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PaperclipPerfector  26d ago (text post)   36918 thread views

Culture War Roundup for the week of January 27, 2025

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There is nothing uncontroversial about that medical aid. Quite simply, it is not theirs to give.

when Congress once begins to stretch its power beyond the limits of the Constitution, there is no limit to it, and no security for the people

Congress has enormous taxation and spending powers. Federal courts recognize this obvious fact.

Federal Courts are more dangerous the more honest they are. That doesn't mean they correctly interpret the Constitution.

It probably doesn't apply in this case, but would Congress have the ability to make treaties with foreign nations and give them medical aid under those enumerated powers? Or could Congress make use of enumerated powers related to raising armies, and provision the military with extra medical personnel and supplies, and then (with permission of affected countries) send military doctors in to provide substantially similar medical aid to that currently being given?

Like, I'm all for the idea of doing things "the right way" within the legal framework we have, but surely Congress just giving medical aid to foreign nations isn't far off from things they could do with enumerated powers under the Constitution?

the Constitution, to be worth anything, must be held sacred, and rigidly observed in all its provisions. The man who wields power and misinterprets it is the more dangerous the more honest he is.

It's either enumerated or it isn't. "Not far off" means "not enumerated" means "unconstitutional."

It's either enumerated or it isn't. "Not far off" means "not enumerated" means "unconstitutional."

Given the existence of the Necessary and Proper clause, "not far off" means that you have to look into the purpose and see if the activity is necessary and proper to an enumerated power. The framers intended the delegated powers to be broad - particularly the spending power. There is no territorial limit on the spending power in the Constitution, and if controlling communicable diseases isn't the "general welfare" I don't know what is.

I don't know if the early US did contribute financially to the plague-control infrastructure in the Mediterranean (the British certainly did), but am pretty certain that the Framers thought that was the sort of thing that the government should be able to do.

you don't think it's odd the framers bothered with the other "enumerated powers" when your interpretation of Art. I, s 8, cl 1, along with the necessary and proper clause, makes almost all of them entirely superfluous?

it's a wonder why multiple framers wrote multiple letters to the press which repeatedly described how restricted the enumerated powers were, not to mention the Constitution was only ratified based on a promise to include the Bill of Rights which contains the 9th and 10th Amendments again clarifying these powers should be restrictive (as all others were reserved to the people and states, respectively)

the modern interpretation by the courts is, despite all ink to the contrary, pretty much what yours is, but that's because the Constitution has been long dead from prior violations, not because of the Framers' intentions

I think the framers intended the spending power to be broad (the limit on that pre-16th amendment is the limit on the taxes the federal government can raise to pay for spending) and the police power to be narrow. You can read the General Welfare clause to be limited by some requirement of generality (the federal government can't fund things which benefit a specific state or individual), although that isn't consistent with founding-era practice, but I don't think it can be read as being limited by some set of permitted purposes.

Part of the problem here is that it isn't 1789 any more - transport is easier, multi-state joint stock companies are a thing, and so the range of things that really are necessary and proper to the regulation of interstate commerce is large (but not infinite). The actual holding of inverse-Wickard is "The federal government lacks the power to regulate the intermediate processes of a vertically integrated business" (such as a farmer growing wheat which would be fed to animals whose meat would move in interstate commerce) which is a bit of a libertarian gotcha given the way large businesses work in the 20th century.

Okay, so why did they bother with 90% of the rest of section 8 if a broad reading of those two parts make them superfluous? Were their comments, arguments, communications with each other, etc., all just a ploy to pass the only sections which mattered?

It's true it isn't 1789 anymore and the world and its juridical walls are gone and we're left with a document which can be read to have essentially limitless power and that's essentially what it is in the modern day; however, that doesn't mean it was the founders intent. You can read the entirety of clause 1, the tax and spend clause, as being used for the other enumerated clauses and reading it this way doesn't make most of the section, the most important section in the entirety of the Constitution, superfluous. The history of formulation, ratification, and amendment weighs against your claims about the founders intent as well as the repeatedly stated primary purpose of the coup against the Articles of Confederation and the Constitution to begin with which was the power to levy taxes. Indeed this is a supported general characterization of what the founders argued and responded to others when this question and criticism was brought up at the time of the founding and ratification process.

Perhaps some of them did see and want this clause to be essentially limitless, but that's not what they told others nor what they argued for its approval nor would it be anywhere close to the consensus view at the time of the founding.

The actual holding of inverse-Wickard is "The federal government lacks the power to regulate the intermediate processes of a vertically integrated business"

the holding in Wickard v Filburn from the 1940s, over 150 years after the founding, was that if an individual's effort which is entirely intrastate with no showing whatsoever of any interstate movement of anything could be "aggregated" and therefore have a "substantial effect" on interstate commerce then the federal government has the power to regulate it under the interstate commerce clause

the inverse of that holding isn't your statement, the inverse would be the federal government doesn't have the power to regulate entirely intrastate commerce even if aggregated together there is some effect on interstate commerce

the holding itself erased any limit on the commerce clause because any individual act if aggregated enough will have a substantial effect on interstate commerce; do you think a single founder would have seen this case and not been horrified?

Besides, silly FDR, he should have just passed a large tax on all wheat grown and only offered a subsidy if you abide by the Agricultural Adjustment Administration. Who needs the commerce clause when your tax and spend power is only limited by the apportionment clause, which after the Obamacare cases, means pretty much nothing, another relic of a bygone era.

Do you think the Louisiana purchase was a legal act under the Constitution, given that there is no explicit enumerated power for Congress to acquire territory from other countries?

I get wanting to be something like an Originalist, but I think that a lot of people that hold the position do so as a kind of cop out. It is much easier to say, "We can't debate foreign aid, the Constitution doesn't explicitly allow it", than to say, "I am opposed to my tax dollars being spent on foreign aid for reasons X, Y, and Z." But the problem is, sometimes the Constitution does actually seem to allow the thing (and not in a nonsense "Living Constitution" way.)

I think if you're creative, most of the limitations are hardly limitations at all. The Federal government was able to end hotel segregation by using the Interstate Commerce clause to regulate hotels that host people from other states. That seems like a much more justifiable use of the Interstate Commerce clause than that one outrageous case of regulating how much corn a man is allowed to grow on his own property, and which would never cross state lines.

(EDIT: Looking it up, at least one kind of foreign medical aid is done "by the book" in exactly the way I describe. The US Department of Defense will send the military in to foreign disaster areas to set up field hospitals and military medical teams. So, we can ask the object level question - should US tax dollars be spent on such foreign aid? I don't think the "but the Constitution" dodge is really possible here.)

Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.

by using the Interstate Commerce clause to regulate hotels that host people from other states. That seems like a much more justifiable use of the Interstate Commerce clause than that one outrageous case of regulating how much corn a man is allowed to grow on his own property, and which would never cross state lines.

Wickard v Filburn is a travesty, and every day the Supreme Court goes without reversing it is another day of ignominy and shame.

That still doesn't mean that there's any interstate commerce when someone rents a hotel room. The commerce happens when the man crosses the border with money. The renting of the hotel room only ever occurs within one state.

Looking it up, at least one kind of foreign medical aid is done "by the book" in exactly the way I describe. The US Department of Defense will send the military in to foreign disaster areas to set up field hospitals and military medical teams.

There should be no standing army in the first place, but rather state militias. This is not by the book in any way.

Do you think the Louisiana purchase was a legal act under the Constitution, given that there is no explicit enumerated power for Congress to acquire territory from other countries?

With the caveat that this is way in the past, so it's purely academic: this was very clearly illegal under the Constitution. I don't see any way you can argue that it was legal under a framework where the federal government only is allowed explicitly enumerated powers. The Constitution (well, the bill of rights but since they are amendments it amounts to the same thing) is quite clear that anything not allowed in the Constitution is reserved for the states/people.

I agree. The question was meant to highlight the problems with Originalism and similar positions. The Founding Fathers were wise, but in setting up a government of limited powers, they failed to account for a very obvious case like acquiring new territory. Thomas Jefferson was only the 3rd president of the United States - it didn't take long for the cracks to show.

The Founding Generation were all alive to see how inadequate the Constitution of limited powers they had crafted was. It didn't take long for people like Alexander Hamilton to try to craft a national bank, or for presidents to hide the fact that they were engaging in clandestine naval warfare without congressional approval or oversight, or for the Supreme Court to seize the right of judicial review, or for Jefferson to decide the treaty power includes the ability to acquire more territory. I'm sympathetic to Originalism, and I think in an ideal world it would be how the law was actually interpreted, but the ink had hardly dried on the Constitution when the first violations of its framework happened.

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