INCOMPATIBLE VIEWS ON GOVERNMENT — PART 2B

The post continues where INCOMPATIBLE VIEWS ON GOVERNMENT — PART 2A left off. Please refer to INCOMPATIBLE VIEWS ON GOVERNMENT — PART 1 for links to the other posts.

Here we will consider the last three of four questions.

When does it become immoral for the government to tax us? That is, where do you draw the line and say no more?

When does it become immoral for the government to tax us? That is, where do you draw the line and say no more? Well, consider what we established as the justification for taxation in INCOMPATIBLE VIEWS ON GOVERNMENT — PART 2A.

Therefore, because some agency has to exercise the force required to maintain order and protect everyone’s rights, forcing everyone to pay taxes to maintain a good government is one of those cases where the means is in accord with the end and therefore justified.

That is, we can justify forcing people to pay taxes because government has an indispensable purpose which requires all of us to pay for it. However, what if government starts doing other things with our tax funds? Then what justification do we have for raising taxes to pay for those additional things?

Consider what we have added. In this country we have various health, education, and welfare programs. Supposedly, because you have a right to:

  • Life = government has to provide our healthcare.
  • An education = government has to educate us.
  • Food, clothing, shelter, a job, and so forth = government has to give whatever it is we can get enough people to vote for.

Does the Constitution authorize Congress to spend our money on health, education, and welfare programs? No. So why does Congress do it? Why do some people rob banks? Because that’s where the money is. Congressmen rob the Federal treasury because that’s where the money is that they can use to buy our votes.

The purpose of government is to keep us from infringing upon each others rights, not to give us our neighbor’s property. When government starts taking some people’s property and giving it to other people, we have too much government. The answer to the next question explains why that is a problem.

How do we ensure that a government that runs our lives will exercise its power for our benefit and not someone else’s benefit?

How do we ensure that a government that runs our lives will exercise its power for our benefit and not someone else’s benefit? Well, if the government is running our lives, we already have a big problem. Consider the issue.  Government is supposed to protect the rights of All the People, not skew things to the benefit of special interest groups (We are all members of some special interest group.). Therefore, we have to keep politicians focused on protecting the rights of the People. That is, to make certain our politicians are not tempted to skew things to the benefit of some special interest group, we have to make certain they don’t have a conflict of interest.

The Conflict Of Interest

What usually causes politicians to have a conflict of interest? Instead of just expecting politicians to protect our Rights to Life, Liberty, and the pursuit of Happiness, we start expecting them to give us so-called “rights” like “free” healthcare, schooling, food, clothing, shelter, job benefits and so forth. Unfortunately, no politician can give us anything unless he starts taking what he gives us from our neighbors, and there lies the conflict of interest. When politicians start giving us stuff for “free”, we make the same people responsible protecting everyone’s Rights also responsible for taking away some people’s Rights. That’s how politicians get the stuff they use to give “other people” their “rights”. Such a system is not charity; it is just thievery on a mass scale that seems okay because everyone is doing it.

So How Should We Help The Needy?

So how should we help the needy? In an old post, THE RIGHT OF FREE ASSOCIATION, I cite what Alexis De Tocqueville observed about 1830’s America in his classic work, Democracy in America. Here is a sample. I suggest reading the entire post.

Wherever, at the head of some new undertaking, you see the government in France, or a man of rank in England, in the United States you will be sure to find an association. I met with several kinds of associations in America, of which I confess I had no previous notion; and I have often admired the extreme skill with which the inhabitants of the United States succeed in proposing a common object to the exertions of a great many men, and in getting them voluntarily to pursue it.

What De Tocqueville observed is that when Americans saw a need, they voluntarily banded together and did something about it. If you love your neighbor, that is what you do.

How big and powerful does the government have to be before the people have lost the ability to refuse it anything it wants?

In a constitutional republic the People instill their values into their government. In an authoritarian or totalitarian regime, government seeks to indoctrinate the People in politically correct values. What is the distinction? In a society that operates as a constitutional republic, a limited government, the People disperse control of the educational system and mass media infrastructure among many people who operate independently of each other. An authoritarian or totalitarian regime, however, seeks survival by indoctrinating the People. To that end authoritarian or totalitarian governments monopolize the educational system and the mass media infrastructure.

The Education Problem

We want our children to have a good education, one that helps us as parents to instill the right values, right? What makes us think we can depend upon politicians to help us? Who trusts politicians? Yet that is what we have done. We have put government in charge of our educational system and turned what should be a blessing into a predicament.  Instead parents being in charge of what the children they love learn, children learn whatever the dominant political party thinks important.

The Problem Of A Free Press

We want to find out what is going on in the world, right? Ideally, we would choose from a variety of independent mass media outlets. Then we would compare notes with our family, friends and neighbors and decide which outlets are the most credible and informative. But what if the mass media is dominated by the government or a relatively small number powerful men and women interested in influencing the political system (see section on Crony Capitalism)? What if much of the mass media seems more interested in dispensing propaganda than in being trusted?

An Observation From The Past

If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be. The functionaries of every government have propensities to command at will the liberty and property of their constituents. There is no safe deposit for these but with the people themselves; nor can they be safe with them without information. Where the press is free, and every man able to read, all is safe.– Thomas Jefferson, Letter to Colonel Charles Yancey (6 January 1816) ME 14:384.

For the time being control of our educational system and mass media infrastructure is still somewhat dispersed. If we want to remain a free people — if we do not want government lackeys corrupting our children and feeding us falsehoods — we need to support school choice for parents and fight any effort to concentrate the mass media into the hands of a few wealthy men or government official officials.

What Is To Come?

Please refer to INCOMPATIBLE VIEWS ON GOVERNMENT — PART 1 for links to the other posts.

27 thoughts on “INCOMPATIBLE VIEWS ON GOVERNMENT — PART 2B

  1. This quotation really stood out for me…”If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be.” In many ways this seems to be our modern expectation.

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    1. What the public school system is doing has been rather subtle, but as time progresses, less so. The politicians teach children there is no right religion, that there is nothing they need stand for. They affirm that everyone can be right in his own eyes.

      One of the scariest books in the Bible is Judges. It ends thus.

      Judges 21:25 New King James Version (NKJV)

      25 In those days there was no king in Israel; everyone did what was right in his own eyes.

      We each have the responsibility to accept God as our King and to strive to do what is right in His eyes.

      Liked by 1 person

      1. Yes, I remember when there was a big push in the local school system to provide “multicultural education.” It was widely accepted, but seems to have led to all beliefs being equal, with none being right or wrong. (I’ve worked with groups where “everyone does what is right in their own eyes” and it doesn’t work!)

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  2. “Life = government has to provide our healthcare.” Such was the belief of those idiotic Dark Age people who thought that things like free hospitals, non-mercenary doctors, and religious orders devoted solely to the care of the sick poor was a moral necessity in society. Then came the “Enlightenment” of liberalism and then suddenly everyone had to fend for themselves or be accused of theft. Let the prisons and work houses sort it out, right?

    Wrong. As they did with most of the wisdom and immemorial custom of the ancients, the liberals devised a wholly unnatural society wherein man was an individual and society was a burden and/or enemy to him. Thriving on the sinful inclinations of rebellion and antagonism, the liberals proposed that man somehow existed and was self-sufficient outside of community and society. Were that so, God would never have made Eve. The liberals denied the very essence of man that Aristotle so in-artfully but succinctly defines: man is a political animal. This does not mean that all men are politicians. The word Aristotle uses here relates that man is mean to be in the “polis,” that he is an animal that exists in a certain, ordered community.

    And what relation does man have to the polis, the societas. the community? The same, in general, as he does to his fellow man: justice. Yet, since the community and the individual are not the same, neither is the type of justice that governs their relations. Between individuals, there is only one type of justice: commutative justice. This simply is the relation between the debtor and the indebted. In the relation between the community and the individual, there are two types of justice: distributive justice and legal justice.

    Unlike commutative justice, there is no direct debtor/indebted relationship in these two types. Rather, each expresses two separate obligations on the part of the community and the individual. Legal justice is simple to define as it is the obligation on the part of the individual to obey the laws of the community. Distributive justice is the whole aim of the community and it is the giving to each person what they are due, impartially, for the common good.

    To finally answer the above question, the extent and limit of the community’s levy upon the people in it relies on the demands of the common good. Specifically in the realm of healthcare, the community has the obligation to support life, especially the poor, as a matter of justice. Since healthcare is necessary for living the best possible life, and the best possible life is inherently a right all people possess from creation, then healthcare is, by extension, a right all men have from their essence as creatures made in the image of God. The community must take special attention to the poor since, while the wealthy have ample resources to provide for themselves, the poor have little to no protection.

    Some may object that this is the natural result of a fallen world and is beyond the scope of humanity to remedy or even attempt to remedy. If that is so, why rebuild homes after natural disasters? When the fallen natural world creates an injustice, we should not pick and choose which ones we want to correct.

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    1. You redefine Liberal so no one knows what you are talking about and justice until it becomes inherently unjust. When you have to pervert the language to win an argument, you have already lost. You just won’t admit it.

      What you want is coercion. You decide the need. You decide what what must be given. Your Utopian vision rules.

      So go to Venezuela. Check out Cuba. Pick your Socialist paradise. Find one that has not disintegrated or is not disintegrating. Because Socialism requires people to forget charity requires love, which must be voluntary, it does not work. The state does not love anyone. Individuals do that.

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      1. “You redefine Liberal…” I believe it is called “Classical Liberal” but all liberals are the same.

        “When you have to pervert the language to win an argument, you have already lost.” Hmm, a rather ironic accusation since it was the great project of your liberal forebears to redefine everything that the ancients had so wisely defined. The perversions of language originated in liberalism, in your Kants and Lockes and Rousseaus, throwing off the objective truths their forefathers and ancestors held as immemorial custom for “new” immemorial customs. In short, it is not my fault that you know so little about any philosophy that is not liberal that you immediately assume that any philosophy that does not conform to your strain of liberalism is merely a different sort of liberalism.

        No, what I want is a proper ordering of society toward justice for the common good in accordance with the true definition of man’s essence. But since it is a fundamental principle of liberal philosophy to believe that all things are conflict–especially in your great prophet Locke–I can see why you would need to build that false narrative. To encounter someone who doesn’t think that human relations are based in struggle–interestingly, your thoughts on the individual and government that you have expressed elsewhere is a perfect incubator for Marxism–must be difficult for you attack without building strawmen.

        Ah, so you resort to the classic, “Go live somewhere else because your ideas don’t belong here but mine do” argument. Truly classic. In making such an argument, you are able to ignore the central argument i.e. that the whole of society exists for the common good and the common good is affected by the exercise of justice. This naturally runs counter to your liberal view wherein the whole of society exists to get stuff and protect your stuff. You will object to the former, but it is a false argument since you will never renounce the necessity of national defense. Hence, you get an army to protect your material possessions and your ability to reduce human beings to money relations.

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        1. Ah, so you resort to the classic, “Go live somewhere else because your ideas don’t belong here but mine do” argument. Truly classic.

          Truly classic? I just suggested you go where Socialism has been tried and see how well it works.

          What it seems want to do is paint me as some sort of monster because I don’t agree with you. Well, truth be told I am human. I am also a Christian. What the Bible tells us is that we are fallen. We don’t have the moral capacity required to make Socialism work. You don’t. I don’t. None of us. So it fails every time. Since the dumb idea is based upon the premise that the government has the “obligation” to steal from one person and give to another person, I don’t why that surprises you, but human beings tend to be inordinately stubborn.

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        2. ” I just suggested you go where Socialism has been tried and see how well it works.” Seeing as I have never advocated socialism, your comment is moot.

          “What it seems want to do is paint me as some sort of monster because I don’t agree with you.” No, I just quote you, use logic, and it might end up that way.

          ” We don’t have the moral capacity required to make Socialism work.” Again you fall back on the system I have never advocated. Truly, I believe you are incapable of arguing against anything except socialism and for anything but capitalism. But then Liberals do like their false dichotomies.

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        3. Well, I tried giving you the benefit of the doubt. Shrug.

          Stephen, your defense of your position is way too elaborate, and you know it.

          The Articles of Confederation exist BECAUSE the states feared giving power to a central government. The Bill of Rights exist because the People feared giving power to a central government. The Constitution exists because they had to give more power to the Federal Government than permitted by the Articles of Confederation.

          When we write a charter for an organization, we have two choices.
          1. We can write a document that lays out what that organization does, how it does what it does, and what powers it has to get the tasks assigned to it accomplished.
          2. We can write a document that lists all the things the organization is NOT supposed to do.

          Of those two options, what do you think the Constitutional Convention chose to do? Why? If they had tried to list all the things they did not want the Federal Government not to do, they would still be making their list.

          Still, people were not satisfied. So we have a Bill of Rights, which includes that 10th Amendment.

          Anyway, if you want to believe your lies and peddle them to others, I cannot stop you, but they are your lies. I am not going to blame Hamilton. He died long ago, and he is not around to defend himself from the people abusing his good name.

          My point is simple. The best you can do to justify Federal expenditures on a slew of health, education, and welfare programs is point to the general welfare clause. Regardless of what some judges have said, do say, and will say we can read. The Constitution says nothing to authorize all those programs. So those judges have not been faithful to the document, and neither have we.

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        4. “Stephen, your defense of your position is way too elaborate, and you know it.” Actually, it is and has been quite simple. The General Welfare clause means the federal government can spend money on healthcare in general–it cannot, for example, specifically appropriate money to a specific state hospital–because Hamilton, the first two US Congresses, and US case law say that it can.

          “The Articles of Confederation exist BECAUSE the states feared giving power to a central government.” Really? I would have thought that, if they feared a central government, they wouldn’t have created one.

          “The Bill of Rights exist because the People feared giving power to a central government.” Specifically Anti-Federalists and plenty of people do stupid things out of fear. I am of the federalist position that a Bill of Rights is too limiting as US case law proves.

          “The Constitution exists because they had to give more power to the Federal Government than permitted by the Articles of Confederation.” Again, according to the Constitution–which oddly gains and loses authority depending on your whim it seems–the reasons for its existence are plainly stated in the Preamble.

          “When we write a charter for an organization, we have two choices.” Nope, that is a false dichotomy because, as the Constitution shows, you can do both.

          “Anyway, if you want to believe your lies and peddle them to others, I cannot stop you, but they are your lies.” So this is just you trying to extricate yourself from an argument you cannot win and trying to save face in the process. I quoted Hamilton in the exact place where he refutes you and STILL you try to claim that Madison’s view of the General Welfare clause is correct when it was not and has not been adopted…ever.

          “My point is simple. The best you can do to justify Federal expenditures on a slew of health, education, and welfare programs is point to the general welfare clause.” Yes, and ALEXANDER HAMILTON made that argument before I did…in the quote…that you ignored…because it destroys your narrative.

          “Regardless of what some judges have said, do say, and will say we can read.” Clearly you can;t read Alexander Hamilton because he specifically and clearly lays out a total refutation of your position in the quote above.

          “The Constitution says nothing to authorize all those programs. So those judges have not been faithful to the document, and neither have we.” Right, they were just faithful to the interpretation adopted by the first two US Congress and proposed by one of the men who helped write it. Yeah, such a departure.

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  3. It seems to me that your arguments here raise a number of issues that center around two separate but related questions:

    (1) What does limited government mean in our constitutional democracy?
    (2) What normatively should a government, whether it is federal, state or local, do for us? In other words, what public goods and services are it both necessary and proper for government to provide?

    Both these questions have legal and moral ramifications, but the first one is more of a legal systemic question, and the second one goes more to a moral philosophy of government. However, I just have time to deal with just a couple of the multitude of issues in question (1) that you would have to address if you really wanted to prove your rather sweeping conclusions:

    (a) What about the common law?

    The Constitution is a very short document that is mostly about process rather than philosophy. The philosophy behind the Constitution must be drawn more from the context of the philosophy of law that the founders adopted and practiced at the time than from the sparse textual philosophy of law provided in the Constitution itself.

    No serious legal scholar doubts that the Constitution is both an impowering and a limiting document. However, most serious legal scholars recognize also that, over more than two centuries, federal courts have built a large body of common law. That is because the tradition of law in the US at the founding was British common law. Most law was not codified, but instead was evolved by judges in court holdings over centuries.

    For example, the common felony of burglary is made up a breaking, an entering, into an abode, for the purposes of committing a crime (for example, a theft or an assault). To convict someone, every one of these elements had to be proven by the facts. At the founding burglary was not codified in any state, but instead these elements of burglary were adopted from British judge-made precedents and holdings. Under this common law tradition, the Founders would have expected the court system to evolve the law of burglary to evolve to new facts as they arose. For example, when people started having garages for their cars, would the theft of that car from that garage be considered the higher crime of burglary, or just a mere theft? Does it matter if the garage is attached to an abode or it was a stand alone structure? All these issues were decided by courts and the law adapted as the highest controlling courts in each state set new precedents.

    Even decrees from executive or legislative bodies were expected to be adapted to the facts by the courts. New law was created by the courts out of those decrees. Given the almost endless variety and complexity of facts and issues that can arise from even the most simple law, courts were expected to expand these laws constantly interpreting and applying the originating decree to these new facts, thus creating new law that the originating legislative or executive branch often could not have even anticipated. As many laws (such as burglary) have been codified by legislatures over the years, courts similarly adapted and evolved these codifications through this common law method in an American legal tradition that continues to this day.

    (b) How and when have you specifically shown that all three branches of government (but particularly the federal courts) have systemically gone too far in interpreting the powers and limitations on powers in the Constitution?

    I am not saying that there are not moral implications here, but this is mainly a systemic question of legal juris prudence, and there are and have always been a number of serious schools of thought on this within the legal community, each of which has a moral philosophy behind it and persons of integrity that promote that juris prudential legal philosophy. The members of SCOTUS as well as all the lower federal courts manifest any number of these juris prudential philosophies. For example, in judicial philosophies, you could not find two persons more opposite than Scalia and Ginsburg were. They fought and argued vehemently in their written opinions, but they did not question each other’s moral integrity or that they each derived their opinion from the intent to do moral good for the country.

    Unless you address the arguments of each of many juris prudential philosophies in how the Constitution has been systemically interpreted and applied through that systemic philosophy in a particular complex area of the Constitution (such as the Commerce Clause or the First Amendment Religious Clauses), then don’t your blanket opinions about what is and is not within constitutional limits lack any real factual and philosophical foundation?

    (c) What about the Commerce Clause?

    Obviously, because of our common law legal traditions of holding and precedent, every line of the Constitution is the subject of a good deal of scholarly specialization, however, what you seem to be most upset about is the expansion of government power mainly under the Commerce Clause. I might actually agree with you in some cases, but we would both have to read the line of cases that lead to a specific expansion before we could even make that argument or agreement. In general terms, however, don’t you think that federal powers under the Commerce Clause may have necessarily expanded exponentially because commerce itself has expanded? Have you considered how the Walmartization of the nation and the world might have necessitated more nationalized and globalize commerce regulation?

    For example, labor is a form of commerce. In my current occupation (airline pilot), I may be practicing my trade (and thus “commercing”) in a different state every few minutes. On any given month, I have probably been in the sky above most every state and I have landed and layed over in a dozen or more. How cumbersome would it be if I had to comply with separate regulations and labor laws for each of those individual states? Is it not constitutionally appropriate under the Commerce Clause for the federal government to be regulating to a greater extent this sort of nationalization and internationalization of commerce in all goods and services provided, including labor?

    You may say that my occupation is unique, but it really is not? Starbucks and Walmart are everywhere. You can now hire a lawyer in India online to write your will for you in Topeka, Kansas. Goods and services, including labor services, are increasingly diverse and mobile. Setting your moral disagreement with government (at any level) providing certain goods and services, from just a practical level, Commerce cannot happen without standardization and regulation, so don’t you think that, if we want to increase our freedom to commerce, we also have to increase government accordingly?

    These issues are incredibly complex and often just don’t have a right answer, either morally or practically. Good and intelligent people who are smarter and bettter educated on these issues I am often disagree. I have given up on presuming that you are wrong and I am always right on the issues you raise here. I find the topic interesting to discuss, but I don’t think they are as easily understood or resolved as you or I may want to declare.

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    1. Bring up Hamilton’s interpretation of the General Welfare clause and see if you can get him to admit it as the sole interpretation of the clause since 1791. Apparently denying the history and people he claims to admire when it suits him is patriotism itself.

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      1. Stephen,

        Perhaps we all (and I count myself as one of the worst offenders here) could be a little more humble about the righteousness of our own opinions and a little more understanding about number of truths in the opinions of others. A little more curious reasoning and a little less harsh rhetoric might make these debates more interesting and enlightening, and also a little less fruitlessly wearying.

        Perhaps the best argument against too many goods and services being provided by the government is a practical one basedupon the fallen world reality of self interested incentives. On the other hand, assuming that all government should be premised upon the promotion of the greatest practical freedom of selfishness would seem to be equally impractical and morally self-defeating. There is no bright line in this that I can see.

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        1. “A little more curious reasoning and a little less harsh rhetoric might make these debates more interesting and enlightening, and also a little less fruitlessly wearying.” If only.

          “Perhaps the best argument against too many goods and services being provided by the government is a practical one basedupon the fallen world reality of self interested incentives.” Actually that is the worst one. It bases itself on a sort of Calvinistic total depravity that makes no sense and actually ends up denying the true nature of man i.e. a social creature searching for the good in community.

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      2. @Stephen
        Earlier, you referred to this. It shows you know better.

        It has been urged and echoed, that the power “to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,” amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction. Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms “to raise money for the general welfare. “But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter. The objection here is the more extraordinary, as it appears that the language used by the convention is a copy from the articles of Confederation. The objects of the Union among the States, as described in article third, are “their common defense, security of their liberties, and mutual and general welfare. ” The terms of article eighth are still more identical: “All charges of war and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress, shall be defrayed out of a common treasury,” etc. A similar language again occurs in article ninth. Construe either of these articles by the rules which would justify the construction put on the new Constitution, and they vest in the existing Congress a power to legislate in all cases whatsoever. (from => https://www.congress.gov/resources/display/content/The+Federalist+Papers#TheFederalistPapers-41)

        Tony is a lawyer. He knows better than to take up your cause. So he blows smoke.

        Hamilton, one of the authors of the Federalist Papers did not take the position you suggest UNTIL AFTER the Constitution was ratified. History shows that Madison’s interpretation prevailed until 1936 (=> http://www.heritage.org/the-constitution/report/enough-enough-why-general-welfare-limits-spending).

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        1. And yet heritage straight up ignores the fact that it was the Republican Justice Story in his 1833 commentary that the predominately Republican court in the Butler case used as persuasive authority.

          Furthermore, the only SCOTUS case where the taxing and spending clause was at issue was the Bailey v. Drexel Furniture Co. case in 1922. There the court ONLY held that Congress was limited in its TAXING power, but did not limit its SPENDING power. In fact, both Bailey and Butler struck down unconstitutional taxes, but the ability of Congress to spend money has not been checked in case law.

          So, since we have a Constitution that establishes a judiciary as the interpreter of the law–our thoughts on Marbury are irrelevant to the reality of the law–Heritage’s recourse to the opinion that the victory of the Democratic-Republicans over the Federalists on the General Welfare clause is their opinion and nothing more. There is ample evidence of the federal government appropriating i.e. spending funds levied by constitutional taxes on whatever they saw was important to the general welfare. Southern Reconstruction is, perhaps, the most obvious example. It is worth noting that Heritage left that bit out.

          Finally, their recourse to the exercise of executive power as some evidence of jurisprudence is not only incorrect, but it is also dangerous. Should the surveillance of citizens be deemed constitutional simply because the current and previous two presidents have done it? If we allow the executive to interpret the law, where shall we be if not tyranny?

          All Heritage has proven here is that the issue was contentious, that it was never solidly dealt with by the court, and that Republicans in 1936, when the court finally had to decide on the question that had been brewing for a hundred years or so, sided with Hamilton.

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        2. @Stephen
          The Constitution is not that ambiguous, and you know it. You complain bitterly the Constitution was written by “Liberals”. What you mean in this case is Classical Liberals. Then you point to Federalist 41, and you still argue for an interpretation that you have to know is wrong.

          Since you don’t have any interest in the truth, what is the point of this debate? To sow doubt? That doubt has already been sown. We were both a bit late to the scene of that disaster.

          So now we have to deal with the problem. When we don’t appropriately respect documents like the Constitution, you have to know that leads to lawlessness. You may be deceitful, but you are not stupid. You must also know that lawlessness most of all hurts the people you claim to care about. So what are you trying to accomplish?

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        3. No, it is not that complicated. Never in the history of the United States have we relied on Executive interpretations of the law as even persuasive authority. Can you imagine if the courts took everything the Executive believes the law to be into account when deciding a case? It would effectively make the judiciary subject to the executive and rubber stamping its decisions with case law.

          “Then you point to Federalist 41, and you still argue for an interpretation that you have to know is wrong.”

          How is it wrong? You and Heritage offer one side of history and do so poorly. To argue the case for Madison’s view in Fed 41, you ignore the popular appeals and actual laws that contradict Madison in favor of Executive interpretation of the law and rule by fiat, things that you would be against under any other circumstance.

          For someone who rails against the alleged efforts to revise history, you have done a marvelous job of trying to do the same. You call me a liar but you lie outright and call it truth. When I show you where you have lied or misconstrued facts, you call me a liar and say you are telling the truth. No matter the issue, you are determined to ignore any and all facts that remotely undermine the mythical narrative you have bought into.

          You ignore Southern Reconstruction, the Homestead Acts, the various tariff acts beginning in 1789 to specifically prop up American industry. You further ignore that the entirety of case law on the Tax and Spending clause has been solely on Congress’s ability to tax, not to spend, until 1936. You ignore the fact that this issue was not deemed settled by anyone until 1936 as even Heritage points out with their citation of the repeated attempts at bills to spend in other projects.

          Also, you ignore the very last clause i.e. “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.” This gives Congress, explicitly, the power to tax and spend for any power vested in any department. This view is upheld in the opinion of the court in McCulloch v. Maryland in 1819. There the court decided that the national legislature, while it was not explicitly given the power to erect a national bank in the Constitution, was granted in this clause–called the Necessary and Proper clause–it could.

          Finally, one glaring flaw of Madison’s interpretation is that the Constitution sets out a list of powers, not objects. This is further supported by the conjunction “and” preceding the Necessary and Proper clause and the use of semicolons which, even then, denoted a list of subordinate clauses connected to the main clause i.e. “The Congress shall have Power…” Then begins the lists with the power of Taxing and Spending and all the way down to the Necessary and Proper clause.

          In all, to make your argument, you would have to a) make stuff up, b) ignore the facts detrimental to your argument, c) try to revise history, and d) offer nothing to support your own opinion except the opinion of someone as subservient to a false narrative as you are.

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        4. There is a point when just reading the document and considering what one of the most significant players in drafting it and advocating it had to say….. Anyway, you are welcome to stew and complain.

          Our nation is going broke interpreting the Constitution the way Socialists like you insist upon “interpreting” it. When Socialists lie (or deceive themselves) about what all their wonderful programs are suppose to accomplish, they have a credibility problem. The way you insist upon reading the Constitution, that document written by the liberals (of the classical sort) you hate is just hilarious. If they wrote the document your way, then how could they be classical liberals?

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        5. “Our nation is going broke interpreting the Constitution the way Socialists like you insist upon “interpreting” it.” I think you mean the very Republican court in 1936 and the very Republican Justice Story and the very Federalist Alexander Hamilton and the very Whig tariff supporters and so on and so forth.

          What I find more amazing is that you are supporting a position that had been, until the mid 60s or so, a thoroughly Democrat position. The Whigs and subsequently the Republicans supports all sorts of things that ran against the Madison view of the General Welfare clause.

          “The way you insist upon reading the Constitution, that document written by the liberals (of the classical sort) you hate is just hilarious.” Well there is a wild assumption. I don’t hate the Constitution. In fact, I have argued quite strenuously that the Constitution is a pretty good framework. And if it is so hilarious, then why was it so seriously supported by the Federalists, the Whigs, and the Republicans prior to the mid 60s? Perhaps because the issue was less Socialist than you want it to be and no amount of revisionism can wipe the evidence from the history books.

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    2. @Tony

      What good would it have done if Scalia had questioned Ginsburg’s integrity? His job required him to patiently accept what he was in no position to change.

      Why do we have a Constitution? Why do we have checks and balances? Why do we strive to avoid giving one one body (much less one man) more power than necessary. We know people lack the integrity to manage great power over other people. Most of history half of the human race has enslaved the other half.

      What have you written? What is your conclusion? Well, you did not have to write all that. Let me summarize.

      It is all too complicated. You have not proven anything. You don’t have the expertise. We must trust the wise and well-manner ladies and gentlemen in black robes.

      Common law has little to do with this discussion. It is largely a red herring. The Constitution (especially in Article 1, Section 8) authorizes the Federal Government to certain things. It does not take any genius whatsoever to read the Constitution and wonder what empowers Congress to spend money on health, education, and welfare programs. The Welfare clause in Article 1, Section 8? The Preamble? It is so preposterous to suggest such things most people are ashamed to do so.

      What about the Commerce Clause? Well, although I have discussed it before, I did not bother to bring it up in this post, we know Congress has gotten lots of mileage out of that one.

      When the Constitution was passed, the idea was that most government would take place at the state and local level. Now the Federal Government spends almost twice as much as the state and local governments combined. Why? My complaint is you cannot find any justification for it in the Constitution.

      When we look to the Constitution to define our rights, and we cannot figure out what the Constitution means (because we are not wise people wearing black robes), then we don’t even know what rights we are talking about. After all, the Constitution just means whatever nine people wearing black robes want it to mean today.

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  4. Tom wrote:

    “What have you written? What is your conclusion? Well, you did not have to write all that. Let me summarize.

    ‘It is all too complicated. You have not proven anything. You don’t have the expertise. We must trust the wise and well-manner ladies and gentlemen in black robes.'”

    I disagree that your snarky summary actually characterizes anything even close to what I wrote. What I wrote stands for itself. I am not exactly sure what your point of disagreement with it is. You don’t think the Constitution empowers the federal courts (with SCOTUS controling) to interpret and apply the Constitution to the laws and actions of government? You don’t agree that the (mostly lawyer) Founders and Framers might immediately begin and then envision an expanding body of case law in the form of federal court holdings that provides a guide for interpretation and application of the Constitution? Perhaps you disagree that this body of constitutional law follows the common law juris prudential tradition that the the (mostly lawyer) Founders and Framers were most familiar with and practiced at the time? No, perhaps I’m misunderstanding you, but I’m not seeing a reasoned argument from you disagreeing with any of that perhaps because it just happens to be what it is – it undisputedly is the way our constitutional system actually works. However, you do seem to disagree with some of the reasoning of the “wise and well-manner ladies and gentlemen in black robes” who are the ones empowered by the Constitution to decide such things.

    But maybe I’m wrong. Maybe your disagreement is with how our constitutional system of juris prudence currently actually works and has worked since the founding? You want some other system? As I said, the Constitution is mostly a very short process document that implies as much it actually states. For the (mostly lawyer) Founders and Framers it would have been implicit that, unless it was stated otherwise in the Constitution, the complex system of British juris prudential methodology would be adopted. That system includes the common concepts of controlling precedent, controlling and persuasive authority, res adjudicata, the parole evidence rule, interpretation by context, legislative intent and many others that our (mostly lawyer) Founders and Framers would have been skilled in. These things were not written in the Constitution. Because they were lawyers it was just assumed.

    Or are you upset because it was difficult for our (mostly lawyer) Founders and Framers to learn all this and you expect everything that they and other “wise and well-manner ladies and gentlemen in black robes” spend their lifetimes studying to just be easy for you to understand without any effort? You are supposed to be able to read the document and know everything about how to decide things like how to resolve the inherent conflicts of the two religious clauses of the 1st Amendment, or how federal rights were to be interpreted when the 14th Amenment turned the original intent of the Constitution upside down? You shouldn’t have to know anything our complex juris prudential system that developed over centuries? You should not have to read any of vast body of cases to learn the reasoning behind the court’s interpretation?

    Have you ever thought that the reason why you don’t think that you can simply look to the Constitution to define your rights is because you have not even taken the time to learn how our constitutional system actually works and how the courts actually have interpreted and applied those rights to a long history of cases that are now effectively law almost as controlling as the original document?

    No Tom, people don’t understand the Constitution. Perhaps it is another failure of our school system that you can point to, but people are often dumb as dirt about even the most basic civics concepts of our constitutional system and how it works. However, in these days where education and expertise are often scorned, that does not stop people from having the most outrageous opinions. It does not stop TV talking heads, radio talk show hosts and bloviating bloggers from pridefully presuming to have an opinion on every complex and ambiguous issue that they know nothing about.

    For example, you assume that I am pushing the Welfare Clause in the Preamble as government’s justification for health and welfare programs. Well, if I had only looked within the four corners of the Constitution, I might be ignorant enough to do just that. However, because I know a little bit about the case law, I know that SCOTUS has rarely invoked the Welfare Clause as justification for anything. Why do you think? It is explicitly stated in the part of the document that explains and empowers the rest of the Constitution? Shouldn’t ignorant people just be able to take it at face value without even understanding the Court’s reasoning for ignoring it?

    The same goes for the Commerce Clause? One ought to at least know the Court’s reasoning on interpreting and applying the Commerce Clause to nearly a century of legislation before one condemns that reasoning, don’t you think? Or we can just contemptuously harangue each other with high rhetoric that is mostly heat and no light? Is that what you want?

    And let’s not conflate constitutional limitations on the federal government’s powers with what you don’t believe ANY level of government normatively should do. There is nothing in the federal Constitution that says that states cannot provide rights and public goods and services of all kinds as long as those rights, goods and services comport with the 14th Amendment and other Conflicts Clauses of the Constitution such as the Full Faith and Credit Clause. These are separate issues.

    What is it that you really specifically disagreeing with me about and what is your informed reasoning for that disagreement?

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    1. My reasoning is simple enough. I have said some people are lying. Quite a few, I suppose, but I am not happy about it or proud of it. Mostly, I just wish it was not so.

      Am I claiming to be superior or something? No. It is not about me. The Constitution was intended to hold all of us accountable. You can read it. I can read it. Sometimes we can disagree, but we both know the Constitution never authorized a slew of health, education, and welfare programs. You won’t explain how it does because we both know you cannot, but you feel the Constitution should have authorized a slew of health, education, and welfare programs. So you obfuscate, and that mostly for your benefit, not mine.

      Consider the options.
      1. As best we can we can each try to Constitution what its writers clearly intended.
      2. Even when they are obviously lying, we can pretend the Constitution means whatever nine ladies and gentlemen in black robes say it means today. As we are seeing, that will eventually devolve into a tyranny. Unless we hold them accountable to their oaths, our leaders will seize more and more power. This is just human nature, and this defect in us is why we have a Constitution — and why it must eventually fail.
      3. We can give up on the idea of a Constitution and try a parliamentary system, anarchy, monarchy, oligarchy….. Gosh! Maybe if we just trust the right great man, sooner or latter he will discover the right system and deliver us into Utopia.
      4. We can each do what is right in our own eyes. Look up the last verse in the Book of Judges. Even so, Israel eventually demanded a king. See 1 Samuel 8.

      If we go with option 1, we will have disputes. However, the Civil War resulted from option 2, not option 1. Options 3 and 4 are just jokes we play upon ourselves.

      We all need to be held accountable for what we do. That is the purpose of the Constitution. It is a compact we all must read and obey. Do nine judges have an important role? Yes, but citizens have the final say.

      You say the People don’t understand the Constitution? Look again at that quote from Jefferson. And weep.

      Does Virginia have a Constitution? Yes, but I have not mentioned it. The general content of these posts also applies to state and local government, but with the exception of a few states like California, it is the Federal Government that is most out of control. Because we use fiat money and because of the 16th amendment, we have given Congress a blank check. Our glorious leaders are buying our votes with our own money.

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      1. ‘The Constitution was intended to hold all of us accountable.” Again, I refer to the Constitution itself for its intended purpose i.e. the Preamble.

        “…but we both know the Constitution never authorized a slew of health, education, and welfare programs.” Except that it does under the Hamiltonian interpretation of the General Welfare clause. Again, you can argue Madison’s opinion. It is a valid opinion. But you cannot argue against the very evidence of history that the programs are illegitimate when they are a) derived from the interpretation of one of the chief framers, b) enshrined in case law by republican justices dating back to the mid-19th century, and c) had a popular following since the Constitution’s adoption as evidenced by the Federalists, the Whigs, and the Republican party prior to 1960. When you have the Supreme Court limiting Congress’s power to tax but leaving open its power to spend as early as John Marshall’s court, you cannot argue that this is some product of progressivism.

        I understand why you make this argument, but it isn’t valid if you want to take history as a whole. You can advocate Madison and the Jacksonian democrats in their position. It is a legitimate position to take. But you cannot argue that the Federalist position, the Whig position, the Republican position on the General Welfare clause and the limits of congressional spending does not have its origins in Alexander Hamilton, an instrumental author of the Constitution, and was a continuously debated issue until 1936 when a Republican court sided with Justice Story–from the Marshall court–and Alexander Hamilton in their opinion on the general welfare clause. Invariably, however, to support the Madison position is to support the position of Jeffersonian, Jacksonian, and Southern Democrats.

        1. One of those writers was Alexander Hamilton and another was John Adams. Both of them believed in Hamilton’s view of the General Welfare clause. Congress also acted upon Hamilton’s view in 1792 by giving subsidies. Jefferson didn’t reverse many of the subsidies. Jackson did, along with the Whig tariffs intended to subsidize American industry.

        2. The Court, whether you want to accept the case law or not, has the power of judicial review. Congress has a check and the states have a check i.e. Article V. Don’t like how the court interprets the constitution? Amend it.

        3. A parliamentary system is not necessarily without a constitution. It is rather an organization of the legislature and government.

        4. Isn’t that the dream of individualism though? Keep government away so you can do whatever you want?

        Option 1 had disputes and had them for over a century. There are disputes now. Making false arguments about how the opinion of Hamilton never existed or was popular until the progressive era is not how to dispute them.

        “We all need to be held accountable for what we do.” By whom?

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