Re: Palin is a birther...

by **SheikBen** Wed Dec 09, 2009 9:13 am

Incidentally Andrea the idea of private right versus public need goes all the way back to the "natural rights" theorist John Locke and the utilitarians. The 5th amendment prohibits private property being taken for public use without "just compensation." Of course, in the same vein, Article One prohibited a direct national income tax as well.

Am I my brother's keeper? Yes. Is the government my keeper? No.

by Andrea Cristobal Wed Dec 09, 2009 9:31 am

Good morning Sheik Ben. Don't thank me, I am enjoying myself so far. This seems a place of intelligent argument. That I like. I have no work today. We are in the midst of a huge snow storm at present. The thought of shoveling is putting a giant crimp in my day, but alas I shall survive.

Do I believe that government is my keeper? No I do not. But I do believe that there are some instances where government intervention is both necessary and prudent. In my opinion health care is one such instance. I use the following-

West Coast Hotel

Syllabus of the Supreme Court of the United States- 300 U.S. 379
West Coast Hotel Co. v Parrish
Appeal from the Supreme Court of Washington
Decided March 29, 1937

[/quote]Deprivation of liberty to contract is forbidden by the Constitution if without the due process of law, but restraint or regulation of this liberty if reasonable in relation to its subject and if adopted for the protection of the community against evils menacing the health, safety, morals and welfare of the people, is due process. P. 391[quote]

I believe health care is one of those subjects that requires intervention. I would also hope as in so many of the employees who lost jobs after NAFTA insurance workers could be retrained.

by Aaron Wed Dec 09, 2009 9:36 am

I don't suppose you've ever heard of the court packing bill, have you AC?

You can start by reading this or this. And bear in mind that Mr. Justice Roberts, who delivered the majority opinion in the case you quote stated in 1951 that the one mistake he made in his long and illustrious career was caving to FDR and Democrats when they threatened to ram legislation through and nullifying the court of it's constitutional power.

From there, you can do some research on the term 'welfare' and what it meant in the time the Constitution was ratified by the citizens of the United States of America.

And finally, take a look at the words of the FATHER of the Constitution who said...

To refer the power in question to the clause "to provide for common defense and general welfare" would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper. Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them, the terms "common defense and general welfare" embracing every object and act within the purview of a legislative trust. It would have the effect of subjecting both the Constitution and laws of the several States in all cases not specifically exempted to be superseded by laws of Congress, it being expressly declared "that the Constitution of the United States and laws made in pursuance thereof shall be the supreme law of the land, and the judges of every state shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding." Such a view of the Constitution, finally, would have the effect of excluding the judicial authority of the United States from its participation in guarding the boundary between the legislative powers of the General and the State Governments, inasmuch as questions relating to the general welfare, being questions of policy and expediency, are unsusceptible of judicial cognizance and decision.

A restriction of the power "to provide for the common defense and general welfare" to cases which are to be provided for by the expenditure of money would still leave within the legislative power of Congress all the great and most important measures of Government, money being the ordinary and necessary means of carrying them into execution.

If a general power to construct roads and canals, and to improve the navigation of water courses, with the train of powers incident thereto, be not possessed by Congress, the assent of the States in the mode provided in the bill can not confer the power. The only cases in which the consent and cession of particular States can extend the power of Congress are those specified and provided for in the Constitution.

I am not unaware of the great importance of roads and canals and the improved navigation of water courses, and that a power in the National Legislature to provide for them might be exercised with signal advantage to the general prosperity. But seeing that such a power is not expressly given by the Constitution, and believing that it can not be deduced from any part of it without an inadmissible latitude of construction and reliance on insufficient precedents; believing also that the permanent success of the Constitution depends on a definite partition of powers between the General and the State Governments, and that no adequate landmarks would be left by the constructive extension of the powers of Congress as proposed in the bill, I have no option but to withhold my signature from it, and to cherishing the hope that its beneficial objects may be attained by a resort for the necessary powers to the same wisdom and virtue in the nation which established the Constitution in its actual form and providently marked out in the instrument itself a safe and practicable mode of improving it as experience might suggest.

The constitution does not specifically authorize Congress to spend on social programs, there was no precedent and as such, were it not for FDR blackmailing the court, Social Security would have met the same fate as The Railroad Retirement Act and the National Recovery Act.

And finally, the case you quoted in no way has anything to do with social security or social programs. You cited a case regarding the government’s authority to dictate prices for milk and falls under the general purview of the interstate commerce clause, not the general welfare clause. Additionally, in your case, there are several references to precedent set by previous laws and government control. You quoted the WRONG case for your argument.

Is this seriously all you have? And here I had hoped we had found a formidable liberal but it appears I was wrong.

Rolling Eyes

by Andrea Cristobal Wed Dec 09, 2009 10:25 am

Actually Aaron I believe the argument is pertinent and that you are incorrect. Unfortunately the commerce argument is the one most frequently used. The idea of 'packed courts' is used by both liberals and conservatives to explain away Supreme Court decisions with which they do not agree. An example of the liberals doing so was Bush v Gore. The conservatives do it with cases like West Coast Hotel. Of course the case could not be that the court's opinion is not just different from theirs. Court packing claims on both sides are spurious and without merit.

From a Justice Department memoradum comes the following.

During the mid-1930's, when for a brief time the Court invalidated some aspects of the New Deal, a majority of the Justices accepted the argument that Congress lacks the power "to protect the general public interest and the health and comfort of the people." That argument was predicated on an exceedingly narrow conception of the authority of the federal government to address problems of national dimension under the commerce clause of the Constitution. The Court quickly abandoned that attack on the New Deal as inconsistent with the text and structure of the Constitution and, indeed with the Court's own precedents. Noting that "there has long been recognition of the authority of Congress to obtain...social, health or economic advantages from the exercise of constitutional powers....the Court concluded that Congress's authority over "commerce among the several States" empowers the national government to address all activity, "whatever its nature....if it exerts a substantial economic effect on interstate commerce......

The American health care industry is one of the largest and fastest growing segments of the American economy, and it has the most direct and crucial impact on the lives of all Americans Spiralling health care costs and inequities in the provision of health care service have an immediate and massive effect on the national economy and thus upon interstate commerce.

Justice

I think it is unfortunate as already stated but the arguments blend together with commerce and general welfare. Would "direct and crucial impact on the lives of all Americans" not be considered general welfare? If the biggest gun you have Aaron is the "packed Supreme Court argument" I am not any more impressed with you than you are with me I am afraid.

by Aaron Wed Dec 09, 2009 10:30 am

I gave you several references to the court packing bill I spoke of. Now I don't suppose you could respond in kind and show me any other cases of court packing bills, can you AC? If you could do that then you might give your argument some credibility. Or is, as our good friend Sherman used to say, anecdotal evidence all you have?

And perhaps if you could quote the correct court case, you might show you have a little credibility as well.

You have all day as I've got to run to Charleston. And bear in mind that I don't expect you to 'impress' me. At this point I'm just hoping for a little glimps of actual knowledge would be a welcome change.

Happy searching.

by Andrea Cristobal Wed Dec 09, 2009 10:35 am

I believe that I said Aaron that I didn't believe that court packing occurs. That is your position not mine. I am certainly not searching for information to validate your argument. Search for your own if you please. Have a nice trip today.

by Aaron Wed Dec 09, 2009 10:39 am

I provided proof of the threat of court packing. It's a fact whether you believe it or not.

And if your argument was "pertinent" as you say, why weren't they applied to the Railroad Retirement Act or the National Recovery Act, both of which were found unconstitutional AFTER the case you quoted?

by Andrea Cristobal Wed Dec 09, 2009 10:49 am

The two just mentioned were found unconstitutional but the one I quoted was not. Perhaps if the attempt had been to apply the rigors of the Hotel Case to the other two they would not have been found unconstitutional. And I do not agree that the case you mentioned is a case of court packing. Because you believe it is, doesn't make it fact.

You gave one reference to a quote by Justice Roberts without saying where it came from. Since when is one reference several?

by Aaron Wed Dec 09, 2009 11:05 am

As I said, I'll wait on some knowledge. Here's a good place to start.

The Judiciary Reorganization Bill of 1937, frequently called the court-packing plan,[1] was a legislative initiative to add more justices to the Supreme Court proposed by U.S. President Franklin Roosevelt shortly after his victory in the 1936 presidential election. Although the bill aimed generally to overhaul and modernize all of the federal court system, its most important provision would have granted the President power to appoint an additional Justice to the U.S. Supreme Court for every sitting member over the age of 70½, up to a maximum of six.

During Roosevelt's first term in office,[2] the Supreme Court had struck down several prominent New Deal measures intended to bolster economic recovery during the Great Depression, leading to charges from New Deal supporters that a narrow majority faction of the court was obstructionist and political. Since the U.S. Constitution does not limit the size of the Supreme Court, Roosevelt, having won an expanded electoral mandate in his reelection, sought to counter this entrenched opposition to his political agenda by expanding the number of justices to create a pro-New Deal majority on the bench.[3] Opponents viewed the legislation as an attempt to stack the court leading to the name "Court-packing Plan".[1]

The legislation was unveiled on February 5, 1937. Several weeks later the Supreme Court upheld a Washington minimum wage law in West Coast Hotel Co. v. Parrish[4] by a 5–4 ruling, after Associate Justice Owen Roberts joined with the wing of the bench more sympathetic to the New Deal. Because Roberts had previously ruled against most New Deal legislation, his apparent about-face was widely interpreted by contemporaries as an effort to maintain the Court's judicial independence by alleviating the political pressure to create a court more friendly to the New Deal. His dramatic move came to be known as "the switch in time that saved nine". However, this interpretation of Roberts's action has been called into question as an anachronistic "winner's history"[5] since Roberts's decision predated the introduction of the 1937 bill.[6]

Ultimately, Roosevelt's proposed legislation failed when the U.S. Senate voted 70–20 to recommit the bill to the Senate Judiciary Committee following the sudden death of Senate Majority Leader Joseph T. Robinson, whose efforts would have been essential to the bill's passage. In recommitting the bill, the Senate explicitly instructed the Judiciary Committee to strip the bill of its court-packing provisions. The entire episode garnered several negative consequences for Roosevelt that lasted through the rest of his administration, leading many scholars to conclude the President's victory was a pyrrhic one.[7]

source

by Aaron Wed Dec 09, 2009 11:12 am

Andrea Cristobal wrote:The two just mentioned were found unconstitutional but the one I quoted was not. Perhaps if the attempt had been to apply the rigors of the Hotel Case to the other two they would not have been found unconstitutional. And I do not agree that the case you mentioned is a case of court packing. Because you believe it is, doesn't make it fact.

Seriously??? Is that your REAL argument.

You realize the merits of the case you quoted, The Milk case, was decided on precedent of previous federal law under the insterstate commerace clause thus the reason for it's constitutionality.

And you do realize that The National Recovery Act and The Railroad Retirement Act were based on the general Welfare Clause thus that was the reason they were found unconstitutional.

And do you for a second really believe that you somehow made a startling discovery that if the Milk case had been applied to the NRA and the RRA, they would have been found constitutional considering there is no link whatsoever, not to mention that fact that EVERY lawery in FDR's administration was doing everything they possibly could to get New Deal legislation declared constitutional and they somehow overlook this case?

Please tell me that is not what you really believe.

by **SheikBen** Wed Dec 09, 2009 11:14 am

Andrea Cristobal wrote:Good morning Sheik Ben. Don't thank me, I am enjoying myself so far. This seems a place of intelligent argument. That I like. I have no work today. We are in the midst of a huge snow storm at present. The thought of shoveling is putting a giant crimp in my day, but alas I shall survive.

Do I believe that government is my keeper? No I do not. But I do believe that there are some instances where government intervention is both necessary and prudent. In my opinion health care is one such instance. I use the following-

West Coast Hotel

Syllabus of the Supreme Court of the United States- 300 U.S. 379
West Coast Hotel Co. v Parrish
Appeal from the Supreme Court of Washington
Decided March 29, 1937

Deprivation of liberty to contract is forbidden by the Constitution if without the due process of law, but restraint or regulation of this liberty if reasonable in relation to its subject and if adopted for the protection of the community against evils menacing the health, safety, morals and welfare of the people, is due process. P. 391

I believe health care is one of those subjects that requires intervention. I would also hope as in so many of the employees who lost jobs after NAFTA insurance workers could be retrained.

There is no doubt that the courts eventually accepted social welfare as constitutional, in part under threat of the court packing plan that Aaron refers to. I disagree, as many do here, with the court's rendering, but naturally the court sets precedent and not SheikBen (you can call me Michael, by the way, should you prefer).

I don't read the Constitution as strictly as perhaps OC, Steph, and Aaron do, so I take issue with universal health insurance (as opposed to universal health care, which already exists) not on Constitutional grounds but rather on pragmatic ones. I am convinced that it will lead to declining health care, especially for the poor presently served on Medicaid. Hospitals stick it to self-pays to pay for services under Medicaid and Medicare. While I do not particularly care for that practice, it does show the reliance current recipients of Federal largesse has on those paying more than their share. Goverment running things will add to the overall cost--a great many French employees end up buying additional health insurance, curiously, despite their "universal" health care.

by **SheikBen** Wed Dec 09, 2009 11:15 am

Incidentally, AC, I read your tagline as "right and wrong" being more important than "right vs. left," and I surely concur.

I would add, however, that "right and wrong" are more important than "legal and illegal" or even "constitutional or unconstitutional."

by Andrea Cristobal Wed Dec 09, 2009 11:27 am

Aaron wrote:
Andrea Cristobal wrote:The two just mentioned were found unconstitutional but the one I quoted was not. Perhaps if the attempt had been to apply the rigors of the Hotel Case to the other two they would not have been found unconstitutional. And I do not agree that the case you mentioned is a case of court packing. Because you believe it is, doesn't make it fact.

Seriously??? Is that your REAL argument.

You realize the merits of the case you quoted, The Milk case, was decided on precedent of previous federal law under the insterstate commerace clause thus the reason for it's constitutionality.

And you do realize that The National Recovery Act and The Railroad Retirement Act were based on the general Welfare Clause thus that was the reason they were found unconstitutional.

And do you for a second really believe that you somehow made a startling discovery that if the Milk case had been applied to the NRA and the RRA, they would have been found constitutional considering there is no link whatsoever, not to mention that fact that EVERY lawery in FDR's administration was doing everything they possibly could to get New Deal legislation declared constitutional and they somehow overlook this case?

Please tell me that is not what you really believe.

I would never pretend Aaron to know what those who argued the two cases you mentioned were thinking at the time. Why did they ignore the hotel case? Did they believe it was not applicable, or did they overlook it for some reason? I don't know the answer to that. Do you for certain? Do you have information on that subject? If so please share it. I merely stated that perhaps if it had been applied the other two might not have fallen. Then again they might have.

"Court packing" was as you say a threat which was never followed through. Do you agree with the idea that a Supreme Court Justice bound by his oath, should reach an opinion with which he is in disagreement because he fears that his influence will be diminished if additional justices are appointed? I say that such a concession renders him a coward. What say you Aaron? He then says later on that he decided said decisions under duress. Is that just another capitulation of timely expediency, making him twice a coward?

by Andrea Cristobal Wed Dec 09, 2009 11:31 am

SheikBen wrote:Incidentally, AC, I read your tagline as "right and wrong" being more important than "right vs. left," and I surely concur.

I would add, however, that "right and wrong" are more important than "legal and illegal" or even "constitutional or unconstitutional."

I agree Sheik Ben that "right and wrong" are more important than "legal or illegal".

by SamCogar Wed Dec 09, 2009 11:59 am

Andrea Cristobal wrote:
SheikBen wrote:I would add, however, that "right and wrong" are more important than "legal and illegal" or even "constitutional or unconstitutional."

I agree Sheik Ben that "right and wrong" are more important than "legal or illegal".

AAAWWWWW, you both need to get a life ....... in reality.

What is "right" and what is "wrong" is always determined by the person weilding the biggesst club at the time the decision is being made.

Like a Gentleman's Agreements. They are only as good for as long as both parties remain Gentleman.

.

by Andrea Cristobal Wed Dec 09, 2009 12:46 pm

SamCogar wrote:
Andrea Cristobal wrote:
SheikBen wrote:I would add, however, that "right and wrong" are more important than "legal and illegal" or even "constitutional or unconstitutional."

I agree Sheik Ben that "right and wrong" are more important than "legal or illegal".

AAAWWWWW, you both need to get a life ....... in reality.

What is "right" and what is "wrong" is always determined by the person weilding the biggesst club at the time the decision is being made.

Like a Gentleman's Agreements. They are only as good for as long as both parties remain Gentleman.

.

Sam my heart is breaking for you. Are you always such a pessismist? Do you believe that no one makes their life decisions based on rightness rather than 'having the biggest club'?

by **Stephanie** Wed Dec 09, 2009 1:00 pm

Do you believe that no one makes their life decisions based on rightness rather than 'having the biggest club'?

Are you talking governments (or their agents) or individual people?

by SamCogar Wed Dec 09, 2009 1:14 pm

OH NO, a bleeding heart leftist liberal. Let the fun begin.

And "no", I'm not always a pessismist, .... most of the time I am a realist.

And Andrea, I'ts not a question about you making life decisions about your own life, .... its about you or someone else making life decisions for me and everyone else that keep me on edge.

by Andrea Cristobal Wed Dec 09, 2009 1:21 pm

Stephanie wrote:
Do you believe that no one makes their life decisions based on rightness rather than 'having the biggest club'?

Are you talking governments (or their agents) or individual people?

Actually I am talking both. Mostly individuals however.

I Sam am not a bleeding heart liberal. I have some liberal opinions, some more moderate and actually two that would be considered conservative.

by **Stephanie** Wed Dec 09, 2009 1:46 pm

Most individuals will do the right thing at least some of the time. Governments, government agencies, and agents of any powerful goverment act based upon "rightness" very rarely.

by Aaron Wed Dec 09, 2009 1:52 pm

SheikBen wrote:Incidentally, AC, I read your tagline as "right and wrong" being more important than "right vs. left," and I surely concur.

I would add, however, that "right and wrong" are more important than "legal and illegal" or even "constitutional or unconstitutional."

This question is for both or you.

Who decides right and wrong?

by Aaron Wed Dec 09, 2009 2:07 pm

Andrea Cristobal wrote:I would never pretend Aaron to know what those who argued the two cases you mentioned were thinking at the time. Why did they ignore the hotel case? Did they believe it was not applicable, or did they overlook it for some reason? I don't know the answer to that. Do you for certain? Do you have information on that subject? If so please share it. I merely stated that perhaps if it had been applied the other two might not have fallen. Then again they might have.

They didn't ignore it, they didn't overlook it and they didn't foul up. The case was not applicable and it doesn't take a Supreme Court Justice to figure that out.

Andrea Cristobal wrote:"Court packing" was as you say a threat which was never followed through. Do you agree with the idea that a Supreme Court Justice bound by his oath, should reach an opinion with which he is in disagreement because he fears that his influence will be diminished if additional justices are appointed? I say that such a concession renders him a coward. What say you Aaron? He then says later on that he decided said decisions under duress. Is that just another capitulation of timely expediency, making him twice a coward?

I agree he was a coward, failed his oath of office and should have been removed from the court. But it wasn't just one bill or one threat. Between 1935 and 1937, over 40 bills were intorduced into legislation calling for some form of restraint or another on the Supreme Court. Additionally, FDR personally called Roberts and Cheif Justice Charles Hughs and expressed his 'concern' over New Deal legislation being declared unconstitutional.

Nothing changed but Roberts decision to anyone with the common sense to and ability to do a little research to see that our founding fathers had no intention of authorizing Congress to spend on social programs. And that's just not my opinion, it's shared by James Madison. If you read federalist 41 and 42, it goes into detail describing spending specifically allowed by the Constitution.

It's not about opinions or what you think, it's all in black and white and if anyone desires a change, there is even a method for doing that. And you STILL haven't quoted the correct case for your argument.

by Andrea Cristobal Wed Dec 09, 2009 2:14 pm

Aaron wrote:
SheikBen wrote:Incidentally, AC, I read your tagline as "right and wrong" being more important than "right vs. left," and I surely concur.

I would add, however, that "right and wrong" are more important than "legal and illegal" or even "constitutional or unconstitutional."

This question is for both or you.

Who decides right and wrong?

I believe that for the most part individuals decide what is right or wrong. But the government also has a vested interest in deciding what is right or wrong. That is the whole purpose to having a criminal code of justice. If to a certain extent government could not decide right or wrong, anarchy would be the result. Sometimes religious faiths decide what is right and wrong. Their view is then given to the adherants of that faith. Right and wrong has layers at times. One pertains to how you live your life, the second is how you reside in society and the third to how you practice spiritual principles. The three often but not always intertwine.

by Aaron Wed Dec 09, 2009 2:16 pm

Andrea Cristobal wrote:I believe that for the most part individuals decide what is right or wrong. But the government also has a vested interest in deciding what is right or wrong. That is the whole purpose to having a criminal code of justice. If to a certain extent government could not decide right or wrong, anarchy would be the result. Sometimes religious faiths decide what is right and wrong. Their view is then given to the adherants of that faith. Right and wrong has layers at times. One pertains to how you live your life, the second is how you reside in society and the third to how you practice spiritual principles. The three often but not always intertwine.

So which is it, right and wrong or legal and illegal? You can't have it both ways.

by Andrea Cristobal Wed Dec 09, 2009 3:09 pm

Aaron wrote:
Andrea Cristobal wrote:I believe that for the most part individuals decide what is right or wrong. But the government also has a vested interest in deciding what is right or wrong. That is the whole purpose to having a criminal code of justice. If to a certain extent government could not decide right or wrong, anarchy would be the result. Sometimes religious faiths decide what is right and wrong. Their view is then given to the adherants of that faith. Right and wrong has layers at times. One pertains to how you live your life, the second is how you reside in society and the third to how you practice spiritual principles. The three often but not always intertwine.

So which is it, right and wrong or legal and illegal? You can't have it both ways.

I believe that right and wrong sometimes overlap with legal and illegal. Do you believe that is never so Aaron?

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