Subject:
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The constitution has been abrogated
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Newsgroups:
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lugnet.off-topic.debate
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Date:
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Fri, 5 Jul 2002 14:12:09 GMT
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Viewed:
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276 times
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Starting a new thread as the current monster one is rather a bad place to
hang this....
In lugnet.off-topic.debate,
(specifically http://news.lugnet.com/off-topic/debate/?n=16824 )
Dave Schuler writes:
> In lugnet.off-topic.debate, Larry Pieniazek writes:
> > A law preventing cream in coffee is indeed unconstitutional, as are about
> > 98% of the rest of the laws we have nowadays. The mere fact that courts
> > don't find that way doesn't mean that it isn't unconstitutional, just that
> > the constitution has been mostly abrogated.
>
> This point has come up before in other forms, but there's something that's
> always messed me up. I thought (but am happy to be corrected) that the
> Supreme Court has Constitutionally-granted authority to judge the
> Constitionality of laws. Am I wrong in this?
Not exactly wrong but not quite right either.
As another poster explained, the authority is probably defacto rather than
dejure (constitutionally granted), the Supremes took it on themselves in
Marbury vs. Madison.
But that's not what I am referring to. I'm OK with that. Someone has to do
it, ne? ( but put a pin in that, I'm coming back)
What I am saying, though, is that we've deviated from original intent, which
is what I mean when *I* say "unconstitutional". :-)
This is a statement I've made before, and it hasn't been particularly
popular here, but it's my view that the original intent of the constitution
has been changed or abrogated in some ways.
I made oblique reference to it here:
http://news.lugnet.com/off-topic/debate/?n=8711
There were compromises in the original constitution that regrettably, were
put there in order to get it passed by the slave states.
I'm *not* referring to the amendments that fix those compromises to ensure
that all have equal protection under the law and that all have equal rights.
Those are good things to have changed. (although arguably these amendments
seem to have been done rather sloppily since it seems to have taken several
(13,14, and 15) to achieve the original intent, which COULD have been done
in one properly worded amendment, but I'll let that go)
Rather I am referring to amendments put in expressly to frustrate the
founders intent. 16 springs to mind readily... as do 18 and 21.
I've argued about 16 before... it seems prima facie that the founders had no
intention of there being income taxes because the Supremes repeatedly struck
same down until this amendment forced them through. Income taxes are just a
bad idea if you want a minimal government rather than one that grows to
consume all available resources. And the founders DID want a minimal
government. That's crystal clear from the Federalist papers as well as
articles 9 and 10 (remember, the bill of rights, articles 1-10 are not in
the main body purely for approval reasons, not because they are not a
fundamental part of the original document) which say (in their entirety):
Article [IX.] The enumeration in the Constitution, of certain rights, shall
not be construed to deny or disparage others retained by the people.
Article [X.] The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to the States
respectively, or to the people.
To my read anyway that's a prescription of limited government. People have
lots and lots of rights and the state has but a few powers.
18 and 21 fly in the face of this. (well 18 does, 21 just undoes some of the
damage but not all) 18 is an attempt, pure and simple, to legislate morality
and legislate behaviour on the part of citizenry and it failed,
spectacularly, setting up some powers that we still have not reckoned with
(some of which aren't so bad, you can argue that it's perhaps a good thing
that the Kennedy family made so much money bootlegging, and some of which
are terrible). Worse it's a lesson that we apparently did not learn from
since we are still fighting the silly and inane "war against drugs".
But more importantly than amendments (in the scope of the damage)... I am
referring to interpretations by recent courts (say in the last 60 years or
so) that to me, anyway, frustrate the founders intent. The interstate
commerce clause (which again turns on that troublesome word "regulate" that
also gives us grief in the 2nd amendment) has been stretched beyond any
reasonable point to control, tax, interdict, prevent, mandate and require
all SORTS of detail level things that fly in the face of the very notion of
limited government.
The classic response to this of course is "but it's now 200 years later and
the times are different, we require all this regulation".
Bunk.
It is also important to note that the very process of what is heard before
the Supreme Court is itself one that admits of some distortion. I suspect
that the Supremes have shied away from some controversies merely by refusing
to hear cases. If they didn't hear it, that doesn't mean it's not
unconstitutional.
No, our constitution is not what it was once. Nor is our government.
Hopefully that clears up what I was driving at in my comments (which are not
necessarily new news to long time readers)...
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Message has 1 Reply:
 | | Re: The constitution has been abrogated
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| (...) Right. But don't forget that 16 is essentially null and void -- it's a pretense of a new kind of tax when there are only two kinds of taxes: direct and indirect. See: (URL) in mind that I am of the political belief that a tax upon wages is a (...) (22 years ago, 9-Jul-02, to lugnet.off-topic.debate)
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