liberal tolerance - Justice Scalia at Wesleyan University

[detbuch]

Originally Posted by spence

You have the liberty issue backwards. Letting a company deny legally protected access to contraception through insurance for moral reasons is taking away someone's liberty.

Liberty is freedom from coercion. This includes freedom from coercive association. ALL parties in an association must be free from coercion, the employer as well as the employee in this case. You seem to feel that it is only the employee's freedom which must be protected. The Federal Government (unconstitutionally) mandated (through unelected bureaucrats of the NLRB) that employers must bargain collectively with unions under some guise of free association (free for employees, but not for employers who MUST associate with the collective group and cannot collude, associate, with other employers as a collective group). Though Ms. Fluke is not a member of a union, she is free to bargain for certain benefits, and the Church is free to agree or not--that is, in the world that the Constitution envisions. Of course, in the progressive world of our Administrative State, it is not up to either Ms. Fluke, nor up to the Church to bargain for or against something that a particular unelected administrator wishes to impose--for whatever reason that administrator wishes to conjure up. Nor does the administrator of this new regulatory agency need to feel any compunction to follow a pattern regulated by another regulatory agency (bargaining). As we keep "progressing" down this road toward complete Central planning and regulation, we can more blatantly dictate.

It's saying that the religious belief supersedes US Law...which is exactly what the Constitution sought to prohibit.

-spence

Herein lies the dissonence in arguments about what the Constitution sought to prohibit. The Constitution PLAINLY circumscribes the limits of Federal power. But the Federal Government has PLAINLY exceeded those limits--to a point nearing omnipotence so that the Constitution can prohibit nothing. The Constitution, as written and intended, is irrelevant. It is the Federal Government now that does the granting and prohibiting. When some of us argue that a Federal mandate is unconstitutional, we are speaking in terms of the Constitution that was originally, clearly, plainly, written and intended. And the original intentions were clearly debated and recorded during and after the Constitutional convention and well after in commentaries by the founders and framers. When others argue about current legally protected "liberties" they are speaking of mandates created, for the most part, by unelected, unrepresentative Federal regulatory agencies, the existence of which does not comport with the Constitution.

[spence]

Originally Posted by detbuch

Herein lies the dissonence in arguments about what the Constitution sought to prohibit. The Constitution PLAINLY circumscribes the limits of Federal power. But the Federal Government has PLAINLY exceeded those limits--to a point nearing omnipotence so that the Constitution can prohibit nothing. The Constitution, as written and intended, is irrelevant. It is the Federal Government now that does the granting and prohibiting. When some of us argue that a Federal mandate is unconstitutional, we are speaking in terms of the Constitution that was originally, clearly, plainly, written and intended. And the original intentions were clearly debated and recorded during and after the Constitutional convention and well after in commentaries by the founders and framers. When others argue about current legally protected "liberties" they are speaking of mandates created, for the most part, by unelected, unrepresentative Federal regulatory agencies, the existence of which does not comport with the Constitution.

The problem with the strict view is that there's no do-over. Quite possibly a limited Federal government would have led to bloated and inefficient States and a Nation unable to achieve what it has.

My guess is the SCOTUS upholds the HCB with Roberts actually supporting it in narrow terms. The argument for regulation under the commerce clause does appear to be pretty good. We'll soon find out...

If it's prudent is another issue and a political one.

-spence

[detbuch]

Originally Posted by spence

The problem with the strict view is that there's no do-over.

A formal, textual reading of the law is the only way it can be applied consistently and uniformly. A law that can be "interpreted" in two ways (or more) is not a law but an opinion. A law that can "mean" whatever you want or is expedient for the moment, or the whims of rulers, is a meaningless conglomeration of words which create a legal patina for tyranny.

And there is no "do-over" in textual understanding either of legislation or the Constitution. For the latter, it is an adherence or return to it's principles. You misunderstand this in the same way you misunderstand, as you have often put it, "there are no mulligans." In golf, from whence the expression came, it is, as you say, a "do-over" to replace an errant shot. But in proper golf, again, as you say, "there are no mulligans." You count the bad stroke, but you don't, if you're competent, keep doing the same thing. You correct the flaw in your swing that caused the errant shot--usually by going back to basics. Likewise, having strayed from Constitutional governance to errant tyranny, you don't continue the mistake, but you return to basics--the Constitution.

Quite possibly a limited Federal government would have led to bloated and inefficient States and a Nation unable to achieve what it has.

Not as possibly as our unlimited Federal Government has led itself into its own bloated, dictatorial state, which, in turn, has also led to bloated yet starving States who mimic it and depend with subservience on its leadership and mandates.

The nearly 150 years of Constitutional adherence before we were transformed into the Progressive administrative State, shows no evidence that a limited Federal Gvt. would lead to bloated, inefficient States. Nor does it show evidence that it would lead to the present bloated Federal Gvt. Bloating was not a problem at either level. the people, then, had more influence on State Governments than they now have on the Federal Gvt. which is probably a reason for less bloating. And the nation grew rapidly and exponentially during limited Central power. The evolutionary power of a free and diverse people, no doubt, was a contributing factor. Had the States retained power against a limited National Gvt., they would now have had to accede more to their constituents and less to a Central power, and would have maintained a more diverse, flexible, innovative, and evolutionary status, thus more likely to succeed, rather than being submissive to a one-size-fits-all Central power whose mistakes will be expanded rather then corrected. Power corrupts, and absolute power corrupts absolutely. Also, remember, the States cannot print money, so cannot so carelessly amass multi-trillions of debt. States can financially fail leading to necessary correction. The Federal Gvt. does not allow itself to fail. It just keeps spending and can't be stopped.

Remember also, that, though the Founders wanted limited central power, they did not want a weak Central Gvt. They wanted a strong National Gvt., but that strength had to be limited only to those powers granted in the Constitution. Within, and only within, those limitations was the National Gvt. all-powerful. That is why it is NECESSARY to limit the scope of Central power. When Progressives in Congress and the Presidency created agencies with powers beyond those enumerated in the Constitution, and Progressive judges "interpreted' key clauses to allow such agencies to stand, the Federal Gvt. appropriated nearly all the powers, including those reserved to the States and the People with the exception of some vestiges of the Bill of Rights that can, in the future if necessary, easily be "interpreted" to violate some clause such as the Commerce clause. That is the expanding tyranny that we now face, and most people don't realize what has happened. Nor do they care that much so long as the Government maintains a pretense of benevolence.


You have mentioned that all that is needed for correction is for our government to act responsibly. That a few structural corrections would suffice. I asked what those corrections are, but you didn't respond. This would be a good a time as any to do so.

My guess is the SCOTUS upholds the HCB with Roberts actually supporting it in narrow terms. The argument for regulation under the commerce clause does appear to be pretty good. We'll soon find out...

If it's prudent is another issue and a political one.

-spence

The odds of SCOTUS upholding the HCB are fairly good. The Commerce Clause, the General Welfare Clause, the Necessary and Proper clause, the Due Process Clause, and others have been intentionally "interpreted" in the past to mean what they were not meant to mean and what is clearly not stated in the Constitution. This has created the mass of Bad Case Law and accepted Law necessary for this country to function as a regulatory, administrative State rather than a Constitutionally representative one. Striking down the HCB could lead to reversals of what has been built, and if done too quickly, it could lead to widespread hardship. The more conservative constitutionally leaning justices have an onerous task. The progressive ones, like Kagan who is in favor not only of the HCB, but of the administrative State, will have no doubts as to their verdict or its consequences.

[detbuch]

Originally Posted by spence

My guess is the SCOTUS upholds the HCB with Roberts actually supporting it in narrow terms. The argument for regulation under the commerce clause does appear to be pretty good. We'll soon find out...

-spence

Spence, I'm really curious to know what, in your opinion, is the good argument for regulation under the commerce clause?

[spence]

Originally Posted by detbuch

Spence, I'm really curious to know what, in your opinion, is the good argument for regulation under the commerce clause?

My understanding is that the argument against is that if I opt out of insurance, there's no activity to be regulated and the Federal government can't regulate inactivity...i.e. no commerce.

But we all know that the uninsured place a large burden on the entire health care system nationally.

So there's really no such thing as inactivity.

Perhaps this is simplistic, but I believe is at the core of the Administration's case, at least in respect to the commerce clause. And to me it does make perfect sense.

That's not to say the entire legislation is perfect. I think there are many other measures regarding tort reform and competition that could also help reduce costs.

-spence

[scottw]

Originally Posted by spence

My understanding is that the argument against is that if I opt out of insurance, there's no activity to be regulated and the Federal government can't regulate inactivity...i.e. no commerce.

-spence

a repeating theme when the two of you engage is that one argues specifically for or against something and the other is constantly proposing muddled arguments around something...usually the Constitution

what has been specifically said is:

In Virginia v. Sebelius, Judge Henry Hudson overturned the law, claiming that failure to purchase health insurance coverage could not be considered economic activity, being rather economic "inactivity."

In Liberty University v. Geithner, Judge Norman Moon upheld the law, countering that:
"Far from ‘inactivity,’ by choosing to forgo insurance, Plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now, through the purchase of insurance."

Similarly, in Thomas More Law Center v. Obama, judge George Steeh ruled that such decisions have "a documented impact on interstate commerce."

love to know how an individual choosing not to purchase health insurance has been documented to impact interstate commerce...

to argue for Obamacare Spence, you have to argue around the founding documents, you have to argue that creating an enormous Federal Bureaucracy with unlimited power vested in individuals through government and over individuals somehow fits nicely into the original plan of "inalienable" individual rights and government limitations....you are also setting a precedent for future expansion that will really be unlimited, you cannot argue for this and then down the road complain about expansion in areas that you might disagree with, by individuals with agendas that you might disagree with and claim that the government may not mandate and fine you for non-compliance because you're now granting them broad authority over the individual....which really contradicts that intent at our founding......

you were right about something..in this instance..we don't get a do-over

[detbuch]

Originally Posted by scottw

what has been specifically said is:

In Virginia v. Sebelius, Judge Henry Hudson overturned the law, claiming that failure to purchase health insurance coverage could not be considered economic activity, being rather economic "inactivity."

This shows how far from the original language and meaning of the Constitution the Court has strayed. The plain language "commerce" as used at the time of ratification meant "trade and exchange of goods." That Hudson had to argue about "economic inactivity" rather than directly stating that when no purchase is made, there is no exchange, therefore there is no commerce, shows how convoluted arguments must now be to satisfy current "interpretation."

In Liberty University v. Geithner, Judge Norman Moon upheld the law, countering that:
"Far from ‘inactivity,’ by choosing to forgo insurance, translate: I choose not to buy your product (no exchange, no commerce) Plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now, through the purchase of insurance."

Naw, I got my own reasons which are different than my neighbor's reason, and why should you be telling me that the government can force me to buy it now or ever?

Similarly, in Thomas More Law Center v. Obama, judge George Steeh ruled that such decisions have "a documented impact on interstate commerce."

Whether such documents exist or not, is irrelevant to the Constitution (as originally written). The Congressional power therein granted was to regulate COMMERCE not to regulate anything other than actual commerce which might in some way affect commerce, and that commerce was to be made regular among the States, INTERSTATE, and the regulation was only to make freer, more functional and regular, the existing commerce created by the People not to prohibit commerce nor to demand it or create it.

love to know how an individual choosing not to purchase health insurance has been documented to impact interstate commerce...

Whatever and if such documents exists, they have to apply to what was formally referred to as the Interstate Commerce Clause but is now simply called the Commerce Clause. This new Commerce Clause was given birth in the FDR Court which firstly expanded "Commerce" to include agriculture and manufacture and production. The narrow meaning of commerce the founders used did not include these items, but only referred to trade and exchange of goods. Aghriculture and manufacture were always referred to by the framers as separate from commerce--the goods produced from agriculture and manufacture only became commerce when they were exchanged on the market. Thus, commerce was expanded to be more than the actual trade and exchange, but that which had an affect or could lead to such exchange. Then, in WICKARD, it was determined also that anything or action that could lead to lowering of the price of goods could also be considered to affect commerce--Even if there was no sale or cross-border activity. This, virtually, redefined the meaning of to regulate commerce among the several States to be any and all things that might have some affect on the market/economy, which means just about anything or action we do or take regardless of whether or not it occurs within State or across borders. This, virtually, gives Congress the power to regulate almost all of our activity.

to argue for Obamacare Spence, you have to argue around the founding documents, you have to argue that creating an enormous Federal Bureaucracy with unlimited power vested in individuals through government and over individuals somehow fits nicely into the original plan of "inalienable" individual rights and government limitations....you are also setting a precedent for future expansion that will really be unlimited, you cannot argue for this and then down the road complain about expansion in areas that you might disagree with, by individuals with agendas that you might disagree with and claim that the government may not mandate and fine you for non-compliance because you're now granting them broad authority over the individual....which really contradicts that intent at our founding......

you were right about something..in this instance..we don't get a do-over

Progressives know full well and admit that they intend to contradict the intent of the founders. They believe the founding document is outdated and irrelevant. They realize it would be too difficult, at this time, to formally rewrite the Constitution through a new Con-Con, amending it is too slow as well as too dificult, so they informally rewrite it through progressive jurisprudence redefining the meaning of the words. And, yes, the progressive aim is to give unlimited power to the Central Gvt. bureacracy. And this authority over the individual is for his own benefit. That you express concern that future administrations might not be as benevolent to the People as current progressives claim to be, is unwarranted. We have arrived at a point in history when the People and the administrators understand the necessity of fairness and equality. Our educational institutions teach and profess this as the true and necessary mission of our lives. The "individual" cannot stand out as separate from the community if we are to achieve total fairness and equality. And the community expresses itself in the benevolent State. The community, the State, and the individual are part of one and the same living, breathing, entity. You do not have to fear malevolent future administrations. They are part of the same living organism as is the individual. They are one and the same.

[scottw]

Originally Posted by detbuch

Progressives know full well and admit that they intend to contradict the intent of the founders. They believe the founding document is outdated and irrelevant. They realize it would be too difficult, at this time, to formally rewrite the Constitution through a new Con-Con, amending it is too slow as well as too dificult, so they informally rewrite it through progressive jurisprudence redefining the meaning of the words. And, yes, the progressive aim is to give unlimited power to the Central Gvt. bureacracy. And this authority over the individual is for his own benefit.

There is a bothersome component to the idealogical thinking on the left that is reflected in their elected officials, pundints and among their supporters which is:

"we are smarter than you, we know what's good for you and you are obviously too stupid(insert various pejoratives) to "get it"...and since you don't "get it" we are obligated to make you "get it"....

I'd look for some serious domestic unrest over the next year...it's already starting

[justplugit]

Originally Posted by spence

Quite possibly a limited Federal government would have led to bloated and inefficient States and a Nation unable to achieve what it has.

-spence

More likely it would be better with Home Rule and a small Fed Govt. allowing the people close access to the governing officials and issues.
For instance, when you have a gripe in your community or county, you can attend Council or Freeholder meetings to express your opinions and keep an eye on local and State issues.You are a face.
Except for an occasional Town Hall Meeting, phone call or e-mail you are just a
number to the Feds.
Can't imagine anything more bloated, inefficient or wastefull than things are now.