What is the best system to replace the Fed?

[BuckeyeJim]

There are more laws because the role of Congress has changed. Unless you can demonstrate that those laws are actively unconstitution (and don't simply brush them away with a 'commerce clause' or '10th Amendment' statement and leave it at that) you argument has nothing to stand on. A large volume of laws passed does not mean they are unconstitutional.

There is a flip side to this coin though. Especially when you examine the judicial decisions of the FDR era and how very similar cases abruptly flip-flopped. My entire point is that the court has utilized the "commerce clause" and "necessary and proper" clause in a way that it doesn't mean anything, so trying to call something constitutional or unconstitutional is a fruitless effort on either side. By shedding 100 years of precedent and jurisprudence during the depression era, these judges were able to establish their own precedents that allow the federal government to do anything it wants. It can produce hundreds of laws a day, thousands in a year. It can pass enormous spending bills. And it can always justify it and call it constitutional because it benefits the general welfare, or because they subjectively view it as necessary and proper. It is impossible for you or I to sit here and have a discussion about the commerce clause, the general welfare clause, the necessary and proper clause, and the Supremacy clause when it has no real definition. They are as vague as you or I desire them to be. So the entire debate on whether to justify these laws as constitutional or unconstitutional is stupid. It's an argument that will go on and on simply due to the muddying of these simple clauses.

 

[BuckeyeJim]

That the Supreme Court tends not to be as juducially activist as the right claims? It just strikes down the obvious violations?

Judicial activism is only classified as determining laws to be unconstitutional?

 

[Cutlass]

Okay, 3-4 strikedowns every four years.

Now let's look at it from another perspective. Between the two periods, how many laws were written by the federal government?

You don't actually have to answer that, but you know where I'm going with my point right?

They don't really do that much of substance. Remember that it doesn't go to the courts unless someone challenges it. And the challenge doesn't go anywhere unless it deviates from accepted law.

Judicial activism is only classified as determining laws to be unconstitutional?

Judicial activism is A) differs significantly from prior judicial decisions. B) decides in a way that does not have clear and obvious precedent. C) decides in a way that it not clearly in line with the simple reading of the Constitution. D) ignores the will of Congress. E) ignores pressing public policy concerns.

See Heller and Citizen's United.

 

[JollyRoger]

Judicial activism is only classified as determining laws to be unconstitutional?

I believe that Judicial Activism is only classified as a Court opinion that right wingers do not like.

 

[BuckeyeJim]

I believe that Judicial Activism is only classified as a Court opinion that right wingers do not like.

That's more like it.

@Cutlass. I don't think there's been a shortage of challenges since the FDR era. You have to examine the circuit court of appeals as well. Pretty much anything government did for decades was basically rubber stamped by SCOTUS and the circuit courts because of all those precedents that transformed the court in the 30s.

 

[Cutlass]

That's more like it.

@Cutlass. I don't think there's been a shortage of challenges since the FDR era. You have to examine the circuit court of appeals as well. Pretty much anything government did for decades was basically rubber stamped by SCOTUS and the circuit courts because of all those precedents that transformed the court in the 30s.

Falling within accepted legal norms =/= rubber stamped.

 

[BuckeyeJim]

Falling within accepted legal norms =/= rubber stamped.

When accepted legal norms includes allowing everything to be constitutional because it's necessary and proper and benefits the general welfare it then becomes a rubber stamp.

 

[JollyRoger]

When accepted legal norms includes allowing everything to be constitutional because it's necessary and proper and benefits the general welfare it then becomes a rubber stamp.

Considering the Constitution contains both a necessary & proper clause and the term "general welfare" in the preamble, what is your problem?

 

[Cutlass]

When accepted legal norms includes allowing everything to be constitutional because it's necessary and proper and benefits the general welfare it then becomes a rubber stamp.

Not at all. It's like the Obama birth certificate thing as far as the courts are concerned. First, you have to have a legitimate reason to take it to the courts at all. Then you have to show that it doesn't fit with existing legal usage. If they can't even get that far, that's not a runner stamp. That's the case having no merit.

 

[BuckeyeJim]

Not at all. It's like the Obama birth certificate thing as far as the courts are concerned. First, you have to have a legitimate reason to take it to the courts at all. Then you have to show that it doesn't fit with existing legal usage. If they can't even get that far, that's not a runner stamp. That's the case having no merit.

How can your case have merit when it is impossible to prove that a law does not provide a public good, or isn't necessary, or isn't proper? If growing wheat in my backyard for my own personal use is commerce, then how can I fight any legislation even remotely related to commerce? And of course, this the problem with your now established "legal norms." It has created a government that does not yield because everything helps the general welfare, is necessary, and proper. Even lots of things that you don't like, such as wireless wiretapping, and torture, and endless wars, and a tax code that puts more burden on the middle class than the upper class. It's a knife that cuts both ways and nobody should be satisfied with it.

 

[Cutlass]

How can your case have merit when it is impossible to prove that a law does not provide a public good, or isn't necessary, or isn't proper? If growing wheat in my backyard for my own personal use is commerce, then how can I fight any legislation even remotely related to commerce? And of course, this the problem with your now established "legal norms." It has created a government that does not yield because everything helps the general welfare, is necessary, and proper. Even lots of things that you don't like, such as wireless wiretapping, and torture, and endless wars, and a tax code that puts more burden on the middle class than the upper class. It's a knife that cuts both ways and nobody should be satisfied with it.

Most of those things are simply not issues for the courts. They are issues for the Congress. Elect better leaders.

 

[BuckeyeJim]

Most of those things are simply not issues for the courts. They are issues for the Congress. Elect better leaders.

Not issues for the courts? Elect better leaders? Isn't the purpose of the court to protect our rights from elected leaders? Isn't everything that a legislator does supposed to be checked and balanced by the Supreme Court?

This problem, of course, only serves as an exclamation point on the problems associated with the current machinations of our federal government.

 

[punkbass2000]

I believe he's saying the executive branch creates the laws; the judicial merely interprets. Some would argue that the real power lies with the interpreters, however, which was amongst the primary objections to the Canadian Constitution thirty years ago.

 

[Cutlass]

Not issues for the courts? Elect better leaders? Isn't the purpose of the court to protect our rights from elected leaders? Isn't everything that a legislator does supposed to be checked and balanced by the Supreme Court?

This problem, of course, only serves as an exclamation point on the problems associated with the current machinations of our federal government.

It is not the job of unelected bureaucrats to second guess every damned thing the elected government does. You're concept of separation of powers is sadly lacking.

 

[BuckeyeJim]

It is not the job of unelected bureaucrats to second guess every damned thing the elected government does. You're concept of separation of powers is sadly lacking.

Actually it is. We have no rights if we do not have a groups of people in government balancing one another. But then again, that's the point. People aren't second guessing the Patriot Act, or endless war, or endless environmental destruction, or many other awful things. Blackmailing states with tax dollars, misusing our tax dollars with bridges to nowhere and airports to nowhere. What's more is that their specific duty outlined in the constitution is to second guess laws as they are brought up through the court of appeals system. The elected government should never, ever have the power and the ability to do what it wants without going unchecked for six decades. All the things that you consistently harp on in this community are a direct result of a rubber-stamping judicial branch and the four catch-all phrases in the constitution that were never meant to be catch all phrases.

 

[Cutlass]

But we do have balance. We have 2 houses of Congress that have to agree, and the president. And then if there is a conflict, there is judicial review. That's a huge amount of checks and balances. Adding more will just prevent the government from doing what it should do in the hopes that that will prevent it from doing what it shouldn't. There's a point where you have to accept that it isn't the system design that is the problem.

 

[JollyRoger]

Actually it is. We have no rights if we do not have a groups of people in government balancing one another. But then again, that's the point. People aren't second guessing the Patriot Act, or endless war, or endless environmental destruction, or many other awful things. Blackmailing states with tax dollars, misusing our tax dollars with bridges to nowhere and airports to nowhere. What's more is that their specific duty outlined in the constitution is to second guess laws as they are brought up through the court of appeals system. The elected government should never, ever have the power and the ability to do what it wants without going unchecked for six decades. All the things that you consistently harp on in this community are a direct result of a rubber-stamping judicial branch and the four catch-all phrases in the constitution that were never meant to be catch all phrases.

They didn't go unchecked for 6 decades. Lawsuits were filed, some were shot down, most weren't. That your category didn't get a court victory for 6 decades is fairly meaningless in the big scheme of things. There are lots of categories of law that stand up to judicial review for decade after decade.

 

[BuckeyeJim]

But we do have balance. We have 2 houses of Congress that have to agree, and the president. And then if there is a conflict, there is judicial review. That's a huge amount of checks and balances. Adding more will just prevent the government from doing what it should do in the hopes that that will prevent it from doing what it shouldn't. There's a point where you have to accept that it isn't the system design that is the problem.

But it isn't balance when both parties have the same agenda and only disagree on the most minute of details where nothing changes anyway. Let's face it, Democrats and Republicans love to talk the talk when election season comes around, but when it's time to walk the walk they basically act the same except for a small handful of strongly principled politicians at either end of the spectrum. But they are in the minority and they are consistently marginalized by the mainstream of the parties and by the press corps. The two branches of congress are redundant. We haven't had a president for years that has provided any sort of counterweight to congress. In fact, the best way to become president is to be a huge player in the mainstream of either party. The judges that are put in place are people who are then favorable to both parties and their desires. They are mouthpieces. Mere arms of the political establishment. The best you can say about either party is that expand the roles of government in different areas, but NEITHER cuts anything back on the areas they espouse to hate. So you have people in the executive and legislative branch who believe they are endowed with the power to do anything because of the four catch all phrases, and they have a judiciary that acts as their own left hand, patting them on the back, pulling out that rubber stamp any time there is judicial review. So what is the point? That isn't a huge amount of check and balance. I don't think it's a check and balance at all. The acceleration in the size of government in relation to the dead-nuts stop in declaring federal legislation unconstitutional is a testament to the fact that there really is no check and balance. They do what they want. I'm not even really concerned about stuff that makes headlines. I'm talking about these huge omni-bus bills that are never read by anybody, and that we have absolutely no control over because we all want to make sure we get our piece of the pie after paying our taxes.

The biggest check and balance is really who pays for it before a law becomes law. That's the check and balance. When programs are proposed, when money is on the line, nobody really wants to pay for these things. The weird thing is though, once these programs are put in place, no matter how unpopular or effective they may be, they NEVER go away. Once the endowment or entitlement is there, nobody wants to lose it. And what does this even matter when everyone just gets bribed to support all this legislation. They claim to be against, then they get bribed and bring home the bacon to the district, then in two years they have the faux rage about how the legislation wasn't what they thought it would be and now they no longer support it. It's all bogus, man.

I'm not saying we should be originalist or whatever. I believe that the feds should have the power to do a lot of things that the founders wouldn't want. But at the same time it's plainly clear that our federal government is completely out of control, unbalanced, and just doing what it wants, leaving us with no real rights. I would like to see the four catch all phrases go away completely so that we have some definition to what the feds can actually do. Let's go back to the drawing board and have everyone determine what the federal government REALLY should be doing. Let's clearly delineate what our civil rights are so that we can defend ourselves from illegal wiretaps, from illegal invasions from police officers, and get on a plane without a full rectal exam. And let's give a lot of the discretionary spending back to the states. Let's end these freakin wars, and get rid of our 150 overseas bases. And so much more that BOTH you and I would agree on.

 

[JollyRoger]

I would like to see the four catch all phrases go away completely so that we have some definition to what the feds can actually do.

You would need to amend the Constitution to make the scary words go away.

 

[BuckeyeJim]

You would need to amend the Constitution to make the scary words go away.

Nonsense, we can simply craft a tautological piece of legislation whereby we simply write it in to law using the Necessary and Proper Clause.