Quote :

"In short, why bother enumerating the powers of the Federal Government in the first place? "

Exactly!

If the founders wanted to give gov't a free reign in ruling the people, why list any responsibilities?

Just put something about the general welfare...the end.

Or were they more worried about unleashing an all-powerful state upon the people? One in which the president could decide at what point someone was "rich" and could then take their hard-earned money away to "spread it around"

10/19/2008 9:31:37 PM

bullshit. they didn't earn their money. they stole it off the backs of the people.

10/19/2008 10:45:27 PM

Quote :

"most people that say they are libertarians aren't anyway. I mean it sounds cool I guess. "

well, I describe myself as a libertarian, but I'm certainly not the capital-"L" type, and I'm relatively moderate, and not a slave to the ideology. I think there are plenty of people like me who are Goldwater Republicans or somewhere between, say, Goldwater and Reagan, who are really best described as moderate libertarians, or libertarian-leaning Republicans.

10/20/2008 3:46:32 AM

The term 'Goldwater' Republican isn't a label you should be proud as it carries the implication that you are so bound to your ideology, that the destruction of wester civilization and indeed all of humanity itself is acceptable so long as it includes the destruction of you 'immoral enemy.' He wasn't as hardcore a conservative as say William F. Buckley, but the man was pretty dead set in his opposition to communism to a degree that was actually harmful to US interests.

Furthermore, libertarianism had died before with the great depression only to make a roaring comeback when the American public couldn't stomach appeasing communism and increasing state welfare at a time when the American economy was heading towards stagnation.

10/20/2008 12:33:44 PM

Quote :

" it carries the implication that you are so bound to your ideology, that the destruction of wester civilization and indeed all of humanity itself is acceptable so long as it includes the destruction of you 'immoral enemy.' "

... No, no I don't think so. He was Anti-communist, as were most conservatives of the time period, but the "destruction of all of humanity itself" part is some ridiculous hyperbole.

What exactly did Goldwater do that was so harmful to US interests?

10/20/2008 12:45:41 PM

Rejected MAD and aggressively pursued n+1 with regards to nuclear arms and that active arms race with the Soviet Union. This after government and pentagon reports indicating:

1) A nuclear war with even first strike is not winnable.
2) Any Missile shield could be defeated by adding more nuclear weapons to an arsenal and thus reducing the likely hood of not being able to respond to a first strike with overwhelming force.

Conservative hard line thought absolutely rejected any type of conversation or communication with the Soviet Union, including the Hot Line between Moscow and DC (opposed by Goldwater, btw) on the basis that communism was godless and evil and the only policy that the US should pursue was that of winning the cold war.

10/20/2008 12:53:15 PM

^Works for me; we're still here, and we DID win the cold war

10/20/2008 1:22:26 PM

I think you're ignoring the Goldwater of his later years, who mellowed out and advocated limited government with social tolerance. The same Barry Goldwater that advocated giving Jerry Falwell a swift kick in the ass.

I don't necessarily think you can ignore that, especially given the fact that he made those comments just as the religious right was beginning to become ascendant.

10/20/2008 1:30:34 PM

Regardless, foreign policy is my most significant area of contention with Goldwater. I'm not saying he was wrong all the way around, and SandSanta's depiction is hyperbolic, but he was more to the extreme in foreign policy than I find suitable.

10/20/2008 1:42:28 PM

Well thats true, but Goldwater isn't necessarily known for his later years as he is for being a strong voice of the conservative movement during his prime.

We did eventually win the cold war but we won it without firing a single shot. That pretty much was the foreign policy advocated by 'liberals' where as the hawks within the right were screaming for the US to oppose communism, militarily, wherever possible.

10/20/2008 1:44:24 PM

Quote :

"Any Missile shield could be defeated by adding more nuclear weapons to an arsenal and thus reducing the likely"

I think the "Missle Shield" project with its $Texas pricetag is actually a blanket allocation in order to fund a lot of black projects that are completely unrelated to the missile defense shield program. People I guess smarted up to the $2000 toilet seat.

10/20/2008 1:46:08 PM

Yes, however, when its sold to congress and the American public its labeled as 'Missile Defense Shield' or some other grand patriotic name. Thats what they vote for, thats what they want.

10/20/2008 1:48:32 PM

I don't think the McCain campaign realizes the extent to which they are hemorrhaging moderate libertarians and how statements like, "NoVa is not the real Virginia" are doing them no favors.

There are times like when I saw the video of McCain at A.E. Smith diner that I remember, hey I used to love this guy. Then I remember that he picked Sarah Palin, and the fire of my hatred for the populist right boils over to the point where I can't help but think screw it.

If my only choice is between the pitch-fork wielding peasants or sherry swilling socialists, I'll cast my lot with the socialists. At least they are better conversation.

[Edited on October 20, 2008 at 2:48 PM. Reason : .]

10/20/2008 2:45:43 PM

I read this article earlier and figured this place would explode once they got ahold of it.

So has anyone bothered to explain why the deregulation of financial markets is a good thing? First Asia in the late 90s, now this. All I see in here is a lot of talk about the only other option being some massive socialist state (come on, you people aren't that dense), as if the only options are rational libertarianism and totalitarianism (which is apparently anything to the left of Ron Paul).

So my question is: how would have even more deregulated financial markets have prevented this from happening? Please provide a real world answer, not some Ayn Rand "well, if people all acted in rational self interest like a true ubermensch..." thing.

The opening of the article is right, libertarians who refuse to reconsider that maybe we do need checks on the market (not state-run markets, stop being stupid) aren't any different than Marxists who refuse to see the flaw in their ideological world view after seeing some derivation of it wreak havoc on the world.

[Edited on October 20, 2008 at 3:32 PM. Reason : .]

10/20/2008 3:31:30 PM

So, what about liberals who refuse to see the danger of moral hazard in creating GSEs with implicit government backing and a political mandate to maximize home ownership at all costs?

Oh wait, right. Only libertarians are ever asked to defend their policies.

10/20/2008 4:10:29 PM

I somehow doubt the mandate was to maximize ownership "at all costs." They still had to compete in the private market, and their bottom line depended on it.

10/20/2008 4:15:26 PM

GSE's aren't inherently different then regular lenders because they don't really carry a government-backed guarantee. They are privately operated and still responsible to their investors. Thats the entire point of the enterprise, a seemingly government back institution that gives investors confidence to lend money at lower rates then they otherwise would.

The financial meltdown can't really be pinned on GSE's or even the admirable goal on increasing home ownership. Rather, extremely high return rates on credit that generated profit of up to 20% (higher with larger portfolios) creating a demand for mortgage backed securities that couldn't possibly be satiated by selling loans only to qualifying buyers triggered the situation now.

10/20/2008 4:42:30 PM

Quote :

"So, what about liberals who refuse to see the danger of moral hazard in creating GSEs with implicit government backing and a political mandate to maximize home ownership at all costs?"

I assume that you're trying to lead this back to the Community Reinvestment Act and/or Mac and Mae. Well, the thing is...

http://www.businessweek.com/investing/insights/blog/archives/2008/09/community_reinv.html

Quote :

"The Community Reinvestment Act, passed in 1977, requires banks to lend in the low-income neighborhoods where they take deposits. Just the idea that a lending crisis created from 2004 to 2007 was caused by a 1977 law is silly. But it’s even more ridiculous when you consider that most subprime loans were made by firms that aren’t subject to the CRA. University of Michigan law professor Michael Barr testified back in February before the House Committee on Financial Services that 50% of subprime loans were made by mortgage service companies not subject comprehensive federal supervision and another 30% were made by affiliates of banks or thrifts which are not subject to routine supervision or examinations."

Quote :

"Not surprisingly given the higher degree of supervision, loans made under the CRA program were made in a more responsible way than other subprime loans. CRA loans carried lower rates than other subprime loans and were less likely to end up securitized into the mortgage-backed securities that have caused so many losses, according to a recent study by the law firm Traiger & Hinckley"

As for Mac and Mae, the government tried to regulate in time. Hardly the libertarian approach to this.

Quote :

"For the first time in history, a serious Fannie and Freddie reform bill was passed by the Senate Banking Committee. The bill gave a regulator power to crack down, and would have required the companies to eliminate their investments in risky assets. Different World If that bill had become law, then the world today would be different. In 2005, 2006 and 2007, a blizzard of terrible mortgage paper fluttered out of the Fannie and Freddie clouds, burying many of our oldest and most venerable institutions. Without their checkbooks keeping the market liquid and buying up excess supply, the market would likely have not existed. But the bill didn't become law, for a simple reason: Democrats opposed it on a party-line vote in the committee, signaling that this would be a partisan issue. Republicans, tied in knots by the tight Democratic opposition, couldn't even get the Senate to vote on the matter. That such a reckless political stand could have been taken by the Democrats was obscene even then. Wallison wrote at the time: ``It is a classic case of socializing the risk while privatizing the profit. The Democrats and the few Republicans who oppose portfolio limitations could not possibly do so if their constituents understood what they were doing.'' "

http://www.bloomberg.com/apps/news?pid=newsarchive&sid=aSKSoiNbnQY0

Guess what? The Democrats did the wrong thing in the name of partisanship. You don't have to be a lolbertarian to realize this. The regulation (oh no) of these institutions would have stopped this from happening, but some unscrupulous individuals (I don't care what their professed ideology or party is) screwed things up.

Now explain what a libertarian (and by that, I assume you mean someone like Ron Paul who votes to let the market sort things out always, not the mainstream of the GOP, who actually did support this regulation) would have done to fix this. I expect that it would probably involve saying "tough shit!" to the families hurt by this and giving them the finger instead of readjustment welfare of sorts (I can strawman too, dude). Bootstraps!

10/20/2008 4:46:47 PM

Quote :

"GSE's aren't inherently different then regular lenders because they don't really carry a government-backed guarantee. They are privately operated and still responsible to their investors. Thats the entire point of the enterprise, a seemingly government back institution that gives investors confidence to lend money at lower rates then they otherwise would."

Yes they do - that's the whole "point." Or do you think the "G" stands for "Great"?

The GSEs had an implicit government backing from the start - if they failed, the government was pretty much there standing behind them. Which is why they could leverage so much easier and more effectively than any comparable enterprise. Couple this with the fact that their explicit political mandate was to raise home ownership, means that they had a specific incentive structure to buy up high-risk subprime mortgages - thereby increasing demand for these mortgages from banks.

GSEs operated pretty much under the specific assumption that if trouble came along there would be the government there to fall back on. And it did. And sure enough, the government rode in to save them. It's almost as if there were a moral hazard here to take on excessive risk...

Quote :

"The financial meltdown can't really be pinned on GSE's or even the admirable goal on increasing home ownership. Rather, extremely high return rates on credit that generated profit of up to 20% (higher with larger portfolios) creating a demand for mortgage backed securities that couldn't possibly be satiated by selling loans only to qualifying buyers triggered the situation now."

Question: who was one of the largest purchasers of MBS, particularly of sub-prime loans, on the market? Give up? Freddie and Fannie. Whoops.

I don't think anyone serious will make the claim that one entity - the GSEs, investment banks, etc. - caused the crisis alone. (No snowflake, after all, believes it causes the avalanche.) But this is a very specific instance of a government policy - promoting home ownership to the exclusive of other factors like out-of-control asset price inflation, creditworthiness of borrowers, etc. - created a very specific, and very large moral hazard.

Quote :

"I assume that you're trying to lead this back to the Community Reinvestment Act and/or Mac and Mae. Well, the thing is..."

No, but nice strawman there. For all you accuse libertarians of sophistry, this is what your entire argument thus so far is resting upon - a pretend argument nobody here has yet made. Congratulations - you're irrelevant. (Somehow, I'm sure that can all be pinned back to the libertarians' fault, though.)

Meanwhile, I'd like to follow up with my own little history lesson regarding the GSEs:

http://hosted.ap.org/dynamic/stories/T/THE_INFLUENCE_GAME_HOUSING?SITE=OHCIN&SECTION=AMERICAS&TEMPLATE=DEFAULT

Quote :

"Democrats did not like the harshest provision, which would have given a new regulator a mandate to shrink Freddie Mac and Fannie Mae by forcing them to sell off part of their portfolios. That approach, the Democrats feared, would cut into the ability of low- and moderate-income families to buy houses. The political backdrop to the debate "was like bizarre-o-world," said the second of three people familiar with the program. "The Republicans were pro-regulation and the Democrats were against it; it was upside down.""

Wait, what's that? Reigning in two very large government-backed enterprises operating on a guarantee no private bank had in order to prevent a complete distortion of the market? OMGWTFBBQ, it's like regulation, but not! Oh gnoes! The idea of trying to shrink and eventually consider getting rid of quasi-governmental "enterprises" whose inordinate guarantees radically distort the market must be some kind of embrace of left-wing politics, sure evidence that libertarianism has failed!

Despite the fact that the subject of regulation is, uh, government sponsored enterprises. Any proposed regulation regulating government-related matters is still apparently anathema to libertarians, I guess. Since that's what we're being told we think, and all. (I mean, just think of all that "regulation" in the Bill of Rights! Libertarians must be against that too, right?)

And gee - just why did Democrats oppose it? Because it cut into the GSEs' clearly non-existent political mandate to maximize home ownership, regardless of the market consequences?

So, to conclude - the very idea of reigning in and eventually doing away with the GSEs to eliminate their market distortion is clearly a contradiction of libertarianism/market-oriented policies. Because it must mean "regulating something." Despite the fact that this "something" is largely a matter of government, itself.

Meanwhile, if you're up for a serious discussion instead of your bimonthly, "This is why libertarians are stupid" rantfest, how about this for thought - by bailing out banks, we've created a discentive from banks renegotiating loans on their own. Instead, we're offering to buy the bad assets off their hands - giving them every incentive to foreclose more, as they can then still absorb the losses from those properties - rather than actually say, being forced into a position where they negotiate with their as-of-yet foreclosed customers as to the value and terms of the loan.

Even better - if we must bail out banks or institutions holding toxic debt, one could make the case that since it is taxpayers' money being spent, that opening renegotiation of payment terms should be a precondition to seeing one red cent from the government. If, that is, we should be in the business of bailing out banks at all (which I would argue we should not - plenty of smaller banks avoided handing out bad loans are now at a position of disadvantage - despite the fact that they are financially healthy, their competitors who took on much poorer risks are now being rewarded for their failure.)

[Edited on October 20, 2008 at 5:14 PM. Reason : .]

10/20/2008 5:09:59 PM

Quote :

"In short, why bother enumerating the powers of the Federal Government in the first place?"

Even with our loose interpretation of the elastic clause, the enumeration of powers still limits what Congress can do. The increase in the scope of government must be weighed against the necessity and properness of the law. Sorry the courts haven't gone your way, lately

Anyways, I really doubt that our founding fathers had things like social security in mind when they sought to limit government. Economic safety nets are viewed as tyranny only by fringe ideologues.

And you've still not definitively demonstrated that a loose interpretation of the elastic clause is -un-constitutional. Are you really going to continue citing an Op-Ed piece written to paleolibertarians to bolster your libertarian interpretation?

10/20/2008 7:58:19 PM

i know. how dare he cite one of the guys who wrote the fucking Constitution as an authority on it. what a crazy man

10/20/2008 8:10:49 PM

Well hell, if we're going to bring all of Madison's actions into the debate, let's talk about his acceptance of the National Bank, then tell me he took a hard line on the elastic clause.

So burro-- how do you reconcile his acceptance of a national bank with his supposed hard line on the elastic clause?

[Edited on October 20, 2008 at 8:20 PM. Reason : ]

10/20/2008 8:16:04 PM

Quote :

"Even with our loose interpretation of the elastic clause, the enumeration of powers still limits what Congress can do."

How? How does the enumeration of powers limit Congress if the elastic clause acts as a catch-all for everything they want to do? I keep asking this question and you keep evading it. One might believe this to be on purpose.

Quote :

"Anyways, I really doubt that our founding fathers had things like social security in mind when they sought to limit government. Economic safety nets are viewed as tyranny only by fringe ideologues."

It seems like you are the one loosely throwing around terms like "tyranny." If economic security is a vital function of the Federal Government, then surely a Constitutional Amendment isn't out of the question, isn't it? (Or is it just too hard?)

Quote :

"And you've still not definitively demonstrated that a loose interpretation of the elastic clause is -un-constitutional. Are you really going to continue citing an Op-Ed piece written to paleolibertarians to bolster your libertarian interpretation?"

I've put the question to you both as a reference to the direct words of the original architects of the Constitution specifically addressing the argument you bring up 200 years later and an appeal to simple logic - if the Constitution specifies enumerated powers and we are to believe the General Welfare Clause grants expansive, unenumerated powers to Congress, then why go to the effort of enumerating powers to begin with? What would be the point? And furthermore, how is this broad power in any way constrained? It is, by its definition, not an enumeration of powers anymore, but rather a broad permit, per this interpretation.

Perhaps it's somewhat fitting that you just find yourself so utterly incapable of actually addressing the logical part of this question.

10/20/2008 8:31:46 PM

Quote :

"How? How does the enumeration of powers limit Congress if the elastic clause acts as a catch-all for everything they want to do?"

It isn't

There are plenty of federal laws that can't be made due to the elastic clause.

I can't remember the exact case, but the one that comes to mind is where the USC struck down a federal law banning firearms in schools.

Quote :

"then surely a Constitutional Amendment isn't out of the question, isn't it?"

Why bother when the Supreme Court sides with us (us, meaning everyone but you)

Quote :

"I've put the question to you both as a reference to the direct words of the original architects of the Constitution specifically addressing the argument"

Reconcile Madison's acquiescence on the national bank issue, first. Starting with Washington, we have a proud history of not letting Constitutional legalism get in the way of sound policy.

10/20/2008 8:43:14 PM

Quote :

"It isn't There are plenty of federal laws that can't be made due to the elastic clause. I can't remember the exact case, but the one that comes to mind is where the USC struck down a federal law banning firearms in schools."

Here's the problem - you are now relying on a presumption of a broad mandate which then has to be snipped away by the courts. The fact that you can't immediately bring to mind a bright line delineating "Constitutional" and "Unconstitutional" should be alarming.

At least, that is, if you actually cared about the government not aggregating so much power to do whatever the hell it wanted and just hoping the courts happen to see things your way...

Quote :

"Why bother when the Supreme Court sides with us (us, meaning everyone but you)"

Well now, what happens when and if the winds of judicial precedent decide to shift another way? Kind of leaves you up shit creek without a paddle, now doesn't it?

And what happens when the Federal Government starts deciding to augment itself with new powers and responsibilities you don't like? Suddenly, the "unconstitutional" argument doesn't seem to carry so much weight anymore, doesn't it? Starting to feel like those wacky libertarians, now? (But of course, we all know that would never happen - the Federal Government will never be controlled by people seeking to expand its powers into areas you feel are grossly inappropriate, with a pliant Congress and Court. Totally a hypothetical.)

Besides which, if you feel this is so important to be a fundamental duty of the Federal Government, then surely an amendment is a trivial affair, no? Unless you're just really lazy. Or really scared it won't pass.

Which is it?

Quote :

"Reconcile Madison's acquiescence on the national bank issue, first. Starting with Washington, we have a proud history of not letting Constitutional legalism get in the way of sound policy."

Well, if we look back to the relevant case history, it's McCulloch v. Maryland

http://en.wikipedia.org/wiki/McCulloch_v._Maryland

The argument made would appear to be that the chartering of the bank was an implied power of the taxation and spending clause, along with the necessary and proper clause.

To wit - advocates of the Second Bank of the United States argued that maintaining a bank was necessary for the execution of the enumerated power of:

Quote :

"he 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;"

Advocates of the bank argued that Congress had an implied power to create a bank to execute its duty of taxation and payment of debts.

The problem with your interpretation is that you have simply taken that to be a general endorsement of the General Welfare clause, of which it is not - it is an establishment of the idea of implied powers through the "Necessary and Proper clause."

Therefore, advocates argued that a bank was necessary and proper to the execution of an enumerated power. (Whether this was the case was at issue.)

But there's a difference here - taxation and spending is an enumerated, specific power - and actions taken via implicit powers claimed to be "necessary and proper" must be squared against that specific, enumerated objective.

"General welfare" is not a specific, enumerated power. It's a generic phrase, of which if it is taken to mean "anything Congress does to benefit the overall population" renders the whole idea of enumerated powers meaningless. Any challenge of Congressional scope simply becomes a battle for the Courts now - rendering the whole idea of limiting Congress to a proscribed set of powers a moot exercise to begin with.

Whatever your opinion may be of long-dead Op-Ed pieces, you can't deny that the very reason we have a Constitution in the first place is to establish a limited mandate upon the government. (How limited being a matter of policy and amendment.) What this interpretation does is effectively sweeps all of that way.

It doesn't take a 200-year old Op-Ed piece to tell you that. It just takes one to demonstrate that this line of thinking has long been foreseen and addressed, even then.

10/20/2008 9:30:47 PM

Quote :

""General welfare" is not a specific, enumerated power"

Now you're splitting hairs.

It's no more generic than "common defense," and Madison gave in on a standing army, too. Libertarians seem to have bought into it as well, despite many of our founding fathers' misgivings.


I've already demonstrated that a loose definition of the elastic clause does limit the powers of congress.

That it puts the responsibility of limitation on the courts rather than Congress is fine by me.

10/20/2008 10:25:08 PM

Quote :

"Now you're splitting hairs."

No I'm not. Just because you lack the ability to discriminate doesn't mean people who don't lack that ability are splitting hairs. For instance, your next sentence:

Quote :

"It's no more generic than "common defense," and Madison gave in on a standing army, too. Libertarians seem to have bought into it as well, despite many of our founding fathers' misgivings."

Wrong. Unbelievably wrong.

Quote :

" To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations; To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; 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; To make rules for the government and regulation of the land and naval forces; To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions; To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress; "

I suppose Madison was just a wordy fellow, now wasn't he? Giving a power of the common defense and then listing no less than seven specific enumerated powers to that effect. One might get the impression that the Taxation and Spending Clause was intended to the effect of taxation and spending to the ends enumerated below.

Nah.

Quote :

"I've already demonstrated that a loose definition of the elastic clause does limit the powers of congress."

No you haven't. You can't even name a single, specific instance. You can't provide any kind of clear definition of enumeration. And you repeatedly refuse to answer my questions of where specific, well-defined limits upon the powers are set.

Furthermore, you ignore the very hazards I outline of this line of thought, to give the most shallow response possible. Then proceed to declare victory and go home.

Bravo, sir. Bravo.

Quote :

"That it puts the responsibility of limitation on the courts rather than Congress is fine by me."

So what happens when it's a Congress and Court controlled by folks you don't necessarily like? Guess that kind of voids the point of a whole written Constitution with enumerated powers, now doesn't it?

But that would never happen.

10/20/2008 10:39:11 PM

Quote :

"we have a proud history of not letting Constitutional legalism get in the way of sound policy.""

The motto of many despots: The ends justifies the means.

10/20/2008 11:11:43 PM

Quote :

"No you haven't. You can't even name a single, specific instance."

I referenced a case, but didn't think it necessary to look up the exact name. But if you insist...

U.S. v. Lopez. -- struck down the Gun-Free School Zones Act of 1990 as not "necessary."

And while I was wikipedia'ing, look at this fantastic quote I found:

Quote :

"this clause "purport[s] to enlarge, not to diminish the powers vested in the government. It purports to be an additional power, not a restriction on those already granted."

John Marshall, in McCulloch v. Maryland

Neat. So we were already wildly off track less than two decades after the Constitution was signed, and there [b]is[/i] a two century-long tradition of using the elastic clause to expand the scope of government?

10/21/2008 9:44:00 AM

I would like to reiterate that compared to FDR or any other actual socialist, Obama is a friggin' libertarian. Even his socalled nationalization of healthcare is not at all nationalization; it is nothing more than opressively regulated capitalism, which I would call a major victory of libertarianism; even its enemies have conceeded the death of socialism.

What I refuse to understand is how its supposed defenders, George Bush, have morally bankrupted themselves by forcibly nationalizing nine US banks.

Quote :

"The chief executives of the nine largest banks in the United States trooped into a gilded conference room at the Treasury Department at 3 p.m. Monday. To their astonishment, they were each handed a one-page document that said they agreed to sell shares to the government, then Treasury Secretary Henry M. Paulson Jr. said they must sign it before they left."

http://www.cato-at-liberty.org/2008/10/16/nice-little-bank-you-got-there-shame-if-anything-happened-to-it/

10/21/2008 10:33:46 AM

Quote :

"I referenced a case, but didn't think it necessary to look up the exact name. But if you insist... U.S. v. Lopez. -- struck down the Gun-Free School Zones Act of 1990 as not "necessary.""

Which is actually an interesting case regarding the Commerce Clause, not the General Welfare Clause.

I insist because claiming to know of some instance with zero specifics is a common internet bullshit tactic. And this thread is already knee-deep in bullshit.

Quote :

"And while I was wikipedia'ing, look at this fantastic quote I found: Quote : "this clause "purport[s] to enlarge, not to diminish the powers vested in the government. It purports to be an additional power, not a restriction on those already granted." John Marshall, in McCulloch v. Maryland Neat. So we were already wildly off track less than two decades after the Constitution was signed, and there [b]is[/i] a two century-long tradition of using the elastic clause to expand the scope of government?"

Wow - amazing then, that it took until the 1930s to actually see that put into practice on the General Welfare Clause? Unless, perhaps, you're once again stretching a matter wildly of context - as you see, the "elastic clause" pertains to the necessary and proper clause - i.e., implicit powers of Congress to accomplish enumerated powers.

In other words, the Necessary and Proper clause allows Congress an enlarged scope, but only in so far as it accomplished an enumerated object within the Article.

Just stop already - you're actually embarrassing yourself.

10/21/2008 11:23:25 AM

Quote :

"Even his socalled nationalization of healthcare is not at all nationalization; it is nothing more than opressively regulated capitalism,"

They're doing the socialized medicine in increments..a favorite ploy of politicians. Rememebr the family leave act?

When Social Security started, many people were fearful that it was going to be used as an identity card for the gov't. Politicians laughed it off..saying you'd never need it for identification.

10/21/2008 11:27:21 AM

But it only works when it is fast, I would suggest. Democracies only make sweeping changes quickly, so there is not enough time for the backlash to hit its mark. As such, attempting to socialize an industry slowely should not work, in theory. They will regulate the hell out of it but be arrested before they get to their desired next step. Try to remember, this is how we got our current health care system. As such, more of the same will product more of the same, which is no change at all.

10/21/2008 11:34:58 AM

Government investment in banks is actually the worst kind of socialism. There's no amount of verbal sugar coating thats going to change the fact that our financial system is now quite nationalized.

10/21/2008 12:08:17 PM

Quote :

"hey I used to love this guy. Then I remember that he picked Sarah Palin, and the fire of my hatred for the populist right boils over to the point where I can't help but think screw it. "

Yep. I can't decide whether to vote or not. I'm leaning towards "not".

Quote :

"So my question is: how would have even more deregulated financial markets have prevented this from happening? "

On the whole, it probably wouldn't have (it's a mixed bag--part of this was due to lack of regulation, but the other part is because of "a political mandate to maximize home ownership"). Whatver, though. That's fine, I don't really give a shit that this happened. That's the way it goes. The pendulum swings. Embrace this fact--you won't get anywhere by fighting it or ignoring it.

Furthermore, speaking specifically about the housing market, things aren't fucked up NOW. Things were fucked up BEFORE--the situation has now corrected itself.

Quote :

"Despite the fact that the subject of regulation is, uh, government sponsored enterprises. Any proposed regulation regulating government-related matters is still apparently anathema to libertarians, I guess. Since that's what we're being told we think, and all. (I mean, just think of all that "regulation" in the Bill of Rights! Libertarians must be against that too, right?) "

Exactly. Like I've said before, the goal in government should be to maximize freedom. Sometimes that's accomplished through regulation. Most of the time, it isn't.

Quote :

"The increase in the scope of government must be weighed against the necessity and properness of the law."

I would agree, to at least a certain extent. I wish we did this.

Really, though, of course there is some grey area there. If we were just splitting hairs over the boundaries of the grey area, though, it wouldn't be that big of a deal. We've gone way, way beyond what any reasonable person could possible construe as operating within the limits of the Constitution.

Quote :

"Anyways, I really doubt that our founding fathers had things like social security in mind when they sought to limit government. Economic safety nets are viewed as tyranny only by fringe ideologues. "

Our founding fathers probably never envisioned that the Federal government would force a shitty retirement plan down the throats of the populace, and base it on a fucking pyramid scheme. they'd probably be further amazed that someone with a college education could be so happily duped into thinking it to be a good idea, but now we're getting back to my assertion that college has been devalued into Highschool: The College Years.

Quote :

"Why bother when the Supreme Court sides with us (us, meaning everyone but you) "

Part of our frustration is with the SCOTUS. Part of our frustration is with the Congress for doing things that they should KNOW aren't permissible, and violating the Constitution they should be upholding, just because they know they can. Part of our frustration is with people like you who aren't completely ignorant of the issue, in that you're at least aware of the debate and have given it some thought--yet still draw such an asinine conclusion...

right up to the point at which the trampling of the Constitution ISN'T in the direction you prefer.

To be sure, we could name a few examples of politicians disregarding the Constitution in order to do things that you find quite objectionable. I don't think we'd even have to look back particularly far, would we?

In case the point is still lost on you, here's another example. I don't like the idea of gay people getting married. It fucking grosses me out. Do I think that the federal government should step in to stop it? Hell no. That's not the job of the federal government.

Quote :

"(But of course, we all know that would never happen - the Federal Government will never be controlled by people seeking to expand its powers into areas you feel are grossly inappropriate, with a pliant Congress and Court. Totally a hypothetical.) "

Yep, and people like Boone always take their medicine and bite their tongues instead of crying "Foul! Roughing the Constitution!"

10/21/2008 6:43:12 PM

Quote :

"right up to the point at which the trampling of the Constitution ISN'T in the direction you prefer."

Well let's draw a very clear distinction. I have no constitutional issue with using a loose interpretation of the elastic clause to improve the general welfare or expand rights.

There are plenty of policies dependent on the elastic clause that I'd disagree with, but I think they should be handled as policy issues, not Constitutional issues. As long as they're necessary (not redundant to state laws/powers) and proper (not in violation of our rights), it's constitutionally acceptable for me.

And that's where your gay marriage example falls flat. It's clearly limiting rights, and in clear violation of other, very explicit rights given to us in the Constitution (namely the 14th Amendment, and to a degree the 1st).

Economic libertarians cling to a legalistic interpretation of the Constitution that was ditched the second the ink dried. It's a living document. Accept it. Here it is, right from the mouth of Mr. Federalist Papers himself:

Quote :

"The terms 'general Welfare' were doubtless intended to signify more than was expressed or imported in those which Preceded; otherwise, numerous exigencies incident to the affairs of a nation would have been left without a provision. The phrase is as comprehensive as any that could have been used; because it was not fit that the constitutional authority of the Union to appropriate its revenues should have been restricted within narrower limit than the `General Welfare' and because this necessarily embraces a vast variety of particulars, which are susceptible neither of specification or of definition."

-Alexander Hamilton

10/21/2008 7:34:51 PM

So if it was "as soon as the ink dried", why did it take 150 years for your interpretation to be put into practice?

Might I perhaps suggest some ink that dries just a little faster?

Meanwhile, even taking Hamilton's expansive view of the GW clause, this taxing and spending still applies within the context of the Necessary and Proper powers to accomplish the explicitly enumerated ends listed below. Not that things like written law or logic have stood in the way of your interpretation thus so far.

The fact is, you still can't find a limiting case to your very, very expansive interpretation of the GW clause. You can't give us a definition, and you can't even cite a Court case. So when will you explain to us just why those enumerated powers supposedly subsumed by the GW clause exist, instead of just pronouncing libertarians as stupid and wrong?

(And let's not even get to the number of arguments you simply feel it beneath you to address - carry on with simply telling yourself that you're right and libertarians are just not getting it.)

[Edited on October 21, 2008 at 8:00 PM. Reason : .]

10/21/2008 7:55:29 PM

Quote :

"The fact is, you still can't find a limiting case to your very, very expansive interpretation of the GW clause. You can't give us a definition, and you can't even cite a Court case."

Here you go:

Quote :

"Printz v. United States (1997) Question: Using the Necessary and Proper Clause of Article I as justification, can Congress temporarily require state CLEOs to regulate handgun purchases by performing those duties called for by the Brady Bill's handgun applicant background-checks? Conclusion: No. The Court constructed its opinion on the old principle that state legislatures are not subject to federal direction. The Court explained that while Congress may require the federal government to regulate commerce directly, in this case by performing background-checks on applicants for handgun ownership, the Necessary and Proper Clause does not empower it to compel state CLEOs to fulfill its federal tasks for it - even temporarily. The Court added that the Brady Bill could not require CLEOs to perform the related tasks of disposing of handgun-application forms or notifying certain applicants of the reasons for their refusal in writing, since the Brady Bill reserved such duties only for those CLEO's who voluntarily accepted them."

All it took was a 30 second search on Oyez.

Now-- since you claim that your interpretation only died out in the early 20th century, could you cite a case involving the elastic clause that limited the powers of Congress anytime prior to the 20th century?

Since you seem to not want to take Marshall for his word on McCulloch v. Maryland, certainly there's a case somewhere between 1819 and 1900 to prove your point.

10/21/2008 8:27:13 PM

Quote :

"All it took was a 30 second search on Oyez."

To dig up another wrong example.

From your own article:

Quote :

"Printz v. United States (1997) Question: Using the Necessary and Proper Clause of Article I as justification, can Congress temporarily require state CLEOs to regulate handgun purchases by performing those duties called for by the Brady Bill's handgun applicant background-checks? Conclusion: No. The Court constructed its opinion on the old principle that state legislatures are not subject to federal direction. The Court explained that while Congress may require the federal government to regulate commerce directly, in this case by performing background-checks on applicants for handgun ownership, the Necessary and Proper Clause does not empower it to compel state CLEOs to fulfill its federal tasks for it - even temporarily. The Court added that the Brady Bill could not require CLEOs to perform the related tasks of disposing of handgun-application forms or notifying certain applicants of the reasons for their refusal in writing, since the Brady Bill reserved such duties only for those CLEO's who voluntarily accepted them."

Seriously. You're trying to make the claim of an expansive General Welfare clause, then claim the Courts have found limits even to your interpretation, and then every example you dredge up has involved the Commerce Clause + the Necessary and Proper clause.

To review: The Elastic Clause is NOT THE "GENERAL WELFARE" CLAUSE.

General Welfare:

Quote :

"[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;"

Elastic Clause:

Quote :

"[The Congress shall have Power...] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

Commerce Clause:

Quote :

"[The Congress shall have power...] To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;"

Quote :

"Now-- since you claim that your interpretation only died out in the early 20th century, could you cite a case involving the elastic clause that limited the powers of Congress anytime prior to the 20th century?"

First of all, there's the issue of shifting the goalposts - your claim was that the General Welfare clause provided expansive, independent powers. This is not the same as the Elastic Clause. The Elastic Clause is not, and has not been the subject of debate here.

Secondly, the Elastic Clause, as it has been consistently applied, has never been an independent power upon its own, even in the cases you provide as evidence for an expansive interpretation of federal powers - rather, it is interpreted as an expansion of federal powers within the context of fulfilling an enumerated mandate of Congress.

Your claim is that GW is a specific, enumerated mandate. Thus the Elastic Clause only applies in the regard that it serves the end of General Welfare as an enumerated power.

However the legal issue at hand is whether GW is a specific, enumerated power - which has not been the case until the 20th century. And frankly, it's not my job to do your homework for you by proving a negative - the only case you cite which specifically calls to the GW clause is dated in the twentieth century. Good luck finding an affirmation of this interpretation prior, because it doesn't exist.

But here, I'll be generous: the Court found as late as 1922 that taxation in service of the GW clause was unconstitutional: Bailey v. Drexel Furniture Co.

http://en.wikipedia.org/wiki/Bailey_v._Drexel_Furniture_Co.

The specific interpretation of the GW clause as an independent, enumerated power doesn't even enter the legal precedent until 1936. In other words, right into the New Deal: United States v. Butler.

http://en.wikipedia.org/wiki/United_States_v._Butler

Quote :

"Since you seem to not want to take Marshall for his word on McCulloch v. Maryland, certainly there's a case somewhere between 1819 and 1900 to prove your point."

Actually, I do. And I provided a cogent (and correct, at that) explanation for his legal thought process, which you proceeded to immediately ignore. And given you problem actually reading and understanding the legal cases you've presented so far, I somehow doubt the problem is on my end.

[Edited on October 21, 2008 at 8:58 PM. Reason : .]

10/21/2008 8:57:18 PM

you may be at a loss for words, so I'll choose one for you: pwnt

10/21/2008 9:02:51 PM

"to promote the General Welfare" is not a delegation of power to the gov't. It is only a statement of purpose of the Constitution.

If you think those words are a license for the federal gov't to do whatever it wants in order to promote the general welfare, then its powers would be unlimited. We would no longer need amendements, since politicians and judges can amend the Constitution by fiat.

We would be at the mercy of politicians, and only their good intentions to limit what gov't can do to us.

10/21/2008 10:11:23 PM

I missed the point where our argument moved from debating a loose interpretation of the elastic clause to specifically debating the general welfare clause.

Oh well.

I gave you a solid characterization of Hamilton's view of the general welfare clause. He was very much for the inclusion of the general welfare clause as an enumerated power. I'm sorry that you're so selective when it comes to which founding father I can and cannot cite, but it'd be great if you'd at least address it.

Also, you've yet to cite any judicial precedence for why Hamilton was wrong. Surely the courts rejected the atrocious general-welfare-clause-as-an-enumerated-power argument prior to the 20th century.


And as an aside-- I'd like to point out that your argument isn't "OMG WRONG." Your argument was one side (the losing side, but I digress) of a debate that's as old as the Constitution. The fact that you're taking one side of a historical debate, and claiming that the other side is absolutely wrong, and then cherry-picking historical tid-bits as evidence, speaks volumes about your preference for ideology over intellectual honesty. Such is Libertarianism, though.


^^You don't even know what we're talking about.

10/21/2008 10:35:37 PM

Quote :

"I missed the point where our argument moved from debating a loose interpretation of the elastic clause to specifically debating the general welfare clause. Oh well."

You made the original argument on Page 1. Quoting:

Quote :

"In Article I, at the very beginning of Section 8, where the powers of the Legislative Branch are enumerated, you'll see this: "The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States" add to that the elastic clause at the end of Section 8: ..."

So, you started the debate over the GW clause, by arguing it was a specifically enumerated power which is enhanced by the Elastic Clause. You then proceeded to trot out a host of cases which had nothing to do with the GW clause as support of your case.

Again - the Elastic Clause is not at debate here. No one is arguing a position of the illegitimacy of the Elastic Clause. The argument hinges on whether General Welfare gives a specific, new power, which is enhanced by the Elastic Clause. (In fact, had you done even the most cursory reading of my last post, I pretty much just said this.)

Quote :

"I gave you a solid characterization of Hamilton's view of the general welfare clause. He was very much for the inclusion of the general welfare clause as an enumerated power. I'm sorry that you're so selective when it comes to which founding father I can and cannot cite, but it'd be great if you'd at least address it."

I did. Like much of what I've posted, you've chosen simply to ignore it and pretend to be victorious.

Quote :

"Also, you've yet to cite any judicial precedence for why Hamilton was wrong. Surely the courts rejected the atrocious general-welfare-clause-as-an-enumerated-power argument prior to the 20th century."

I'm not doing your homework for you. You made the claim it was active "as soon as the ink was dry," and yet cannot find a single case where this is so. The first case in judicial history which can be cited was in the 1930's. If you are so sure of your own interpretation, then why don't you find us all an earlier case?

Quote :

"And as an aside-- I'd like to point out that your argument isn't "OMG WRONG." Your argument was one side (the losing side, but I digress) of a debate that's as old as the Constitution. The fact that you're taking one side of a historical debate, and claiming that the other side is absolutely wrong, and then cherry-picking historical tid-bits as evidence, speaks volumes about your preference for ideology over intellectual honesty. Such is Libertarianism, though."

Uh, no. Your argument is a strawman, and I've spent more than a page demonstrating that. Again and again and again.

Nobody is debating the constitutionality of the elastic clause. Nobody.

I don't know how many times I can repeat that, but you don't seem to comprehend this.

You made a very specific claim that the General Welfare Clause confers a new power, enhanced by the "necessary and proper" scope of Congress. When presented with the fact that precedent has not treated General Welfare as a distinct power until the 20th century, you've repeatedly brought up cases involving the wrong clause.

The fact is, this is not some "historical debate" - the General Welfare clause interpretation has been around for less than a century, at a time during which the Constitution's interpretation by the courts radically changed. Your argument that this has "always been the case" since the ratification of the Constitution is just wrong on face - you can cite no precedent, and what little of the original documents by Hamilton you can dig up don't even support the broad interpretation you favor, and are contradicted by both logic and contemporaneous writings by Madison.

The first time we see your interpretation prevail in the Courts is 150 years later. If you're going to make the claim that your interpretation was active prior, you'd better actually dig up some evidence. (The fact is, however, that it wasn't.) Whether or not the Elastic Clause has been interpreted more loosely over history is again not at issue - you made a specific claim about the GW clause that happens to be unsupported by both reason and the facts. The fact remains that the interpretation you favor was not historically the case until the 20th century, even with Hamilton's generous interpretation thereof.

When called on this, you have repeatedly refused to address the arguments, almost as if you wanted to simply ignore any inconvenient evidence which contradicts your own pre-existing notions.

Almost as if you were completely beholden to ideology...

[Edited on October 21, 2008 at 11:11 PM. Reason : >.<]

10/21/2008 11:10:26 PM

Really, though. Did I miss something?

Where did you cite precedence for a rejection of the general welfare clause as an enumerated power? You keep giving me snotty responses explaining that you already have, but I can't find anything.

That it took until the 20th century to affirm it doesn't invalidate it.

Lots of bits and pieces of the Constitution weren't settled until the 20th century-- does that invalidate these things? I mean, where did the US SC get off overturning Plessy? Our original interpretation of the 14th Amendment was crystal clear.

(And speaking of which-- I just realized that I've been sucked into a debate that presupposes the validity of originalism. I'll play ball, but let the record show that originalism is lame, and pointless)

10/21/2008 11:42:39 PM

Quote :

"Really, though. Did I miss something? Where did you cite precedence for a rejection of the general welfare clause as an enumerated power? You keep giving me snotty responses explaining that you already have, but I can't find anything. That it took until the 20th century to affirm it doesn't invalidate it."

So wait, I'm supposed to be sunshine and kittens when you act like a pompous ass and ignore what I post, forcing me to repeat myself several times over?

I gave you one of the most recent cases of a repudiation of your interpretation of the GW clause, dated 1922. Bailey v. Drexel Furniture Co.. I even gave you a link to go explore it on your own at your leisure. Obviously, you didn't even pay attention that.

I even gave you the first case where it was cited as an independent power - in 1936. U.S. v. Butler.

You made a claim that it has always historically been the case, I've shown it wasn't so until 1936. I'm not going to go back and find every case it was litigated - I'm not a lawyer, and the burden of proof isn't upon me to begin with. I've bent over backwards to provide evidence that you don't even read.

Blow your gripes about "snotty responses" out your ass - I've gone out of my way to demonstrate the point, and the fact that you've chosen to be lazy and simply ignore it isn't my problem. I am not on the hook to demonstrate an entire legal history to invalidate a claim you can't even go to the slightest bit of effort to validate. I provided a legal case up to the 20th century invalidating it, and the first case where it was recognized.

The claim that you made was that this has "always been the case." I've shown that it has not, and you have still to find any evidence of it being found affirmatively as an independent power prior to it being invalidated as such, and then later validated in 1936. The weight of the evidence (and, again, of logic) stands against you and you still proceed to pretend I've done nothing to refute you.

I can't help it if you're not going to bother reading. It does not, however, automatically confer victory upon your point.

Meanwhile, the fact that it took until the 20th century doesn't make it not active precedent - but it does make it historically novel. Which is really the point - it wasn't active as precedent for 150 years, and even in its current interpretation - which contradicts your original claim.

I have also shown how this interpretation is logically and politically suspect -which, for whatever reasons, you have chosen to ignore. Not my problem, but it certainly doesn't mean I haven't made the argument.

Quote :

"Lots of bits and pieces of the Constitution weren't settled until the 20th century-- does that invalidate these things? I mean, where did the US SC get off overturning Plessy? Our original interpretation of the 14th Amendment was crystal clear."

No, but I doubt any serious person is going to run around claiming that Brown was the original legal architecture, either. You can argue that, for whatever judicial philosophy you espouse, that the later precedent was better - and in the case of Brown, I'd probably agree.

But the fact is, Brown, like your interpretation of the GW clause, was historically novel. It was not the first interpretation to roll around. In the case of the GW clause, it has not been the governing precedent for most of the Constitution's history - which was your original claim.

Furthermore, in the context of which that precedent was set, this was during a fairly radical period of re-interpretation of the Constitution by the Court - this same period saw a radical expansion of the Commerce Clause (Wickard v. Filburn) and other federal powers. It is eminently possible that this precedent may one day be rolled back - one saw hints of this with respect to the Commerce Clause in both Lopez and in the dissent on Raich.

But the point remains - historically, your position has not been recognized by the Court until the 20th century. Which means your entire claim about libertarians being fixed to some false history are completely out of order. Not that I expect you to come back with an apology or admission of error anytime soon.

Quote :

"(And speaking of which-- I just realized that I've been sucked into a debate that presupposes the validity of originalism. I'll play ball, but let the record show that originalism is lame, and pointless)"

If you feel you have a good reason for ignoring the original written explanations for the text in favor of your new interpretation, then by all means, let's hear it. Then let's hear why we have to simply re-interpret the meaning of the Constitution instead of amending it to suit the function you feel it should have.

10/22/2008 12:01:42 AM