the Commerce Clause: "Congress shall have power [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

As you rightly pointed out, "Commerce" means: "to exchange one thing for another; trade; traffic." That covers a lot of activity. When you combine this "power to regulate Commerce" with the Necessary and Proper Clause power, you have a very wide reach into economic activity.

Quote:
Originally Posted by 2nd trick op View Post
Because those were not their specific intentions; or anything close to them; they were, within some segments of the society of those times, a regrettable by-product of the culture. And they were not accepted by all, or even by a majority. Organized efforts to end the slave trade began well before the American Revolution, and found support among the more-enlightened on both sides of the Atlantic; just not enough to force the issue upon a precarious democracy still getting under way.

The "decision to allow slavery" was arrived at out of the necessity of convincing both free and slave-holding states to ratify the Constitution after the failure of the weaker Articles of Confederation. Once all had joined, the Union had the strength to preserve itself, but only at the cost of civil war.
Certainly not a by-product, but an element of the Constitution. It was morally wrong, and eventually ended.

Quote:
Originally Posted by Dopo View Post
All these Moderator cut: people claiming to be "Constitutional"
and I still haven't heard one of them pointing out that "Supreme Court judicial reviews" are unconstitutional.

The Supreme Court and Judicial Review

The Supreme Court of the United States spends much, if not most, of its time on a task which is not delegated to the Supreme Court by the Constitution. That task is: Hearing cases wherein the constitutionality of a law or regulation is challenged. The Supreme Court's nine Justices attempt to sort out what is, and what is not constitutional. This process is known as Judicial Review. But the states, in drafting the Constitution, did not delegate such a power to the Supreme Court, or to any branch of the government.
Your link is to the blog of a crackpot who cannot read the Constitution (or at the very least, one who skipped over Article VI, deeming it unimportant) and has not read the cases interpreting it. It is entertaining, but grossly inaccurate and misleading.

Regarding the quote you draw from the site:

Article III, section 1 tells us that "[t]he judicial Power of the United States, shall be vested in one supreme Court."

Article III, section 2 tells us that "[t]he judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority."

Article VI tells us that "[t]his Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the US., shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."

So the Supreme Court is directed to hear cases in which constitutionality is at issue, and the Constitution is the Supreme Law of the Land.

Quote:
Originally Posted by FrankMiller View Post
I'm always surprised to see people question the existence of hagiography of the constitution. I wonder what country they live in.

It's arguable how constitutional judicial review is, but the fact that Congress or the states have never passed an amendment to clarify it is de facto acceptance of the practice as constitutional.
It's really not arguable. It hasn't been arguable for over 200 years.
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Old 10-26-2015, 05:45 PM
 
Location: Asia
2,758 posts, read 983,959 times
Reputation: 2977
Quote:
Originally Posted by Dopo View Post
All these Moderator cut: people claiming to be "Constitutional"
and I still haven't heard one of them pointing out that "Supreme Court judicial reviews" are unconstitutional.
[/i]
I did post above that SCOTUS gave itself the power of judicial review early on. I expected that was sufficient to point out that such power was/is not enumerated in the Constitution.
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Old 10-26-2015, 06:36 PM
 
Location: Asia
2,758 posts, read 983,959 times
Reputation: 2977
Quote:
Originally Posted by TheCityTheBridge View Post
The US is a federal republic, "federal" referring to the national government.
The US is a federal republic. But, that government was intended to be and established as a government of the States, not as a national government. It was often referred to as the "general" government.

The words "United States" when read in the correct Constitutional context, as they appear in the preamble and body of the Constitution, do not refer to a geographical territory or a single nation. The phrase "United States" was the name of the Union formed and established by the several and independent States when they adopted the Articles of Confederation. When the Founding Fathers and Framers drafted our Constitution, they kept the term "United States" because the Constitution continued and expanded the old Articles of Confederation. Hence, the words, "United States" specifically refer to the several States in their united or collective capacity.

You suggested that the Constitution "constituted" the United States. But, in fact, the United States already existed, and the preamble states the Constitution was being established for the United States of America.

In 1868, Abel Upshur, in his work, "The Federal Government, Its True Nature and Character," wrote the following regarding the preamble:

The phrase is, we, the people of the United States, not the people of America. The very phrase shows the Federal Union to be a government of states, and not the act of the people of all America, as a consolidated body… The people of the United States in the preamble of the Constitution, has the same meaning as 'the people of the several States.' The qualifying adjective 'united' is annexed to the word States, and not to the word 'people.' It is precisely the same meaning as the phrase 'Lex Etas Unis' in the French language, i.e., the States united.

James Madison, while explaining that the general government would be a mix of federal and consolidated, restated the greater weight of the federalist principle in the Virginia Convention debating ratification of the proposed constitution:

Who are the parties to [the proposed Constitution]? The people--but not the people as composing one great body; but the people as composing thirteen sovereignties. ... were all powers vested in the general government, it would be a consolidated government; but the powers of the federal government are enumerated; it can only operate in certain cases; it has legislative powers on defined and limited objects, beyond which it cannot extend its jurisdiction. ...

Subsequently, John C. Calhoun, Vice President of the United States from 1825 to 1832 reiterated this federalist principle very succinctly in his writings on the Constitution:

[The federal government] is the government of States united in a political union, in contradistinction to a government of individuals, that is, by what is usually called, a social compact. To express it more concisely, it is federal and not national because it is the government of a community of States, and not the government of a single State or Nation.

In Federalist #39, James Madison discussed the nature of the general government that would be established by the Constitution and the mode of ratification:

That it will be a federal and not a national act... is obvious from this single consideration, that it is to result neither from the decision of a majority of the people of the union, nor from that of a majority of the states. It must result from the unanimous assent of the several states that are parties to it...were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States would bind the minority, in the same manner as the majority in each state must bind the minority... Neither of these rules has been adopted. Each state, in ratifying the constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a federal, not a national constitution.
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