Hamilton v Jefferson: A Game of Madison In The Middle

[Ser Scot A Ellison]

RBPL, Shryke,

I've been arguing for a Constitutional Convention for at least a decade.  

While I see your point about Wikard I fundamentally disagree with using the Courts to make a change that dramatic.  If Government power is going to shift from the closed universe model of the original Constitution to the open universe model of most modern governments that should be done by amendment not judicial fiat.

[Ariadne23]

11 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.

One could even say that the whole "the federal government does not have any powers except those specifically named in the Constitution, especially these other powers it extra doesn't have that we've also named in these Amendments" was not a partically logically solid idea from the jump (as noted at the time of drafting).

It's hard to avoid making constitutional sausage down the line when you started off with some Frankensteined compromise founding premises in the first place.

[sologdin]

scot, the judicial fiat will still nail you on the other end, such as when the rights that you happen to appreciate are ruthlessly violated by the state, but then some irredeemably deplorable rightwing judge dismisses the 1983 action on 12(b)(6), and then the dismissal is upheld by an equally awful appellate bench.

but at least there's a pretty set of rights enumerated in the constitution.

[Ser Scot A Ellison]

26 minutes ago, sologdin said:

scot, the judicial fiat will still nail you on the other end, such as when the rights that you happen to appreciate are ruthlessly violated by the state, but then some irredeemably deplorable rightwing judge dismisses the 1983 action on 12(b)(6), and then the dismissal is upheld by an equally awful appellate bench.

but at least there's a pretty set of rights enumerated in the constitution.

No doubt.

[maarsen]

Canada has a similar problem as the one brought up here.  Unless the powers are explicitly given to the provinces, in the old British North America Act, all other powers reside with the federal government.  Commerce is in the provincial purview and so is interprovincial trade. Be careful,of what you ask for and let Canada be an instructive example.  It is easier for me to go across an international border to buy beer for example,  than it is to go to a neighbouring province and buy that same beer. Professional qualifications, manufactured goods  and such are easier to travel from the US  than from another province. 

Up here we would be perfectly happy to have Canadian made maple syrup easier to buy in Louisiana  or South Carolina  than to buy that same product from Vermont. Or cars from Michigan.

[lokisnow]

8 hours ago, Ariadne23 said:

One could even say that the whole "the federal government does not have any powers except those specifically named in the Constitution, especially these other powers it extra doesn't have that we've also named in these Amendments" was not a partically logically solid idea from the jump (as noted at the time of drafting).

It's hard to avoid making constitutional sausage down the line when you started off with some Frankensteined compromise founding premises in the first place.

Not really, Necessary and proper clause

[Ariadne23]

15 minutes ago, lokisnow said:

Not really, Necessary and proper clause

Dunno if this what you mean, but, word, that ain't clearing up shit at all.

[Ser Scot A Ellison]

13 minutes ago, lokisnow said:

Not really, Necessary and proper clause

No. The N&P clause exists to facilitate only those powers expressly granted not to create and open universe for any action by the Federal Government.  If not it was superceded by the 10th Amendment which post dates it.

[Ariadne23]

5 minutes ago, Ser Scot A Ellison said:

No. The N&P clause exists to facilitate only those powers expressly granted not to create and open universe for any action by the Federal Government.  If not it was superceded by the 10th Amendment which post dates it.

Right, that stuff. This is what lawyers do with these things. Full sausage factory.

ETA: Gotta edit to say that the N&P clause, as interpreted, is like "you can do shit, as long as it's allowed by this shit, and not prohibited by this other shit, which seems to violate the rule against surplusage to me, but that shit isn't bothering most people for whatever bullshit reason.

Edited again 'cause shit I spelled that surplusage shit wrong.

[Mlle. Zabzie]

On 10/14/2016 at 7:37 PM, sologdin said:

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

Agreed.  Here are a few:  Article 1, https://www.monticello.org/site/research-and-collections/pursuit-happiness, http://blog.dictionary.com/happiness/

[sologdin]

7 minutes ago, Mlle. Zabzie said:

Agreed.  Here are a few:  Article 1, https://www.monticello.org/site/research-and-collections/pursuit-happiness, http://blog.dictionary.com/happiness/

kickass. thanks!

the curious thing is the debate between the first article's insistence on gross aretaic ethics and the third article's presentation of an underlying utilitarian/consequentialist ethics. all that's needed is a deontologist to round it out.

i like that the lockean perspective includes the notion that there is a 'true' happiness worthy of pursuit--i.e., the US always already was a so-called liberal 'nanny state.'

proper juridical archaeology likely needs to read all the supreme court cases for how the phrase is used to dispose of live controversies.