Tuesday, October 30, 2012

753. A Constitutional discussion on Facebook

 What follows is a discussion copied from my Facebook page, one which followed a post I made about the silence of certain folks in the aftermath of Hurricane Sandy.
 First, some identification of those involved in the discussion, in order of appearance, other than me.
Thomas A. "Tony" McAdam is an attorney in downtown Louisville.  Tony and I have been friends many years.  We also disagree in large degrees as to the administration of the Republic and other issues of national concern.
Bob Layton is an attorney and Democratic Party activist in Fayette County.
Tyler Hess is in his young 20s and is an environmental activist and student of sustainable agriculture.
Dorothy Howard is a Facebook friend, the older sister of a women with whom I attended elementary and high school, and a Democrat.
Jeremy Tyler is a 25 year old libertarian/Republican supporter of Ron Paul.  He is an Econ/PoliSci graduate of the University of Louisville.
Will Cox is an attorney in Madisonville where he recently served a term as Mayor and before that as Councilman.
 Ken Stammerman is a retired State Department official, a 1965 graduate of Bellarmine College who has recently undertaken lay studies at nearby Saint Meinrad School of Theology.
Read through the arguments and comment if you wish.
  -- Jeff
My original post -- 
The small government and anti-government libertarian and Tea Party folks are noticeably quiet today. The only person we've heard from was, all of people, Bush's FEMA Director Mike "Helluva Job" Brown, who criticized President Obama for responding too quickly to Sandy, something no one accused Bush or Brown of doing with Katrina. An interesting quietude of their part.

Thomas A. McAdam James Madison is the acknowledged father of the constitution. In 1794, when Congress appropriated $15,000 for relief of French refugees who fled from insurrection in San Domingo to Baltimore and Philadelphia. James Madison wrote disapprovingly, "I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents." I will gladly contribute from my meager treasure to aid the sufferers of this storm, but I think it is clear that the constitution does not allow the federal government to coerce citizens into paying for disaster relief. It is not a question of compassion. It is a question of the rule of law. Either we support and defend our constitution, or we don't. And if we don't, God help us.

Jeff Noble 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; but all Duties, Imposts and Excises shall be uniform throughout the United States.

Bob Layton Now, Jeff. If you're going to actually quote the Constitution to those who say they're defenders of the Constitution, it's just going to cause all kinds of problems. Next you'll be expecting them to actually read the Constitution they're defending!

Tyler Hess I'm definitely fine with not supporting the Constitution Tom. I don't support it on its unacknowledgement of the rights of more than half of this country. Written by elitist white men, it is a document that is old and putrid for use in the 21st century. I am for a society based on moral interdependence of social human beings, rather than an abstract wrinkly racist piece of paper.

Dorothy Howard Yep! Jeff, I wish more folks would read the whole constitution. I don't want to hurt anyone's feelings, but I am so sick and tired of people who claim they love their country and all the time go around hating on the best aspects of our country...

Thomas A. McAdam James Madison advocated for the ratification of the Constitution in The Federalist and at the Virginia ratifying convention upon a narrow construction of the clause, asserting that spending must be at least tangentially tied to one of the other specifically enumerated powers, such as regulating interstate or foreign commerce, or providing for the military, as the General Welfare Clause is not a specific grant of power, but a statement of purpose qualifying the power to tax.

Thomas A. McAdam In fairness, I should add that in the last 70 years, the U.S. Supreme Court has tended to agree with Jeff's broad interpretation of Article 1, Section 8, Clause 1. More's the pity.

Jeff Noble Hat tip.

Dorothy Howard Well....Thomas, when you are mugged don't call those tax funded police, when your house is on fire don't call those tax funded firemen, when you fly on an airplane don't expect the tax funded air traffic controllers to keep you out of harms way, etc.

Thomas A. McAdam And, I am sorry Tyler does not support our constitution. That is his right, but I'm not sure he can call himself a loyal American if he refuses to protect and defend the constitution.

Thomas A. McAdam Dorothy unwittingly confabulates the police powers of the states (health, welfare, safety & morals) with those limited and enumerated powers of the federal government. My argument is that the national government does not have the constitutional authority to provide disaster relief. Clearly, the states have that authority.

Jeff Noble Tyler, while I agree with you that the document was written by the hands and minds of privileged white men in the 18th Century, by design it is a flexible instrument. It is why, as Mr. McAdam points out above, recent interpretations are different from what may have been acceptable in the 1780s. That judicial review is not implicit in the Constitution left open the question of how to defend the Constitution. That was answered by the Court itself in 1803 in Marbury v. Madison. Since that day, the Constitution has been a breathing, living document able to be interpreted by the women and men serving on the Court in contemporary times, whenever those times may be. What is acceptable and Constitutional today may be overturned in 1, 5, or 30 years. The design works, albeit sometimes too slow and at other times too fast. The Republic has not lasted 237 years by clinging to an inoperable and unchangeable Constitution. It has survived by being changeable.

Dorothy Howard  Perhaps....but one could also argue that providing disaster releif is providing for the common defense.

Jeremy Tyler I'm never sure when I say that something is not constitutional, why it is that people resort to bringing up police and fireman, as if that has anything to do with the constitution other than it being something that the state handles. 

Democratic President Grover Cleveland vetoed a bill in 1887 that would have provided seed for farmers in drought-stricken Texas. In his veto message he stated: 

"I can find no warrant for such an appropriation in the Constitution, and I do not believe that the power and duty of the general government ought to be extended to the relief of individual suffering which is in no manner properly related to the public service or benefit. A prevalent tendency to disregard the limited mission of this power and duty should, I think, be steadfastly resisted, to the end that the lesson should be constantly enforced that, though the people support the government, the government should not support the people." 

He also said that aid from Washington only "encourages the expectation of paternal care on the part of the Government and weakens the sturdiness of our national character." He then offered money from himself personally to help the farmers.  

Jeff Noble . . . or the general welfare.

Dorothy Howard So shall we do away with the FBI, Secret Service, ATF, Border Patrol, etc?

Jeff Noble It can be safely assumed, based on their statements in this thread, that McAdam and Jeremy differ with the Court's 1803 decision in Marbury v. Madison.

Thomas A. McAdam Not everything we may want the government to provide for us is authorized by our constitution. We can alter it, of course (and have done so many times), but if we abandon it, we do so at our peril. The constitution not only insures our rights and freedom, but it protects us from a tyrannical and oppressive government. If we destroy its limitations, we also lose its protections. We are either a nation of laws, or a nation of men. Which would you prefer?

Jeff Noble That's from the Jaycee creed. I remember it. The answer is a hybrid. We are a nation of laws written and agreed to by men and women.

Will Cox So "Brownie" is criticizing the President for moving TOO quickly??? Really?? You can't make that stuff up ...

Thomas A. McAdam I respect Jeff's view of constitutional history, but I must warn against the "living and breathing" metaphor. The framers had recent experience with tyranny, and intended the constitution to be amendable, but otherwise immutable. In my lifetime, the courts have stretched the constitution to discover a "right of privacy" that allows a woman to kill her unborn child ("emanations from a penumbra"), and have allowed governments to seize private property for private (not public) use. Stretched to the point of breaking. As Thomas Moore said, in A Man For All Seasons: "And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!"

Jeremy Tyler If you look at many of the constitutional conventions when the constitution was going through to process to be ratified, many of the people that were skeptical were assured over and over again by the federalists that the necessary clause, interstate commerce clause, and general welfare clause was not to be broadly interpreted and were only to be applied by the specific powers that were enumerated to the Federal government. Even then the skeptics demanded the Bill of rights to be passed for further security. 

Jeff, yes you're right. I never cared much for John Marshall. 

Dorothy, some of those departments could be argued for defense. But I also think some of those cause more insecurity than security. I also could see a argument where those would not be allowed when following the constitution, especially considering some of the trouble some departments have caused.

Jeremy Tyler Jeff and Thomas on the comment about being governed by men. “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.” James Madison, Federalist Paper 51.

Ken Stammerman We are a community, living under a living Constitution that means what the Supreme Court says it means, taking the broad principles written into it by the founders and reinterpreting them in a world the founders could never have imagined. With wise judges named to the bench, the Executive can both be empowered to innovate on matters unthought of centuries ago, and limited in its ability to intrude on citizens' rights in ways unimaginable in those days. The Legislature should have the wisdom to consent or reject justices who will respect personal freedoms while not tying the executive in a straitjacket of limitations on government action suitable to a nation of a landed aristocracy and yeomen farmers. The Constitution has been amended to remove provisions in the original, which saw a nation, for example, allowing human bondage and limiting suffrage by wealth and gender. As well, it expanded the power of the Executive to tax via the income tax. But in a fast-paced modern world, the ambiguities written into the Constitution by, for example, the 14th Amendment and the commerce clause, allow the flexibility for the Court to move faster than the amendment process would ever have allowed in outlawing Jim Crow or permitting the economic policies of the New Deal. And that is as it should be.

Thomas A. McAdam How fortunate Jeff is, to have so many clever and articulate friends. A seeker of wisdom and truth could ask for nothing more.

Thomas A. McAdam Actually, I find myself in agreement with Ken's summary of constitutional evolution. Must check my meds.

Jeff Noble True. I was just thinking the same thing as to our clever and articulate friends. And, importantly, the two Tyler's in this discussion, Jeremy Tyler and Tyler Hess, are young men, among the next generation of women and men to whom our collective futures are entrusted. We are fortunate for their concern and interest, irrespective of whether we agree with their positions. While I am throwing accolades at Tyler's and our future, I'd be remiss not to include another one, Tyler Montell.

Thomas A. McAdam I find a certain amount of comfort in Jeff's observation that the future of our republic, after all, just might be in good hands. My generation has not been so successful. Good luck, guys!

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Louisville, Kentucky, United States
Single, male, bald, overweight, early 50s, seeking . . . Oh wait, that's goes on the other website. How about this - never married, liberal Democrat, opinionated but generally pleasant, member of the Episcopal Church. Graduate of Prestonia Elementary, Durrett High, and Spalding University; the first two now-closed Jefferson County Public Schools, the latter a very small liberal arts college in downtown Louisville affiliated with the Roman Catholic Sisters of Charity of Nazareth. My vocation and avocation is politics. My favorite pastime is driving the backroads of Kentucky and southern Indiana, visiting small towns, political hangouts, courthouses, churches, and cemeteries. You are welcome to ride with me sometime.