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Hamilton v Jefferson: A Game of Madison In The Middle


OldGimletEye

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Original discussion started here:

This topic is mainly about the role of federal authority in the United States and it's desirability or lack thereof. This dispute is old as the Republic itself, since the days that Hamilton and Jefferson argued about it. It still shapes US politics today.

Topics under discussion likely include:

1. Just what is the meaning of the Interstate Commerce Clause?  How far can the congress legislate under its authority?

2. How desirable is having expansive federal power?

3. Limitations upon government power.

Discuss.

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13 minutes ago, OldGimletEye said:

Original discussion started here:

This topic is mainly about the role of federal authority in the United States and it's desirability or lack thereof. This dispute is old as the Republic itself, since the days that Hamilton and Jefferson argued about it. It still shapes US politics today.

Topics under discussion likely include:

1. Just what is the meaning of the Interstate Commerce Clause?  How far can the congress legislate under its authority?

2. How desirable is having expansive federal power?

3. Limitations upon government power.

Discuss.

It is my opinion that the ICC should be about regulating Interstate commerce.  The stretch in Wickard v. Filburn is the claim that any action "affecting interstate commerce" gives the Federal Goverment the power to regulated such an activity.  In Wickard the "activity" was growing and not buying wheat for use as fodder for animals kept by Mr. Filburn.  That is too far, in my opinion. 
 

The 1964 Civil Rights act used ICC as justifcation for requiring hotels and restarunts to serve anyone regardless of race.  I support that.  It is rationally related to "Interstate Commerce" you have people coming to businesses from Out of State and seeking to engaged in commerce.  Wikard opens the Pandora's chest of allowing the Federal Government to regulate acts that are not commerce.  Growing food and not selling it, is not commerce.  If it is not commerce, then it is, in my opinion, beyond the scope of the power granted to the Federal Government to regulate. 
 

If we want Federal power to be that expansive it is my opinion that the Constitution should be amended to grant such an expansion of power.  It should not be granted by a strained reading of the existing Interstate Commerce Power. 

I see my view as middle of the road and tending toward the Jeffersonian side of the street with the recognition of the importance of the Hamiltonian view.

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This is certainly one of those areas where my libertarian leanings still hold sway.

I think the SC was wrong in the decision.  I do understand why the decision was made, and the economic difficulties at the time, but that to me is not justification for it. 

As long as the property is for private use only (no commerce) and nothing about it is a health hazard or nuisance, and doesn't violate local ordinances, I don't think the federal government should be able to step in.

I saw your comment about property owners being able to use the political process, and I am not sure what you meant by that. I took it to mean they'd have the means to fight the system.  I know more than a few property owners who would lack the means to mount a substantial objection (myself included)

I do think they could fight local ordinances though (like the no front yard gardens). 

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Here's a great essay which touches on some of these topics:

Reading Hamilton from the Left

In the American political imagination, Jefferson is rural, idealistic, and democratic, while Hamilton is urban, pessimistic, and authoritarian. So, too, on the US left, where Jefferson gets the better billing. 

...

But in reality, Jefferson represented the most backward and fundamentally reactionary sector of the economy: large, patrimonial, slave-owning, agrarian elites who exported primary commodities and imported finished manufactured goods from Europe. He was a fabulously wealthy planter who lived in luxury paid for by slave labor. Worse yet, he raised slaves specifically for sale.

...

Even if it could somehow be dislodged from the institution of slavery, Jefferson’s vision of a weak government and an export-based agrarian economy would have been the path of political fragmentation and economic underdevelopment. His romantic notions were a veil behind which lay ossified privilege.

Hamilton was alone among the “founding fathers” in understanding that the world was witnessing two revolutions simultaneously. One was the political transformation, embodied in the rise of republican government. The other was the economic rise of modern capitalism, with its globalizing networks of production, trade, and finance. Hamilton grasped the epochal importance of applied science and machinery as forces of production.

In the face of these changes, Hamilton created (and largely executed) a plan for government-led economic development along lines that would be followed in more recent times by many countries (particularly in East Asia) that have undergone rapid industrialization. His political mission was to create a state that could facilitate, encourage, and guide the process of economic change — a policy also known as dirigisme, although the expression never entered the American political lexicon the way its antonym, laissez-faire, did.

...

Hamilton’s work, by contrast, reveals the truth that for capital, there is no “outside of the state.” The state is the necessary but not sufficient pre-condition for capitalism’s development. There is no creative destruction, competition, innovation, and accumulation without the “shadow socialism” of the public sector and state planning. We may soon find that there is no potable water or breathable air without them, either.

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Lany,

Love your sig.

More broadly.  I prefer limitations on Government power.  One of the interesting ways that the US is different from the rest of the world it the way our Constitution conceives government power.  It provides as list of what government "may do" (hence my concern over the stretch of the ICC) rather than explicit limitations upon it's power.  It creates a limited universe wherein the Goverment should be able to reach rather than an open universe with regions from which government power should be excluded. 

FDR and his Supreme Court shifted the existing view via the expansion of the ICC to the latter view.  That is not how the US government was conceived and if we are going to make a change that dramatic, it is my opinion that such a change should come via one of the two existing amendment processes.

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12 minutes ago, Ser Scot A Ellison said:

It is my opinion that the ICC should be about regulating Interstate commerce.  The stretch in Wickard v. Filburn is the claim that any action "affecting interstate commerce" gives the Federal Goverment the power to regulated such an activity.  In Wickard the "activity" was growing and not buying wheat for use as fodder for animals kept by Mr. Filburn.  That is too far, in my opinion. 
 

The 1964 Civil Rights act used ICC as justifcation for requiring hotels and restarunts to serve anyone regardless of race.  I support that.  It is rationally related to "Interstate Commerce" you have people coming to businesses from Out of State and seeking to engaged in commerce.  Wikard opens the Pandora's chest of allowing the Federal Government to regulate acts that are not commerce.  Growing food and not selling it, is not commerce.  If it is not commerce, then it is, in my opinion, beyond the scope of the power granted to the Federal Government to regulate. 
 

If we want Federal power to be that expansive it is my opinion that the Constitution should be amended to grant such an expansion of power.  It should not be granted by a strained reading of the existing Interstate Commerce Power. 

I see my view as middle of the road and tending toward the Jeffersonian side of the street with the recognition of the importance of the Hamiltonian view.

But, you know, the guy who refuses to rent a room to a person of color could make the argument that he is not engaging in "commerce" either. He might very well say that he is merely refusing to engage in commerce.

I think if you kick out Wickard, you put the 1964 Civil Rights act in serious question.

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13 minutes ago, Lany Freelove Cassandra said:

I saw your comment about property owners being able to use the political process, and I am not sure what you meant by that. I took it to mean they'd have the means to fight the system.  I know more than a few property owners who would lack the means to mount a substantial objection (myself included)

Well certainly not every owner of property. But, overall those who have property certainly probably want to keep as many "rights" with respect to that property as possible. And generally, those with property are likely to have the means to get representation for their interest.

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4 minutes ago, OldGimletEye said:

But, you know, the guy who refuses to rent a room to a person of color could make the argument that he is not engaging in "commerce" either. He might very well say that he is merely refusing to engage in commerce.

I think if you kick out Wickard, you put the 1964 Civil Rights act in serious question.

I do see that problem which is why I addressed it in my initial post.  The difference is this.  Mr. Filburn never offered his wheat for sale.  He never created a place for people from anywhere to come in and buy the wheat he was growing. 
 

That simply isn't the case for people who run resteraunts or Hotels.  They hold themselves out as X and invite the public into their establishments and with that invitation engage in commerce (that's why private clubs can and do still discriminate.)  It creates a bright line rule that differentiates the two different situations and means, in my opinion, the Wikard expansion of Federal Goverment authority is unnecessary.  Further, it allows the Federal Government to prevent States from engaging in sensible actions like Marujuana legalization or decriminalization.

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5 minutes ago, OldGimletEye said:

Well certainly not every owner of property. But, overall those who have property certainly probably want to keep as many "rights" with respect to that property as possible. And generally, those with property are likely to have the means to get representation for their interest.

OGE,

What about a Kelo situation where a community is declared "blighted" and slated for demoiltion to be given to another private entity?  How do private individuals within "blighted" (enevitably poorer neighborhoods) fight such actions?

 

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Scot - what Hamilton (and not Jefferson) realized is that to truly have a Union of states we did need a true national financial system.  It's not enough to have a single currency (see, e.g., the EU).  I actually don't like the Wickard decision for many of the same reasons that you do not like it, and Kelo expands takings far beyond how they were originally intended (honestly, the founders, particularly the planter class, fetishized real property ownership).  That said, on some level the commerce clause must be read broadly in order for a nation as large and with as many sub regions with their own fiscal issues to work.  Our federal system already allows and exacerbates regional differences in outcome and treatment.  A strong federal power means that a person in South Carolina and a person in California have the same baseline below which they cannot fall.

Separately, the Jeffersonian insistence that "real" property was true property and that personal property was, well, lesser, simply has no place in modern economic thinking. It has tainted a lot of thought here though, with home ownership being the holy grail of personal economic investment.  Not sure that's healthy.

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6 minutes ago, Mlle. Zabzie said:

Scot - what Hamilton (and not Jefferson) realized is that to truly have a Union of states we did need a true national financial system.  It's not enough to have a single currency (see, e.g., the EU).  I actually don't like the Wickard decision for many of the same reasons that you do not like it, and Kelo expands takings far beyond how they were originally intended (honestly, the founders, particularly the planter class, fetishized real property ownership).  That said, on some level the commerce clause must be read broadly in order for a nation as large and with as many sub regions with their own fiscal issues to work.  Our federal system already allows and exacerbates regional differences in outcome and treatment.  A strong federal power means that a person in South Carolina and a person in California have the same baseline below which they cannot fall.

Separately, the Jeffersonian insistence that "real" property was true property and that personal property was, well, lesser, simply has no place in modern economic thinking. It has tainted a lot of thought here though, with home ownership being the holy grail of personal economic investment.  Not sure that's healthy.

I agree that the "fetishization" of real property over personal property is problematic.  Property is property.  Nevertheless, I do not believe you need to read the ICC as broadly as Wickard reads it to give the ICC signification force and effect.  That said Kelo is an incredibly terrible decision.  Justice O'Conner's dissent is devestating to the Majority in my view.  Kelo is a weapon with with developers like Trump can take down small or poor communities.

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34 minutes ago, Ser Scot A Ellison said:

OGE,

What about a Kelo situation where a community is declared "blighted" and slated for demoiltion to be given to another private entity?  How do private individuals within "blighted" (enevitably poorer neighborhoods) fight such actions?

 

Oh, I'm not blind to the fact that the governments can use their power to regulate property to extract wealth from people and to protect certain interest groups. I'm not blind to issues of regulatory capture.

I'd argue that patent laws do much of that. And certainly, at the state level, I think doctor, dentist, and lawyer lobbies perhaps keep regulations to ensure they have high wages.

That said, there can become a tyranny of private property owners. The south became the classic case of that. 

And of course, various industries can impinge on regular people's interest too. An industry that pollutes is passing off cost to others. And the people that has to bear those cost of pollution may often not to be able to do anything about it, absent regulation. And then of course there are minimum wage laws too. If you take some ultra libertarian view of property rights, then a lot of these things can't be addressed. 

The Kelo situation was unfortunate and perhaps the precise issue in question in that case was wrongly decided. But, I'm not willing take away from that case that we need some ultra heightened protection where economic regulation is concerned.

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1 hour ago, Ser Scot A Ellison said:

It is my opinion that the ICC should be about regulating Interstate commerce.  The stretch in Wickard v. Filburn is the claim that any action "affecting interstate commerce" gives the Federal Goverment the power to regulated such an activity.  In Wickard the "activity" was growing and not buying wheat for use as fodder for animals kept by Mr. Filburn.  That is too far, in my opinion. 
 

The 1964 Civil Rights act used ICC as justifcation for requiring hotels and restarunts to serve anyone regardless of race.  I support that.  It is rationally related to "Interstate Commerce" you have people coming to businesses from Out of State and seeking to engaged in commerce.  Wikard opens the Pandora's chest of allowing the Federal Government to regulate acts that are not commerce.  Growing food and not selling it, is not commerce.  If it is not commerce, then it is, in my opinion, beyond the scope of the power granted to the Federal Government to regulate. 

My issue here is that even if you limit federal power through reducing the scope of the commerce cause to prevent the federal government from interfering with, essentially, home-steading, state governments would still retain that authority, and I really don't think they should be able to either.

Consequently, I think a more robust interpretation of the 5th Amendment is the better answer, where'd we say that, in Wickard, the government committed an impermissible regulatory taking and would have to pay just compensation to the homesteader for interfering with his ability to farm for personal use, at the very least.

OTOH, as long as corporations are "persons," we'd end up granting corporations property rights that would be all kinds of nonsense from a policy perspective, so you'd have to straighten that out as well.

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11 minutes ago, Ariadne23 said:

My issue here is that even if you limit federal power through reducing the scope of the commerce cause to prevent the federal government from interfering with, essentially, home-steading, state governments would still retain that authority, and I really don't think they should be able to either.

Consequently, I think a more robust interpretation of the 5th Amendment is the better answer, where'd we say that, in Wickard, the government committed an impermissible regulatory taking and would have to pay just compensation to the homesteader for interfering with his ability to farm for personal use, at the very least.

OTOH, as long as corporations are "persons," we'd end up granting corporations property rights that would be all kinds of nonsense from a policy perspective, so you'd have to straighten that out as well.

Ariadne,
 

There was no "taking" in the Wickard case.  Mr. Filburn was denied a loan because he grew, but did not sell, crops in excess of limits created by the Federal Government.  As I said in the other thread part of my frustration in that case is the holding of incredibly expansive powers under the ICC wasn't necessary to prevent Mr. Filburn from winning. 

Corporations have always been considered people.  What hasn't always been the case is that the corporate for has allowed for flow through of the right's (religious or speech) of shareholders of corporations.  That is what the Citizen's United and Hobby Lobby cases stand for.  Calling corporations "people" is absolutely nothing new or unusual.

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Scot,

Could corporations be granted citizenship? Should we then grant corporations voting rights? Should they be able to run for office?

See, I have no problem with treating corporations as equivalent to people in the context of contract law, but they absolutely shouldn't be people in the sense of granting them civil rights.

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1 minute ago, theguyfromtheVale said:

Scot,

Could corporations be granted citizenship? Should we then grant corporations voting rights? Should they be able to run for office?

See, I have no problem with treating corporations as equivalent to people in the context of contract law, but they absolutely shouldn't be people in the sense of granting them civil rights.

Actually, this is quite fraught.  Consider, for instance, the application of the First Amendment (think, most recently, of Trump's threatened law suit against the New York Times).  Or, indeed, the application of due process in general.  

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6 minutes ago, theguyfromtheVale said:

Scot,

Could corporations be granted citizenship? Should we then grant corporations voting rights? Should they be able to run for office?

See, I have no problem with treating corporations as equivalent to people in the context of contract law, but they absolutely shouldn't be people in the sense of granting them civil rights.

No they shouldn't.  I'm not defending those cases.  I'm saying "corporate personhood" is nothing new.  It is simply misunderstood by most.

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@Mlle. Zabzie

Good point. However, the First amendmend specifies the freedom of the press as distinct from the freedom of speech. I would therefore posit that the inclusion of the clause "...or of the press,..." creates an explicit exception for the case of the First Amendment that shouldn't be automatically extended to the other Amendments, or even a conflation of the freedom of the press and freedom of speech.

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3 minutes ago, theguyfromtheVale said:

@Mlle. Zabzie

Good point. However, the First amendmend specifies the freedom of the press as distinct from the freedom of speech. I would therefore posit that the inclusion of the clause "...or of the press,..." creates an explicit exception for the case of the First Amendment that shouldn't be automatically extended to the other Amendments, or even a conflation of the freedom of the press and freedom of speech.

What about due process?  Could, e.g., a fine or penalty be imposed on the corporation by governmental fiat?  That seem. . . .ripe for abuse.

What about takings?

And why should the First Amendment be limited just to entities running a press?  Why should the government be able to limit the political speech of any entity?  

I know that the mantra is corporations bad, but that's really a reductive view of how the world actually works.

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