Are We All Originalists Now?

The debate over ObamaCare highlights a growing division on the legal left

On May 27, 1935, the U.S. Supreme Court unanimously struck down the New Deal’s National Industrial Recovery Act for exceeding Congress’ lawful authority “to regulate commerce...among the several states.” In response, President Franklin Delano Roosevelt denounced the Court for adhering to the Constitution’s original meaning. “The country was in the horse-and-buggy age when that clause was written,” Roosevelt declared. His administration favored a different method of legal interpretation, one that would “view the interstate commerce clause in the light of present-day civilization.”

That method was called “sociological jurisprudence” and progressive activists had been promoting it for decades. As the liberal legal scholar Roscoe Pound explained in a seminal 1909 article in the Yale Law Journal, this school of thought involved “the adjustment of principles and doctrines to the human conditions they are to govern rather than to assumed first principles.” In other words, the text of the Constitution should not get in the way of progressive-minded legislation. It was an approach Roosevelt and his allies—including the eight justices he appointed to the Supreme Court—frequently took to heart. As New Deal policy maker Rexford Tugwell bluntly put it in his 1968 memoir The Brains Trust, many New Deal laws “were tortured interpretations of a document intended to prevent them.”

Today this approach falls under the broader heading of the “living” Constitution, and it still has plenty of fans in American law schools, courtrooms, and legislatures. But it’s not the only school of thought popular on the legal left.

Consider two very different arguments made by prominent defenders of the Patient Protection and Affordable Care Act’s individual mandate, which requires every American to obtain health insurance under Congress’ authority to regulate interstate commerce. In an issue brief published this week by the American Constitution Society (a self-styled liberal counterpart to the conservative Federalist Society), veteran left-wing legal activist Simon Lazarus defends the constitutionality of the individual mandate in the wake of U.S. District Judge Roger Vinson’s decision striking it down.

In addition to making the usual arguments in favor of reading the Commerce Clause broadly enough to provide Congress “the running room necessary to target objectives and craft effective solutions,” Lazarus also relies on a legal tactic typically associated with conservatives: an appeal to the Constitution’s original meaning. Not only does a broad interpretation of the Commerce Clause result in good public policy, Lazarus argues, it also represents “a restoration of the vision of the original Framers, who sought to supplant the feckless Articles of Confederation with a charter for effective and responsive national governance.”

It’s a surprising claim to find on the left. Indeed, it would have caused FDR and his Brain Trust to scratch their heads in wonder. The original progressives wanted the courts to move as far away as possible from the Framers’ “horse-and-buggy definition of interstate commerce.”

Now contrast that with the arguments made by another leading defender of the health care law, Georgetown law professor David Cole. Writing in the latest issue of The New York Review of Books, Cole takes aim at the recent decision by U.S. District Judge Henry Hudson, who, like Judge Vinson, struck down the individual mandate as an unconstitutional regulation of interstate commerce.

“Judge Hudson’s decision reads as if it were written at the beginning of the twentieth rather than the twenty-first century,” Cole argues. Among other things, Hudson relied on a “formalistic” judicial method “long since abandoned,” one that would hamstring the workings of the federal government if revived. “In the local, agrarian economy of the Constitution’s Framers, it might have made sense to draw such distinctions,” Cole writes, “but in an industrialized (and now postindustrialized) America, the local and the national economies are inextricably interlinked.”

Think about the difference between these two positions. Cole basically restated Roosevelt’s attack on the “horse and buggy” Constitution—and by doing so he presented a liberal challenge to Lazarus’ progressive brand of originalism. After all, if the narrow Commerce Clause interpretation endorsed by Judge Hudson and Judge Vinson would have “made sense” to the Framers, how can Lazarus possibly be correct that a broad interpretation of the same clause would count as a “restoration” of those same Framers’ vision? To put that another way: Is progressive originalism at odds with the progressive agenda?

These are the sorts of questions the legal left must face as it closes ranks in defense of the individual mandate. Expect some pretty big chinks to appear in their armor as the ObamaCare battle works its way to the Supreme Court.

Damon W. Root is an associate editor at Reason magazine.

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  • Old Mexican||

    "The country was in the horse-and-buggy age when that clause was written," Roosevelt declared. His administration favored a different method of legal interpretation, one that would "view the interstate commerce clause in the light of present-day civilization."


    Only statist fucks can get away with shit like that... Imagine me not fulfilling my contractual agreements by arguing that they were written in an era of the AMD Athlon, and I need it to view it in light of the new Vision.

  • FDR||

    But the Constitution is like over 100 years old!

  • Progressive Wapo Columnist||

    And it's hard to understand.

    Only PHD's can unravel it's indecipherable language.

  • Michael Ejercito||


    Only statist fucks can get away with shit like that... Imagine me not fulfilling my contractual agreements by arguing that they were written in an era of the AMD Athlon, and I need it to view it in light of the new Vision.


    Imagine a Nazi nithing saying that the 14th Amendment written over one hundred years ago, and must be viewed with the present reality of Jewish power in the world.

  • Doktor Kapitalism||

    Good example.

  • Old Mexican||

    Think about the difference between these two positions. Cole basically restated Roosevelt's attack on the "horse and buggy" Constitution—and by doing so he presented a liberal challenge to Lazarus' progressive brand of originalism.


    It could mean any of two things:

    a) Progressives are not consistent with their arguments, or,

    b) They have NO real grasp of the subject they're tackling.

  • mr simple||

    Yes, it takes some real intellectual dishonesty to make these arguments, as well as the living document argument. All of them just basically say, "Screw the constitution; just do what I say."

  • Doktor Kapitalism||

    I think that's the point. Lots of politicians these days don't even think about the Constitution before making laws.

  • Realist||

    "I think that's the point. Lots of politicians these days don't even think about the Constitution before making laws."
    Why should they, no one holds them to it.

  • Doktor Kapitalism||

    Which is precisely why they don't think about it.

  • nekoxgirl||

    That's because most politicans don't make laws. The lobbyists from whatever special interest will benefit from the law writes the law.

  • Nancy Piglosi||

    Lots of politicians these days don't even think about the Constitution before making laws.

    Are you serious?
    Are You Serious?

  • Doktor Kapitalism||

    Yes.

  • ||

    Progressives don't want a "living" constitution, they want a dead one.

  • Old Mexican||

    +1e10000

  • sarcasmic||

    c) a & b

  • Almanian||

    It's a prison AND a torture device!

  • Ted S.||

    It's a fondue AND a sex toy!

  • Barely Suppressed Rage||

    No, it's a dessert topping AND a floor wax.

  • Hooha||

    This game sounds fun. How do I play?

  • Bucky||

    Mmmm, mmmm and just look at that shine!

  • Barely Suppressed Rage||

    I vote "both".

  • cynical||

    No, they just prefer not to have any constraints on their power, because their utopian attempt to solve the human condition is inherently totalitarian.

  • Federal Dog||

    Since you use the term, would you please explain what exactly makes these people "progressive?"

    Their goals are a retrograde and destructive throwback to 20th-century central planning societies. Not one of those goddamned societies worked.

    They cannot process the most basic lessons of recent history. They are regressive, uneducated tribalists who can't think past their own greed.

  • ||

    Have to keep up with the branding. 'Liberal' polls like celery sticks at Chuck-O-Rama, so have to relabel the mess. Now its 'progressive.' I've actually been out to FireDogLake and seen the fools get in long-winded semantics about splitting hairs between liberal and 'progressive.'

    They hijacked liberal, ruined it, and like a rhetorical locust hoard now settle on another term to defile and consume.

    Another thing...since when did the socialist crowd get the color blue? They were always the Reds. Now the conservatives are the "red" states and the "progressives" live in the "blue" states. There are still fringe bennies to running MSM and colleges despite the dilution of those platforms' power to shape...oh I gotta say it, to shape the zeitgeist.

  • ||

    Actually, first, they adopted "progressive" in the early 20th century, which was then ruined by Wilson and company. They then hijacked "liberal."

    The red/blue thing came from network TV coverage, those being the two colors they used for election night maps. I believe they swapped the colors around for a while, but settled on the present assignments some elections ago. No doubt assigning red to the more leftist party was seen as a bit too close to the truth, and they didn't want to be seen as making an editorial comment.

  • JoshInHB||

    Blue as a political color goes back to the blue-blood(inbred) aristocracy of Spain and so is a fitting color for today's socialists. Likewise, red as a political marker was originally used in the 18th century as a derogatory reference to "the people", aka non aristocracy, and so is also fitting for today's politics.

  • Doktor Kapitalism||

    Since populism (by which I mean extreme democracy and majoritarianism) and socialism are usually linked, I see no reason why Republicans, who usually represent "the Establishment" should get red. If anything, the libertarians should, the Socialists (Democrats) should get yellow and the Republicans should get Blue. Communists and other totalitarians get black. Moderates get gray or brown.

  • Doktor Kapitalism||

    Not sure why I capitalized Blue.

  • Doktor Kapitalism||

    Something I've been thinking for some time now. The progressives in the late nineteenth early twentieth centuries could get away with that label. The modern "progessives" are basically taking us back to the days of slave labor and feudalism.

  • ||

    Not sure about that distinction. I'm not the expert, but I seem to see a lot of continuity between the "old" progressives' agenda and the modern Democrat/progressive/liberal agenda. Basically, they all want to use the power of the government to "get things done" and "help the little guy." I don't think the laundry list of Progressive "reforms" has changed much over the years - it just kind of drifts back and forth between obvious and cryptic.

    Progressives, whether they call themselves Democrats or not, want to get elected. And like good politicians, they'll advertise their Progressive principles when doing so is to their electoral advantage and hide them when it's not. In Congress, however, they always actively work to implement the eternal Progressive agenda in small ways and large. The recent health care bill was a big, obvious thing because congressional Progressives believed (wrongly) that Obama's election meant the American people had signed on to the whole Progressive ticket. Now observe as they struggle to appear more moderate. "Appear" is the correct word. They'll be back to take advantage of the next shift in the political breeze.

  • Federal Dog||

    Sorry, but I somehow misplaced this response outside the thread:

    Since you use the term, would you please explain what exactly makes these people "progressive?"

    Their goals are a retrograde and destructive throwback to 20th-century central planning societies. Not one of those goddamned societies worked.

    They cannot process the most basic lessons of recent history. They are regressive, uneducated tribalists who can't think past their own greed.

  • Old Mexican||

    Re: Federal Dog,

    Since you use the term, would you please explain what exactly makes these people "progressive?"


    Well, while we're at it, we can also ask: What makes these policies "liberal"? They have nothing to do with liberty!

    They cannot process the most basic lessons of recent history. They are regressive, uneducated tribalists who can't think past their own greed.


    In a nutshell. My hat is off.

  • Old Mexican||

    That method was called "sociological jurisprudence" and progressive activists had been promoting it for decades. As the liberal legal scholar Roscoe Pound explained in a seminal 1909 article in the Yale Law Journal, this school of thought involved "the adjustment of principles and doctrines to the human conditions they are to govern rather than to assumed first principles."


    Or, the 'make up reality as we go along' principle. It differs LITTLE from the Marxian principle of CLASS reality.

  • mr simple||

    Not only does a broad interpretation of the Commerce Clause result in good public policy, Lazarus argues, it also represents “a restoration of the vision of the original Framers, who sought to supplant the feckless Articles of Confederation with a charter for effective and responsive national governance.

    Um, no it doesnt. He must be reading that new, revised history.

  • Doktor Kapitalism||

    "As New Deal policy maker Rexford Tugwell bluntly put it in his 1968 memoir The Brains Trust, many New Deal laws 'were tortured interpretations of a document intended to prevent them.'”

    The Constitution was intended to prevent statist shenanigans such as the New Deal. Only absolutists like FDR would have been blind to the purpose in the Constitution of limiting government.

  • mr simple||

    I don't think he was blind to it, I think he just didn't care. That's the point he makes by calling it outdated. It's the same argument you hear today: those were other people's bad judgement. Now that webhave the right plans and he right people, everything will work out.

  • Old Mexican||

    Re: mr simple,

    That's the point he makes by calling it outdated.


    And he wasn't the only one - Woodrow Wilson had little regard for the Constitution, whatever interpretation one wanted to read from it: He just loathed it in toto.

  • Number 2||

    I agree with Mr. Simple and go further: FDR and the Progressives knew damn well that the Constitution was designed to block the laws they wanted. The doctrine of a "living and breathing" constitution was devised specifically to allow the Progressives to circumvent the Consitution.

  • Old Mexican||

    Re: Number 2,

    The doctrine of a "living and breathing" constitution was devised specifically to allow the Progressives to circumvent the Consitution.


    Exactly.

    I am pretty sure that Statist Fucks that espouse the idea of a "living, breathing Constitution", being the hypocrites they are, would not want the agreements THEY sign with banks and utilities to be "living and breathing."

  • Michael Ejercito||

    I agree with Mr. Simple and go further: FDR and the Progressives knew damn well that the Constitution was designed to block the laws they wanted. The doctrine of a "living and breathing" constitution was devised specifically to allow the Progressives to circumvent the Consitution.


    Did it occur to them that their opponents would use a "living and breathing" Constitution to enact anti-Progressive policies?

  • Statist Fuck||

    That's why we need the right people in charge.

  • Doktor Kapitalism||

    Agreed, they probably knew exactly what they were doing. I'm just pointing out how idiotic Mr. Tugwell's statement was. Yes the Constitution was there to block those laws. They shouldn't have been written.

  • MNG||

    The question would be do you mean originalism in the sense that we are bound by the expected applications of the ratifiers or do you mean we are bound by the understood meaning of the words of the text alone? If the former then I'll readily concede that something like Obamacare was unthinkable to the ratifiers, if the latter I think the meaning of the words "to regulate commerce...among the several states" at the time they were written allow it, for reasons I've argued in other threads and won't repeat here.

  • Old Mexican||

    Re: MNG,

    The question would be do you mean originalism in the sense that we are bound by the expected applications of the ratifiers or do you mean we are bound by the understood meaning of the words of the text alone?


    What's the difference? Unless one is deranged [or an unrepented hypocrite], one would not write ONE thing when wanting to mean quite ANOTHER.

    I think the meaning of the words "to regulate commerce...among the several states" at the time they were written allow it, for reasons I've argued in other threads and won't repeat here.


    Your reasons had nothing to do with either the text as written or the original meaning. Commerce among the States means that: Among the States, as in "whatever shenanigans the states put up to screw with each other, we can regulate."

    The framers were quite smart not to say "commerce among the people."

  • MNG||

    The difference is that words have many meanings and many potential applications. So when the ratifiers wrote "equal protection of the law" they were thinking of blacks in Alabama not Arabs in Dearborn, but the original meaning of the words would apply to both.

  • MNG||

    You see this in statutes too. A statute may be written to combat criminal conspiracies with organized crime in mind but the power given by the language could be used to terrorist or pro-lifers conspiring to break the law.

  • sarcasmic||

    The Constitution is clearly a charter for limited government.
    Anyone can see that if they read the text and don't try to read anything into it that is not there.

    Progressives do not want limited government. They want unlimited government.

    That is why they must read things into the Constitution that are not there.
    They MUST.
    Because if they read the document with even a shred of honesty, they must admit that it does not give them the power to do all these things that they want to do.

  • sarcasmic||

    That was meant for OM, not MuNG Bean.

  • Vermont Gun Owner||

    And then they would *gasp* have to try to get Amendments for stuff they wanted to do! Can you imagine if you needed an Amendment to do something like ban alcohol? It'd be anarchy!

  • Old Mexican||

    Re: MNG,

    The difference is that words have many meanings and many potential applications.


    Understood, but that's the reason for framing words in sentences.

    So when the ratifiers wrote "equal protection of the law" they were thinking of blacks in Alabama not Arabs in Dearborn, but the original meaning of the words would apply to both.


    But, again, what's the difference? Well, MNG, you can't presume to know what a person was thinking when putting an idea on paper; you only have the idea facing you.

  • ||

    ---"But, again, what's the difference?Well, MNG, you can't presume to know what a person was thinking when putting an idea on paper; you only have the idea facing you."---

    While not agreeing with MNG, we have a plethora of auxillary writings from the Framers that explain what they were thinking when they wrote the idea down. Commerce "among the several States" clearly did not mean that the Government could requirte you to buy anything.

  • Night Elf Mohawk||

    The difference is that words have many meanings and many potential applications.

    And an application of the words which renders the rest of the words superfluous is wrong, at best.

    Your reading of the commerce clause means that Congress could prohibit the making or sale of alcohol via the commerce clause, doesn't it?

  • Bill Clinton||

    Exactly like the word "is".

  • Vermont Gun Owner||

    Dude, MNG has stated before that even though they very clearly had different meanings for 'People' and 'State' and used them consistently throughout the document, this clause actually means people. He's a lost cause and only cares about the outcome.

  • MNG||

    States could mean the state governments or the geographical units of the states. It's goofy to argue they meant the first as the State governments did not engage in commerce with each other. Commerce did flow among the states as geographical units.

  • Vermont Gun Owner||

    The state governments were controlling commerce via things like tariffs. The clause is basically giving Congress the authority to establish free trade agreements.

  • Old Mexican||

    Re: MNG,

    It's goofy to argue they meant the [governments] as the State governments did not engage in commerce with each other.


    Of course they did - they levied tariffs, duties and excises. Or do you want to construe those as "inactivity"?

  • sarcasmic||

    Does the US and China engage in commerce with each other?

    If you answer yes to that, then you must apply that answer to the States.

    If you do that then you must admit that "commerce among the states" has the same meaning as "commerce between the US and China", and does NOT mean "anything that anyone does or does not do".

  • Barely Suppressed Rage||

    OK MNG, I don't know why I'm doing this, but I guess I like the sensation of banging my head against a rock.

    They meant for Congress to allowed to regulate COMMERCE, not STATES or PEOPLE. The power is to regulate COMMERCE - and in particular, the kind of commerce that occurs AMONG THE SEVERAL STATES.

    Nowhere is Congress empowered to regulate inactivity or impose a rule requiring an individual to engage in commerce. The plain words of the clause, as written, presuppose the existence of "commerce ... among the several states." To the extent that there is such a thing - i.e., interstate commerce - Congress can regulate that commerce.

    When I'm sitting on my sofa, NOT engaging in any commercial activity, having NOT purchased insurance, to claim that this language permits Congress to tell me I have to spend my money on insurance, in the name of regulating "commerce among the several states" is to completely subvert any understanding of that clause that anyone who wrote it or read it had at the time it was published, and to stand the plain meaning on its head.

    Congress can regulate "commerce", if that commerce occurs "among the several states." So yeah, if I grow a bunch of tomatoes in my garden and then load up several bushel baskets of them and drive to Pennsylvania to sell them up there, I clearly am engaging in interstate commerce, and I really can't object if Congress imposes some kind of control or requirement upon my ACTIONS.

    But where I plainly am NOT acting - and NOT engaging in any activity that rationall could be construed as constituting "commerce" - let alone commerce "among the several states", how in the hell can any rational person argue that the plain words of the clause could reasonably be read as allowing Congress to force me to go buy something? And don't even try to tell me your tortured "reasoning" is in any way consistent with how anyone ever understood the meaning of that clause even 100 years ago.

  • ||

    This has already been dealt with before in previous threads and you continue to put forward nonsense.

    http://randybarnett.com/Original.htm

    http://www.umt.edu/law/faculty.....s/Commerce Clause.pdf

  • ||

    To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes

    foreign nations - sovereign nations

    Indian tribes - sovereign nations

    the several states - sovereign nations

    note the SEVERAL states, this can only refer to the same SEVERAL states as mentioned elsewhere in the USC, as in militia of the SEVERAL states.

    Please tell me your comments are satire??? If not you are seriously one of the stupidest people I have come across.

  • WTF||

    I don't think MNG is actually stupid, he just really wants a particular outcome, and he is willing to torture logic and sense in order to try to get there.

  • WTF||

    I should have scrolled down - mr simple said it better.

  • ||

    Me - guilty of inaccuracy. I should have said most obtuse.

  • LB||

    And don't forget the infamous three-fifths clause:

    "Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons."

    Tax bills were given directly to state governments, who would then raise the revenue according to their own laws. Tax bills were not given to citizens or "geographical units of the states." (Did they leave the tax bills on the ground and bill the "Fertile Ground of Mississippi?") This supports the view that "To regulate Commerce ... among the several States" means exactly what is says and nothing more. If there is commerce between the State of California and the State of Nevada, it is subject to regulation by Congress, but commerce between a citizen residing in California and a citizen residing in Nevada is not subject to congressional regulation.

    Is this what the founders meant when the formulated the Commerce Clause? I don't know, but they probably never thought that the First Amendment would apply to a Larry Flynt publication. All I know is that the language clearly says that the only permissible targets of congressional regulation vis-a-vis the "among the several States" language are state government to state government transactions.

  • Patrick S||

    the commerce clause gives the power to regulate trade - as in make trade regular - between the states. the point was to keep state governments from giving their own state economies an advantage by taxing interstate commerce. whatever it is you're arguing has nothing to with reality.

  • mr simple||

    MNG,
    I don't think you're an idiot, but I do think you're being dishonest with yourself. I do not see how anyone can read the U.S. Constitution, a document made specifically to reign in the power of government over the individual, and come away with the idea that it gives government power over every aspect of out lives, which it would have if it could tell us how we must spend our money. I think you are torturing the text to fit into your preconceived notions of what should be allowed. Or your just trying to argue.

  • sarcasmic||

    To Progressives the Constitution means what they want it to mean, not what it actually says.

  • CrackertyAssCracker||

    In MNG's reading it doesn't give power over every aspect of our lives. He reserves the right to do creative reading on government power he doesn't personally like. So its OK.

  • Michael Ejercito||

    The question would be do you mean originalism in the sense that we are bound by the expected applications of the ratifiers or do you mean we are bound by the understood meaning of the words of the text alone?


    Here is what the Supreme Court wrote about the subject in Ex Parte Bain

    It is never to be forgotten that in the construction of the language of the Constitution here relied on, as indeed in all other instances where construction becomes necessary, we are to place ourselves as nearly as possible in the condition of the men who framed that instrument.

    121 U.S. 1 at 12

  • DLM||

    ... I think the meaning of the words "to regulate commerce...among the several states" at the time they were written allow it...

    It's not the meaning of the text as it is read in modern English, but the meaning at the time it was written. Words changing meaning over time can not be allowed to change the meaning of previously written contracts, treaties, or agreements. Perhaps you are allowing for this and you have other reasons to believe the original meaning allows PPACA.

  • Dick Fitzwell||

    ...for reasons I've argued in other threads and won't repeat here.

    On behalf of everyone here I would like say thank you for not repeating your idiotic drivel.

  • MNG||

    My you're cute!

  • Pip||

    And spot on.

  • Vermont Gun Owner||

    Judge Hudson’s decision reads as if it were written at the beginning of the twentieth rather than the twenty-first century,” Cole argues. Among other things, Hudson relied on a “formalistic” judicial method “long since abandoned,” one that would hamstring the workings of the federal government if revived.

    Translation: We are doing this stuff already, so any ruling that contradicts the stuff we are doing is wrong.

    Also, here's an FDR idea for a living Constitution: have Obama appoint another justice for every current one over 70.5.

  • Almanian||

    one that would hamstring the workings of the federal government if revived

    REVIVE IT NOW!

  • GroundTruth||

    MNG:

    "if the latter I think the meaning of the words "to regulate commerce...among the several states" at the time they were written allow it, for reasons I've argued in other threads and won't repeat here."

    Please see the very complete (if a bit long-winded) discussion of the original meaning of this clause in Barnett's "Restoring the Lost Constitution". In short, regulate in XXI century American would be "standardize" (i.e. to set for the form, but not the content), commerce is "to buy or sell" (as opposed to make or grow or do), and among the several states is "across state lines".

    The same source gives the backstory, but I won't get into that since that gets into the slippery "original intent". But it makes for interesting reading.

  • ||

    regulate commerce - remove the impediments to the carrying out of trade, so that it may be done regularly.

  • Doktor Kapitalism||

    Well, when you get down to the etymology of the word, that's what it means. No one seems to think about that anymore.

  • Doktor Kapitalism||

    For clarification, I think GroundTruth meant to write XVIII, not XXI. The Constitution was written in the late eighteenth century.

  • Old Mexican||

    Patient Protection and Affordable Care Act


    This whole circus has shed light over the left's hypocrisy when they defend their political "solutions" to economic problems.

    First, the sales pitch for the so-called "Affordable Care" act was the constant pointing to the fact that 30-50 million Americans did not have insurance, presumably because many could not afford it.

    NOW we have them argue that people that DON'T buy insurance are FREE RIDERS (!!!!) in order to defend a mandate to PURCHASE health insurance - you know, that SAME INSURANCE PEOPLE COULDN'T AFFORD????

    GIVE ME A FUCKING BREAK!

  • Doktor Kapitalism||

    Most of the people who can't "afford" health insurance could it they'd stop spending money of parties or electronics. See featured content on reason.tv for details.

  • slutmonkey||

    the important bit there being: who the hell are we to determine what other people must do?

  • Rather||

    DK, you are so full of shit

  • Doktor Kapitalism||

    http://reason.tv/video/show/get-some

    Blame Nick Gillispie or his writer, not me.

  • JoshInHB||

    Most of the people who can't "afford" health insurance could it they'd stop spending money of parties or electronics.

    Right.

    Obama approved health insurance rose to $1,500/month for my family in January.

    So I can either pay for insurance or buy and trash 3 42" LCD TVs every monty.

    Of course I choose the latter because it provides some level of satisfaction.

  • Hippie||

    Dude, I am in it for the free stuff. Everybody knows that democrats give away free stuff at the expense of the rich. It doesn't matter what the wording of the bill is, at the end of the day, I'm getting more free stuff. How hard is that for you to understand?

  • Pablo||

    No shit Esse.

  • Doktor Kapitalism||

    So...free = stolen. That was easy.

  • some guy||

    This is the same approach politicians take on any subject. When they talk to you, you are an honorable person just trying to get by. When they talk to your neighbor, you are an opportunistic asshole.

    It's all about the audience.

  • sevo||

    "GIVE ME A FUCKING BREAK!"
    You expect consistency?!
    Well, it's not a tax, except that it *is* a tax if that helps us win a court case. Unless it helps us if it *isn't* a tax!

  • slutmonkey||

    This is actually a very dangerous turning point that needs to be nipped in the bud. Progressives are attempting to rewrite history by saying their own interpretation of the constitution is the original when clearly it isn't.

    They feel bold enough to attempt this because of their recent undefeated streak, and if they succeed the country will have a much more difficult time returning to the true original meaning of the constitution because the originalist will have been pre-empted by this BS.

    It's very similar to the way the religious right added "Under God" to the pledge of allegiance and now when people try to take it out they claim that it's always been that way and it'd be a desecration to take it out.

    "this is a Christian nation" is another example of how devastating this revision of history can be. The US was intentionally founded with an a-religious government, but the misinformation of the right has convinced many people.

    Someone needs to pwn this guy hard before his poison infects the popular memory's definition of originalism.

  • Barely Suppressed Rage||

    They feel bold enough to attempt this because of their recent undefeated streak

    I submit that they feel bold enough to attempt this because the vast majority of the voting public are woefully, pathetically and utterly ignorant of the history of this country and lack even the most basic grasp of what the Constitution says, let alone what it is supposed to mean.

    And for that, we mostly can thank the public education system, which is administered nearly entirely by lefties and progressives. If you have any doubt of this, just go to your parent-teacher conferences or any PTA meeting and listen to the idiocy that dribbles out of their yappers.

  • ||

    vouchersvouchersvouchersvouchersvouchersvouchersvouchersvouchersvouchersvouchers

  • nekoxgirl||

    As someone that first learned American history from the 1990's era public school system, I completely agree. I pretty much re-educated myself about the subject as an adult.

    It's probably a good thing so many students don't take school seriously. They're just being fed a bunch of lies. Of course, it's multi-generational. I don't think many of the teachers realize they are just teaching government propaganda.

    The majority were educated by the same system a few decades before after all.

  • Doktor Kapitalism||

    If it's in a standardized history book, I question it.

  • ||

    What sucks most about 'living' Constitution thinking is not just that it subverts intent, it circumvents real mechanisms for changing the Constitution.

    If the Constitution needs to be updated there are social mechanisms to facilitate such from either the people, the states, or the Congress. It can be kept as 'living' as one wants it to be. All these questions of Constitutionality for PPCA could be resolved quite easily via an amendment. Indeed, I find the best parts of the Constitution - the one part all aspiring 'democracies' since strenuously avoid emulating - is the Bill of Rights. All amendments to the original.

    What Progressives want with a living Constitution is a mechanism where they can get what they want constitutionally without ever having to put what they want to a real vote. That's the mechanism the Founders had to keep the doc 'alive' as times changed. Just like these pesky elections last November, putting things to a vote slows the lefties down, and they've nullified that process when it comes the Constitution with this 'living' horseshit.

  • Vermont Gun Owner||

    You can't honestly expect people to have to get amendments for things like banning alcohol, can you? We might as well be Somalia!

  • ||

    We might as well be Somalia!

    You been in Minnesota lately? We ARE in Somalia. They shipped Mogadishu to St. Paul I think from the looks of it a month ago.

  • slutmonkey||

    +1

  • Johnny Longtorso||

    If the Constitution is outdated we have no govt, not an unlimited one. The parts you like, that give Congress power, are just as old as the parts you don't.

  • ||

    The Bill of Rights are unique in government 'literature' for nowhere else do see examples of government power being expressed in terms of limits, not obligations.

    And if the Constitution is outdated, then it can be changed. That's how it stays 'alive,' not through constant re-cycles of interpretation. I personally don't think its 'outdated' but progressives obviously do given the ambition and nature of their schemes.

    The progressives used to embrace that concept, which is where all those horrendous 'progressive' amendments 16-19. By New Deal time, you see the emergence of 'living' philosophy to circumvent that process, a new Dn'D method where a Dungeon Master at Harvard Law tells you what it 'really' says. The race downhill that way has picked speed up since.

  • Old Mexican||

    Re: TheZeitgeist,

    The Bill of Rights are unique in government 'literature' for nowhere else do see examples of government power being expressed in terms of limits, not obligations.


    I can attest to that: The Mexican Constitution eatablishes powers for government, grants 'rights' to citizens ('protected' by government, no less) but also indicates oglibations for citizens as well, as if Mexicans were mere tenants in their own country.

  • ||

    [I can attest to that: The Mexican Constitution eatablishes powers for government, grants 'rights' to citizens ('protected' by government, no less) but also indicates oglibations for citizens as well, as if Mexicans were mere tenants in their own country.]

    We owe a big one to the religous philosophy of the Founders, however that wanks the chic non believer. To codify rights as "unalienable", emitting from God, not granted by man. Bow the knee.

  • ||

    Spaghetti Monster it is.

  • some guy||

    At least the Mexican poliical class had the guts to state its true feelings outright.

  • sarcasmic||

    "general welfare ... regulate commerce ... necessary and proper"

    Nope, no limits there.

    Those seven words give the federal government unlimited power.

  • nekoxgirl||

    Hey dude! I like the 19th! Fuck the 16th, 17th and 18th though.

  • ||

    Pardon me...if I could edit I would correct but you're right.

  • Doktor Kapitalism||

    I think the general rationale was the same. The difference is that the Nineteenth actually made sense. (Though I suppose the Seventeenth makes sense if we're doing the democracy-populism thing. I think that putting some electoral power in the hands of a "semi-elite" is a good idea because it hampers majoritarism. But I think that we should have third house of Congress for that, if we're going to have it.)

  • Barry Loberfeld||

    Spot on.

    I wonder if there are any "liberals" who will honestly address this hypocrisy on their part, as exemplified by their love of Breyer and hatred of ...

  • Old Mexican||

    Re: Johnny Longtorso,

    The parts you like, that give Congress power, are just as old as the parts you don't.


    ^^THIS^^

    Good point!

  • Gregory Smith||

    American Apocalypse: The Day China Takes Over. Interview with author.
    http://libertarians4freedom.bl.....night.html

  • Rather||

    Tic Toc the day America MYOB
    http://rctlfy.wordpress.com/20.....c-tic-toc/

  • Old Mexican||

    I would rather become a necrophiliac and steal Marylin Monroe's body than read your blog... Rather.

  • Old Mexican||

    Or rather steal Marilyn Monroe's body... Rather.

    Oh, and have a good weekend.

  • Jen||

    Expect some pretty big chinks to appear in their armor as the ObamaCare battle works its way to the Supreme Court.

    RAAAAAAAAAAAAAAAACIST!!!!!!!!!111!!!!!!

  • Barely Suppressed Rage||

    Stephen Breyer wrote a book essentially advocating it.

    A buddy of mine and law school classmate gave me a copy upon graduation - sort of a "know thy enemy" move. I have yet to be able to bring myself to read it beyond the cover. I just know it will make blood shoot out my eyes if I actually read the damn thing.

  • Doktor Kapitalism||

    I hate Marxism, but still plan to read the Communist Manifesto before too long. We have to know what we're up against if we're going to win. At least read the first few pages.

  • ||

    In the newspeak of Progressivism, a "living" constitution is a dead constitution, one with no real force and effect.

  • Sovereign Immunity||

    You mean like how this administration views it? Old and outdated, therefore null and void?

  • DLM||

    Leftists just don't want the inconvenience of following the lawful amendment process to get what they want. The exercise of naked power is much more satisfying; even better if it works.

  • ||

    It seems vary hard to distinguish the difference between the federal government having the power to force inactivity and the federal government having the power to force activity. Herein lies the problem.

    The Supreme Court could decide to go along with the line of reasoning put forward by Judge Vinson, but inactivity/activity as a standard seems pretty weak. What I would hope that the USSC would rather decide is to revisit the decision made in Wickard vs. Filburn and remove the idea that the federal government can regulate anything that in the aggregate “substantially affects” interstate commerce.

    Whichever line of reasoning is adopted, I surely hope that Obamacare will be repealed. I just hope that the court takes this chance to finally revisit prior bad precedent from the New Deal era when the court was packed by FDR to rubber stamp his policies.

  • MJ||

    "In addition to making the usual arguments in favor of reading the Commerce Clause broadly enough to provide Congress “the running room necessary to..."

    ...completely fuck everything up beyond all reason.

    One of the reasons for limiting government power is because it is all to easy for governments to do that, because of the princople that one person or small group of people can only operate on limited information on a large system like the national and global economies.

    Central control is much more likely to screw the pooch than to come up with effective solutions in any given situation.

  • MJ||

    "“The country was in the horse-and-buggy age when that clause was written,” Roosevelt declared. His administration favored a different method of legal interpretation, one that would “view the interstate commerce clause in the light of present-day civilization.”

    Did FDR have to in any demonstrate that the narrow interpretation of the commerce clause was incompatible with good governace in the early 20th century, or was his mere assertion that it was written in "horse and buggy" days the only thing that mattered?

  • ||

    Too bad it doesn't cut both ways in 'progressive' mindset. Like the FCC for instance. It's a clunker much as the vacuum tubes running the tech it was originally supposed to regulate. Scrap it like we scrapped the tubes.

  • Doktor Kapitalism||

    New for new's sake is just as bad as old for old's sake. If an old idea is good, keep it; if a new idea is bad, toss it.

  • ||

    Let us take an example of Texas. The "Wise Health Insurance" is quite popular in Arizona. It provides so many offers for the low income people.

  • Ventifact||

    Here are the two "originalism"s explained.

    A conservative sees the constitution as an instant in time:

    X

    A liberal sees the constitution as a step taken in time:

    R ---> X

    Although the two are different, and compete for the same label of "originalism", both are factual. The liberal view even has extra historicity, because there would be no such thing as "history" if things were not caught up in change. It is as much a fact that our current constitution was put in place to increase central authority as that the same constitution reflects a clear intent to restrain that authority.

    Frankly all this bickering over the one valid originalism is inane. Very few conservatives really think that the "We the People" represented by the framers is the same group we should understand it to mean today. And very many liberals forget that if you think the constitution is just plain wrong you're supposed to amend it, not ignore it.

  • ||

    [Very few conservatives really think that the "We the People" represented by the framers is the same group we should understand it to mean today. ]

    Says.....who?

  • Ventifact||

    Well, most conservatives now think it's reasonable to include non-caucasion humans, and humans without Y chromosomes, in the "We the People" who validate the state by consent of the governed. The same goes for "the people" upon whom non-delegated rights devolve, per the 10th Amendment. They now devolve upon a "people" differently defined than it once was, and even most conservative "originalists" believe this is right.

  • ||

    There is something in what you say. The Framers didn't have to deal with big businesses that rivaled government power, nor did they have to deal with a perpetual, government-subsidized underclass. I think Progressivism evolved to address those two aspects of the American experience. Whether it's the right solution or not, I don't know. Personally, I'd rather live with what we have now than have government interfering more than it already does with every aspect of my life. I'd like government to be there when I need it, but otherwise stay the f. out of my way.

  • Matrix||

    Burgess Meredith played an excellent FDR in the Batman TV show... oh wait, he played The Penguin. I guess I get them confused... the hat, the grin, and the cigarette, plus the fact that they are both villains.

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