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Show ALL Forums  > Politics  > Useful, but also unconstitutional?      Home login  
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 flyguy51
Joined: 8/11/2005
Msg: 1
Useful, but also unconstitutional?Page 1 of 2    (1, 2)
With the election of President Obama and the subsequent rise of the Tea Party, there has also been a noticeable resurgence in "strict constructionists" (aka strict constitutionalists). They are even apparent on this very forum, which is the reason for this thread.

The problem with being a strict constructionist in the present day is that it inevitably leads to inconsistency. There are federal entities that we now take for granted that have been quite useful, even in the eyes of right wingers. The problem is one of constitutional basis.

As a prime example, take NASA:

NASA: Still Unconstitutional After all These Years

Today, 20 July 09, marks the fortieth anniversary of the first moon landing. Be prepared for a lot of American triumphalism. While I agree with our friend Tom Piatak that those were better times and American triumphalism sure beats PC American self flagellation, it is important to remember that NASA was and still is an unconstitutional expenditure. Federal funding of space exploration for space exploration’s sake, or for the advancement of science, or just to say we beat the Russians, or whatever, is not constitutionally authorized. You could make the case that a space program that is intended for defensive purposes, such as SDI, is authorized, but otherwise NASA should be scrapped.

http://conservativetimes.org/?p=3542


I could also add to the list:

- US Air Force
- NOAA
- FAA
- NTSB (Heck, the whole DOT, really)

Should these be abolished? Or is there a strict constitutional basis for these?

Tea Partiers act as though our Founding Fathers were all strict constructionists by definition, but that is historically false. They argued amongst themselves endlessly; some changed their minds later in life.

It is easy enough, and all too convenient, to be against the constitutionality of programs one doesn't really care about...
 motown_cowgirl
Joined: 12/22/2011
Msg: 2
Useful, but also unconstitutional?
Posted: 5/24/2013 4:11:52 AM
strict construction isn't required in the manner suggested here to maintain a constitutionally compliant NASA, NOAA, FAA, other federal agency. the establishment of federal agencies is implicit in article 1 section 8 -- enumerated powers. while "enumerated powers" is in itself a strict construction concept, it's just a framework. it was never meant to be a laundry list of the agencies the federal government would never be allowed to establish because they weren't defined. some of the clauses of article 1 section 8 would clearly have to be interpreted broadly to be useful or to have any real meaning.

I really like it when people pay lip service to the constitution not because they cared about real meaning or a principle but because they had a completely different agenda they wanted to defend by calling it constitutional or unconstitutional. I guess they were too stupid to come up with a more persuasive argument. use the C-word. seems legit.


You could make the case that a space program that is intended for defensive purposes, such as SDI, is authorized, but otherwise NASA should be scrapped.

on that basis, we'd just get rid of NASA entirely and move all its goodies under the department of defense. think of the cost at taxpayers' expense just to change the stationery. it makes no sense.
 IgorFrankensteen
Joined: 6/29/2009
Msg: 3
view profile
History
Useful, but also unconstitutional?
Posted: 5/24/2013 5:42:23 PM
The biggest logical problem I have with every self-styled "strict constructionist" I've ever heard of, met, or read blather from, is that not even ONE of them actually WAS a "strict constructionist."

My favorite was a woman I ran into during the Reagan Administration's "strict constructionist" fad period. She went on and on about how she was certain that we should all return to, and live by the rules that the "Founding Fathers" (another mythical misnomer) intended. She was entirely oblivious to the fact that this meant that she would never be able to vote again, and in fact SHOULD never vote, so long as she claimed to believe as she did.

If we did decide to play a game of "what would be left if we limited the Federal government to what was specifically listed in the Constitution when originally written, then we'd have no Departments of ANYTHING. No Defense, no anything. No congressional committees. No FBI, no CIA, and on and on. No standing armed forces of any kind. No interstate highway system.

Our great western border wouldn't be the Pacific Ocean, it would be the Mississippi River. Florida would be in Spanish hands, or Cuban by now.



It's all so silly.
 Aries_328
Joined: 10/16/2011
Msg: 4
view profile
History
Useful, but also unconstitutional?
Posted: 5/25/2013 12:20:36 AM

It's all so silly.


It isn't silly. It's life. It's messy, unnecessarily complicated, imperfect, and confusing. Not adearing to a single minded approach to all things is messy. It's also better.

Rolling your eyes at the 'silliness' is silly. It's quite complex, adult and human.

Explain how else it could possibly work combining multiple long standing traditions and cultures under an ideal that the freedom to think, act, and be individuals is an imperative.

Try working within the context of a document that doesn't list everything you can do but specifically lists very specific areas you can't do.

The benefits of programs allowed can be justified but it will not be easy. That doesn't make it silly.
 IgorFrankensteen
Joined: 6/29/2009
Msg: 5
view profile
History
Useful, but also unconstitutional?
Posted: 5/25/2013 1:48:14 PM

Explain how else it could possibly work combining multiple long standing traditions and cultures under an ideal that the freedom to think, act, and be individuals is an imperative.


We agree again, if I read you right. "Strict Constructionists" are the silly ones, imagining that there can and should be exactly one right way to interpret a set of very general instructions, such as the U.S. Constitution....and that nothing should ever be done, other than was specifically stated in it by the original authors.
 Aries_328
Joined: 10/16/2011
Msg: 6
view profile
History
Useful, but also unconstitutional?
Posted: 5/25/2013 5:15:35 PM

We agree again, if I read you right. "Strict Constructionists" are the silly ones, imagining that there can and should be exactly one right way to interpret a set of very general instructions, such as the U.S. Constitution.

We agree differently. Being of a single mind to run around the rules in place is destructive and defeating to the reason those restrictions were put in place. Not seeing that is not silly, it is counter productive.

There will and should always be opposition to those that want to twist and turn things to fit the feelings of the day. If they can respond to the concerns of those that feel the constitution matters we would be in a different place.

None of it is silly.
 enigoM
Joined: 2/18/2013
Msg: 7
Useful, but also unconstitutional?
Posted: 5/27/2013 4:58:59 AM

imagining that there can and should be exactly one right way to interpret a set of very general instructions
what nonsense, there may different interpretations of the same very general set of rules but the intended purpose of the instruction is without question..you guys like to expand the interpretation to encompass anything that you think it should without any regard for the original intent and the spirit in which it was written..Problem with Liberals is there is no Black or White its all grey, that way they don't have to stand behind any principles..Right and Wrong don't exist..you want to amend the Constitution in accordance with your World view with no regard for the founding principles..
 CynthiaSM
Joined: 2/24/2012
Msg: 8
Useful, but also unconstitutional?
Posted: 5/27/2013 2:27:58 PM
The problem with being a strict constructionist in the present day is that it inevitably leads to inconsistency.

Actually, the problem with being a strict constructionist is being a strict constructionist because that term conflates two very separate forms of constitutional interpretation so as to be a meaningless term. See generally wiki Strict Constructionism - http://en.wikipedia.org/wiki/Strict_constructionism

You see examples of this confusion in the few posts on just this thread. The two forms of constitutional interpretation that are being conflated are otherwise known as:

- historical, originalism, founder's intent, or framer's intent - this 'school' says the constitution should be interpreted forever according to the founder's intent. The problem is determining who constitutes the founders (or framers) and how do you determine their intent? Are the founders (and documentation of their intent) only the Constitutioanl Convention? Or, should it also include the states' ratifying conventions? What documents should be used to interpret the original intent and where there's a conflict (such as the role of religion within government), which framer's 'intent' (or documents) trump? And why would the framers support this form of constitutional interpretation in perpetuity when they were expressly drafting a document that was able to be amended with the changing times?

- textual - this 'school' "rests on a sort of ongoing social contract, whose terms are given their contemporary meanings continually reaffirmed by the refusal of the People to amend the instrument. (Constitutional Fate by Phillip Bobbitt, p. 26). In other words, this version of strict construction rejects the framer's defintion of the text in favor of the contemporary definition of the text. This is the constitutional interpretation favored by Justice Hugo Black because it made the Constitution accessible to the layman.
 CynthiaSM
Joined: 2/24/2012
Msg: 9
Useful, but also unconstitutional?
Posted: 5/27/2013 3:02:48 PM
As far as the constitutional basis for NASA (not going to go into the other agencies listed by OP):

NASA was established by The National Aeronautics and Space Act Pub. L. No. 111-314, 124.
While the Act does not specify which Constitutional article provides the authority, it can be argued they covered their bases in the Congressional declaration of policy and purpose:

- Sec 20102 (a) & (f) NASA is to promote the progress of science through a civilian organization and then funnel the learnings to the agencies that can make the best use of the information. This is Congress's authority to promote the progress of science ... (U.S. Const Art 1, Sec 8(8))

- Sec 20102 (c) NASA is to encourage commercial use of space to the extent possible including with foreign nations which could be within Congress's authority under the Commerce Clause as easily as many of the interstate commerce cases have been held constitutional. (U.S. Const Art 1, Sec 8(3))

- More generally, Sec 20102 (e)(g) NASA's research is in the service of national defense which is authorized by U.S. Const Art 1, Sec 8(1)

And as motown suggested, using a textual interpretation of Art 1, Sec 8(18) an agency such as NASA is constitutional as "necessary and proper" to carry out the authorized powers.

If you want to get into more detail about any of these points you can email me directly so we can negotiate my rate ;-)
 IgorFrankensteen
Joined: 6/29/2009
Msg: 10
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History
Useful, but also unconstitutional?
Posted: 5/27/2013 5:22:51 PM
Thanks for that very intelligent and informed (I think) final word on this bit, Cynthia.

In my typically generalist way, I would only add that the fact that something isn't specifically mentioned IN the Constitution, does NOT mean that it is UN-Constitutional. To be UN Constitutional, it has to go against the Constitution in a clear way.
 Aries_328
Joined: 10/16/2011
Msg: 11
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History
Useful, but also unconstitutional?
Posted: 5/27/2013 6:03:39 PM

In my typically generalist way, I would only add that the fact that something isn't specifically mentioned IN the Constitution, does NOT mean that it is UN-Constitutional.


I wish that made sense. You are not general. You only say you are. You just choose to not disclose your position. What is and is not constitutional in a strict sense isn't so utterly ambiguous that it cant be understood. Some parts of it are very much open to arguments in one direction or another.


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.

If it isn't spelled out then it is up for challenge. It's pretty clear. Healthcare, entitlements, size of sugary drinks, who can who can not marry, abortion, drugs, and many other restrictions on choice, opportunity, privilege or influence of religion is all entirely legitimate discussions and valid as arguments against federal authority.

The one thing in the list provided earlier that made no sense was Air force. That is easily a responsibility of Federal Government. As are the negotiations of treaties and securing of boarders.

Why do you have to be a generalist in this? I do not understand the logic at all.

Are you saying that if you spent more time and looked into it you would have an opinion and until then anyone else must be bias?
 CynthiaSM
Joined: 2/24/2012
Msg: 12
Useful, but also unconstitutional?
Posted: 5/27/2013 6:32:18 PM
Aries, you think you could stop following Igor around just to piss on his posts? It does get tiresome.


If it isn't spelled out then it is up for challenge. It's pretty clear. Healthcare, entitlements, size of sugary drinks, who can who can not marry, abortion, drugs, and many other restrictions on choice, opportunity, privilege or influence of religion is all entirely legitimate discussions and valid as arguments against federal authority.

Some of these are not laws passed by Congress (e.g. sugary drinks and marriage), they're attempts by State legislatures and as we know from our civics classes, the states have plenary powers not enumerated powers.

There are other schools of constitutional interpretation besides originalism and textual, e.g. doctrinal and prudentialism. Supreme Court decisions re: who can marry(Loving interracial marriage) and abortion (Roe v Wade) are examples of prudentialism.

- "Prudential arguent is costitutional argument which is actuated by the political and economic circumstances surrounding the decision." "There being competing texts, and no text which states the priority to give one over others, there will be no textual argument that can resolve the balance. It becomes then a matter of prudence, a calculation of the necessity of the act against its costs." (Constitutional Fate by Phillip Bobbitt p. 61) This is the school of consitutional interpretation preferred by Justices Frankenfurter and Brandeis but despised by Hugo Black.

In other words, there are even folks well educated in constitutional interpretation who will reasonably disagree on what 'school' is valid or not. So, Aries, just because you think these laws (or bills) are/should be unconstitutional due to your rigid adherence to textualism does not mean that your way is the only 'right' way.
 Aries_328
Joined: 10/16/2011
Msg: 13
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History
Useful, but also unconstitutional?
Posted: 5/27/2013 7:49:33 PM
So, Aries, just because you think these laws (or bills) are/should be unconstitutional due to your rigid adherence to textualism does not mean that your way is the only 'right' way.

Thanks for the attention. But you misread. I didn't say any of them were unconstitutional. I said it was up for debate in all cases. Thanks though. I thought you would have understood that.

I guess you must have missed that part. Thanks for trying to correct me. Am I still wrong?

And for the record I am not following Igor. I am just truly confounded by his positions. They make sense on the surface but on the surface only. It's just an appearance of tolerance and unbiased positions. However, I've seen enough of them to notice, that they are not this way at all. They are very much biased.

I'm not insinuating malevolence. Just a possible blindness.

The funny thing about liberal positions is that they are easy. Too easy. They can be defended quickly with very little effort. What is hard is defending the republican position. Not because it is wrong but because it is the more thoughtful, long term, and difficult position that makes an effort to end in the right place vs what is expedient and easy. Right actions vs good intentions. What is and is not constitutional should very much be within that scope.
 Yule_liquor
Joined: 12/7/2011
Msg: 14
Useful, but also unconstitutional?
Posted: 5/27/2013 9:59:12 PM
Problem with Liberals is there is no Black or White its all grey,


Sure, and the "problem" with the Neocons is that anyone who does not agree with their interpretation of the USC is a "liberal" with no principles!


Right and Wrong don't exist..you want to amend the Constitution in accordance with your World view with no regard for the founding principles..


Kinda like the "patriot" act (enacted by a GOP POTUS)!

Anyone with basic common sense can see that (besides the obvious) the USC is open to interpretation (which is why we have constitutional law & judges); and in that sense is NOT unlike the BIBLE!
 flyguy51
Joined: 8/11/2005
Msg: 15
Useful, but also unconstitutional?
Posted: 5/28/2013 7:33:07 AM

The one thing in the list provided earlier that made no sense was Air force.

I will explain that. There used to be a longtime poster here who claimed to be an anarchist, so he was motivated to interpret the Constitution in a way that limited governmental powers as much as possible. He admitted that by his interpretation, the US Air Force might even be considered unconstitutional-- it isn't in the list of enumerated powers, which he considered definitive and limiting. Then there's also this facetious article:

http://slashpolitics.reviewjournal.com/2010/10/17/is-the-air-force-constitutional/

CynthiaSM, thanks for your educational contributions here. My only complaint is: this is by no means the first time that Consitutional controversy and interpretation has been an issue around here-- where have you been all this time?

Constitutional scholarship around here has basically boiled down to: "The Constitution says that liberals are wrong and conservatives are right."
 CynthiaSM
Joined: 2/24/2012
Msg: 16
Useful, but also unconstitutional?
Posted: 5/28/2013 9:34:31 AM

Thanks for trying to correct me.

you're welcome. I know how much accuracy means to you.

Am I still wrong?

If you want to be wrong you're free to be. Read carefully, I didn't say you were wrong, I said your position isn't the only right one. IOW stop calling wrong everyone who disagrees with you or has a different position.
 Aries_328
Joined: 10/16/2011
Msg: 17
view profile
History
Useful, but also unconstitutional?
Posted: 5/28/2013 1:31:27 PM

If you want to be wrong you're free to be. Read carefully, I didn't say you were wrong, I said your position isn't the only right one. IOW stop calling wrong everyone who disagrees with you or has a different position.


So at what point is it acceptable to be either right or wrong? Does that need a definition now?
 IgorFrankensteen
Joined: 6/29/2009
Msg: 18
view profile
History
Useful, but also unconstitutional?
Posted: 5/28/2013 4:20:53 PM
She already answered that question. It's always okay with the rest of us if you are wrong. Just don't insist that everyone else has to be right for you to be wrong, and vice versa.
 NotGorshkovAgain
Joined: 4/29/2009
Msg: 19
view profile
History
Useful, but also unconstitutional?
Posted: 7/6/2013 7:05:43 AM

And for the record I am not following Igor. I am just truly confounded by his positions. They make sense on the surface but on the surface only. It's just an appearance of tolerance and unbiased positions. However, I've seen enough of them to notice, that they are not this way at all. They are very much biased.

He's a historian. He talks like a historian, and he thinks like a historian. And like most historians (not the shills you see for various parties on the talking head news shows), he knows enough about history to realize that there are very, very few things in this world that are black and white. Most things consist of shades of grey, coloured by historical attitudes, incomplete knowledge on the part of the actors at the time, and philosophical differences that have evolved over time as society and the world have evolved.

(This from another historian who has kept silent through this thread because my area is Soviet/Russian history, not American)
 flyguy51
Joined: 8/11/2005
Msg: 20
Useful, but also unconstitutional?
Posted: 5/21/2014 11:23:21 AM

Someone here may have claimed there's no constitutional authority for these agencies, but if so, I haven't seen it. I wonder if you aren't inventing an extreme position and then attributing it to people who favor limited government to make them seem unreasonable.

No need to wonder. I have already included a link in the OP as proof of the sentiment about NASA in particular. As for this forum, there used to be a poster here who was quite adamant about following the Constitution very closely who stated that the USAF might not be Constitutional because it was not enumerated. So, no, I am not making anything up-- that sentiment is merely your own invention.

As for the implied powers of national defense, again, most of the entities I list are not defense related. Again, NASA (NACA as previously known) serves as a prime example.

The most relevant case on all this is McCulloch v. Maryland, authored in 1819 by the greatest figure in the history of the Supreme Court, Chief Justice John Marshall. There Marshall sets out the doctrine of implied powers and analyzes how it relates to the Necessary and Proper Clause. The particular question in McCullough was Congress' authority to create the bank of the United States, but the Court's reasoning applies to other federal institutions the Constitution does not specifically authorize.

Would that be the same Court that you and Mark Levin agree is "destroying America"? It certainly seems that way...
 flyguy51
Joined: 8/11/2005
Msg: 21
Useful, but also unconstitutional?
Posted: 5/21/2014 1:41:37 PM

If you don't agree, what do you think is a better one?

You seem to be missing the point of the OP by asking this question. I encourage you to reread it and the posts following it.

The Bank was viewed with special loathing by the states' rights advocates; any decision upholding its right to exist and denying the state's claim to tax could be counted on to infuriate them . . . On the other hand, it was clear to Marshall, as it has been to posterity, that a national government restricted in its powers by Maryland's narrow interpretation would be incapable of the great tasks that might lie before it."

With this, you are getting warmer. Do you see how this relates to what I posed in the OP-- the references to "states' rights advocates" and "narrow interpretation" in particular? Ask yourself where the Tea Party of today would side on this issue back then...

I am surprised that you read Mark Levin's book, and you STILL claim to have no idea how he feels about John Marshall's jurisprudence...
 flyguy51
Joined: 8/11/2005
Msg: 22
Useful, but also unconstitutional?
Posted: 6/5/2014 6:21:10 PM
The only constitutionally authorized military body is the Navy. What are we going to do, dismantle the Army tomorrow? I don't think so.

The Army is quite specifically enumerated in the Constitution, as I am sure you will see upon even a brief glimpse. The Coast Guard was also created early on and without controversy. The USMC is part of the Navy, so no one is going to have problem there (except perhaps President Truman). Even my USAF example constitutes the lunatic fringe of the Constitutional issue, but, again, a poster here seriously made the point once. So, national defense isn't really that controversial.

But NASA is not on really solid Constitutional ground. To add a couple-- nor is the FBI, or the Louisiana Purchase. But we sure do appreciate that they were approved, don't we? My point is: these matters are not as black and white as some (Tea Party, mostly) would like to make it.
 CynthiaSM
Joined: 3/29/2014
Msg: 23
Useful, but also unconstitutional?
Posted: 6/6/2014 8:06:46 PM
"Justice Thomas" + "argued persuasively" = oxymoron
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