Congress may not get its authority from the Bill of Rights - that was never my point. It gets it’s authority from the consent of those who are governed. And if it governs by saying “WE WON, YOU SHUT UP!” just like Obama’s
minions started saying after last year’s elections, what is the point of being President of all people ? He is not just the President of the states he carried, right ?

My point about the Dept of Education once again goes to the question of general welfare - according to you, this idea of what is general welfare is decided by a majority of Congressmen and backed by the Courts. Unfortunately, this is nothing more than majority rule and it could be used as an excuse to do pretty much anything in the name of “general welfare”. And unfortunately that has precisely what has happened in this country in the last 100 years. They may all be legally justified, but are they ethically justified ?

Even worse, it puts the Government as the prime mover of “general welfare” - in a Constitutional Republic where the rights of the minority are to be protected, when ever a Government agency is created in the name of “general welfare” we have to ask ourselves, what exactly gave the Congress or the Executive the power to do anything that they like in the name of “general welfare” ? A 55% popular vote ?

What ever happened to the notion of limiting Government’s power ? After all there are no limits to what a Government CAN DO if it is all done in the name of welfare.

And more importantly, who is going to pay for this “general welfare”? - the taxpayer of course. Including the taxpayer who has very serious doubts that it promotes anything OTHER THAN Government itself.

What metrics does the Government get measured by when promoting “general welfare”? Let’s take the Department of Education - what exactly has it achieved in all these years of public school system ? Why do students lack basic proficiency in reading, writing and math? Money has been POURED into the public school system every year without producing any significant results.

Just yesterday, the L.A. Unified School District voted to allow charter schools to run and improve the poorest performing public schools - we are talking about California here - among the most liberal states in the country !

The notion of general welfare has exceeded all bounds and it rests upon coercion of citizens who simply dont just agree with it but point to its fallacies and obvious shortcomings.

We are now at the stage where the Government can dictate how much energy you can and cannot use if you are a business or homeowner with cap and trade laws - ALL IN THE NAME of GENERAL/GLOBAL WELFARE !

The Framers of the Constitution may not have restricted the Government from not having a Federal Dept of Energy - but they sure as hell didnt envision the day when the Government could decide how much carbon could be emitted by a business. They sure as hell didnt envision the Federal Government becoming a Levithan that controls the life of an individual to such an enormous extent.

This is where the intent of having a Constitutional Government comes into play - this is where the idea of limiting the powers of Govt comes into play. But as some one said, a team can only be as strong as its weakest link.

Ben Franklin’s famous quote of what exactly the people of America had got was - A Republic, if you can keep it
seems so prescient.

One thing we can agree on, busboy - the leaders of this country are elected by the people - directly in almost all cases - a country’s leadership is only as good as a large majority of its people.

The citizens of this country have failed the Republic and themselves by voting for larger and more expansive Government on the backs of a majority of those who truly detest it and yet have to pay for its monstrosities.

Hayek’s Road to Serfdom should be recommended reading for any one who loves liberty and calls him/herself a classical liberal.

It takes on the notion of general welfare and how it is a fatal conceit for a top down central burueaucracy to try and impose its vision of what is good on the world.

Although I am cast in the role of a liberal here, I agree in limited government wholeheartedly. I have no faith in the “good intentions” of the vast majority of the population, and I think more highly of them by leaps and bounds than I do of politicians.

Most people I know, of all beliefs, believe in limited government in some form or another. The magic word is “limited”. What does that mean? It sounds like a silly question, but the meaning of that word is different to everybody. If “limited government” means what is exclusively in the document, then as I said above the Army has to be abolished. A standing Army is not only not authorized, it is clearly prohibited, since the militias were explicitly tasked with filling that role in terms of National Defense. I don’t think that there is anybody here that wants to abolish the Army, so we all agree that even a limited government goes beyond the language of the Constitution. Whether to go beyond the text isn’t the issue . . . how far to go beyond is.

You mentioned that the Bill of Rights doesn’t include any provision for education. True. But Congress doesn’t get it’s authority from the Bill of Rights . . . they get their authority from Article I of the main body. The Bill of Rights limits the Constitutional powers of the government — it doesn’t create them. The Framers ratified the Constitution, and then after that Amended the document with the Bill of Rights to put restraints on what they had made.

So turn the argument around: The Framers specifically limited what the Federal government could do. They made sure to specifically state what they did NOT want the Feds to start doing. They did not prohibit the Federal government from being involved in the issue of education.

Rather than presuming that they didn’t want the Feds involved in education . . . isn’t it a reasonable interpretation that by not expressly prohibiting them from exercising authority in that arena they implicity endorsed it? They said “you have the power to act for the ‘general welfare’, but that does NOT mean A, B, C, D, or E”. If Education is an issue that is properly considered ‘general welfare’, and it isn’t A, B, C, D, or E, then despite the fact that it isn’t expressly authorized it is still a valid area for the Fed.

You mentioned the example of the cartoons being published as an issue that could be argued to relate to ‘general welfare’, and it makes a perfect example. The NY Times is a private company — they’re not the government. They aren’t bound by the same Constitutional restrictions. They can choose to publish them, or not publish them, at their discretion.
Now if the Federal government decided it was a matter of the general welfare, they could try and order the Standard not to print them. That’s where the 1st Amendment comes in: “you (the Feds) have the power to deal with the general welfare . . . but we want to make clear that does NOT include speech. You can’t ban speech as part of promoting the general welfare — that’s NOT part of your mandate”. The Amendment limits the definition of general welfare, but it doesn’t define it. It defines what ISN’T part of the general welfare.

So we are back to the question, what do the words ‘general welfare’ encompass? You said:

“Your use of this term to justify agencies like the Department of Education points to the wide gulf that exists between conservatives and liberals on the most fundamental issues of the day.”

My point in all of this has been that it’s not MY argument. I’m not defending it or saying it is correct. Congress has determined that is is part of the general welfare of the nation. The Supreme Court has so far agreed with them. As a practical matter, those are the only opinions that count. THEY define those words, not you or I. As Chief Justice Roberts said, they’re the umpires. They call the balls and strikes. They called this one a strike. Are they wrong? Maybe . . . but it’s still a strike.
KenMcloud said there was no authority for these aspects of the Federal government, and that’s not accurate. I think what he means is that he doesn’t agree with the authority claimed. That’s fair. But its also irrevelant. We the people do not define ‘general welfare’. It’s not our call to make. The umpire has made the call, and even if we’re sitting in the stands screaming “the Ump is blind!!” . . . they still made the call, and according to the rules of the game it’s their call to make.

As you said, you don’t get a job to impact the GDP. That’s not the motivation for the individual . . . but it does impact the GDP to some miniscule degree, whether intended or not. You don’t fill in the pond in your backyard to impact the general welfare . . . but the umpire says it does. We can’t veto the umpire’s decision. All we can do is vote in new umpires that aren’t idiots.

Btw, when the Danish cartoons of Prophet Muhammad was a raging controversy, NOT A SINGLE LIBERAL newspaper published the entire set of cartoons - remember, the so called Fourth Estate is supposed to be for free speech et al?

Only the Weekly Standard came close
http://www.weeklystandard.com/Content/Public/Articles/000/000/006/697dhzzd.asp

There is hypocrisy on both sides and i readily admit to that.

Btw, your “general welfare” argument is pretty elastic and can be used to justify not publishing the cartoons - the NY Times can point to the number of people who were killed in protests etc and say that it is worried that a similar reaction could happen if it published the cartoons again.

The Weekly Standard called that “it could lead to violence” bluff, but “general welfare” could be expanded to mean pretty much any thing by any one.

Your use of this term to justify agencies like the Department of Education points to the wide gulf that exists between conservatives and liberals on the most fundamental issues of the day.

Conservatives such as myself believe that education is an important thing - but not for the Federal Government to control - no it is not a “national” issue - its a local issue - its a family issue - by getting myself educated, I am doing first and foremost myslef a favor -and my immediate family - not my “nation” - that is only a side effect of me getting educated.

You dont get a job to drive down the national unemployment rate - you dont do it to increase the nation’s GDP. You do it first and foremost to feed yourself and your family and to live an independent and self reliant life - the one that your Founding Fathers cherished and fought so hard to win. What ever happens because of that is an effect of your personal situation.

This does not mean that we have no concerns for people who are less than able to fend for themselves - we just dont think it necessarily means that the Government should intervene in such a forceful way in the affairs of each state. We are also not naive enough to believe that all the Govt wants to do is to “educate” - Government officials have their own agenda on what it means to be educated - and sorry, they are not exactly paragons of virtue and neutrality.

If the Founding Fathers thought that education was a right, and that having three square meals a day was a right or living healthy was a right, they would not have hesitated to put it in the Bill Of Rights. They would not have hesitated to have the Dept of Education.

But their intent was not that. They wanted Government to GET OUT OF THE WAY - and do only what was minimally necessary for a state to function - they thought it was a necessary evil - NOT a force for good.

The Bill of Rights reads like the Ten Commandments - THOU SHALL NOT DO THIS/THAT etc - why is it a charter of negative liberties ?

Because the Founding Fathers DEEPLY Distrusted Man and hence Government.

I dont want to bore you any more, but i hope you understand where conservative’s clamour of limited Govt comes from. Yes, conservative politicians may be hypocritical ( No Child Left Behind !!!) - no, that does not mean we have principles of convenience.

Sincerely,
Naga

Wow, you did use the word “dictate” And here i thought that the Courts were supposed to be following laws as they were written - if there is no such thing as real meaning/intent/purpose for these laws and judges can view/interpret them as they see it fit, what kind of a system are we looking at ?

I do understand that the law does not cover for everything and every scenario - BUT, its origins and intentions need to be understood and agreed upon - that would be the very basis of changing them i.e. they no longer apply as they were originally written or envisioned.

Your question about having a standing US Army would fit this case - there was a reason that the Founding Fathers did not want to maintain/support an Army for more than a few years. They made sure that the Second Amendment would allow for people to arm themselves so that they could protect themselves - without the Government taking this right away from them. Their foremost fears was of a tyrannical Government FROM WITHIN - not an external one.

IF there was a foreign invasion, these same armed individuals could come together and join the Army, militias etc in helping to defend the homeland. BUT, they were left to defend themselves first and foremost - they could also rebel against a powerful and tyrannical central Government - similar to the one that America freed itself from.

We can debate all day long as to what these words mean - but the most important words IMHO, would be “shall not be infringed”.

Why is this important ? The Second Amendment is revolutionary in the sense that it says that it is there to protect and guarantee the right to defend oneself through bearing arms. It does not establish this right - it merely seeks to protect it from Government’s long nose. It indirectly acknowledges that this right already exists

So what is the source of the right to protect oneself ? Natural law. Self preservation.

http://plato.stanford.edu/entries/natural-law-ethics/

If the US has a standing Army now, it is contradiction to the spirit in which the original laws were made. BUT, we dont live in 1789 any more. The US has been intervening in world affairs since the conquest of California. And it is most definitely not the country the Founding FAther’s envisioned.

Btw, the Founding FAthers didnt grant the right to bear arms so that criminals could use it - they would all be for sane regulation - so your paranoia about the 2nd Amendment is not exactly warranted here. And even if these criminals got arms through loopholes, they would nt be able to attack innocent people with no impunity - they should know that the law allows them to protect themselves - a law that is enshrined in the Bill of Rights.

You still havent answered the question on whether liberals would allow for an individual right if they were to form a new Consitution - you only debated the meaning of the already existing one.

I will answer your questions on the First Amendment etc in another post

Right up front, being a very brief generalization the following is not completely accurate. As I said before, this is complex and complicated and can’t effectively be summed up in brief bullet points. I’ll do the best I can.

The usual origin for the Federal government’s authority under issues like this is Article 1, Section 8, Clause 1:

“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States . . ”

. . . and clause 18:

“To make all laws which shall be necessary and proper for carrying into execution the foregoing powers. . .”

The specific language is “general welfare”. The Federal government has the authority to, as it says in the preamble, “promote the general welfare”. Something that is for the good of us Nationally, not just for one State. Congress has the authority to raise funds to pay for the general welfare and then spend it to effect that purpose.

The Department of Education promotes the general welfare of the Nation by providing necessary educational direction. How ignorant we all are affects us as a country, so its a National (not a State) issue. Same for healthcare, food safety, environmental issues (that impact more than one State), etc.

Again, as a general rule, if something ONLY effects a single State, then the Federal government usually does not have the authority to control the issue. If it effects more than one State (and “effects more than one State” is usually interpreted very, very broadly), then the matter is “general welfare”, and the Federal government (Congress) has the authority per Article 1 to control the issue.

Now, if you can make an argument that education, healthcare, telecommunications, food and workplace safety, environmental concerns and the like are exclusively limitied in impact to only one State, then you can make a case. That’s what you usually see in EPA cases. The EPA comes into a State and starts controlling how a pond in someone’s backyard is being used or effected, and the owners sue claiming that it doesn’t involve interstate issues. A pack of migratory birds stops there once a year as they fly between States . . . and the matter just became an interstate issue.
Another current example is Medical Marijuana here in California. The DEA raids shops that sell it, and the defendants argue that since the drug was grown and used in California, the DEA has no authority to get involved. That fight is still being worked out as far as I know.

Think about it like this: the States are like people in a town (America). Each person is equal to each other. If a person wants to do something in the privacy of their own home, it’s not the town’s buisness. The instant it goes outside into public, then the town becomes involved.
Want to run around your house bare-ass naked? Enjoy. Are the windoes open and I (your neighbor) can see it? Then someone representing the town is going to come knocking to tell you either knock it off or at least close the damn blinds.
We (as States) are equal in authority. I have no authority to make you stop, and you have no authroity to make me stop looking in your windows. So unless we both agree (Constitution) to give authority to a 3rd party (Fed Govt) to settle disputes between us, then eventually there’s going to be a fight.

@Gayle Miller:

“I’m an odd sort of duck. I prefer to read the actual words of the Constitution and abide by those specifically and literally.”

Art.1, Section 8, clauses 12 and 13:

“To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy”

Congress has the power to “maintain” a navy. It specifically states “maintain” when it talks about the Navy. It has the power to “support” an Army . . . not “maintain”. By using two different words it is clear that they intended the Army and the Navy to be treated differently, as further evidences by them putting specific time limits on how long to authorize funding for an Army and no time limits on funding the Navy.
The literal interpretation of those specific clauses is that the United States only has Constitutional authority to maintain a standing Navy. We are NOT permitted constitutionally to have a standing Army. We can raise a temporary one, but then we need to abolish it when we’re done. These are the clear, literal, specific words of the Framers — they didn’t want this country to have a standing Army (see also Art.1, sec.8 cl. 15 and 16 to further make that absolutely clear). No tricky subversive interpretation involved.

(I’m not going to even begin to point out how unconstitutional an Air Force must be)

Since you “prefer to read the actual words of the Constitution and abide by those specifically and literally”, are you in favor of abolishing the Army (when the current conflicts are over) as unconstitutional? If not, how are you abiding by the specific and literal words of the text?

So the ruling gives the green light for taxes not delineated in the constitution, what about powers other than taxing? (i.e. Department of Education, administering healthcare, etc…)

granted, these powers need taxation in order to pay for them, but the powers there that need to be justified go beyond just taxation.

Here is a link to the full text:
http://newdeal.feri.org/court/301US548.htm

@ken.mcloud:
as I said before, the justification was “general welfare”. The national government can tax, taxing labor is traditionally acceptable, and the problem of unemployment was considered a legitimate national issue. That sounds dangerously vague, but only because it can’t really be summed up in a couple of sentences. The text is thick and often boring, but the explanation is all there, with references to all the case precedents that they used to justify it.

Re the Constitution - it is what it is. It’s the basis of our REPUBLIC (not democracy to those pinheads who insist on calling it such).

Our current president is rapidly carving out a niche for himself as unarguably the absolute worst president in the history of the Republic - against some touch competition (James Earl Carter, Jr. comes to mind together with Warren G. Harding). I don’t think he has committed any impeachable offenses so far, but he can be constrained by the election of an opposition in both the House and the Senate. The removal of the Botox Queen and the Cadaver from power would go a long way towards protecting our land!

http://www.oyez.org/cases/1901-1939/1936/1936_837/
(brief summary of the Steward Machine case, with a link to the full text of the decision on the left of the page)

http://supct.law.cornell.edu/supct/html/historics/USSC_CR_0301_0619_ZS.html
(summary of Helvering, with a link to the full text of the opinion at the top of the page)

“Or did they take the route that Sotomayor did in the Ricci case and not even offer an explanation for their ruling?”

The unanimous Appelate Court in Ricci agreed with the rationale of the trial court:

“We affirm, for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below. [citation]. In this case, the Civil Service Board found itself in the unfortunate position of having no good alternatives. We are not unsympathetic to the plaintiffs’ expression of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated. But it simply does not follow that he has a viable Title VII claim. To the contrary, because the Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted
with test results that had a disproportionate racial impact, its actions were protected.
CONCLUSION
The judgment of the district court is AFFIRMED.”
http://www.ca2.uscourts.gov/decisions/isysquery/ca4649bf-2360-4eb9-a227-79fccae85535/4/doc/06-4996-cv_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/ca4649bf-2360-4eb9-a227-79fccae85535/4/hilite/

Since the trial court already explained their rationale,and the Appellate Court agreed with them, there was no need to re-write everything the trial court already said. Here’s the trial court’s (pretty damn through) explanation:
http://online.wsj.com/public/resources/documents/federalcourt-ricci06-03903.pdf

The Appeals Court (again, the unanimous Appeals Court) basically said “yeah, their explanation is right”. What did you want them to say?