We’ve had what I thought was a good discussion on the commerce clause in the comments the last couple of days (opinions on that may vary).
I liked this (broader) speech Jack Conway made in his 2010 campaign (courtesy of Daily Kos) because I think Conway attempted to point out a fundamental difference between liberals and conservatives that shouldn’t get lost in any specific discussion:
Rand Paul is on record as having said that we haven’t followed mine safety, as it should have been done since 1936. He is on record as having said that we need a pre-World War II system of health care. He is on record as saying, and I quote, “since 1937 I don’t think we have obeyed the constitution at all.”
And these dates are not random. They are not random. In 1936, in a case called Carter Coal, the United States Supreme Court decided that the Commerce Clause was broad enough the Federal Government could regulate mine safety. In the 1930’s we were losing 1,500 miners a year to accidents. Last year we lost 34. That’s 34 too many. But you have to understand in Rand Paul’s world his view of the constitution is it’s not broad enough to protect our miners.
And that quote that “since 1937 I don’t think we have obeyed the Constitution at all.” That’s not random. Those are Rand Paul’s exact words, and in 1937, after much debate about the New Deal, the Supreme Court of the United States in the case of Helvering v. Davis upheld the Constitutionality — by a 7-2 vote — upheld the Constitutionality of Social Security. The significance of Rand Paul’s statement is clear. Rand Paul doesn’t think that Social Security is Constitutional. He doesn’t. Rand Paul’s view stem from a radical view of the Constitution. A view that says that the federal government what it does everyday for people is an illegal expansion of federal power. He thinks it’s unconstitutional.
Here’s an excerpt from the case challenging Social Security’s constitutionality that you may find amusing, although not directly applicable to the issue at hand, I do think it illustrates the yawning divide between liberals and conservatives.
This suit is brought by a shareholder of the Edison Electric Illuminating Company of Boston, a Massachusetts corporation, to restrain the corporation from making the payments and deductions called for by the act, which is stated to be void under the Constitution of the United States. The expected consequences are indicated substantially as follows: the deductions from the wages of the employees will produce unrest among them, and will be followed, it is predicted, by demands that wages be increased.
Unrest and demands that wages be increased. It is predicted. I don’t know about you, but I feel as if conservatives were more honest back then. Scary workers and wage demands. They came right out and said it!
Whether wisdom or unwisdom resides in the scheme of benefits set forth in Title II it is not for us to say. The answer to such inquiries must come from Congress, not the courts. Our concern here, as often, is with power, not with wisdom. Counsel for respondent has recalled to us the virtues of self-reliance and frugality. There is a possibility, he says, that aid from a paternal government [p*645] may sap those sturdy virtues and breed a race of weaklings.
A race of weaklings! These are our seniors they’re talking about! Can you imagine a modern conservative saying that? Not while they’re running on Medicare, I’d wager.
If Massachusetts so believes and shapes her laws in that conviction, must her breed of sons be changed, he asks, because some other philosophy of government finds favor in the halls of Congress? But the answer is not doubtful. One might ask with equal reason whether the system of protective tariffs is to be set aside at will in one state or another whenever local policy prefers the rule of laissez faire. The issue is a closed one. It was fought out long ago. When money is spent to promote the general welfare, the concept of welfare or the opposite is shaped by Congress, not the states. So the concept be not arbitrary, the locality must yield. Constitution, Art. VI, Par. 2.
The Republic of Stupidity
Ah yes… that infernal “but we have to PAY THEM” thingy…
Hunter Gathers
Can’t wait for the Supremes to cast out the Commerce Clause, so that South will actually be able to rise again, once again as the Libertarian Paradise that Whitey can rule win an iron fist. Who needs Civil Rights laws, safety regulations, Social Security, Medicare/Medicaid, taxes, environmental regulations and the like when we can get back the period of time when White was right, and niggers, bitches and dirty spics knew their place.
Oh I wish I was in Dixie, away, away.
Oh I wish I was in Dixieland, I wish I was in Dixie.
Kay
@Hunter Gathers:
And the ADA. Conway hit that hard, as he should have.
harokin
But Kay, Rand Paul is fighting federalism, not paternalism. If namby pamby states like Massachusetts and Vermont and New Hampshire that never once in their history stood up for liberty and freedom want to breed a population of Alan Aldas while the rest of the country breeds true warriors like John Wayne, that’s their business.
… or are you saying this isn’t really about conflicting interpretations by constitutional scholars about the scope of the commerce clause?
Kay
@harokin:
I try not to judge, so I’ll answer “both”.
eric
What I find most interesting in the Federalism debate is that the group that talks loudest about the greatness of “us” as a people, is the group that balks the fastest when “we” make a determination as to the rights everyone making up the “us” ought to possess under our national laws.
ACS
Good post. I’m a (soon-to-be) lawyer and I’ve never read that Social Security opinion, though I’m familiar with it’s holding. It’s really funny how much more upfront the conservatives were back then about the ideology driving their interpretation, and I like how the court handled it.
Kind of reminds me of the famous Oliver Wendell Holmes quote from his dissent in Lochner v. New York: “The Constitution does not enact Herbert Spencer’s Social Statistics.” (or something to that effect)
At least now conservatives try to justify it with actual Constitutional interpretation, but as with the policy arguments, it’s a fight they lost long ago.
Drive By Wisdom
If you nitwits want the thing that cannot even be named here because you filter out those who say it, then go write up an Ammendment like our Founders envisioned and see how far you get.
Do not engage in ever increasing mandates and mental gyhmnastics to re-imagine the Constitution.
You love your Commerce Clause except when it does not go your way. Heh.
BGinCHI
Add the whole fucking Mark McKinnon thing here too. It’s all about keeping the status quo for those who have (a lot).
This is why the Becks and others of the world are so afraid of the idea of “progressive.”
BemusedLurker
Assange should probably go on the offensive with the following –
“Come on guys, lets let bygones be bygones. After all its the season for peace to all.”
Of course reality has a much different take – especially when spun by the war machine
The Republic of Stupidity
Can anyone here translate #8 for me?
I don’t speak Gibberish…
eric
@BGinCHI: I wish i could agree, but it is not about protecting the status quo — they want to go even farther into the recesses of a class stratified society that privileges their wealth with greater barriers to entry.
Kay
@Drive By Wisdom:
I would disagree.
Conservatives love state law until it doesn’t go their way. Tort reform, environmental protections, marriage, criminal sanctions.
Want me to go on? There is no issue conservatives are more hypocritical on than this one. There is absolutely no connection between conservative blather and conservative actions on this. None. It’s purely abstract. I’m simply amazed you’re still permitted to spout it, without getting laughed out of the room.
NonyNony
@The Republic of Stupidity:
I think he’s talking about “soshimalism”, which if filtered out here not because of any political statement but because it contains the same string as a Boehner-inducing medication that our free-marketing spam-bots like to spam us with.
So he’s essentially saying that if we want a safety net we should amend the Constitution to give Congress the power to create a safety net. Except of course that falls down into an argument over whether or not Congress has that power already or not, and about 70 years of precedent says “yes, yes it does”.
Kay
@Drive By Wisdom:
Immigration was a fun twist on the constant conservative hypocrisy, because there you took a clear federal issue and (ridiculously) took it to the states.
You don’t have any consistency on this. Liberals at least have a coherent guiding philosophy. You have politics.
eric
@Kay: i will put it simply:
Christian Conservatives: Ends justify the means, because the means are sanctified by the christian faith of the persons performing the acts.
Neo-Conservatives: Ends justify the means, because the ends are sanctified by their own rightness (See Strauss).
It is that simple. And inarguable, such that no rational argument can intercede.
WereBear
For people who don’t believe in evolution, they sure luvs them some “survival of the fittest.”
The Republic of Stupidity
So that bit about ‘promote the general welfare…’ wasn’t serious?
Shalimar
@Drive By Wisdom: What could this new amendment say that isn’t already in the Constitution? Why would we need one when the Commerce Clause is already interpreted broadly? Shouldn’t you draft an amendment expressly limiting what the Commerce Clause means if that is what you want to do?
There has been a disagreement about this for 80 years and most Con Law experts think you’re wrong. If you want your version of society, amend away and see how far you get.
Brachiator
Thank God we are soon going to have a payroll tax holiday. Because it’s not like Republicans would ever use this as an excuse to attack the continued existence of the Social Security program. No. Never. Not like somebody like columnist Robert Novak would have suggested such a strategy might have helped John McCain back in 2008 (A Tax McCain Could Cut).
Yep. Every day, from now until the 2012 elections, we should be happy that the Democrats have agreed to this compromised, forged by Obama and blessed by Bill Clinton. Because now the Democrats have the Republicans exactly where they want them. You know, kinda like when Custer outflanked the Sioux at the Little Big Horn.
The Republic of Stupidity
@WereBear:
And for people who hate ‘big gubmint’… they sure don’t mind seeing their STATE gubmints get bigger and have more power…
Woodrow "asim" Jarvis Hill
They just did, and will do so again.
Their complaints about Welfare are around not just the perception that only “those people” use it, but also that it was making our society weaker, to have gov’t handouts. Their complaints about Health Care Reform is that it takes away their “freedoms” (to die in horrible ways, leaving nothing for their children but a mound of medical bills, it seems).
It’s all about how we “used to be” strong, in some mythological past time, and how we’ve gotten away from that, in their minds, usually due to some xenophobic-triggering boogyman (Blacks, Latinos, Women, Irish, the list goes on and on…). As someone who’s a layperson researcher/re-creator into a wee bit of those past times, you couldn’t pay me to live in them, dammit.
burnspbesq
@The Republic of Stupidity:
Sorry. I’m a native level speaker of gibberish (they test it on the bar exam, dontcha know), and that’s way beyond me.
Chyron HR
@Drive By Wisdom:
Aww, somebody’s mad because he can’t say “CiaIis”. Are you trying to sell it, or do you need to know where to score some?
The Republic of Stupidity
@Brachiator:
Uhhhhhhh… sadly… I agree w/ you completely on this…
I am afraid we will now see an endless string of two year extensions on both the Bush tax cuts and the payroll tax cut ‘holidays’…
And as an added side bonus… there are indeed ‘death panels’ in government healthcare programs all over the country…
A win-win-win result, no?
cleek
there’s an interesting, and related, discussion of When Things Went Bad in this ObWi thread. in a nutshell: sometime in the early part of the 20th C, Congress no longer felt constrained by the simple text of the Constitution. take Prohibition as an example: today it seems crazy to think that an Amendment was required to ban booze. just look at all the things Congress bans these days without Amendments! but, back then, the power of Congress wasn’t assumed to be so great that it could ban alcohol in any other way.
interesting.
The Republic of Stupidity
@burnspbesq:
Well thank goodness it’s not just me…
NonyNony
@The Republic of Stupidity:
To conservatives of this stripe? No. They edit out anything that doesn’t support their idea of what America is supposed to be like and call it “unconstitutional”.
It’s the same mindset that led conservatives to decry anyone who said “hey, invading Iraq is a stupid idea because of X, Y and Z” as “traitors”. “Treason”, “un-American”, “un-constitutional” – they don’t have the meanings you and I might assign them. They essentially mean “this thing is double-plus ungood and I’m going to call it names until one of them sticks”.
NonyNony
@Chyron HR:
How’d you get that by the filter?
Zifnab
It is the rare politician that takes a policy he loves to the mat because he believes it’s unconstitutional. I don’t think I’ve ever seen a conservative challenge the Authorization of Military Force because it’s not an official Act of War. I don’t think I’ve ever seen a liberal reject Civil Rights legislation that isn’t completely sanctified by a Constitutional Amendment.
“It’s unconstitutional” invertibly translates to “I do not like it!”
Honestly, I’d love to see Democrats finally codify Social Security and Medicare in full blown Constitutional Amendments, like they did with the Income Tax back in the turn of the last century. I’d be thrilled if gay rights and child labor laws and environmental protections were all spelled out neatly alongside the 13th, 14th, 15th, and 19th amendments.
But when Republican politicians can’t be bothered with the first 10 – when Bong Hits for Jesus and Warrant-less Wiretapping and indefinite detention are all fair game – it just seems so silly to request Democrats continue playing by the rules at all.
You could get progressive reforms written in alongside the Ten Commandments, and Republicans would reject them out of hand. What good is rule of law when only one party seems even vaguely interested in following it?
Shalimar
@Kay: It’s not really hypocrisy, because they don’t really care about “State’s Rights”. When you strip everything else away, it is always about letting good honest white males deal with all the b*tches and n*ggers and k*kes and sp*cs and ch*nks and other assorted trash the way they should be dealt with.
And when you think about it that way, everything they believe is consistent. They don’t want any of their money ever going to undesirables. Like that Jesus guy always taught.
Zifnab
@Brachiator:
This is Stimulus 2.0.
Another $800+ Billion, with about a third going to rich people and the rest going to various projects and concerns of the Democrats.
The original stimulus had a nine digit carve out to raise the AMT and extend a bunch of corporate subsidies. This honestly isn’t all that much worse.
And given that the political climate in ’11 is going to get much, much, much worse, this is the last chance to get much of anything out of Congress.
I don’t like it. You don’t like it. But the administration screwed the pooch back in ’09 when he decided to play nice to begin with. Now we’re just paying the piper. This really is about as good a deal as we’re going to get.
Staking another $150 billion on a multi-trillion dollar debt isn’t going to do much harm in the long run. Getting those UI benefits and other assists through will be worth it in the next two years. That’s my opinion, at least.
Chyron HR
@NonyNony:
It depends on what the spelling of “Is” is.
agrippa
@Shalimar:
Got it in one.
Rick Massimo
That’s a joke, right? They just did that, quite explicitly and quite successfully! “We’re gonna get rid of all this commie spending that turns us into a race of weaklings! But not YOU, current senior citizens! You’ve earned YOUR welfare! The eeevil Democrats wanna steal it!”
cleek
@Zifnab:
well… some of it is new money (the payroll tax cut), but most of it is the same kind of money people have been seeing for the last 10 years (the Bush cuts). if that money wasn’t doing the trick last month, why is it going to do anything next month ?
it’s more debt, but it’s not really a lot of new stimulus.
harokin
@cleek: Congress passed the Original Packages Act in 1890 without a constitutional amendment but that only affected actual, state-to-state commerce. I suspect, but don’t know, that they may have been concerned about “purely local” production which was not considered under commerce clause powers until 1937.
Chris
Actually, I can imagine them doing both things simultaneously without any objections from their conscience OR from their constituents.
Rolling Stone had the Tea Party Movement pegged; “The average Tea Partier is sincerely against government spending — with the exception of the money spent on them. In fact, their lack of embarrassment when it comes to collecting government largesse is key to understanding what this movement is all about.“
BGinCHI
@eric: Yeah, status quo. That IS where we are, isn’t it?
Brachiator
@Zifnab:
People keep saying this. I don’t buy it.
I see where you are coming from and have no interest in just bashing your opinion for the sake of rhetorical bashing.
But the Democrats’ weak spot here is a compassion that does not look at the bigger picture. The extension of unemployment benefits helps 2 million people, but the compromise will hurt many hundreds of million more. It’s as though the Democrats said, “Look, there are some people shivering because of the cold. Let’s burn our house down so we can help them keep warm.”
There is also a lot of guesswork masquerading as economic analysis. There may not really be much stimulus in the plan. There wasn’t much stimulus in the earlier plan. That is, at best the first stimulus just held off worse economic times. It did not do much to create jobs. The new stimulus is more of the same.
For example, the compromise kept in place enhancements to the Earned Income Credit and the Child Tax Credit. But these credits will not really be monetized until people file their 2011 income taxes in 2012. I would dearly love for anyone to explain how this will create a strong stimulus in 2011 (and the maximum amount that someone can get as an advance on the Earned Income Credit is about $1,830).
And the bigger problem is that the compromise will embolden Republicans and let them continue to claim that their wrongheaded economic ideas actually work.
Shalimar
@Brachiator: I think the biggest problem with the compromise is that it will lead to the destruction of Social Security. Because we have seen how these debates go. You take away 1/3rd of the revenue and pretty soon Social Security really is in trouble. Look at how much effort and money Peterson and other assorted scumbags have spent creating a controversy out of thin air over the last 11 years. It will be far worse when there really is a revenue crisis. And there won’t even be any discussion of adding that 2% back, because that would be a “tax increase” and we can never talk about those or people will be mad. So eventually we have to go to some private account system or just eliminate Social Security entirely and “let people invest their own money”.
Brachiator
@Shalimar:
I agree that this is a big problem.
The larger problem is that the Democrats do not have a coherent tax policy, and don’t care. They will always fall back on “we had to compromise so we could help some people today.” What might be accomplished in the long term doesn’t matter.
The Republicans, meanwhile, are relentless. They want to cut taxes and cut government social spending (spending on war is no problem). The GOP is offended by Social Security because it impinges on business, which should be free to do what it wants, whenever it wants, and to anyone it wants.
gene108
@Drive By Wisdom:
Actually the biggest piece of cognitive dissonance I hear from conservatives, regarding states regulation commerce, is the idea that “buying health insurance across state lines” would fix our nations health care problems.
The whole idea of buying insurance across state lines sort of runs over the right of a state to regulate the insurance industry (commerce), within its borders and forces, by an act of Congress, a states laws to be subservient to the act of Congress that allows insurance to be bought across state lines, regardless of whether or not the insurance policy complies with state law.
Yet many (most?) states-right conservatives have not problem demanding Congress act to make buying health insurance across state lines legal.
I just don’t understand how conservatives heads don’t explode with all the double-think they have to do, to comply with their out look and policies.
Davis X. Machina
….is the idea that “buying health insurance across state lines” would fix our nations health care problems.
Gee, getting our consumer credit across state lines worked out real well, didn’t it?
Hogan
John Holbo explains it all:
honus
@Drive By Wisdom: Good idea. We can put it in right after the capitalism amendment.