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Jan 03, 2012

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polifrog
Santorum belongs on that list, but his views on contraception are worth noting as a reminder that many alleged opponents of big government don't actually mind government control of the things they want controlled.

Limiting markets to those that are open is a form of government control.

Allowing states to represent their citizens in the matter both removes the Fed Gov. from the role of market arbiter, limiting its role, and increases the freedom of states and, hence, the citizens they represent.

James

Boy oh boy, I can't wait for some of that free-market magic to trickle down to Alabama and South Carolina so black people can be bought and sold again.

justcorbly

Santorum: " It is not a constitutional right, the state has the right to pass whatever statues they have."

So, unless it is behavior specifically called out in the Constitution, Santorum thinks the states can legislate as they please. Since the Constitution is silent on contraception, Santorum would be OK with state bans. His logic dictates that he'd also be OK with another state mandating free contraception distributions at high schools. But, we know he wouldn't.

More Santorum: "It’s a license to do things in a sexual realm that is counter to how things are supposed to be.”

This gets to the reality of his stance. It isn't a finely tuned Constitutional argument -- that's merely a convenient device. It's a a dazzling little bit of moral arrogance that allows Santorum to want to use the power of government to force people to behave according to his beliefs.

The notion that any presidential candidate could espouse a ban on contraception and still hope to win the election is ludicrous. That Santorum apparently does think that is an indication of how so much of the far right has isolated itself from mainstream America.

polifrog
Boy oh boy, I can't wait for some of that free-market magic to trickle down to Alabama and South Carolina so black people can be bought and sold again.

You don't have to wait.

Defending the rights of citizens from being transgresses by other citizens is a core responsibility of small government that one would think would easily fit under the wing of big government. It's interesting, though, that our current big government is unable to protect the rights of the non voting unborn from the voting women who believe their rights extend to ceasing the rights of another.

polifrog

James:

Boy oh boy, I can't wait for some of that free-market magic to trickle down to Alabama and South Carolina so black people can be bought and sold again. You don't have to wait.

One of the core responsibilities of limited government, one that should easily fit under the wing of big government, is the protection of citizens from the transgression of others.

But, lucky for you under our current big government the rights of the non voting unborn are ignored in favor of supporting the transgressions of their rights by voting women ... all in support for a national free market in abortions.

polifrog

Huh. Thought the first comment was lost.

Bill Yaner

"It isn't a finely tuned Constitutional argument -- that's merely a convenient device."

Couldn't agree more, JC. In the last three years since we elected a Constitutional lawyer to be our President, I've been wow'd by how many true experts have arisen from the ranks of our historically illiterate populace to interpret that document for the rest of us.

polifrog
Couldn't agree more, JC. In the last three years since we elected a Constitutional lawyer to be our President, I've been wow'd by how many true experts have arisen from the ranks of our historically illiterate populace to interpret that document for the rest of us.


The Constitution is there for all of us, not a select few to interpret for the rest. There is no need to repeat the climate that resulted in The Protestant Reformation.

justcorbly

Frog: "There is no need to repeat the climate that resulted in The Protestant Reformation."

You talk like that was a bad thing, Frog.

justcorbly

Oh, I see through the thicket. You're talking about the usurpation by the medieval church of the right to make religious and moral decisions for all.

Rather like Santorum, at that.

polifrog

Close.

Actually, I am comparing the Catholic Church's reliance on separating the masses from the Bible for its own gain to the statement:

I've been wow'd by how many true experts have arisen from the ranks of our historically illiterate populace to interpret that document for the rest of us.

I do not believe there is a value in having a select few divine the intent of the Constitution for the rest of us any more than I believe a select few should divine the intent of the Bible for the rest of us. Either would serve only to empower the few and those who think like them over the rest.

Trust your fellow Americans and let them take from the Constitution what they will.

  Bill Yaner

Don't disagree, PF, that the Constitution is there for all of us to delve into directly. I do have a problem, however, believing that many of the new "constitutional literalists" have done much delving in there to reach that position.

More probable is the influence of a chain email that sure enough looked like someone smart had authored it - even though it was unsigned and unreferenced.

justcorbly

Frog: "I do not believe there is a value in having a select few divine the intent of the Constitution for the rest of us …"

And then? Who decides? I say it means yes, and you say it means no. People are quite free to decide for themselves what the Constitution means. That's about as far as I am prepared to trust my "fellow Americans". We are not free to act with impunity based on our individual interpretations Our prisons would be lonely places if that were so, after some retrospective interpretation by the inmates.

Since Marshall, the courts have been the arbiters of Constitutionality. Are they the "select few" you referenced? A court can decide to take a life but cannot decide if a law violates the Constitution?

polifrog

Justcorbley:

And then? Who decides? I say it means yes, and you say it means no.
The who is we. That is the point of a Constitutional Republic.

and:

We are not free to act with impunity based on our individual interpretations...
No. but we elect those who we believe will best represent our individual interpretations of the Constitution.

and:

Since Marshall, the courts have been the arbiters of Constitutionality.
No they have not. The courts are constituted at the discretion of congress, our representatives.
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.
Therefore, all courts below the Supreme court serve at the discretion of Congress. However, the number of justices is under the jurisdiction of congress and has changed many times in our nation's history.

Furthermore, the Supreme Court could simply be stricken from the Constitution via the amendment process or its role redefined via the amendment process.

Therefore, the Supreme Court is not the final arbiter of constitutionality; the will of the people via their representatives is.

  Bill Yaner

"Therefore , the Supreme Court is not the final arbiter of constitutionality".

Big swing and a miss there, PF. Of course ithe Judicial has that role in our government's basic structure of separation of powers. Don't be silly.

"The will of the people via their representatives is".

Thank goodness no. Our courts have time and again drawn the line on where nutty legislation can go, and where it cannot. How has all that history been lost on you?

Andrew Brod

I disagree that Frog swung and missed. He didn't miss. He's right that the people are the ultimate arbiters of the Constitution's meaning.

However, the likelihood of the people eliminating the courts via amendment is essentially nil. So his hit was a soft roller that the pitcher lobbed to first for the out.

polifrog

The amendment process is not legislation.

The amendment process for the Constitution does not require the participation of either the courts or the president.

Either or both the president and the courts can be amended out of the Constitution by Congress while neither have a power equal to that over Congress.

If Congress were to amend the court from the Constitution then there would be no court to oppose them.

Furthermore, such a process could not occur absent the support of the people.

Therefore, the ultimate power in our nation resides within the people of our nation via their representatives.

You say:

Our courts have time and again drawn the line on where nutty legislation can go, and where it cannot. How has all that history been lost on you?
...and that goes to my greater point. History does not define the Constitution, and neither do constitutional attorneys, nor academics, interpret the Constitution. The Constitution not only says what it says, but it says what we the people want it to say.

Am I arguing that it should be changed willy-nilly? No. I am saying that we the people have the final say in this nation, that there is no need for the revolution that many allude to. The notion that revolution is necessary for change to occur in this nation is fostered by a sense that we are powerless when we are not.

Who is powerless in the face of we the people? The courts and the presidency. Both of these branches have grown in scope and power since our founding at the expense of the third branch(we the people). This has been done not just through the abdication of congressional power, but partially through the myth that history and precedent trumps the Constitution, and partially through the notion that we the people are not the final arbiters in this nation. The result is a citizenry bullied by the powerless.

And that is dangerous. A citizenry under the illusion of powerlessness is far more likely to revolt than a citizenry that understands the truth that they control their nation.

And we do. We are the final arbiters.

justcorbly

Frog: "….there is no need for the revolution that many allude to."

Who's that? Certainly have seen any calls for revolution in this thread.

You've posted some fine rhetoric about the primacy of the people's will. But, unless there's only a few thousand of us and we gather in the Athenian agora to swap stories and vote every few days, some infrastructure must be established to govern. Courts are part of that infrastructure, charged with determining what the law and the Constitution mean. Our presence in this society obligates us to abide by its laws, and by judicial interpretation of them, or be willing to suffer the conseqences. We are a nation of law, happily. If we could somehow fit all 300 million of us into a marketplace to vote on every little issue, we would become a nation of emotion and whim, which would not be a happy thing.

The will of the people is fundamental. But, that will cannot govern.

polifrog

Justcorbly:

The will of the people is fundamental. But, that will cannot govern.

Agreed. And you are right that no one in this thread has called for revolution.

But you miss the point. It is not rhetoric but fact that we are in control. It is a myth that the three branches are coequals because the Congress, despite the noted high barriers, most definitely has final say.

Why is this important despite, as Andrew noted, the fact that the elimination of the courts is unlikely? Because the notion that the courts have the final say in matters of the Constitution is a dangerous myth that gives rise to a retired citizenry rather than an engaged citizenry.

Our nation will not thrive on a sense of futility. And it will devolve if too many of us, overcome with a sense futility, come to feel that revolution is the only answer.

There are many myths that are intended to wrest our sense of control from us and the idea that the courts have final say is simply one of them.

James

@polifrog

It's remarkable how you can pull any discussion into the "a fertilized egg is a person" arena. But I gotta admire your consistency, especially your reference to the non-voting unborn. Now if you can just figure out a way to issue every zygote a valid driver's license, you'd be home free. Even better, Pat McCrory would make you the King of Voter ID!

Happy new year, Mr. Frog.

justcorbly

Frog, it is not a myth that the courts determine constitutionality, not Congress. The Supreme Court has been doing it for something more than two hundred years. The literal words of the Constitution may not have literally called that out, but neither did they explicitly give that power to the Congress.

I would suggest that power was not given to Congress because it would be ludicrous and dangerous for a legislature to decide on the Constitutionality of the legislation it creates. Else, why pass it in the first place? It doesn't take much imagination to think of the onerous laws such a Congress might pass, leaving no one with an effective legal way to make a challenge.

I don't think anyone here would argue that the people have the right have the "final say". What I don't see coming from you is something outlining how you would prefer to see that expression of the people's will manifested in some concrete way.

Ishmael

We've heard evidence lately of what some people would do if they could strangle the Judicial branch with their sinewy paws (Newtie).
They remind me of Moe of Three Stooges fame: "If I could get my hands on you.....!!!"
This is not governing by the people, it is legislative and executive bullying.

polifrog

Justcorbly:

...it is not a myth that the courts determine constitutionality, not Congress.

...

I would suggest that power was not given to Congress because it would be ludicrous and dangerous for a legislature to decide on the Constitutionality of the legislation it creates.

Not what I said, I agree that the courts determine constitutionality, presumably of law.

I said:

the notion that the courts have the final say in matters of the Constitution is a dangerous myth that gives rise to a retired citizenry rather than an engaged citizenry.

Writing law and judging constitutionality is not the same as amending the Constitution. These are different things.

Analogy.

Consider the Constitution a coffee cup and a saucer. The cup represents our normally functioning Constitution bounding the machinery of governance with three coequal branches, the forging of legislation, courts defining the constitutionality of that law and so forth while the coffee, itself, is governance.

What if the coffee cup becomes misshapen, the courts grow too strong or the executive beyond defined limits and governance spills past the boundaries of government power we are so familiar with? What if the coffee cup begins to fail us?

In that event there is the saucer which is there to protect the citizenry from the spill. It is the power of Congress through the amendment process to hammer the executive and/or the court back into proper coffee cup form through elimination, reconstitution, redefinition or, most likely, new limitations on power.

The Constitution is more than the coffee cup of government restrained we were taught in school. It is the saucer of congressional final say in the construction of the Constitution.

None of this is legislation, but rather, a controlling of the boundaries in which law and governance function.

You say:

What I don't see coming from you is something outlining how you would prefer to see that expression of the people's will manifested in some concrete way.

I am not calling for change. I am simply describing a beautiful piece of machinery and lamenting that so few seem able see it, and in their blindness call for revolution or label me nuts.

justcorbly

Frog, I don't know anyone other than self-interested wackos calling for revolution.

There is no measure, short of Nixon-esque impeachable criminality, to actually determine when and if a president or a court has stepped outside its bounds. It's all a political process, as it should be because that's how the people's will is expressed. Using the ballot box to remove elected officials who are thought to have exceeded the limits of their office is very much preferable to try to amend the Constitution every time one individual offends some people.

In any case, Congress cannot amend the Constitution, as you know, It can only send proposed amendments out to state legislatures for consideration. How much all of that would actually represent the will of the people is very much debatable. Congress seems more inclined to represent the will of a very few people these days.

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