Paul Nevins

Paul Nevins
Boston, Massachusetts, USA
October 29
Paul Nevins is the author of "The Politics of Selfishness: How John Locke’s Legacy Is Paralyzing America "(Greenwood /Praeger/ABC-CLIO). The central thesis of this important and unconventional work is that the United States has begun to experience a number of profound, interrelated problems that are caused, both directly and indirectly, by the country's dogmatic and often unconscious adherence, collectively as a political culture and individually as Americans, to the political philosophy of John Locke. That ideology, which is the bedrock upon which the American liberal democracy has been founded, asserts that human beings are by nature solitary, aggrandizing individuals. Hence, preoccupation with the self in all of its manifestations and attributes - as opposed to the whole, the public interest - has become the primary focus by which political, economic and societal decisions are made. Consequently, the preferred form of social and political relationships with others, including the state as the organized expression of political society, is solely contractual and is designed primarily to protect private property in all of its forms. "The Politics of Selfishness" provides compelling historic and contemporary evidence that U.S. institutions, at all levels, are failing because of the country's uncritical embrace of the anti-social individualism which is John Locke’s legacy. Paul Nevins has been a trial attorney in private practice since 1982. He concentrates in public and private sector employment law and litigation, related civil rights and constitutional law claims, and contract claims. Prior to becoming a lawyer, Paul Nevins taught in the Boston Public Schools. While teaching, Mr. Nevins served as a member of the Executive Board of the Boston Teachers Union, Local 66, AFT/AFL-CIO. Paul Nevins served as a conscript in the United States Army from 1968 to 1970. In 1969, he was a founder and the first chairman of GIs for Peace at Fort Bliss, Texas.This was the first organization of active duty soldiers who publicly opposed the Vietnam War. Mr. Nevins received an A.B. Degree from Suffolk University, a Master of Arts Degree from New York University, and a Juris Doctor Degree from Suffolk University Law School. He lives and works in Boston.


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APRIL 2, 2012 6:05PM

Will The Rule of Law Prevail?

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                         cross-posted at

    No where in the text of the United States Constitution is there any language that suggests or permits the Supreme Court of the United States to pass upon the constitutionality of statutes enacted into law by the Congress. Nevertheless, Hamilton in Federalist  No. 81 suggested that such a power might be a necessary extension of  Supreme Court's jurisdiction given the need for at least one of the three putatively coequal branches of government to determine which actions of the federal government or the states might violate Article VI of the Constitution which expressly provides that "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all treaties made...... shall be the Supreme Law of the Land; and the Judges in every States shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. "jp120401-e1333292161915

    Not long  thereafter, in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), Chief Justice John Marshall, in a perverse and ingenious decision that was carefully crafted to handcuff Thomas Jefferson and other advocates of limited judicial power, held that the Congress had acted unconstitutionally in granting the Court the authority to issue original writs of mandamus. Decades after this power to invalidate acts contrary to the Constitution was firmly established as a legal principle, in the case of Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824), Marshall ruled that the power of the Congress to regulate "commercial intercourse" extended to all activity having any interstate impact -however indirect - and that this power was plenary and virtually unlimited: "The wisdom and discretion of Congress, their identity with the people, and the influence which their constituents possess at elections are, as in many other instances...the sole restraints...on its abuse." Ibid. at 197.

    It was not until one hundred and seven years later, despite the expansive language of Marshall's opinion, that the United States Supreme Court finally conceded the right of Congress to set minimum wages and maximum hours for employees who were engaged interstate commerce. United States v. Darby, 312 U.S. 100 (1941). A year later, in Wickard v. Filburn, 317 U.S. 111 (1942) the Supreme Court held that the Congress could regulate a farmer's cultivation of wheat for his own family's consumption because the cumulative effect of that kind of act by individual farmers would affect the supply and demand for wheat in the interstate commodity markets. 

    Since the advent of the Rehnquist era, however, an increasingly reactionary Supreme Court has  tried to narrow the scope Article I, section 8, which confers upon the Congress, without any limiting language,  the power "to regulate Commerce with foreign nations; and among the several States, and with the Indian tribes." To do this, they have chosen to breath new life into only one word of the language of Tenth Amendment that reserves certain powers not delegated "to the States respectively, or the people."

    In San Antonio v. Lopez, 115 S. Ct. 1624 (1995), by a 5-4 vote, the Supreme Court struck down a gun conviction that occurred within a 100 yards of a school on the grounds that the interstate commerce clause did not apply. That same term, in U.S. Term Limits, Inc. V. Thornton, et al, 514 U.S. 779 (1995), Justice Clarence Thomas came within a "whisker' of persuading his colleagues to return American constitutional jurisprudence to the Articles of Confederation. In his dissent, Justice Thomas observed that the majority had "fundamentally misunderst[ood] the notion of `reserved powers,'"and that "[c]ontrary to the majority's suggestion, the people of the States need not point to any affirmative grant of power in the Constitution in order to prescribe qualifications" for their members of Congress. Thomas contended that "[a]s far as the Federal Constitution is concerned . . . the States can exercise all powers that the Constitution does not withhold from them." Furthermore, "[t]he Federal Government and the States thus face different default rules: where the Constitution is silent about the exercise of a particular power--that is, where the Constitution does not speak either expressly or by necessary implication--the Federal Government lacks that power and the States enjoy it."Justice Thomas insisted that "[I]f we are to invalidate Arkansas' Amendment 73, we must point to something in the Federal Constitution that deprives the people of Arkansas of the power to enact such measures."

    After the more recent appointments of Scalia, Alito and Roberts, questions about the Court's independence as an impartial, precedent-observing, judicially- restrained and non-partisan arbiter of the Constitution have become more pronounced. The apparent hostility of these three appointees, coupled with the reflexive, unabashed and well-documented hostility of Clarence Thomas to Congressional power, and the intellectual and linguistic difficulties with which Justice Kennedy appears to struggle, raise worrisome concerns about the fate of the Affordable Health Care Act and the hundreds of separate provisions, including the a personal mandate, the restrictions on denial of insurance for  pre-existing conditions, the Medicaid extension provisions, and the extension of family medical insurance  to family dependents until their twenty-sixth birthday, that the act encompasses.  

    The U.S. Census Bureau reported that a record 50.7 million Americans--16.7% of the population--were uninsured in 2009. According to the Kaiser Family Foundation's report on Medicaid and the uninsured, in 2004, at which time when 44 million Americans were reported to be uninsured, uncompensated care was estimated to be $40.7 billion.  Today that cost has likely doubled. In a remarkable and important  book, The Great Risk Shift, Yale University Political Science professor, Jacob S. Hacker, after reviewing longitudinal studies, concluded that "Over a two year period, more than eighty million adults and children - one out of three non-elderly Americans, 85 percent of them working or the kids of working parents -spend some time without the protection against ruinous health costs that insurance offers."
    The cost for medical treatment for the uninsured is borne by all of us, as taxpayers through Medicaid and by additional, pass-through assessments imposed by insurers on the healthcare insurance plans of those of us who have coverage.

     If any of the lower court decisions provide guidance on the ideological world-view of the current Supreme Court's reactionary wing concerning efforts to reform health care, the decision of U.S. District Judge Henry Hudson might be informative. Judge Henry ruled that the healthcare coverage mandate was unconstitutional because Congress, based upon his narrow and unsupport  d interpretation of the interstate commerce class, cannot regulate what he deemed to be purely passive economic activity. In Commonwealth of Virginia v. Sebelius, 728  F.Supp.2d 768 (2010),  Judge Hudson found that, "At its core, this dispute is not simply about regulating the business of insurance - or crafting a scheme of universal health insurance coverage- it's about an individual's right to choose to participate."

    To arrive at this extraordinary conclusion, Judge Hudson failed to objectively apply the "rational basis" scrutiny test that federal courts have historically used to review the underlying authority of Congress to enact legislation under Article I of the Constitution. Judge Hudson accomplished this feat by verbal legerdemain: He contended that in ruling on the federal government's earlier motion to dismiss,"the Court recognized that the Secretary's application of the Commerce Clause and the General Welfare Clause appeared to extend beyond existing constitutional precedent..." Judge Hudson then proceeded to distinguish the instant case before him from the broad swath of Supreme Court precedent that, since the advent of the New Deal, has upheld the power of Congress to regulate a wide array of private economic activity  based upon of its power to regulate interstate commerce. The 1964 Civil Rights Act - that outlawed racial  segregation - was expressly based upon that constitutional grant of authority to the Congress.
    Judge Hudson next turned his attention to a favorite target of right-wing jurists: Article I, section 8, clause 18, that expressly permits Congress to "make all laws Necessary and Proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States..." This clause, which has also been described as the "elastic clause" enables Congress enact legislation for the "General Welfare"not specifically enumerated.

    Judge Hudson reasoning was a perfect non-sequitur: "If a person's decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution."
    In his decision, Judge Hudson denied that Congress had authority, independent of its power to regulate commerce, under the Necessary and Proper clause to enact health care reform. If his reasoning is subsequently adopted by the five equally reactionary members of the Roberts Court, the Constitution, as a document, will no longer be interpreted as a flexible, evolving instrument that can be adapted to ever-changing conditions beyond those ever envisioned or anticipated by the Founding Fathers. An increasingly rigid and narrow interpretation of the text of the constitution will do for constitutional jurisprudence what Southern Baptists, given their literal interpretation of the King James Bible, have done for the ability of Christian doctrine to evolve in the face of new, unanticipated challenges: make it obsolete. The harm to all of us as citizens, however, will be far greater.

       A jurisprudence rooted in 18th century notions of individual rights and Adam Smith's economics will not help to create public policies for the 21st century. Rather, if the Affordable Health Care Act is struck down by five, unelected, unaccountable jurists, it will signal this country's continued departure from the principles of democratic governance.  If Dickens' observation that "the law is a ass" is not to be confirmed, the five right-wing  judges will have to sharpen their analytical tools and put aside their ideological biases. 



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I think that the right would like to do away with the public accomodations law and the voting rights act. I think that we will have to go back and fight nonviolently through another civil rights movement, but we lack a leader of the moral stature and intelligence of MLK. It may turn out that if Obama is not re-elected that he will assume that role. But I think that Obama will win. he now leads Romney by 12 points, according to Gallup-USA Today, in a significant turn around. I can't believe I was so naive to think that Roberts would take a fair and balanced few, despite his rightward tilt. I was fooled by his performance in congressional hearings.
If Congress has a "rational basis" to think something "affects" commerce, and regulates that thing, the justices, if they subscribe to the Revolution of 1937, must uphold the law. Obamacare meets this silly test, as does just about everything else.

You claim that with Scalia, Alito, and Roberts, "questions about the Court's independence as an impartial, precedent-observing, judicially-restrained, and non-partisan arbiter of the Constitution have become more pronounced."

Yet would you not concede that the same could be said of the New Deal court? FDR appointed Justice Black, a senator from Alabama and a staunch New Deal supporter. The Revolution of 1937 threw out long standing commerce clause case law. The Warren court overturned more cases in its 15 years than the court did in its first 150 years, all the while using incredibly novel methods of interpretation. In reality, an "impartial, precedent-observing, judicially-restrained and non-partisan" court has never existed.

Incidentally, Marshall also stated in Gibbons: "Inspection laws, quarantine laws, health laws of every description, as well as laws for the regulating the internal commerce of a State. . .form a portion of that immense mass of legislation which embraces everything within the territory of a state not surrendered to the General Government."
What we're seeing and have been seeing, increasingly, over the last 30 years, is the destruction brought about when ideology is substituted for function. The quest of the Movement Conservatives and their half-loaf lapdogs, the Right-Libertarians, is to overturn The People's Federal sovereignty in the name of State's "Rights."

Why? Because. Because why? Because.

Larry is a perfect example of this. He's filled with an ideology that operates on deconstruction, not function. It is a complete package. The Libertarian "philosophy" of a similar-to-Marxism stateless society combined with the cure-all-ills Austrian economics (why is it nothing good comes out of Austria?).

While Larry may not notice or care, his ideology is about allowing the wealthy to rule. Right-Libertarianism, which is substantially the only kind, is just an ideological excuse for oligarchy. The State's Rights prattle is simply to perform the exact opposite function things like the Commerce Clause were designed to prevent--individual states playing a game of how low can we go to trash worker wages and sensible regulation. This ultimately and obviously at the expense of other states, the nation and our citizen's well-being. This rigid mindset is destroying American security by bankrupting our country.

But we MUST do this. The dis-American, not-even-close to Founding Principles and laughably contradictory conservative libertarianism ideology MUST be followed to the LETTER! We must abandon self-rule the name of liberty!

Why? Because. Because why? Because.

Seriously, Larry. What's the difference between you and some barking Marxist from the Politburo?
Larry, your comments about the powers reserved to the states,as Marshall opined in Ogden, describe a legal fiction. When Marshall wrote that decision in 1824, Ohio, Kentucky, Tennessee, Alabama, Indiana, Illinois, Mississippi, and Louisiana had already been carved out of Federal territories and admitted, subject to Congress's approval and the conditions it choose to impose, as states. No serious legal scholar can argue that these newly-created states somehow contained "reserved powers" under the Tenth Amendment since they never "surrendered" any of their sovereignty to form the United States, as the original thirteen colonies purportedly had. Any final doubts about that proposition were resolved by the Civil War and "Texas v. White," 74 U.S.700 (1869).

For that reason, the fact that Paul Clement was permitted to argue - without challenge - about the plenary police powers vested in the fifty states is evidence that none of the current members of the Supreme Court - including the four alleged "moderates"- remember enough American History or are able to make the kinds of basic legal distinctions that are necessary preconditions to determine Congress's authority to enact health care reform based upon its power to regulate interstate commerce.

One last point. Whether you agreed with the New Deal or Franklin Roosevelt, there is not dispute that he and the Congress that supported him were overwhelmingly chosen by the voters of the United States. Isn't there something unseemly, utterly undemocratic, and that also smacks of aristocratic haughtiness about the prospect of five unelected, self-righteous jurists - who themselves enjoy lavish health care paid for at taxpayers' expense - to impose their own ideological preferences upon us and to deny fifty million other citizens access to any affordable health insurance whatsoever? To set aside the health care law - the text of which is apparently too onerous for Justice Scalia to even take the time to read - the five justices would need to once again reject the principle of "state decisis" - the rule that settled legal precedents not be overturned except in the most extraordinary circumstances, not present here. Shouldn't everyone who values democratic ideals by troubled by that prospect?
Too bad you're not presenting the govt's case rather than the SG.

The "buy broccoli or die" clowns that sit on the Supreme Court ought to be ashamed of themselves -- and their asinine behavior ought to be repudiated publicly by other Justices with a modicum of judicial temperament. Rather than go for courtroom titters, which seems to be Scalia's only aim (his decision having been made long ago), the Court should provide a definitive answer to two simple questions:

(1) Is healthcare a right?

Answer: Yes. The Preamble implies and EMTALA insists that it is. If the Court wants to argue otherwise, it must strike down EMTALA or make itself look even more foolish.

If the Court holds that healthcare is a right of citizenship -- which to me is as at least as self-evident as the right to life, liberty and the pursuit of happiness, since absent healthcare one is often deprived of life, liberty and the opportunity to pursue happiness -- then surely the federal government not only has the right but the duty to do everything in its power to "promote the general welfare" with same vigor -- and coin of the realm -- as it does to "provide for the common defense".

(2) Can the Federal government force citizens to buy products?

Answer: Yes. If the states can do so, surely the federal govt is entitled to do so. This argument is, or certainly ought to be, settled law. To argue that the federal government is inferior to the states is to revert to the roundly rejected Articles of Confederation.

Why was that confederation of states roundly rejected by the Founders -- and with it the notion of "states rights" (at least as that heresy is propounded by its supporters then and now)? It was simply inoperable. And if it was inoperable with thirteen states, how pray tell, is it supposed to work with fifty?

If our own experience as a confederation isn't sufficient proof of the folly of loose confederations, one ought to look to the former USSR and the former Yugoslovia, each of which functioned as a putative country only so long as they were ruled by dictators.

But alas, these questions won't likely be answered by this Court. This Court's likely ruling in this case, and certainly its ruling in Citizens United, ought to give pause to every person contemplating throwing their vote away on a third-party candidate on the Left, or what's even more irresponsible, sitting this election out in a pout.

That leads to my final question: What would be the likely ruling in this case, as well as in the case of Citizens United, had Al Gore appointed two justices to the Court, rather than He Whose Name Can't Be Spoken by a Republican?

There was a time when the Supremes were actually jurists, and when Republican appointees surprised the President who appointed them. But, alas, that was back when the Republican Party was run by grown-ups.

That all changed for good in 1980, although the seeds of that party's destruction were sown in the '60's with its embrace of the Southern Strategy in reaction to Brown v Board and civil rights legislation under Johnson. In the interim, the GOP has gradually become the new AIP (American Independent Party).

Even comparatively moderate George H W Bush crawled into the sewer of racist politics to get elected, and his appointment of Clarass Thomas as a replacement for Thurgood Marshall was as despicable an appointment as I've seen in my lifetime. He might as well have said, "You want a nigger, I'll give you a nigger."

Once upon a time, the Court enjoyed a great reputation. But, alas, the it has lost all credibility with Bush v Gore and Citizens United. And if it rules against the ACA, it will not be on the merits, but on the politics.

Reductio absurdist arguments about how many angels can dance on a head of broccoli won't do anything to restore this Court's reputation. Nor will arcane legal justifications thrown-up by the Court in support of its decision. They will be window-dressing for the political and ideological considerations that will be the real reason for the Justice's decision for or against the ACA.

To pretend, as legal scholars are wont to do, that the decision will be based purely on the law or precedent is either delusion or hogwash. The judges will make up their minds for political and ideological reasons, and then cite the law to suit their prejudices.

Meanwhile, millions of Americans will be left to dangle in the wind about healthcare -- a travesty that is not the case in ANY other industrialized western nation, not to mention a few third-world countries.
Sorry, Larry . Please excuse the typo. The principle is "stare decisis."
Will the Court be so audacious as to strike down on a narrow 5-4 vote a measure that benefits 50 million Americans and which consumed the attention and efforts of a democratically-elected government and the American people for more than a year?

A good argument could be made that as devastating as such a raw exercise in judicial power would be for a Court whose reputation for impartiality is still suspect after the nakedly partisan power grabs of Bush v. Gore and Citizens United, the Conservative Movement has been working for this moment for the past 30 years and is not going to be denied, no matter what polls say or what advice its leaders get from political consultants on how you win elections.

The aim of the Conservative Movement is to repeal the last 70 years of American history since the New Deal. Its foot soldiers intend to go for it no matter what the cost to themselves or to the Republican Party or to the institutions of our democracy that these right wing revolutionaries have supposedly sworn themselves to defend. All of the preparatory work for this final day of reckoning has already been done:

Conservatives have purged liberals and moderates from the GOP who might act as a drag on their audacious plan to dismantle the national government and limit its work to enforcing the contracts of big business, imprisoning those who might threaten its assets, and fighting wars against those foreign enemies who threaten its markets overseas.

Conservatives have advanced their anti-New Deal "Constitution in Exile" ideas by successfully grooming a cadre of right wing lawyers who have taken their place on the federal bench and are ready to wipe away the precedents of the past 100 years, taking us back to the Gilded Age jurisprudence of those Courts that in the name of the sanctity of private property and contract struck down maximum hours laws in Lochner v. New York and the federal income tax in Pollock v. Farmer’s Loan & Trust.

And now they have Ayn Rand acolytes like Congressman Ryan whose budgets destroy the social safety net on the pretext of saving it. Of course.

As we’ve seen from the Tea Party protests that began three weeks after President Obama took office, and the Senate Republican filibusters of everything the President proposed shortly thereafter, the Conservative Movement is not about to let a little thing like an election stand between it and its dreams of getting revenge on Franklin D. Roosevelt for calling them a gang of moneychangers who should be tossed from the temple of the people's democracy.
I find this "the majority made the law" argument peculiar. President Obama recently made this argument, saying if the unelected court strikes down the law it will be judicial activism for thwarting Congress and "the people." (So where is his outrage, then, for all the state laws the court struck down in the 20th century based on bogus reading of the Fourteenth Amendment, many laws which all fifty states had?) Last I checked, majoritarianism in not a constitutional test.

Paul Nevins: I think judicial review was granted to the court by the Constitution. I think it can be inferred by the text. Plus, if that is still not clear, it was explained in the ratification conventions that federal courts would have this power; many leading founders later assumed this authority existed. Both the Supreme Court and lower federal courts had implicitly exercised judicial review before Marbury.

"The majority wants it" is not the test for constitutional authority. We have a Constitution that grants the central government certain enumerated powers and recognizes the retention of all ungranted powers by the states. The court's duty is to police these boundaries, not invent new limitations on the states or new powers for the federal government, or why have a written constitution anyway?

If the court is to adhere to current case law, then it must uphold Obamacare, because virtually nothing fails the court's commerce clause test.

How incredibly ironic it is for a black man to take such a strong uncompromising position on Federalism, or, if you have a white southern heritage you may prefer calling it "States Rights". If there had been five Clarence Thomases on the bench in 1954 we would not have had Brown v The Board of Education.

Take Judge Hudson's formulation: "If a person's decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause...".

It seems to me quite reasonable that the decision to not buy health care is a choice, hence an act, that affects the health care markets, and has a significant affect on the general welfare. Not buying health care means you are subject either to impose unpredictably and involuntarily upon taxpayers the need to pay your emergency room costs, or to allow you to die unattended. Furthermore, it raises the cost of health insurance for everyone else, so "not buying" health care is a decision, which is an act that impacts that market being regulated. And when guaranteed issue is one of the solutions to a major problem that government can regulate, the minimum coverage requirement becomes obviously a necessary and proper part of that solution.
Majoritarianism is not a constitutional test. Neither is "limiting principle" or "non-economic activity." I'm sure the reading of the 14th you prefer is the one that ignores its clear language and intent, but I'll let you expand on that with your Tom Woods spoon-fed flim-flammery. I'm sure a guy who taught you the Constitution was ratified on false pretense has plenty of other absurdities in the can.

Obama wasn't arguing majoritarianism when he said that, he was arguing democracy and an elected Congress versus 5 guys who will entertain absurd arguments and dictate the law based on that.

Perhaps you will show us where, in the Constitution, it sets limits on the Commerce Clause that the ACA violates. You're again arguing "limited government" as an ethereal concept, but for all the wind that represents, somehow you can see how it's supposed to apply.
Ask Tom Woods if you haven't. I'm sure he has a "Illiterate Founders Theory" that explains how they were too damn ignorant to write the REAL intent into the CC.

There's a reason the Founders didn't set any limits on the C Clause that the rest of the Constitution doesn't imply. That "virtually nothing fails the court's commerce clause test" is because of that concept enshrined in the Constitution called democracy. The People voted for those who passed the law, let them vote for those who will rescind it.

I'm still sort of semi-interested in how you would handle the healthcare problem and the concomitant debt crisis. I ask that because those who argue against laws like the ACA should offer an alternative resolution. If not, then what good does it do for anyone to listen to somebody whose focus is un-governing when the Constitution is about governing?
PJO: I’d love to hear an explanation how the “clear language and intent” of the Fourteenth Amendment requires that state legislatures be apportioned according to population and not by geography [Reynolds v. Sims (1964)] (the genesis of Bush v Gore); or how its “clear language and intent” forbids the states from enacting abortion laws or laws limiting gun ownership. Of course, the Fourteenth Amendment had nothing to do with limiting the states in these areas, but that never stopped the court. (And yes, PJO, award winning historian and professor Forrest McDonald showed how the Fourteenth Amendment was not legally ratified.)

The Philadelphia Convention rejected several proposals for a federal Congress with general legislative authority. Instead, what was approved was a Congress with enumerated powers. This is not surprising, since decentralization and local self-government through elected state legislatures was what the American Revolution was all about.

This was how the Constitution was sold to the people, in the Federalist Papers, and, more importantly, in the ratification conventions—Congress only has a few limited and enumerated powers with all other powers retained by the States.

Which means that whatever power the commerce clause grants, it can not possibly mean authority to do anything, or why the careful enumeration, and why the explanation of states retaining everything not delegated if they retained nothing?

The historical records show that “commerce” was always referred to, whether in the Federalist Papers or in the ratification coventions, as “trade,” the shipping and passage of goods for sale, and “among the several States” understood as “between” the states. Couple these facts with the widely known, well talked about problem of states enacting protective tariffs on other states, and the onerous taxation and regulations that a state would enact on commerce traveling through its own territory to reach another state, and its clear this clause was meant to remedy this situation, to grant Congress the power to nullify state and local free trade barriers. Looking to the “evil intended to be remedied” is a long held method of interpretation in English law (see Matthew Bacon’s “Statutes”), and was echoed by Madison: “The meaning of the power to regulate commerce is to be sought. . .in the objects generally to be embraced when it was inserted in the Constitution.”

Madison also stated: “[I]t is very certain that [the interstate commerce clause] grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government.” Raoul Berger, Harvard liberal, New Deal lawyer, and constitutional scholar, concluded that “Madison is richly confirmed by the records of the several conventions.”

Partial-birth abortion, the amount of wheat a farmer grows on his property, working hours, not buying something, rape, etc., are far removed from ensuring the free flow of physical goods between the states.

Let’s even say that all records were lost and we have no historical guidance to its meaning: we still have ancient, common sense rules of interpretation, going back centuries in English law, which state that a provision must be construed as to give meaning to other provisions in order to prevent those other parts from being superfluous; and that if a literal construction results in an absurdity (such as Congress having unlimited legislative authority), the document must be interpreted to avoid the absurdity. These rules still council us not to interpret the commerce clause as giving Congress unlimited authority in all areas.

To argue that the commerce clause has no limits is bizarre, PJO. (Even Hamilton said there were constitutional limits.) It has no basis in history, the principles of legal interpretation, or common sense. Not to mention the idea is something that the people never consented to when they ratified the Constitution.
Now, if you want a libertarian, free-market take on health care problems, PJO, read this succinct 1993 article by anarcho-capitalist philosopher Hans Hermann Hoppe:
Well, Larry, when you have legislative apportionment with wildly disparate population representation, it's not improper to see that as violating a republican form of government. It's why we should have made the US Senate population proportional, so that obstinate and ideological political parties wouldn't be able to thwart majority will. But in both cases, that's the way it is.

It would be hard to say --at least without laughing--that one person's vote being equal to 400 people's vote (and sometimes more) meets the idea of public representation or equality.
However, if you wish to represent rocks, dirt and cattle in a 14th amendment case to overturn Reynolds, I will defend your right to do so.

McDonald "opined," but did not prove anything. Given that all 37 states in existence at that time have ratified the 14th, your opinion of McDonald's opinion is moot and not justiciable. This is where you want to bring dead people to court to argue their claim of damages inflicted 150 years ago. Point?

The shrill argument that ignores the true limits and, in some cases, limitlessness of a plenary power is obviously driven by angst. It has no set of particulars beyond making a false claim of no limits in a political system, and that if powers are listed it must mean there are the limits you want applied. In the case of the C Clause, that Federal power can only be applied and swiftly removed as the product crosses the laser-thin state line. This would reduce federal power to ceremonial, like the Pontiff sprinkling holy water as the Popemobile zooms by. Perhaps that child labor can only be federally regulated if the child has one foot in each state.

You act as if the Federalist Papers were the focus of state ratification debates. They weren't. As far as limited and enumerated, the Constitution supplies both, plainly written for all to see and debate. Your claim is they were too ignorant to know what they were ratifying, their tiny minds too addled to know a binding contract means exactly what it says it means. Some powers are general, and for a very good reason. It's not a detailed legal code and, with that acknowledgment at drafting, it wasn't intended to be.

Madison had many opinions. Madison also did not write the whole of the Constitution. The funny thing about "originalist" excuses is it ignores a significant fact, that being the records of the Con Con debates being held in secret for 30+ years. Evidently, the Founders didn't believe in Originalism, or they were playing a very long game of "psych!" Surprise! Everything done for the past 30 years was just a game! Now we'll read the debates and what Madison thought and decide what it really means! Given there were many opinions within that group, we rightly ask: "What original intent do you mean?" The reply:"The ones I like."


I have repeatedly pointed out the CClause has limits. That you again say I didn't and don't just means you argue like a jackass. In fact, you may not know this, but each state sends representatives to Congress! Sometimes a person from one state is elected president!
States don't have 'rights," as much as y'all neo-confederates want to keep the coloreds in their place. People have rights, and dual sovereignty. As far as C Clause goes, and besides the limits that apply, the powers left to the states are whatever is truly intrastate that doesn't effect interstate, and cases where Congress doesn't want to act, preferring states use their police powers to do so. By law, and I know this in an intimate way, there's not much that can truly be called intrastate commerce. In healthcare insurance, not any business is truly intrastate.

As far as healthcare goes, the states can opt out of Obamacare as long as they meet the same cost/benefit level. If you want to save John Q. State from having his "rights" violated, then fix your damn system, as, in the aggregate, the failure of states to address this issue is bankrupting the country. Oh and, by the way, not that it matters to a cosmetic complainer, people die because of the refusal of states to adequately address the problems.

Ah, the sweet release of death. The ultimate in neo-confederate libertarian liberty! It's even better than the libertarian-oligarchy liberty of poverty.

These ideas you espouse have, in the past, been applied. Each time, to history's derision and the idea's failure. This is what I mean by function. We can take all of your pick-choose smorgasbord of neo-confederate prescription and hold it against what was obviously the Founder's intent for a successful nation. On that scale, your pitiful ideas fail every test that they, or anyone with a scintilla of common sense and patriotism, would apply.

So, really, Larry. You shouldn't argue those nation-destructive ideas as Original Intent. You turn those wise, well-intentioned men into raging idiots, more concerned with quibbling over dysfunctional ideas about ersatz liberty than creating a viable nation.

I could care less what some anarcho-capitalist zipperhead says about anything. The idea is anathema to a free nation.
PJO once again shows he hasn’t read much of anything on the Constitution or American history. Nobody saw Madison’s Philadelphia notes so nobody knew what happened—if that’s the best argument PJO has against originalism I think the philosophy is ok. Raoul Berger’s legacy is still good.

Elections are the main limitation against Congress's powers—brilliant scholarly analysis! Sadly, that describes the status quo of not living under the Constitution.

Reynolds v Sims runs smack into what was explained in the 39th Congress, the text of Section 2 of the Fourteenth Amendment, and, well, history and logic in general. PJO will never know why Bush v. Gore was truly wrong, other than meanies on the court were biased “Bush supporters.” And I’m glad you didn’t try to defend Roe v. Wade based on the original intent of the Fourteenth Amendment. That would have been. . . embarrassing.

PJO thinks libertarians want people to die from no health care. That’s a good argument for a seventh grader. You’ll win a junior high debate with that one. Same goes with the “neo-confederate” and racism smears.

I bet PJO probably favors criminalizing organ selling, which, in reality, truly does kill thousands of people by restricting the supply of organs. He also probably favors patent laws, which grant monopoly privileges to drug companies and thus keep prices higher for poor people. This means PJO might be against poor, sick people who need organs. I could be wrong on these things; maybe he does have some libertarian inclinations.

But basically your idea of “liberty,” PJO, is as follows: Give me a benefit or I’ll plug you. The end societal result of this amoral thinking? Just Google “Greece” to find out.

To defend your world-view, you are inevitably forced to defend the threat of violence and thuggery against peaceful, non-aggressor neighbors. A very infantile and regressive world-view indeed. You believe you have a right to your neighbor’s back pocket. I do not. I believe in the golden rule. You obviously do not.
Burger shows history. History is not a Constitutional principle. If it was, the notes of the debate would have been available from day one, and the debate could have been extended based on that, not that there weren't debates on the intent and interpretation anyway.

Which "originalism," Larry? Hamilton's opinion obviously differed from Madison's on the First National Bank. Both were obviously in a position to cite "orginalism," but came to different conclusions. Again, Larry, which "originalism?" Do you mean the "originalism" that comes 200 years later, when some dig through the thoughts they want, ignore others and try to describe commerce based on what commerce existed in the 18th century?

One of my favorites is libertarian Judge Napolitano. He claims, against all evidence, that "regulate" then meant "to keep regular." In other words, to keep commerce flowing. Thus the Commerce Clause becomes the Laxative Clause. He's either lying to support a libertarian concept, or he can't read old dictionaries, which describe the word the same as the new ones, or the same as did the Romans on the word's Latin root.

There's some "originalism" for you.

And here we go again with you creating my position to argue against. Elections are a limiting fact. They are not the only one, as some are more direct and expressed in contradictions that are either blatant, or legitimate questions of which element of the Con. should prevail or be balanced in a certain situation.

Of course, when you're a libertarian and reject the premise of the Constitution, you're prone to find ways to negate it or limit it in a way that makes it "more libertarian." In your case, you run to confirmation bias, seeking out, or simply never engaging, anything but analyses you like.

You cite the part of Bush v. Gore you like, and where the Court found agreement beyond the Fraudulent Five, who simply tossed out the document and made a ruling to put Their Guy in the WHouse and, consequentially, Their Guys on the Court.

I would prefer defending Roe based on a natural law violation, but "penumbra" of privacy rights will suffice. The majority of Americans agree with the Roe decision, but since when did heterodox "liberty" theorists ever concern themselves with the opinion of the Sovereign? They must be forced to follow libertarianism in the name of what? Liberty?

Libertarians don't want people to die, but if that's the consequence of oligarchical rule in a libertarian system, so be it. Perhaps the biggest joke at play here is a libertarian arguing in favor of what is a very anti-libertarian concept--the Constitution.
This is what sends you to confirmation bias. You should be arguing Bastiat and Malthus, not Madison (selectively) or Jefferson (selectively). You're trying to kill a document that was designed to live and grow and, as those Founders would have told you, should be applied by our minds in our day.

Funny you mention Greece. Aside from the fact it's a lousy comparison, not being able to manipulate its own currency, it's a victim of those idiotic libertarian, laissez faire, self policing rational market fantasies. The same ones applied here that wrecked our economy. To this you can always cite the fact that other libertarian fantasy super heroes weren't allowed to curb those excesses. Gold Standard Man would have saved the day! Competition Man will descend from the clouds to interrupt monopolies! Even though "liberty" must allow monopolies! It was gubmint what caused it!

So far, over a period of time here, you have claimed the Constitution was ratified under false pretense, that the laissez faire policies in the 19th century provided economic stability and that "original intent" is what you want to think it is.

No wonder you close with again appending a position to me so you can argue against yourself. I'm Greece! And you're ...what, Larry? Libertopia, where coercion is not allowed, beyond the coercion that would have to be applied to force Americans to follow a system that no country on Earth has accepted, even after 150 years of stinky fermentation.

I use my own mind to judge what is proper within our liberal system. You're nothing but a spoon-fed regurgitation of heterodox and dis-American ideology, forced to twist liberalism into a libertarian template. You don't have an opinion of your own. I guess that's why you end with the usual brain-dead libertarian rant about how our system of liberty is nothing more than legalized theft.
It would be interesting to see what would happen if you applied some study to our system of liberty instead of being breast-fed by libertarian quacks. You might even accept our liberal Declaration and Constitution, and abandon the bizarre ideas that work to trash our system of liberty in the name of liberty.

You're tedious, Larry. Maybe I should suspend communication until you study our liberalism, compare it to your oddball neo-confederate high priest's dogma and form an opinion of your own.
PS...First Bank of the US.
So if Greece could just “manipulate its own currency” (i.e., expropriate people through devaluing their money while creating economic distortions), things would be better. And Greece suffers from a libertarian, property rights, free-market overdose.

Only a sadly confused person would think like this.

And PJO obviously has no moral problem with the idea of using violence and force against his peaceful, nonviolent neighbors. So he's sadly confused and possibly psychopathic.

His confusion also wants to link libertarian philosophy as the same as the doctrine of originalism. Yet under originalism a state can constitutionally ban all firearms, make sodomy and indictable crime, establish a religion, and enact minimum-wage laws, and the federal government can pass bankruptcy laws, patent laws, and create a post office. It turns out originalism and liberarianism have nothing to do with each other. I'm sure the godfather of originalism, Harvard liberal Raoul Berger, would agree.

PJO’s constant repeating of myths, untruths, and specious claims tends to make us all a little bit more lethargic, our energy sapped slightly. It makes us all less productive and less willing to engage in commercial activities. Which means that Congress would have a “rational basis” to believe that PJO’s ignorance “affects” commerce, so therefore Congress should pass a law requiring PJO to read an economics book, a history book on the American Revolution, and a book on constitutional history, all once a week. Failure to do so will result in a fine.