I know you like to bring up the point of Congress not being able to legislate against speech (ref Flag Burning). But why? If the 10th Amendment is meaningless, why is the 1st untouchable? or the 2nd, 4th, 5th, et al. Sooner or later (i’m betting on sooner), someone will come up with the argument that criticism of the gov’t is bad for the country, it will get congressional political support (from the statists), and Congress (and the Prez) will enact a law saying its in the interest of the gov’t to ban this type of criticism. SCOTUS case law (look at O’Connor’s majority opinion in the Michigan university’s affirmative action case it totally disregards the 14th amendment) will show that “if it is in the gov’t interest, then it can be done”. Similar case law exists per the abominable Kelo decision. After all, the 1st Amendment was written over 200 years ago, surely it has no relevance in today’s 330 million pop industrialized society.

If the Constitutional text is merely a suggestion, there is no Constitution. That’s where the debate in society should be. Should our nation abandon it outright and simply rely on the goodness of our dear leaders to do the right thing? Lets see how well that goes down in society. Instead, our “leaders” simply usurp the power saying it is for the good.

I stand on the side of preserving, protecting, and defending the Constitution in all its glory and faults.

I don’t see how the FAA was absolutely necessary to ensure safety of aircraft. If air travel isn’t safe, manufactures and airlines wouldn’t make any money, so they have a vested interest in making it safe. But, like I said, the FAA is directly related to interstate commerce, something that Congress has the authority to maintain in order to keep trade flowing between the states. Therefore the FAA is not an unconstitutional usurpation.

SS is unconstitutional however. Yes, abandoning it would harm those who were FORCED to rely on it. So, abandon it for anyone who wishes to keep the extra 12% of their income and for any future generations. Pay for it out of general funds (as is done anyway). Yeah, it will put some extra cost for a time, but better to head off the inevitable future train wreck as the system becomes more and more unsustainable. Plus the extra 12% income in folks pockets (or for the folks to invest for their retirement as responsible folks should do) will spur on investment in this nation and lead to growth, much like 401k’s did when they started in the 80s. That extra growth (and inevitable tax revenue) will offset much of the lost revenue due to diminished FICA returns.

The only check on SCOTUS is (depending on the text of their decision) for the Legislative branch to re-write the Federal law or amend the Constitution.

Example1: Congress passes a law impacting “vehicles”. Is a Segway (those mall-cop scooters) covered by the law? If the law is unclear, the Courts (with SCOTUS at the top) will say what “vehicles” means based on a variety of established rules (stare decisis, precedent, etc.). If Congress doesn’t like their interpreteation of the the word “vehicle” then they can re-write the law to state its meaning explicitly.

Example2: Congress passes a law saying “you can’t burn flags”. The Courts (with SCOTUS at the top) review the law (if challenged) to make sure Congress has the Constitutional authortity to do that. In this case, burning a flag is a form of protest speech, and the 1st Amendment prohibits the government from legislating it in that manner. Can’t do it in a fireworks factory — fine. Can’t do it at all ever — no. If Congress (or the people) don’t like it, they have to Amend the Constitution to say “The 1st Amendment doesn’t cover flag burning” or some such. Then, it’s constitutional and SCOTUS is going to have to say the document allows the flag-burning law.

I have never, and will never, claim this is the “best” system in terms of SCOTUS being all-wise and never making bad decisions. Dred Scot is the most obvious example of them being totally, clearly, utterly wrong in thought and deed.
But wrong as that case was . . . it was the law.
There are certainly dangers in this type of governmental system. You are correct that under this system SCOTUS has the actual power to declare themselves Gods and legally demand human sacrifices. That’s why they (a) can’t actually do anything and (b) can’t choose what to decide. They choose what questions they are asked they want to answer . . . but they can’t say “we want to decide flag-burning”. If nobody asks them to voice an opinion, then they are impotent.

That last part is IMO the magic key to making the system work. Judges (and the Judiciary in general) exist to referee disputes between entities in a society. If you and I have a dispute (I think you owe me money, for example) and we can work it out between us, then the Judges sit around playing solitare. If we CAN’T work it out, either we agree to let someone else make the decision . . . or there is going to be a problem. We agree as people to submit voluntarily to the decision of the Judiciary, because otherwise I’m coming by with a baseball bat and getting my money you theiving sumbitch . . . and we are at some unpleasant “Mad Max” situations now.

Advocating “ignore SCOTUS” is IMO (and I gotta say I’m fairly confident I’m objectively right about this) advocating for Revolution, and not the cool “waving a flag on the barricades” way but in the “people bleeding to death in the street as the city burns” kind of way.

Without a mechanism like this, all societies throughout history collapse. Give me two months and 30 hours and I’ll document it all out for you, but for brevity’s sake I ‘ll just say I swear to you (for whatever that’s worth) that this is essentially a settled point amongst societial historians, political ideology be damned.

We CAN ignore the courts. Congress and the Executive CAN tell SCOTUS to go to hell. But that is essentially triggering the self-destruct mechanism to keep America from being corrupted beyond repair. It is the LAST step, because it WILL lead to the disolution of the United States. Its a final solution.

To me, these are “Defcon 1″ actions — amend the Constitution, radically restructure the American Government, etc. You DON’T do it over a policy dispute. Or you shouldn’t. Over 200 years and we only have 27 Amendments. The 1st 10 were an almost immediate edit of the Constitution, 21 is just to override 19 (illustrating why editing the donstitution is not something to do over policy issues), 14-16 were all at once . . . Americans avoid editing the stone tablet as much as possible, and we should.
You shouldn’t put all Federal law into Amendments because you shouldn’t Amend the conbstitution if you can possibly avoid it. That’s what the Federal Law IS — Congress is charged with taxation, and so the Federal Tax Code is the detailed embodiment of that Constututional power.
You need a detailed embodiment of Constitutional power to get things done. But the actual code itself is designed to be changed much easier than changing the Constitution. The Constitution is the simple statement of ideas and principles. It laws down the parameters of the system. But the details of the system are constantly in flux. The Federal Code gets amended, adapted, updated, redacted, all the time.
The Constitution should always remain as pure and minimalist as possible. You don’t want, purely for practical necessity, a Constitution that spans thousands of pages. The Constitution isn’t the Law, or the Government. It guides how they look, but it isn’t the actual nuts-and-bolts blueprint for how everything works.

a) You are logically consistent, and I both admire that and salute you for it. I don’t agree, but you’re not making it up as you go along and I’ll never begrudge another’s reasoned opinion no matter how much I disagree.

c) Social Security — you raise the benefits of eliminating Social Security. What about the problems?
All the current SS receipents — throw them out on the street? Some people rely on it to live. Cancel the program, and they will die. MILLIONS of Americans could well die because of what you are proposing.
I’ve been paying in for 2 decades . . . you telling me that I’ve just had all that money disappear? That’s a couple hundred million people you just re-wrote their entire financial existence.

What about the FAA? Get rid of it? Unconstitutional? Let the States all set their own rules for pilot licensing and procedures? What does that do to air travel? Product shipments? International business? Our economy? What happened for a few days after 9-11? Why did Regan bring in scabs? Because we NEED air travel as a country. How long do you think it will take all 50 States to get their stuff in order?

I just don’t see following this idea to its logical conclusion as being an option. I acknowledge and admire the intellectual consistency and purity of the idea, and in pure debate I’m waving the red flag right along side of you. But in terms of implementing it into reality — no. Its not a sound plan of action. I respectfully disagree.

Yes, states were supposed to be creating military officers and the fed was supposed to “raise” the army grunts. It worked for the North during the Civil War. And yes, a Constitutional Amendment should have been put forth for federal military academies creating officers. I’d bet that Amendment would have passed unanimously. The Constitution does not prohibit a standing army (the framers did not invision one tho), it only declares funding for it can only be appropriated for 2 years at a time. Congress simply votes in new money for it each year. No constitutional issue whatsoever. If Congress fails to fund, the army does not get paid, and we therefore have no more army. Oh, and you dont think Patronage, Cronyism, graft, etc occur in the military now? Congress approves promotions of generals after all.

On your concerns…

a) The Dept of Energy, Education, Social Security, are unconstitutional. Education has gotten worse and more expensive since the fed got involved (just look at education funding, adjusted for inflation, and test scores since the fed got involved. Graphs do exist.) Dept of Energy was created to end dependence on foreign oil, but they have done nothing since their inception and our dependence has increased. They are simply a black hole sucking in money. Social Security is a bankrupt ponzi scheme. I’d prefer to keep the 12.5% or so of my income put into it myself. I’d get a better return putting it in the bank or stuffing it in my mattress. The FAA is a slightly different issue since that is directly related to interstate commerce and opening trade between the states. The airline industry started its life without the FAA, and I would bet they have a vested interest in making their planes safe, even without an FAA.

b) my answer isn’t yes.

c) no SS means more income at retirement for people that work during their lives. For people that don’t work, well, I’m not here to provide them a free ride thru life or to provide for those that are irresponsible. No Education Dept means the states and municipalities do what they did for 200 years and handle it all themselves when we were the world leaders in education, manufacturing, research, well, just about everything. No Energy Dept means lower prices everywhere since the gov isn’t taxing for this Dept that has done absolutely nothing it was founded to do.

On a general note about various agencies you deem necessary…why not put them into amendments before they were created? It is what was meant to happen. I’d bet 3/4 of the states would agree to many of the functions that exist. Others, they may not tho. That’s the way it should be. We would not devolve into complete anarchy if the fed was stripped of the unconstitutional powers it has usurped. There would be a rough ride for a short time. States still have power and were meant to have more “control” of its citizens then the fed. The fed is there, basically, to protect the union of States. The framers intended the nation to be as close to anarchy as possible, without going into chaos. I don’t believe the health care system is “chaos” since 85% of the folks are completely satisfied with what they get and half of the remaining don’t want insurance. Out of curiousity, slavery was known since the founding of the nation to be wrong. It was not prohibited at first in order to maintain the union during the Revolution. After the Civil War, what did we do? Did Congress simply make slavery, an obvious wrong, illegal??? No, the 13th, 14th, and 15th Amendments were enacted to right those wrongs. Congress didn’t simply usurp power in order to ban it. The nation needs to get back on this track or there is no freedom, only Tyranny. Government, by definition, is the polar opposite of Liberty. Gov’t needs to be minimal and defined. It does not get powers unless we, the people, give it to them. And in our framework, that process is by Amendments. Anyone that does not think the Amendment process is needed for extra Federal powers, does not believe in the Constitution and its constraints. We might as well not even have a Constitution.

You asked where in the Constitution were they given authority. It’s in Article 3. I take your point to be that the Constitution does not say something like “The Supreme Court shall be the decider in Constitutional issues”, and you are right that it doesn’t say that. But they ARE the ultimate arbiter of legal disputes . . . and the Constitution (and what it means) are legal issues.
Did they “sieze” the authority? If not them, who IS supposed to settle disputes just like this? Nobody? Open armed combat?

Congress can’t write laws beyond their authority — who’s gonna stop them? The Executive can’t act beyond its bounds — same problem. The whole point of having three branches instead of two is that the referee doesn’t stand to gain in any dispute. One decides, another performs and the thrid permits.

That became manifest in Marbury v. Madison because both sides (Executive and Legislative) agreed that the Court makes the call. Everything we’ve done since then as a society has been predicated on that reality.

re: the Air Force — touche. A bad example on my part for what I was trying to say. Yes, the Air Force could be re-envisioned within the Army.
So what about the FAA? Not part of the Army (not “defense” at all), not part of the Constitution, and I submit absolutely something that we need to exist as a society in this day and age. Atomic Regulatory agencies. How does the “if it ain’t literally in the Constitution then its out” analysis not demand that civilian services like these unConstitutional? Assuming that they literally ARE Unconstitutional . . . America falls apart.

You mentioned the Army. I agree that, literally, the Constitution prohibits a standing Army (although you and I are apparently the only ones that can actually see those words). As you note, there are provisions for 2-yr creations, so you could re-create the Army as only being an eternal series of 2-yr Armies.
But it also requires that the officers be selected by the State Militias. That’ll be interesting. What about career officers with pensions and benefits? Do they have to cash out every 2 years (since the Army is “over”) and then roll it over into the “new” Army’s benefits? Can the Army refuse to “hire” someone between the two year hitch? If I sign up for a 6-year tour, and the Army “ends” after 2, can I get out of the other 4 years? Who holds my contract — the Federal Government, the State (with Militia control)?
Can a State force the Federal government to make somebody an officer in the Federal Army (Constitution says yes)? Just play that last one out in your imagination. To me, I can’t see how that will end in anything other than an utterly worthless Army. Patronage, Cronyism, graft, favors, “All the Generals should be from Ney York!” . . . am I paranoid? Could this possibly not end in total disaster for our military? And therefore, a direct threat to our safety?
What I’m seeing is that the standing Army is “unconstitutional” in the sense you are describing. Or rather the issue is a debatable one — there is a fair and evidence-based argument that it violates the terms of the document. My point is that kind of interpretation simply can’t be applied to the United States Government in a practical manner because it would have to completely dismantle the Government, and thereby dismantle America. Right and wrong are philosophical abstracts at this point.
I keep coming back to when I talk to people about Anarchy. Sitting in a bar over beers, sure the concept has philosophical resonance. In a post-Industrial society of 330 million people? Absolutely not ever going to work. Its just not practical. The interpretation I’m hearing from you seems to be as impractical. I’m not saying that in a rude way — I misunderstand things all the time. Maybe I’m hearing you wrong. But this is what I’m hearing, and I can’t follow it all the way through.

You talk about amending the Constitutiojn to give the Fed government powers. Yes — but we’re back to the question “what constitutes a new power”? If “healthcare” is a new power because the word “healthcare” isn’t in the Constitution, then (again) you have to eliminate most of the Federal Government (yay!) which will destroy America (boo!). How do you distinguish between healthcare and the FAA on the basis of “not literally in the Constitution”?
I absolutely DON’T think that all of the Federal laws, Agencies, Regulations, Statutes and so forth should be Amendments to the Constitution. Absolutely not.

Let me try to sum up my concern:

a) Does your understanding of “not in the Constitution” allow for the Federal Government as it exists (FAA, Dept. of Energy, Dept. of Education, Social Security, etc.)?

b) If yes, what’s the difference between them and healthcare?

c) if no, what do you see as the consequences?

One other thing on your belief in the supremacy of SCOTUS…

Congress (and the Prez) determine the jurisdiction of the federal court system. Any issue not directly stated in Article III as being the realm of the Federal Judiciary (Article III is the entire Judiciary, not just SCOTUS), is subject to being deemed out of bounds by ANY Federal Court review and there is nothing SCOTUS can do about it.

Supreme my ass.

Then point to me where in the Constitution it says that the SCOTUS is the supreme decider on the constitutionality of an act. You can’t. They just assumed it in Marbury v Madison. If the SCOTUS was intended to be the supreme in this, then we are ruled by 9 individuals instead of governed by 535 and an executive. That was not the intent of the Framers. I know reality. I know how things work today. That does not make it right, nor should it be an excuse to allow an unconstitutional power grabs to continue to occur.

If the SCOTUS is supreme, how do they enforce their rulings? SCOTUS has no arms. None at all. They don’t direct the justice department, the military, or any other arm of the government. All they do is release an opinion. What if the Prez decided not to enforce? Is the Prez wrong? What if Congress decided to continue funding an act deemed unconstitutional by SCOTUS, with the signature of the Prez? Can SCOTUS do anything about it? How do they enforce? I see nothing in Article III that gives any enforcement powers to SCOTUS. Therefore, it is easy to see that all branches of the gov’t are EQUAL in determining constitutionality, regardless of Marbury v Madison or your law professor.

The States created the Federal Gov’t and gave it defined, limited powers. I would expect that would be obvious to anyone with a remote grasp of history. It is not within the scope of the Fed to simply take more when it deems it must, no matter how “good” the intentions might be. The states, and the people, must give it the power thru amendments. The States were supposed to be experimenting with different forms of governing. This brings out competition between them to, hopefully, find the best way to govern. Wouldn’t it be nice to have 50 different (or 57 if you’re Obama) methods of health care “reform” to see what works best instead of only 1 all encompassing madness imposed by the oligarchy of the Federal Gov’t? Simply saying that its been done a certain way for 100 years or so is meaningless if one believes the Constitution is the basis of nation based in freedom(which it is). The Constitution was written in plain English so that it is easily understood by the common man. It doesn’t take a lawyer or, ahem, a professor to figure it out. Its all there in simple English. That is its beauty. If the wording of the Constitution, the Supreme Law of the Land, is not followed, how is there any law at all? Any “laws” would be subject to the will of man and change according to man’s whims. That is no longer a nation based in Liberty, but one of Tyranny.

You bring up the Air Force. That’s a reasonably valid point. OK, I’ll just rename the Air Force to be the Army Air Corps (sounds familiar for some reason). The Constitution, and the Framers, did not intend for there to be a standing Army, that is true and its a reasonable debate to say having our standing army be declared unconstitutional. However, Congress can fund the army for a period of up to 2 years by a single act, and they can repeat that funding every year (or 2 years) if they deem fit per Article 1 Section 8.

The Framers intended the Constitution to be adaptable. OF COURSE!!! But not just by simply “interpreting” a power. It was adaptable by the Amendment process only. You want to give the Federal Gov’t more power, amend the Constitution. It seems people always forget about that. The Amendment process is there to ensure the support a vast array of people. A simple majority in Congress does not ensure the vast support of the people (as the bailouts, “stimulus”, amnesty, health care, etc make abundantly clear).

One other point, since you disagree with me on the General Welfare clause, there is another aspect of that clause that says that “all duties…shall be uniform throughout the United States”. Shouldn’t that mean that income taxes should be the same for everybody and that the progressive tax system in unconstitutional, seeing that the 16th Amendment doesn’t alter this clause? Now, don’t just pick and choose the things you want to follow in the Constitution.

“The SCOTUS is not the final authority on what is Constitutional.”

Actually, yes. Yes they are. You may not like it — but I assure you they are absolutely the final decider. To quote my old Con Law Professor Sultan; “If the Supreme Court calls and apple a banana . . . then its a banana”. The reality is that they ARE the ultimate judge. That’s a fact that you may not like but surely you don’t deny its existence?

The disagreement with the exact intended complete meaning of the language has been debated for hundreds of years. I respect that you believe you are right. I believe that I am right. We can both point to history. To the Federalist Papers. To the debates. Neither of us will “win” this argument, if “win” is defined as being unquestionably 100% correct without dispute.

Fortunately, we don’t have to try and be “winners”. As you pointed out, the Supreme Court is the final word because of Marbury v. Madison. Notice I said it “is” the final word. Should it be? Shouldn’t it be? It IS. Disagree all you want, but you and I don’t get to make the call. They do, and that is an undisputed fact.

You don’t like it? Fair enough. You want to go to a government that hasn’t existed for over 200 years? No problem. But it’s not a feasible plan, however intellectually pure it might be.

You argue that Clause 1 isn’t an enumeration of power, but rather merely window dressing. I disagree . . . and so do the Supreme Court. Do you think the Air Force should be abolished? nothing in the other Clauses of Art. 1 Sec. 8 mentions an Air Force. It doesn’t fall under “Army”, “Navy”, or “Militia”. It’s only Constitutional authority is under the common defense . . . and that term is never mentioned but in the same sentence as general welfare. If they meant one, they must have meant the other.

Yes, “general welfare” theoretically could mean anything. Honestly so could “common defense”. That’s one of the reasons for the Bill of Rights — you CANNOT define General Welfare to include shutting up dissenters, for example. They made to limit it precisely because it WAS something that could be broadly interpreted. Because it was INTENDED to be broadly interpreted. If something comes up that we didn’t cover, is it a good idea? Debate it. If the government should do it . . . then they should. If they shouldn’t, then they shouldn’t.

They didn’t think that the Constitution was unadaptable. They intended for it to adapt to changing times. That’s why it has the “general welfare” language, as well as “common defense”. The details are for the people to work out.

They KNEW their document was not going to cover all contingencies, all issues. It’s supposed to have flexibility. Again, consider the Bill of Rights. They immediately went back and said “General Welfare does NOT cover muting dissenters”, but they very specifically didn’t say what “general welfare” DOES cover. It doesn’t mean A, B, C, or D . . . but we’re very delibrately NOT going to tell you what it does mean. The citizens and elected officials are supposed to wonder if healthcare is “general welfare”. They are not supposed to wonder if it means anything atall.

Whether you or I disagree with what I just said is irrevelant — we aren’t the Supreme Court. They said it is. To change their final word on these issues would literally destroy the United States. The ENTIRE government and legal systems would have to be rebuilt from scratch. That’s not hyperbole. I can’t emphasize how destructive that would be.

Should we completely destroy the corrupted system and completely remake America from scratch? Maybe we should. But that’s not going to happen. It’s not an option . . . and frankly I wouldn’t support it even if it was.

One more thing…

If “promoting the general welfare” was meant to be an actual enumerated power, then, no other power needed to be listed in the Constitution itself. That one statement would have covered everything that proceeded it and nothing else would need to have been written to “define” the powers of congress. If that is true, Congress would have been no different than King George III, who famously said…

“I only desire what is good, therefore, anyone who disagrees with me is a traitor.”

It matters not if healthcare should be considered “promoting the general welfare”. “Promoting the general welfare” IS NOT one of the enumerated powers. Yes, those words are there, but not in the listing of powers that Congress has. The “general welfare” clause is part of the header to the enumerated powers. It is meant to say that congress is to pass legislation in the following enumerated list that will promote the general welfare (instead of, say, hindering the general welfare). The framers envisioned this to include such things like defense. General Welfare itself is NOT meant to be a catchall that lets Congress do whatever the hell it pleases. I point you to the Federalist Papers to look at what the framers intended. The powers of Congress were to be few and defined.

You say that the framers didn’t intend for the Congress to be “too restricted”. Actually, that’s exactly what the Framers intended. They specifically gave certain powers and left everything else to the States. Many of the Framers didn’t even think the Bill of Rights were necessary because all those things in the Bill of Rights were not mentioned in the text of the Constitution itself and therefore meant that Congress could not legislate on those matters.

You may think I wordsmith the “general welfare” statement in Article I Section 8. I do not. I simply paraphrase the framers own statements. I don’t give a shit what the Supreme Court has ever said on the “general welfare” clause. The SCOTUS is not the final authority on what is Constitutional. The SCOTUS gave themselves that power during the Marbury v Madison case in the early 1800s, but that case’s decision is not based on the Constitution itself. All branches of gov’t, the states, AND THE PEOPLE decide on what is Constitutional or not, nothing in the Constitution grants the final decision to SCOTUS. Yes, I might be dreaming on that, but it is what was envisioned at the founding.

Yes, the enumerated powers are in Art.1, sec.8. The amendments, at least the first 10, don’t give authority but rather restrict the Art1Sec8 powers.

They restrict the powers in the body because those powers are broadly written. Congress has authority for “general welfare” (Art.1, Sec.8, Cl.1) — making sure citizens have healthcare isn’t part of a duty to maintain general welfare?

Maybe it is . . . maybe it isn’t. This strain of the debate isn’t “does universal healthcare for citizens fall under that eunermated power?” but rather “it is a concrete fact that universal healthcare is NOT part of ‘promoting the general welfare’ . . . now lets debate of Congress should do it”.

I’m more than willing to listen to anybody that can explain how health care isn’t a subset of “general welfare”. So far, the only explanation I’ve heard, in this or any other thread, is either “it isn’t you hippie” or some version of “it never was before”. Neither are pursuasive.

To the first, I pithily respond with a devistating “Yes it is”. Blanket declaratory statements don’t really establish anything except what the parties believe.

To the second, we’re back to my questions to Eric above. The evolving nature of human society requires constant refinement to how our government works . . . and yes, sometimes it requires adding to it. As I said before, the FAA isn’t enumerated in the constitution — surely you aren’t for getting rid of it?

“Promote the general welfare” doesn’t mean the Government micromanages every aspect of your life — that’s too broad, and the Framers didn’t mean that. In the same vein though, it also doesn’t mean government runs elections, the postal service, the navy, and the Militias . . . but not one damned thing more. That’s too restrictive, and again the Framers didn’t mean that either. Somewhere in between is the “sweet spot”. That’s what we as a people are constantly striving for. And that means that when we are faced with “expanding” the role of government, we should first debate whether the issue is an enumerated power or not. I haven’t seen any debate on this . . . and that’s the problem.

Like I said before, if you or anybody can explain to me how healthcare shouldn’t be considered “promoting the general welfare”, I’m all ears (well, eyes). It seems like an obvious definition, but words are slippery critters, so I could be wrong. But I need some kind of explanation as to why what appears (to me, at least) to be an obvious idea in reality isn’t.