Obamacare

The Power to Tax Is The Power

Understanding the Supreme Court's ObamaCare ruling

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Author's Note: In light of Thursday's Supreme Court decision to uphold the Affordable Care Act's insurance mandate on the basis of Congress's taxing power rather than the Commerce Clause, a slightly modified reprise of this November 27, 2009, column seems appropriate. Note the part about the Supreme Court's long-standing position that Congress may regulate conduct through the tax system.

Ruth Marcus, Washington Post op-ed writer, tried to make a constitutional case  for the individual health insurance mandate that Congress will surely pass before the year is over. She offered two grounds, the Commerce Clause, which is specified in Senate Majority Leader Harry Reid's bill, and the taxing power.

On the first she writes:

Spending on health care consumes 16 percent–and growing–of the gross domestic product. There is hardly an individual activity with greater effect on commerce than the consumption of health care.

If you arrive uninsured at an emergency room, that has ripple effects through the national economy–driving up costs and premiums for everyone. If you go without insurance, that limits the size of the pool of insured individuals and–assuming you are young and healthy–drives up premium costs.

. . . [S]ince the New Deal, the Supreme Court has interpreted this authority to cover local activities with national implications.

 Narrow Power?

I won't repeat what I wrote previously about this strained argument. I don't agree with the constitutionalists who insist that the Commerce Clause was meant to be a narrow power intended only to create a free-trade zone among the states. In the Federalist Papers Alexander Hamilton complained that tariffs were too low under the Articles of Confederation, and in fact the states did not block one another's products. Historian William Crosskey makes a powerful case that the clause was intended by the leading framers as a general power to regulate economic activity, intra- and interstate. Moreover, the Antifederalists warned us (and James Madison later agreed) that the Constitution did not really establish a government of "few and defined" powers. (See my "The Constitution or Liberty"  and "Was the Constitution Really Meant to Constrain the Government?" )

Nevertheless, there is a distinction between regulating commerce and compelling everyone to buy a product offered commercially. It's a stretch to say such compulsion is permitted if it is connected to a congressional effort with respect to interstate commerce. Even Marcus seems to sense the stretch:

Granted, there is a difference between regulating an activity that an individual chooses to engage in and requiring an individual to purchase a good or service. . . .

But the individual mandate is central to the larger effort to reform the insurance market. Congress may not be empowered to order everyone to go shopping to boost the economy. Yet health insurance is so central to health care, and the individual mandate so entwined with the effort to reform the system, that this seems like a different, perhaps unique, case.

So why can't Congress order us to shop for the sake of "the economy"? Health insurance seems different to her, but it doesn't seem different to me. How will it seem to the nine Supreme Court justices?

Let's not forget, by the way, that Congress could reform the medical and medical-insurance without imposing a mandate by simply removing all barriers to competition. It would be nice if we could count on the court, at the very least, to forbid Congress from achieving a goal by means that violate freedom if means are available that do not. But let's hold our breath.

The Taxing Power

On to the justification for the mandate via taxing power. Marcus writes:

The individual mandate is to be administered through the tax code: On their forms, taxpayers will have to submit evidence of adequate insurance or, unless they qualify for a hardship exemption, pay a penalty.

Yale Law School professor Jack Balkin likens this to Congress raising money for environmental programs by taxing polluters. "Congress is entitled to raise revenues from persons whose actions specifically contribute to a social problem that Congress seeks to remedy through new government programs," he concludes.

Just because the IRS will police the mandate does not make this an issue of taxation. As written, the bill would impose a fine for not having insurance. How's that a tax? In fact, President Obama insisted to ABC's George Stephanopoulos that a fine for flouting the mandate is not a tax. "No, but—but, George, you—you can't just make up that language and decide that that's called a tax increase," Obama said. Guys, let's get our stories straight.

Missing the Mark

Balkin's example misses the mark. Since a polluter aggresses against innocents, a "tax" on him could be construed as restitution (if the money went to those damaged). There's no analogy with a fine for not having insurance. Obama would say the uninsured cost the rest of us money, but that's certainly not true of anyone who pays for medical care out of savings. Besides, the uninsured get an unfair rap. It is the insured, not the uninsured, who bid up the real price of medical services: Under the current interventionist system those services appear cheap and even free to those with insurance. The uninsured are the victims not the perpetrators.

I realize that these arguments are futile. As Balkin points out, the Supreme Court has long held that the government may use the tax system to regulate conduct—even if regulation, and not revenue, is the primary motive. As the Court said in U.S. v. Sanchez (1950), citing precedents from the 1930s:

It is beyond serious question that a tax does not cease to be valid merely because it regulates, discourages, or even definitely deters the activities taxed. . . . The principle applies even though the revenue obtained is obviously negligible . . . or the revenue purpose of the tax may be secondary. . . . Nor does a tax statute necessarily fall because it touches on activities which Congress might not otherwise regulate. [Emphasis added.]

Let that last phrase sink in. To amplify it the Court quoted an earlier case, Magnano Co. v. Hamilton (1934):

From the beginning of our government, the courts have sustained taxes although imposed with the collateral intent of effecting ulterior ends which, considered apart, were beyond the constitutional power of the lawmakers to realize by legislation directly addressed to their accomplishment. [Emphasis added.]

Congress may do via the taxing power even things it may not do directly.

Don't Blame the New Deal

It may be tempting to blame this all on the New Deal courts. But that temptation should fade as one reads the warnings issued by the Antifederalists while the ink was still wet on the constitutional parchment. As one Antifederalist said, "By virtue of their power of taxation, Congress may command the whole, or any part of the property of the people." And another: "[T]his power therefore is neither more nor less, than a power to lay and collect taxes, imposts, and excises at their pleasure; not only [is] the power to lay taxes unlimited, as to the amount they may require, but it is perfect and absolute to raise them in any mode they please."

Too bad they weren't listened to.

Sheldon Richman is editor of The Freeman, where this article originally appeared.

NEXT: Nick Gillespie on 5 Great Gifts to Send Obama in Lieu of Cash Contributions

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  1. “It would be nice if we could count on the court, at the very least, to forbid Congress from achieving a goal by means that violate freedom if means are available that do not. But let’s hold our breath.”

    You probably mean “let’s *not* hold our breath,” and if that’s what you meant, then word.

    1. It’s a suicide pact!!!

      1. No. You — and the authors of the article — don’t get it.

        It’s corporate. That’s it. That’s the answer.

        Step back from the decision local question of who voted which way this for any particular decision, and look at one decision after another, and ask yourself:

        “If this ruling can affect corporate income, does this ruling favor corporations over individual rights, liberty and anything else the constitution might seem to lay out?”

        The answer will be a long, rarely interrupted string of yes, yes, yes.

        All the rest is just a stage-show to keep the naive hopping around like fleas on a hotplate while the underlying agenda proceeds unmolested.

        Either find a way to stop corporations from injecting money and power into the political process, or live with this (among other nasty results.)

        The only rights-oriented decisions that will favor individual liberty, freedom, etc. are going to either not involve the pockets of big business, or co-incidentally favor both liberty and corporations.

        1. Let’s broaden that to say that it’s special interests and cronyism (not just by corporations) that end up influencing most SCOTUS decisions and most behavior(s) of politicians.

        2. Either find a way to stop corporations from injecting money and power into the political process, or live with this (among other nasty results.)

          I’m sick of this shit. Corporations have as much right to petition the government as anyone. They are a collection of individuals, just like unions, environmental groups or the PT-fucking-A!

          When will people realize that limiting the rights of constituents is not the answer to eliminating influence peddling in Washington? LIMITING THE GOVERNMENT IS! We need to eliminate the career politician. A man who doesn’t need to get reelected, doesn’t need campaign funds. Special interests become null and void and politicians lose a great deal of incentive to lie, cheat and steal.

          1. Reduce the influence they have to peddle and there won’t be so much influence peddling.

            And BTW, if you want to do this by term limits, don’t put the time limit on each job. Put the time limit on total time in government.

          2. The problem is the capability of government dishing out favors to special interests. Not career politicians. Keeping the size and structure of government that currently exists the same but limiting politicians to a single life time term will not change anything.

            The left anti-corporate analysis is exactly backwards. Corporations of all types (including unions, other governments, ‘non profits’, advocacy groups etc.) influence big government because that is the easiest way to achieve their ends. Increasing the scope of government leads to more influence seeking not less.

            1. Keeping the size and structure of government that currently exists the same but limiting politicians to a single life time term will not change anything.

              I think you misunderstood me. Rereading my original post I can see why. I left it a bit open.

              I propose a single short term limit (not a life term). Four years for a representative and 8 years for a Senator, with votes of confidence every two years (during primary), requiring a 2/3 majority for early removal, to keep the pig loyal to his constituents.

              1. Term limits have made the situation worse have made the government worse in CA. I was a big supporter of them in the early 90s and still hate career politicians. But I acknowledge the reality that they have utterly failed here.

                The larger problem, as I see it, is the structure of our government at the federal and state level. Separation of powers is a great theory. In reality it’s led to a diffusion of responsibility, eliminating the accountability. The growth of the regulatory state further insulates decision makers from the consequences of their decisions.

                Limiting the terms of politicians will further remove accountability from government.

                Limit government power and make politicians accountable for the consequences of government action and the length of time that they are in office won’t matter at all.

                1. Limit government power and make politicians accountable for the consequences of government action and the length of time that they are in office won’t matter at all.

                  Overturning the Civil Service Act of 1883 would help to clear out the vermin in Washington who are allegedly working there based on “merit” instead of patronage. I would rather have overt patronage on the condition that the new guy can come in and clean house to his heart’s content, than have a permanently entrenched bureaucracy beholden to no one.

              2. I propose a single short term limit (not a life term). Four years for a representative and 8 years for a Senator, with votes of confidence every two years (during primary), requiring a 2/3 majority for early removal, to keep the pig loyal to his constituents.

                Making Senators “elected” by the state legislatures again would help by having there be a difference in interests between the chambers of Congress.

                1. “Making Senators “elected” by the state legislatures again would help by having there be a difference in interests between the chambers of Congress.”

                  I wish that would be talked about more, because I think this is huge issue. When I’ve brought that up people look at me like I’m crazy, as if I want to take away people’s votes. It’s actually the opposite–you have a lot more say locally than in a state-wide or national election.

          3. “When will people realize that limiting the rights of constituents is not the answer to eliminating influence peddling in Washington? LIMITING THE GOVERNMENT IS!”

            ^This, a thousand times this.

        3. It’s corporate. That’s it. That’s the answer.

          No, it is not. Naturally, though, anyone who wants to appeal to brain-dead lefties is going to say some malarkey like this because it’s “sooo cooool” to be anti-corporatist.

          1. The corporations must have a lot of power because look how afraid people are to say bad things about them. Whereas people really are afraid of the IRS and TSA and DEA, etc.

            But corporations are not the only boogeymen. There are also the fat cats, the robber barons, the 1%, and the all-powerful heartless libertarians who keep deregulating everything.

      2. It’s a suicide pact!!!

        We got to get out while we’re young…

        1. Thanks, asshole. It’s gonna take me all day to cleanse The Boss from my mind.

  2. Besides, the uninsured get an unfair rap. It is the insured, not the uninsured, who bid up the real price of medical services: Under the current interventionist system those services appear cheap and even free to those with insurance. The uninsured are the victims not the perpetrators.

    We are indeed victims. Pity me for the $1,000+ I spend each year on medical bills consisting entirely of follow-up visits for medications. That’s a lot of money for someone who only works sporadically in an effort to maximize his study time so he can graduate from college quickly.

    1. If drugs were legal how would your doctor pay for his boat?

      1. He could at least take me for a ride!

  3. I think I understand the ruling:
    Supreme Court says, “This law is legal because a magic unicorn flew out of my butt and told me so. You wanna make something of it?”

    Judge Roberts sez, “You wrote ‘mandate,’ and I know you meant ‘tax.’ Lend me your eraser, will you? There! All fixed!”

    It’s a tax? It’s a mandate? It’s a candy mint? It’s a breath mint? It’s a Stalinist collectivization of medical care, that’s what it is.

    Prepare to play children’s games again: “I need to see a doctor. Mother, may I?” “No you may not. You’ll go to the doctor I SEND you to! 1-2-3 red light!”

    The Obamacare decision was as surprising as the O. J. Simpson verdict. Our rulers are just not going to LET the people win such a case.

    Nancy Pelosi : “We made history.” http://www.imao.us : “If that’s true, then my dog just made history on the living room rug.”

    1. Larry, you might want to cut back on chewing Coca leaves.

      1. Brilliant ripost, asshole. Cut back on mainlining transmission oil.

        1. I’m sure you think your white-trash incomprehensible stream of consciousness bullshit is clever, but in fact it’s violently stupid and unreadable.

          And it’s riposte. Joe’z Law FTL.

          1. white-trash…bullshit…violently stupid

            Awesome riposte.

            1. It’s on the same level of intelligence I hear from the nutcases who call into local radio every Saturday morning. You actually hear this dipshit smiling as he says “Mother May I?” because he thinks it’s the cleverest fucking thing ever and everyone else ought to think as such.

              1. I’m glad I’m not the only one. This shit is up there with calling Obama Obummer or any of the other equally lame and juvenile versions of his name.

              2. That’s Mary, Randian. Don’t bother.

                1. Awesome riposte.

    2. You know who else made history?

        1. Plutarch?

      1. Herodotus?

      2. Herodotus?

    3. I love getting the cretinous lefty trolls all worked up in a lather.

  4. So, Wednesday, there was some discussion about doc-in-a-boxes and that sort of thing. Then I ran across this article.

  5. One puzzling thing, though.

    Roberts wrote that it’s not his job to defend against bad political decisions, but in effect he did just that:

    Congress expressly altered the law during the drafting process to make it not a tax, because a tax wouldn’t politically fly.

    Thus, in the unicorn land of Constitional Law, the people had said they wanted this law, but only if the penalty weren’t a tax.

    Thus, in finding that the penalty was constitutional, but only as a tax, Roberts was, in fact, engaging in judicial activism, thwarting the will of the legislature to get a law he wanted enacted. 🙂

    1. There may be a difference between “saying” something is not a tax and what the actual effect of the legislation is.

      In fact, most of the Obama decisions for which we criticize his hypocrisy are simply him putting politics above the truth to try to ensure that he gets re-elected. This started the day he entered office and probably is smart politics. If the Repubs have been running and winning elections for 20 years based on: 1. no new taxes 2. strong military 3. terrorism 4. drugs are bad 5. criminals are bad 6. and to a lesser extent, illegal immigrants are bad, then this administration and Dems in general have learned that they will not pass any honest laws affecting any of these areas lest the Repubs use it against them.

      And neither side will touch entitlements so we just muddle along.

  6. Dude makes a lot of sesne when you think about it.

    http://www.Best-Anon.us.tc

  7. Dude I never even thought about it like that. Wow.

    http://www.Privacy-Toolz.com

  8. I don’t agree with everything in this article. But I do agree that a line was drawn on the Commerce Clause.

    If you are want to see republicans take power, he has a solid argument.

    Chief Justice John Roberts has handed a remarkable victory to American conservatives by threading the judicial needle with perfect precision. The initial disappointment collectively felt by Americans who had hoped for a Supreme Court ruling that would overturn Obamacare soon will be replaced, upon further reflection, by the excitement that will come with a fuller appreciation of what the Chief Justice has wrought.

    1. I think Roberts did a great job in limiting his opinion to whether the law was Constitutional, rather than whether the law was wise or not.

      Compare this to Ginsberg’s opinion, which mostly goes on about how important it is that people are insured, and how availability of healthcare is important… etc. etc.

      I think this law is a terrible idea, but I agree with Roberts that it is constitutional as a tax under the 16th.

      Solution… if you do, or don’t like the government having so much authority, then amend the constitution. Don’t expect the SCOTUS to reinterpret it to suit your desires.

      1. Original intent matters. And if the founders would have approved of compelling citizens to purchase a privately sold product, pay a penalty (as it was proposed) or face prison, then it passes muster. I think you and I both know they never wold have stood for a government forcing it’s citizens to purchase one specific product, so I will have to politely disagree with your premise.

        Oh, and the government took great pains to sell it to the general public as not a tax. There’s such a thing as the spirit of the law, and the assholes in Congress and the White House know they had to lie to the American public to get this monstrosity through. That’s grounds for it to be overturned right there…or at least it ought to be.

        1. Of course it’s a tax. It’s just a tax that will be paid directly to corporations.
          So we should look at it as a sort of victory: Government is cutting itself out as the middleman.

  9. Roberts stated that the income tax is an excise tax in the decision. This is actually a big deal. The federal courts are divided over whether it is an excise tax or an unapportioned direct tax. In fact, the Supremes have never denied it is an excise tax, but this case is another arrow in the tax honesty movement’s quiver. The Ninth Circuit, those wacky liberals they are, insist it is an unapportioned direct tax. The IRS says on their web pages it is an unapportioned direct tax. Now, if we can only keep the old folks in black robes from trying to split the difference on this issue, we might get some admissions on the nature of the income tax out of them!

    1. Pardon me saying this about your post, but…big fucking deal. Some people in government say they are stealing our money with their left hand. Some say they are stealing it with their right hand. Personally, I don’t care whether it’s considered an Excise Tax or an unapportioned Direct Tax. The fact that they are taking it under threat of imprisonment is my concern, not what they are calling it.

      1. If you don’t think the definitions of words matters, than you shouldn’t care about the Constitution at all. Ever.

        1. If you don’t think the definitions of words matters you are qualified to be CJ of SCOTUS

          FIFY

          1. Look at this tiny fists of rage! Adorable!

        2. I care about definitions, but in the case of taxation, they really don’t matter. You are having wealth confiscated by force. It doesn’t matter if they call it an excise tax one day and an income tax the next. What matters is that they justify the theft in the first place.

          1. Except that is exactly a different argument than you have been presenting vis-a-vis a “penalty” versus a “tax”. Saying that the terminology doesn’t matter is an endorsement of the logic used by Roberts in the Obamacare decision!

            1. I never presented an argument on a penalty vs a tax. I merely stated that saying you are stealing one way one day (Excise Tax) and calling the same action something different the next day (Unapportioned Direct Tax) doesn’t put my money back in my pocket. It’s still government theft. The terminology in this case doesn’t matter, because the end result is still the same, regardless of what word’s definition they torture to get there.

              Question: If a cop shot your wife in the head, would it matter to you if they called it “self defense” or “justifiable homicide”? Either way, your wife is dead.

              Do you get it now? Do you?

              1. For purposes of precedent and law, it matters. I understand your point, but libertree’s larger point is that the terminology shift may or more likely will make a difference in how taxes are interpreted in the future, and this is a positive change.

                You’re basically on the same level right now as those (for example) gay rights activists who want gay marriage no matter what right now come hell or high water, even if it means getting a one-size-fits-all federal declaration to do so. To them, “does it matter whether we get our rights via the federal government or the states? People are being denied liberty RIGHT NOW!”

                The words used matter in the law.

            2. I never presented an argument on a penalty vs a tax. I merely stated that saying you are stealing one way one day (Excise Tax) and calling the same action something different the next day (Unapportioned Direct Tax) doesn’t put my money back in my pocket. It’s still government theft. The terminology in this case doesn’t matter, because the end result is still the same, regardless of what word’s definition they torture to get there.

              Question: If a cop shot your wife in the head, would it matter to you if they called it “self defense” or “justifiable homicide”? Either way, your wife is dead.

              Do you get it now? Do you?

  10. I don’t agree with the constitutionalists who insist that the Commerce Clause was meant to be a narrow power intended only to create a free-trade zone among the states.

    Of course not. If you’re going to go to the trouble of crafting a document meant to define and frame the scope of your government, why not write a clause that cryptically gives the men in control unlimited free reign?

    1. And then we will include the 10th Amendment, just for shits and giggles, because we’ve given the government unlimited power already.

      The 10th REALLY means (sarc):

      The powers not delegated to the United States by the Constitution,which are already unlimited under the Commerce and General Welfare clauses, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

      1. [sigh] ^^This.^^

        Please remove the /sarc tag. It’s unnecessary.

  11. The full horror of Roberts decision is that the Federal government can take any action that is prohibited it by structuring that action as a tax.

    Ban corporate speech – unconstitutional. Tax corporate speech at 100% – just a tax.

    Ban Guns – unconstitutional – Tax gun purchases with a 10,000% excise – just a tax.

    Does anyone see a limiting principle in his ruling that won’t be gutted at the first opportunity?

    1. They are doing it with cigarettes now.

      1. That’s being done at the state and local level, though, which would appear to be in accordance with the 10th Amendment. What is being taxed at the federal level was agreed to by the tobacco companies in their settlement. (Wrongly agreed to, but when the government has a gun to your head, you start to think differently)

        1. No. The Master Setlement Agreement was with the states. The feds take about $1 a pack, a 150% increase signed into law by Obama a few days after his inauguration

          1. Then I stand corrected. Thank you.

            /no sarc

    2. I’m no Constitutional scholar, but here’s how I understand things: The government can’t impose heavy taxes on firearms, because that would be a violation of the right to keep and bear arms, which is an expressly protected right. But they can tax anything as long as it doesn’t violate expressly protected rights as a way of effectively getting around their restriction to only enumerated powers, because the power to tax is enumerated. Or something, I dunno…

      1. Here’s how I see it.

        The federal government is one of enumerated powers, so anything not granted to it is precluded, not just the things that are expressly precluded. The Roe v Wade decision based on ‘privacy’ supports that theory.

        Roberts said that the mandate was outside the scope of the power delegated by the commerce clause. Meaning that it was prohibited.

        But the same function is somehow legal via a capitation tax and credit.

        So why can’t any other prohibited act be achieved via taxing power? The limiting principle that Robers pulled out of his ass was that the tax was not prohibitive (or something again he’s not clear) which is patently absurd because the intent of the tax is prohibiting non activity.

        So what the fuck???

        1. Roberts said that the mandate was outside the scope of the power delegated by the commerce clause. Meaning that it was prohibited.

          But the same function is somehow legal via a capitation tax and credit.

          Sort of how Congress cannot declare war if Congress cite the General Welfare clause as your reason. It still has the power to declare war; it just tried to expand/employ the wrong clause.

          1. So Randian are you in an undisclosed location in Malta, fellating Roberts?

            1. Clever. I apologize for taking your question seriously. Next time I’ll be sure to take it in the troglodytic and anti-intellectual fashion in which it was most certainly offered.

              1. Roberts rewrote the law and or redefined the meaning of the words tax and penalty.

                The only limiting principle that I’m seeing is the requirement for a clever argument to justify a predetermined position.

                1. It is evident you are not able to stick with an argument. The first one you presented was “How can it be unconstitutional under the Commerce Clause but constitutional under the Taxing Power?”, a point which I addressed and which you subsequently equated to be “fellating Roberts”.

                  Now you’re criticizing the rewrite, which is a different argument altogether, one that I am sympathetic to but, as a note, it is not unprecedented for courts to reform documents if the intent was there. Not that I am a fan of that, but there it is.

                  1. You’ve consistently been an apologist for Roberts since this ruling came down.

                    Your and Roberts position is that the language of the constitution can be tortured to justify anything you want. Which may be the reality, but is indefensible.

                    Now go back to polishing Roberts knob you statist fuck.

                    1. The little man got his little panties in a bunch.

                      When I first started talking about this decision, I said that I think that what was done here was constitutionally permissible, but not a desirable outcome. I wanted to see the entire ACA struck down. Was that not in plain enough English for you, little girl?

                      Do you want me to get some Vagisil for your itchiness? Should I get a shovel so you can get the sand out of your vagina?

                      Your and Roberts position is that the language of the constitution can be tortured to justify anything you want.

                      What is constitutional is not necessarily ‘justified’ in a cosmic or ethical sense. It does not necessarily comport with my libertarianism.

                      So…you’re wrong, again. Look, if the conversation is over your head, just say so and I’ll stop showing you the number of times you’re wrong.

    3. It does make the action more transparent and therefore easier to fight. And as has been mentioned Roberts opened the door for 50 senators plus Romney’s VP pick to strike it down through reconciliation.

  12. Obamacare is Constitutional, assholes. Everyone here knew it would be a close vote and it was. I predicted they would cite the Supremacy Clause instead of Taxing and Spending – who cares now?

    It is like Bush v. Gore – states’ righters loved that shitty decision for partisan reasons. Their side won.

    1. Exaclty! Just like with Dredd Scott. It’s LAW, bitches! Sit there and live with it!!!

      1. And Korematsu.

        Still law of the land you fucking enemies of the state.

        1. You can always tell those who think states shouldn’t be able to set their own policies… shrike and Tony, for instance.

          It’s a wonder people like then don’t just come out and say “we should abolish all state legislatures and set all state policy in Washington DC.”

          Shit like that makes me ill.

    2. So shrike’s only substance here is that he made the wrong prediction. Everything else is just irrelevant.

      1. I tried to think of a clever way to segue from your reply to this video, but I’ll just post it because I think it’s funny: http://www.youtube.com/watch?v=JohaSZ7j_00

    3. It is like Bush v. Gore – states’ righters loved that shitty decision for partisan reasons.

      How dare a state have to recount all of the votes in a given state and not just in select counties! The fucking cheek! ROVE!! KOCHTOPUS!!! BOOOSSSHHHH!!!!!!!11111!!111!!11

    4. Palin’s Buttplug: Your screen name suggests a strong desire to be nestled inside Sarah Palin’s rectum. And your website link suggests a correlation between your intimate desires and George Soros. Please explain.

  13. Sometimes you rreally gotta wonder, I mean like seriously.

    http://www.Most-Privacy.tk

  14. The constitutionality is settled, unfortunately. And I think we all need to question the Court’s loyalty to the Constitution, as opposed to it’s loyalty to the Government. Personally, I believe the SC is evolving at about the same pace and direction as the Executive and Legislative branches are. And their inevitable evolution is to that of an authoritarian state.

    Face it: we have become less free as a nation since the ratification of the Constitution, with mere blips of liberty along the way. No rights are guaranteed anymore. The 1A has been gutted. The 2A has been gutted. The 4A and 5A have both been gutted and the 10A was destroyed by Lincoln.

    What we are experiencing is just the next large ruling in a nearly universal march toward a collective America. Our parents saw it with the CRA and the Great Society, our grandparents saw it with internment and the New Deal. Our Great-grandparents saw it with the Fed and WW1. Go back through American history and you will see a watershed moment in almost every generation. And they all march us toward a command economy and centralized state.

    It’s a fucking travesty, but it’s as predictable as a Swiss watch.

    1. In fact, the most important function of the federal courts is to legitimate state building by the political branches.Jack M. Balkin is Knight Professor of Constitutional Law and the First Amendment at Yale Law School

      Yep, we’re fucked.

    2. The 1A has been gutted. The 2A has been gutted. The 4A and 5A have both been gutted and the 10A was destroyed by Lincoln.

      I can present a whole host of counterarguments on this point, especially given Heller and Citizens United.

      To say that the First Amendment is somehow less protected than before, given that the Alien and Sedition Act passed in 1798, a mere 15 years after the promulgating of the Constitution, is frankly silly.

      To say that the Second Amendment is somehow “gutted” when it is stronger than it has been in history is flat wrong.

      I take your points about the Fourth Amendment and Fifth Amendments, but there are countervailing points that could be made in that vein as well.

      I don’t understand this hand-wringing, wailing, and gnashing of teeth. I really don’t.

      1. The Second Amendment is stronger now then it was before the National Firearms Act was passed. But before that, a citizen could own any kind of gun he could pay for with no paperwork or taxes of any kind. You could order automatic weapons through the mail. Just because the NRA and other groups have managed to bring us up a bit from the nadir of the mid 90s, doesn’t mean the 2nd is strong. The NFA is still law, the GCA of 68 is still law, and FOPA prohibitions against the manufacture of new machine guns is still in effect. The 2nd is not stronger now then it ever has been, it’s just stronger then it was in 1995.

        1. Concealed carry was pretty much illegal prior to 1987, or at least severely restricted. And until Heller, the Second Amendment was not considered a fundamental individual right. That’s a big leap forward. There are more laws, but philosophically, the 2nd is stronger than ever.

        2. First sentence should read “The Second Amendment is stronger now then it was after the National Firearms Act was passed.”

      2. The 1A is certainly stronger.

        No longer are people forced to pray in public institutions, freedom of press and speech are stronger than ever, assembly is as well, and the country is more secular than ever as the founders intended (much to the chagrin of conservatives).

        1. I wish that I could force myself to believe in god just so that I wouldn’t be an iota like you shrike.

          1. I’m pro-drug, pro-gun, anti-war, anti-Medicare/SS, and pro-contraception rights (privacy).

            You probably have a LOT in common with me.

            1. Hah you’re a pro-buttplug christfag!

              Christfaggoty fagass fagorino!

            2. pro-contraception rights (privacy).

              I have a sneaking suspicion you think this gives someone else a right to my money.

        2. No longer are people forced to pray in public institutions,

          Citation required for when they were ever forced to.

          freedom of press and speech are stronger than ever,

          Tell that to Bradley Manning or James Risen.

          assembly is as well,

          Tell that to the occupiers in Oakland, Berkeley, protesters at abortion clinics or anyone trying to exert their rights on a college campus with a “speech code” or “free speech zones.”

          and the country is more secular than ever as the founders intended (much to the chagrin of conservatives).

          …which has absolutely nothing to do with the 1A, which was meant to protect the rights of all, not just who happens to be in the majority.

          You know what? I shouldn’t let myself get sucked into your little web. Your tired, ill-informed arguments are meant to do one thing: elicit an angry response. No sensible adult would think we are freer in any sense of the word than throughout American history. I therefore surmise that you are either a simpleton that managed to work a keyboard or you are a troll. I’m leaning toward the latter, but have not ruled out the former just yet.

          1. Bradley Manning is a terrible, terrible ‘exemplar’ that the First Amendment is somehow weaker.

            Bradley Manning voluntarily subjected himself to the punishment he will receive, and he deserves it.

          2. No sensible adult would think we are freer in any sense of the word than throughout American history.

            America is not now nor has it ever been Libertopia. I don’t know when you think we were ‘freer’, but while the impositions have changed, we were never particularly ‘free’, well, ever.

            1. America is not now nor has it ever been Libertopia. I don’t know when you think we were ‘freer’, but while the impositions have changed, we were never particularly ‘free’, well, ever.

              ZOOOOOOOOOOOOOOOOOOOM!!!!!!!!! go the goalposts.

              I never said it was libertopia, did I? But at one time in our history, the 1A, 2A, 4A, 5A and 10A actually meant something. They mean less now than they ever have, which has been my point all along. But for some reason, you seem to think it’s easier to keep and bear arms than it was 100 years ago, all evidence to the contrary.

              1. well, and as I have pointed out downthread, I don’t think you’re right about that.

          3. We can rule out the period prior to 1865 for “freer”.

            Prohibition rules out the 1920’s.

            I suspect a case can be made for the late 19th century as “most free” due to legal cocaine/drugs and the lack of regulatory agencies and income tax at the time.

            I wouldn’t want to live it though.

            1. The OK Corral Gunfight of 1881 was explicitly about disarming people in a town.

              The Sherman Antitrust Law passed in 1890.

              We kept slaughtering Indians well into that period until Wounded Knee.

              Plessy v. Ferguson upheld separate but equal (1896).

              1. The OK Corral Gunfight of 1881 was explicitly about disarming people in a town.

                The city council of Tombstone had an ordinance saying that you couldn’t come into the town with a deadly weapon. The Clantons and McLaurys did just that.

                1. Yes, I know. Notice now that in most cities and states, carrying a deadly weapon, concealed, is protected as a fundamental right.

                  1. Yeah, just like it was back then as well. Look at the percentage of the population that has may issue or no-issue concealed carry permit laws vs the percentage that did when the Constitution was enacted.

                    I’d be willing to bet my right arm that it’s tougher today for a larger percentage of the population as it was then. (Not that a CCW is the end all-be all of 2A rights.)

                  2. Yeah, just like it was back then as well. Look at the percentage of the population that has may issue or no-issue concealed carry permit laws vs the percentage that did when the Constitution was enacted.

                    I’d be willing to bet my right arm that it’s tougher today for a larger percentage of the population as it was then. (Not that a CCW is the end all-be all of 2A rights.)

                  3. Yeah, just like it was back then as well. Look at the percentage of the population that has may issue or no-issue concealed carry permit laws vs the percentage that did when the Constitution was enacted.

                    I’d be willing to bet my right arm that it’s tougher today for a larger percentage of the population as it was then. (Not that a CCW is the end all-be all of 2A rights.)

                  4. Get stopped and frisked in the fine state of Missouri with a switchblade on your person and tell the officer how it’s your fundamental right. I’m sure he’ll find it very amusing. In my experience, a couple inches of sharpened steel in determined hands, can do more damage than a gun.

                    And you still require a permit in most of the states that allow for concealed carry, if memory serves.

      3. I can present a whole host of counterarguments on this point, especially given Heller and Citizens United.

        Please do. Two small rollbacks against wave after wave of laws limiting speech isn’t a trend.

        To say that the Second Amendment is somehow “gutted” when it is stronger than it has been in history is flat wrong.

        I don’t know how else to put this, so I’ll just ask you: are you retarded? There are entire classes of arms one cannot now legally purchase. There are cities and states that nearly ban all firearms outside the home unless carried by officers of the state. Seriously, dude. You’d have to have had a stroke to think it’s easier to keep and bear arms than it was 80 years ago.

        I take your points about the Fourth Amendment and Fifth Amendments, but there are countervailing points that could be made in that vein as well.

        Then make your case. Please note what has made our rights stronger when put up against the NDAA, Kelo and every government power grab via the EPA, DoE, DoI, etc, etc since their inception.

        Sorry to say it, but you sound like a statist bootlicking moron.

        1. Because I’m not a handwringing whinging lady? Please.

          For those of you whining girls who say “waaa! we’re so fucked we have no liberty and I pray for the revolution every night”, get a fucking grip.

          1. Because I’m not a handwringing whinging lady? Please.

            Having a discussion on erosion of rights and using many examples to support the argument is hardly being a “handwringing whinging lady.” (Nice sexism there as well, BTW)

            For those of you whining girls who say “waaa! we’re so fucked we have no liberty and I pray for the revolution every night”, get a fucking grip.

            Who has said that? I merely pointed out that our liberties have gradually eroded since our nation’s inception. I cited examples on how the court has been equally complicit in that regard over the last century. For some reason, you want to call anyone a “handwringing whinging lady” who questions our government, or call people “girls” that say our freedoms are being taken away. Jesus Christ, who’s the unhinged person here that can’t even have an informed discussion without resorting to namecalling and ad hom attacks when presented with a litany of government overreach that has occurred over the last century without offering up any credible counterfactuals?

            1. I merely pointed out that our liberties have gradually eroded since our nation’s inception.

              And I’ll gladly point out that you are wrong:

              1. In the 1780s, we had the violent suppression of the Whiskey Rebellion and Shays’ Rebellion
              2. in the 1790s, we had the Alien and Sedition Acts
              3. in the 1810s, we had Andrew Jackson refusing to listen to the Supreme Court and basically massacring the Native Americans.
              4. We had fugitive slave laws all the way up through 1860.
              5. I don’t think I need to go into the liberty restrictions found during the Civil War and Reconstruction
              6. We had the Sedition Act of 1918
              7. We had Prohibition
              8. We’ve had Comstock Laws prohibiting pornography and birth control
              9. We’ve had the internment of Japanese Americans in concentration camps
              10. We’ve had the HUAC and the explicit investigation of those who were exercising their rights of assembly and speech

              Sorry, I’m not buying that this is somehow the worst period ever or that liberties have been eroded. It’s just not true.

              1. Thank you for listing the erosion of the liberties we enjoyed at the outset of our nation. You did a really nice job of proving my point for me, but you left out the Brady Law, The NDAA, The CRA of 64, the ADA, expansion of “public accommodation” definitions, establishment of free speech zones, arrests and convictions of whistleblowers and protesters, American citizens being placed on no-fly lists, CBP agents hundreds of miles inside the border running checkpoints, California Agricultural checkpoints, drones in our skies, secret courts issuing warrants with no evidence, warrantless wiretaps, Gitmo, murderdroning Americans overseas sans due process, selective enforcement of voter intimidation laws, an EPA that ignores court orders granting drilling rights, the perversion of eminent domain laws, suspension of constitutional rights post-Katrina, unequal protection for policemen and agents of the state with qualified immunity and special evidentiary policies enacted through collective bargaining, an ever-expanding administrative sector of the government that operates with diminishing oversight and the acceptance of our government ignoring borders and the sovereign government of our neighbors in a gun-running scandal.

                Yeah, we’re a lot fucking better off.

                1. So if your point was “we were never free and this is not unique”, then you should have said that, but that isn’t what you said.

                  Do we have Comstock Laws anymore? Do we have alcohol prohibition anymore? Do we have the Alien and Sedition or the Sedition (1918) acts anymore?

                  No. We have other bullshit limits instead. It’s no different now than it ever was.

                  1. sloppy is reactionary – a form of conservatism.

                    the conservatives here don’t like it when I call them what they are.

                    The pure L’s you can count on one hand here (I failed the purity teat too).

                    1. Meh. I’ll give it a D+. It was a pretty weak effort, but all the words were spelled correctly.

                      Keep trying, shrike. I know your inner troll will come out by the end of the day.

                  2. Do we have Comstock Laws anymore?
                    PROTECT Act of 2003

                    Do we have alcohol prohibition anymore?
                    Ask a 20 year old that has to sign up for the SSS

                    Do we have the Alien and Sedition or the Sedition (1918) acts anymore?
                    4-part answer
                    We have a Naturalization Act currently in place.
                    The Alien Act sunsetted after 2 years.
                    The Alien Enemies Act is still in place today.
                    The Sedition Act just deported people. We have evolved to murderdroning them overseas. Oh, it also had an end date, whereas the NDAA, which goes nearly as far, does not.

                    Got any more?

                    1. gotta begrudgingly give props to sloopy here. he may not know much search and seizure/current const. law via law enforcement (search seizure/lawful stops etc.) as he routinely demonstrates, but this is a good persuasive post.

                  3. Do we have alcohol prohibition anymore?

                    We have drug prohibition. Which is worse. At least some drugs are good for you. Alcohol isn’t much good except for killing yourself slowly.

        2. There are entire classes of arms one cannot now legally purchase.

          That’s pretty much been the status quo for a long time.

          There are cities and states that nearly ban all firearms outside the home unless carried by officers of the state.

          Cities have been banning firearms since the 1800s. Concealed carry was virtually illegal or nonexistent until 1987. No state, to my knowledge, bans firearms, and none can, as that would run counter to Heller.

          You’d have to have had a stroke to think it’s easier to keep and bear arms than it was 80 years ago.

          It was easier to keep and bear them illegally. Law enforcement was harder back in the days before the internet, technology, and the population boom. The fact that you were able to keep arms in contravention to law more easily in the 1910s does not mean that the Second Amendment, as a legal proposition, was somehow ‘stronger’.

          1. Sorry, dude you’re just flat out wrong here. Until 1934, free citizens could purchase any kind of small arm available, carry them anywhere, and there was absolutely no permits, regulations, or paperwork of any kind.

            Now you could argue that various state restrictions, particularly those of the South directed against blacks, made the 2nd Amendment less potent. And that’s certainly a legitimate point of view.

            But in 1776, and through every year up to 1934, a free American citizen could purchase any one of the small arms issued to American soldiers, through mail order, with no paperwork or taxes.

            I’d much rather have that then the current state of affairs. Just because it’s real easy to get the permission slip doesn’t mean I think the permission slip is a good idea. CCW is only a stepping stone on the road to complete restoration of the 2nd Amendment. I want to order silenced automatic weapons with my Amazon Prime account.

            1. Sorry, dude you’re just flat out wrong here. Until 1934, free citizens could purchase any kind of small arm available, carry them anywhere, and there was absolutely no permits, regulations, or paperwork of any kind.

              Now you could argue that various state restrictions, particularly those of the South directed against blacks, made the 2nd Amendment less potent. And that’s certainly a legitimate point of view.

              So, I am flat wrong even though this is pretty clearly what I was saying, and that’s a legitimate point of view?

              That confuses me.

              1. That confuses me.

                I’m not surprised. Since you conflate the government (selectively) granting CCW permits with established 2A rights existing without requiring an explicitly granted license by the government from 1776 to 1934, then I can see why you would think guns are just as accessible and portable now as they’ve ever been.

                Why not try telling someone in LA, Chicago, San Fran or NYC that their gun rights are just as safe and secure as their ancestors from 100 or 150 years ago in those cities. Be sure to tell them they’re just as free to keep and bear arms outside their homes as well as inside their homes relative to the same time frames. I’d be surprised if they didn’t go into a seizure from laughing so hard.

  15. The federalists and antifederalists WERE listened to. That’s why we have a bill of rights.

    As somebody mentioned above, the 10th Amendment pretty much kicked the commerce clause in the balls.

    1. The 10th Amendment just can’t catch a break. It’s hard to stand up in support of it without being accused of some neo-antebellum sympathies. But its affirmation is vital to limited the Executive and Legislative Branch’s creep toward unlimited power.

      1. I think you’re going to see its resurgence in the wake of the Obamacare decision. The states are simply not required to comply, and they cannot be punished for failing to do so.

        1. I got into it with T o n y over supposed ambiguous clauses in the Constitution. I gave him “cruel and unusual punishment“. But for fuck’s sake, what is so ambiguous about…

          The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.“?

          …Which basically limits the federal government to the enumerated powers in Articles 1 through 5.

          And don’t give me the “necessary and proper” bullshit. Read that thing in its entirety (emphasis added)…

          The Congress shall have Power – To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

          1. But it’s like over 100 years old and stuff.

            1. And it’s like, really hard to read and stuff.

          2. I’m not disagreeing with any of that, Senor Gobbla. Just pointing out that the 10th may receive a revitalization in the wake of the NFIB decision.

          3. First, it is ambiguous, otherwise there wouldn’t need to be centuries of cases on the issues. Second, it’s possible that it’s irredeemably ambiguous, in which case the best possible approach is judiciousness. At a certain point, figuring out what words “actually mean,” as if there is a pristine and correct choice somewhere to be found, is less important than judging what the results will be and whether they align with a certain agreed-upon spirit.

            The problem is there are now two entrenched ideas of what the spirit of the constitution is. Ironically it’s the liberals who hold onto the consensus of most of the past century (thus are the conservatives).

            1. $

              1. Keep typing dollar signs and your ship will come in, you demigodlike hero you. When the Randian utopia comes about, can I be hired as a designer of the shoulder patches you’ll be putting on people designating them moochers and looters?

                1. Or you could just give the job to the tea party functionaries. They have an amazing ability to judge who are moochers by observing skin pigment. No doubt they would be absolved by Randian decree for their near-universal use of Medicare, since her Randness herself partake of the same.

                  1. $

                2. $ = You are too stupid to obtain oxygen on your own, let alone debate. Fuck off and die in a fire, you disgusting immoral pig!

                  1. It’s stupid spamming and you should stop doing it.

            2. First, it is ambiguous, otherwise there wouldn’t need to be centuries of cases on the issues.

              Anything is ‘ambiguous’ when lawyers get hold of it.

      2. The 10th Amendment just can’t catch a break. It’s hard to stand up in support of it without being accused of some neo-antebellum sympathies.

        This is very true, however, it’s not without justification. Some states have, under the guises of separation of powers and color of law, roundly abused the natural rights of people within their borders for no better reason than the fact that they looked different.

        The 10th Amendment needs defending, that goes without saying. But some people, for reasons of consistancy and good PR, aren’t equal to the task.

  16. This is for randian:

    e?ro?sion/i?r?ZH?n/
    Noun:
    The process of eroding or being eroded by wind, water, or other natural agents.
    The gradual destruction or diminution of something: “the erosion of support for the party”.

    For some reason, I don’t think you quite get my point above. I hope this helps.

    1. There has to have been something there to erode to begin with. That is my point.

      1. There was. It’s called the Constitution.

        1. And like I said, before the ink was dry, we were violating the Constitution. If the Constitution has never been operative, then how can you say that we’ve eroded down from that? I don’t see it.

          1. How many laws are on the books now vs when the Constitution was ratified? How many administrative edicts have been passed down that have eroded property, speech and or due process rights?

            If you think we’re just as free to say anything, read anything, own property or arm one’s self or feel safe from from illegal search and seizure than we were on Day One, then you’re delusional.

  17. Who’s winning?

    1. Sloopy, by at least a length.

      1. Well, if you want to emotionally concur with someone, sure. However, the thesis “we were once free and now we aren’t” is patently false. We were never free.

        1. Did I say that, you disingenuous twat? No. I said we have been on a persistent spiral toward a totalitarian government and all three branches are complicit. I even countered every argument you made with examples, yet you seem to have missed several of my posts.

          Face it: you have lost this one. No get on over to National Review online and get the next batch of talking points and I’ll shoot holes in them as well.

          But I’ll be doing it tomorrow, as I have too much to do the rest of today. Toodles!

          1. Indians and blacks and women would probably say they’re a lot more free today.
            White males’ mileage may vary.

  18. Let’s not forget, by the way, that Congress could reform the medical and medical-insurance without imposing a mandate by simply removing all barriers to competition. It would be nice http://www.ceinturesfr.com/cei…..-c-21.html if we could count on the court, at the very least, to forbid Congress from achieving a goal by means that violate freedom if means are available that do not. But let’s hold our breath.

  19. If you arrive uninsured at an emergency room, that has ripple effects through the national economy?driving up costs and premiums for everyone. If you go without insurance, that limits the size of the pool of insured individuals and?assuming you are young and healthy?drives up premium costs.

  20. Governments are in loss and to increase the government account tax are raises.

  21. Everyone has the power to use threats of violence to take stuff away from others. Everyone. All we’ve done with government, is simply to pretend that some people are somehow MORALLY GOOD for using the threat of violence to take stuff.

    The minute you try to square that circle in your head honestly, the state as an idea will collapse into a pile of self-contradictory dust. It is an evil. It does nothing but evil. It can never do anything but evil, and it’s effects will never be anything but evil.

    The “air quotes” really need to be around the word “tax”, since that is simply a disgusting euphemism for armed robbery.

  22. At a certain point, figuring out what words “actually mean,”

    Like this word?

    http://www.merriam-webster.com/dictionary/racism

    /pedant

  23. cheap NBA Jerseys instead of a raw material focus, it is seeking all of the above methods, open to the use of any fuel Cheap NBA Throwback Jerseys to meet its specifications, whether or not it and seed oils, animal fats, or woody biomass production.

  24. Let’s not forget, by the way, that Congress could reform the medical and medical-insurance without imposing a mandate by simply removing all barriers to competition. It would be nice if we could count on the court, at the very least, to forbid Congress from achieving a goal by means that violate freedom if means are available that do not. But let’s hold our breath.

  25. The Constitution says tax bills have to originate in the House, and although Obamacare originated in the Senate, things can be under the taxing power, that aren’t taxes, and you can ‘deem’ something X even if it isn’t X, and 4 legs good 2 legs bad.

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