Hamilton v Jefferson: A Game of Madison In The Middle

[Ariadne23]

20 minutes ago, Ser Scot A Ellison said:

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.

Re: Wickard - It's semantics. Gov't entitlements made dependant on the (IMO) unconstitutional restriction of property rights, e.g., you can't tell people they can only have a subsidized student loan if they agree to content restrictions on their speech.

Re: Corporations as persons - I'm familiar with the legal history of corporate entities as constructive "persons" and disagree with that particular legal fiction from its inception for reasons like those that arise here, e.g., I want to reimburse individuals for regulatory takings, but not corporations. It's a fair trade for limited liability, otherwise constructive corporate persons have *more* rights than actual persons, which has been an absurd result from the start.

[The guy from the Vale]

Just now, Mlle. Zabzie said:

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?

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

No, I don't think corporations are automatically bad. However, I think their political influence should be minimized (it can't be entirely eliminated without also restricting citizen's rights, so I'm against that)

Due process is indeed a bit more complicated. I admit I'd favor a slight rewriting of that to accomodate for continued due process for corporations while making sure their rights are not extended beyond the necessary minimum freedoms they need to operate.

[sologdin]

22 minutes ago, Ser Scot A Ellison said:

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. 

scot, filburn's growth of eggplants for his own private culinary art very obviously impacted the world market for eggplants, as his production lowered aggregate demand by removing his market participation therefor, and thereby lowered the marginal price for the entire world.  some poor child of a corporate aubergine producer went without a third vacation home that year.  filburn should accordingly feel horrible.  

it's similar to how private consensual non-commercial sex acts affect, and afflict, the world market for commercial sex acts.  that excellent blowjob you received last night that reduced you to a noodly-appendaged brains-fucked-out temporary vegetative state?  yeah, lowered the marginal rate for sex acts.  not cool, scot. 

[OldGimletEye]

1 hour ago, Ser Scot A Ellison said:

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.

Yeah, but whether Mr. Filburn decides to buy wheat on the open market or grow the wheat himself his decision likley impacts the national wheat market, something the government can regulate.

If the government decides to prop up the price of wheat, then Mr. Filburn's actions ended up depressing it.

There is little economic difference between Mr. Filburn growing the wheat for himself or him growing the wheat and selling it to another person.

You answer that the guy renting hotel rooms has decided to engage in commerce, so accordingly he is subject to federal regulation in every type of commerce he engages in. But, my question is why does it have to be a package deal? Can't he choose to do commerce in one area i.e. renting rooms to white people, while choosing not to do commerce in another area ie renting rooms to minorities?

[Ser Scot A Ellison]

15 minutes ago, OldGimletEye said:

Yeah, but whether Mr. Filburn decides to buy wheat on the open market or grow the wheat himself his decision likley impacts the national wheat market, something the government can regulate.

If the government decides to prop up the price of wheat, then Mr. Filburn's actions ended up depressing it.

There is little economic difference between Mr. Filburn growing the wheat for himself or him growing the wheat and selling it to another person.

You answer that the guy renting hotel rooms has decided to engage in commerce, so accordingly he is subject to federal regulation in every type of commerce he engages in. But, my question is why does it have to be a package deal? Can't he choose to do commerce in one area i.e. renting rooms to white people, while choosing not to do commerce in another area ie renting rooms to minorities?

No, because he engaged in commerce offering rooms to the general public.  If he is a private club renting only to club members I don't believe the same analysis applies.  It is the holding out to the public that created the nexus for regulation by the Federal Government under the ICC. 

As such the Wickard situation is clearly distinguishable and not necessary for the government to have power to act on businesses activily holding themselves out to the public for commerce.  If they do, they are subject to regulation by the Federal Government under the ICC.

[Mlle. Zabzie]

1 minute ago, Ariadne23 said:

Re: Wickard - It's semantics. Gov't entitlements made dependant on the (IMO) unconstitutional restriction of property rights, e.g., you can't tell people they can only have a subsidized student loan if they agree to content restrictions on their speech.

Re: Corporations as persons - I'm familiar with the legal history of corporate entities as constructive "persons" and disagree with that particular legal fiction from its inception for reasons like those that arise here, e.g., I want to reimburse individuals for regulatory takings, but not corporations.

Why?  Seriously, if the government could just come in and TAKE from a corporation at any time, for whatever reason, what would that do to business certainty?  I mean, it would give the government completely  unfettered power over bodies corporate.  That's just dumb.

[Mlle. Zabzie]

54 minutes ago, theguyfromtheVale said:

No, I don't think corporations are automatically bad. However, I think their political influence should be minimized (it can't be entirely eliminated without also restricting citizen's rights, so I'm against that)

Due process is indeed a bit more complicated. I admit I'd favor a slight rewriting of that to accomodate for continued due process for corporations while making sure their rights are not extended beyond the necessary minimum freedoms they need to operate.

I'm personally very nervous of putting any restrictions on political speech.  It's one thing to restrict, e.g., what can be on a food label.  Totally makes sense to me.  But political speech is different.  

[Ariadne23]

10 minutes ago, Mlle. Zabzie said:

Why?  Seriously, if the government could just come in and TAKE from a corporation at any time, for whatever reason, what would that do to business certainty?  I mean, it would give the government completely  unfettered power over bodies corporate.  That's just dumb.

I think you are interpreting me as talking about regular 'ol takings.

Quote

Regulatory taking is a situation in which a government regulation limits the uses of private property to such a degree that the regulation effectively deprives the property owners of economically reasonable use or value of their property to such an extent that it deprives them of utility or value of that property, even though the regulation does not formally divest them of title to it.

Right now, no "just compensation" is required to anyone, individual or corporate entity, for a regulatory taking.

Looks like an honest mistake on your part though, so I won't call ya dumb back or anything. :-)

[The guy from the Vale]

19 minutes ago, Mlle. Zabzie said:

I'm personally very nervous of putting any restrictions on political speech.  It's one thing to restrict, e.g., what can be on a food label.  Totally makes sense to me.  But political speech is different.  

I admit, I think CU, while a slight overreach, is not totally unreasonable in and of itself. The decision that, in my eyes, is indeed a clear step in the wrong direction is Hoby lobby - because it establishes properties of corporations like religion that, before that, were the sole domain of natural persons.

[Ser Scot A Ellison]

8 minutes ago, theguyfromtheVale said:

I admit, I think CU, while a slight overreach, is not totally unreasonable in and of itself. The decision that, in my eyes, is indeed a clear step in the wrong direction is Hoby lobby - because it establishes properties of corporations like religion that, before that, were the sole domain of natural persons.

TGFTV,

I keep waiting for somone to use Hobby Lobby and the shareholder's rights flow through as justification for piercing Hobby Lobby's corporate veil as the Shareholders are using Hobby Lobby as an alter ego.

[Ariadne23]

7 minutes ago, theguyfromtheVale said:

I admit, I think CU, while a slight overreach, is not totally unreasonable in and of itself. The decision that, in my eyes, is indeed a clear step in the wrong direction is Hoby lobby - because it establishes properties of corporations like religion that, before that, were the sole domain of natural persons.

I think that if you start from the premises that (1) an individual's constitutional function is the pursuit of happiness and (2) a corporation's legal function is to produce shareholder value we can see that those purposes, while both of great value to the body politic, are not sufficiently rationally analogous to prevent all manner of bullshit further down the chain of logical legal reasoning, in just about every legal or constitutional area. Possibly we should just amend the constitution to explicitly remove corporate entities from protection under the other amendments and grant them their own appropriate rights, like against government seizure of property without just compensation.

[sologdin]

it is discriminatory against non-natural persons to deny them all the rights of citizenship, inclusive of the franchise. 

[Mlle. Zabzie]

 

1 minute ago, Ariadne23 said:

I think that if you start from the premises that (1) an individual's constitutional function is the pursuit of happiness and (2) a corporation's legal function is to produce shareholder value we can see that those purposes, while both of great value to the body politic, are not sufficiently rationally analogous to prevent all manner of bullshit further down the chain of logical legal reasoning, in just about every legal or constitutional area. Possibly we should just amend the constitution to explicitly remove corporate entities from protection under the other amendments and grant them their own appropriate rights, like against government seizure of property without just compensation.

Pursuit of happiness is really the Declaration of Independence.  The Supreme Court in Meyer v. Nebraska used it as part of a catch all to define "liberty", but that is certainly not an "individual's constitutional function."  Rather, the function of the Constitution is to protect liberties.  But I won't call you dumb back or anything.

[Ser Scot A Ellison]

Zabzie,

Have I told you recently that you're awesome?  If not I need to remind you of that fact.

[Ariadne23]

2 hours ago, Mlle. Zabzie said:

 

Pursuit of happiness is really the Declaration of Independence.  The Supreme Court in Meyer v. Nebraska used it as part of a catch all to define "liberty", but that is certainly not an "individual's constitutional function."  Rather, the function of the Constitution is to protect liberties.  But I won't call you dumb back or anything.

No no, I'm speaking not of the constitution's function, but of the purpose of an individual according to the constitution. I'm not saying that the words "pursuit of happiness" are literally in the constitution, but that, in the United States, I believe this is what we understand a person's function while living to be from a political philosophy standpoint, taken from the founding documents, including the declaration, etc.

I don't really take issue with the idea that we could say the individual function is to "be free," but it kinda begs the question.

We're in for a long thread if you're looking to play legal gotcha, yeah? I'm a lot more interested in what you think about my point re: the different purposes of individuals and corporations. I too get very frustrated with the whole "corporations are teh evil" thing & think they have good functions, but I also think we get in trouble when we ascribe rights and purposes to the corporation that are outside the scope of increasing shareholder value.

ETA: Also, not to quibble, but, FTR, I didn't say that you or anything you're saying is dumb or anything like that, since neither you nor anything you are saying is making me think "dumb" or any adjective related to "dumb."

[sologdin]

3 hours ago, Mlle. Zabzie said:

 

Pursuit of happiness is really the Declaration of Independence.  The Supreme Court in Meyer v. Nebraska used it as part of a catch all to define "liberty", but that is certainly not an "individual's constitutional function."  Rather, the function of the Constitution is to protect liberties.  But I won't call you dumb back or anything.

kickass.  obiter dicta, though?

"pursuit of happiness" shows up 107 times in supreme court opinions, that i can see--28 of those are the "orderly pursuit of happiness" language of meyer.

the first occurrence of the more general language is 1823's green v. biddle, 21 US 1, 62:

Quote

 

As to the objections made on the other side to our interpretation of the compact, that it impugns the right to the pursuit of happiness, which is inherent in every society of men, and is incompatible with these unalienable rights of sovereignty and of self-government, which every independent State must possess, the answer is obvious: that no people has a right to pursue its own happiness to the injury of others, for whose protection solemn compacts, like the present, have been made. It is a trite maxim, that man gives up a part of his natural liberty when he enters into civil society, as the price of the blessings of that state: and it may be said, with truth, this liberty is well exchanged for the advantages which flow from law and justice. The sovereignty of Kentucky will not be impaired by a faithful observance of this compact in its true spirit.

 

This strikes me as a usage similar to the term 'common sense,' which is normally invoked only to point out its absence ("why aren't you doing [x]? it's just common sense!" &c.).  from its first appearance, it is an aporetic, invoked only to be denied, which doesn't seem to trouble the users who fall into the aporia thereby.  (the second appearance is, cooly, the amistad case, 40 US 518, where it appears as part of baldwin's argument on behalf of the appellants--not in JQA's, which argument mysteriously is disappeared: "It was the purpose of the Reporter to insert the able and interesting argument of Mr. Adams, for the African appellees; and the publication of the "Reports" has been postponed in the hope of obtaining it, prepared by himself. It has not been received.")

an archaeology of the phrase would probably make a cool article.

[Ariadne23]

5 hours ago, sologdin said:

it is discriminatory against non-natural persons to deny them all the rights of citizenship, inclusive of the franchise. 

Shiny. 'Cause I aim to discriminate. ;-)

[The Marquis de Leech]

The elephant in the room here is that the likes of Wiickard are necessary if you are going to have a modern functioning state. If the US Constitution were being amended every couple of years, I would be far more inclined to accept the "this is bullshit" view of Wickard, but given that the US is trying to run a twenty-first century political, legal, and economic system with an eighteenth century constitutional framework, getting creative with the founding documentation is a necessary evil.

Were it not for the... difficult... levels of current polarisation, having a new Constitutional Convention would be the way to go. The problem then would be that (just like slavery in the old one), no-one would agree on what to do with guns.

[Shryke]

3 hours ago, Roose Boltons Pet Leech said:

The elephant in the room here is that the likes of Wiickard are necessary if you are going to have a modern functioning state. If the US Constitution were being amended every couple of years, I would be far more inclined to accept the "this is bullshit" view of Wickard, but given that the US is trying to run a twenty-first century political, legal, and economic system with an eighteenth century constitutional framework, getting creative with the founding documentation is a necessary evil.

Were it not for the... difficult... levels of current polarisation, having a new Constitutional Convention would be the way to go. The problem then would be that (just like slavery in the old one), no-one would agree on what to do with guns.

It ain't like the original constitution was written without a bunch of hashing out of stupid pet issues either.

[lokisnow]

15 hours ago, Ser Scot A Ellison said:

No, because he engaged in commerce offering rooms to the general public.  If he is a private club renting only to club members I don't believe the same analysis applies.  It is the holding out to the public that created the nexus for regulation by the Federal Government under the ICC. 

As such the Wickard situation is clearly distinguishable and not necessary for the government to have power to act on businesses activily holding themselves out to the public for commerce.  If they do, they are subject to regulation by the Federal Government under the ICC.

Private club only for members? So Uber is exempt from all laws governing selling transit by car because it's a membership only affair? I think withou a decision as expansive as wickets you would have a lot of commerce trying to hide itself in discriminatory little fictions where every Hilton hotel is members only and members are only white for example. Humans have an excellent and long history of accepting or eagerly pursuing submaximal economic decisions if it flatters and reinforces their existing prejudices. So I think the civil rights act point is a good one.

 

separately I'm currently at the part of chernows Washington biography where he has to decide whether or not to veto Hamiltons national bank charter, Jefferson and the AG both tell him it is unconstitutional basically arguing under principles of strict construction, but Hamilton argues the necessary and proper clause means it is constitutional and basically argues from a framework of living document, Washington chooses the latter and here we are today arguing the same arguments as that first case.