The difference is that objectively undeniable technological advancement has rendered the provision for the common defense, an uncontested constitutional mandate, nearly meaningless without air power. Or radio communications, or space based surveillance. Or a whole host of other technologies only a lobotomized revisionist could proclaim would have been off limits had they been available to the continental army.[/quote]
But a strict constructionist Devil’s Advocate would say, “well, the technological advancement is great - so what? The Constitution doesn’t say it, nor does an 18th century Webster’s dictionary under the term ‘army’. If we want to incorporate it based on new technology, fine, amend the Constitution.”
Once you open yourself up to this principle, you’ve opened a Pandora’s Box.
I think the right answer is that strict constructionism isn’t plausible (which it’s not), but that what is needed is an originalist viewpoint that incorporates reasonability and a broad enough scope to give effect to original principles - for example, the Constitution provides for defense of the nation, and an air force most certainly is a reasonable use of government power toward that original end of national defense.
“Strict constructionism” is nothing a petard you will hoist yourself by.
I agree with this, and I think my point above dovetails on this - but I do think it is important to recognize that what you are saying doesn’t fall under “strict constructionism”.
[quote]thunderbolt23 wrote:
<<< I think the right answer is that strict constructionism isn’t plausible (which it’s not), but that what is needed is an originalist viewpoint that incorporates reasonability and a broad enough scope to give effect to original principles[/quote]
OK, given your definitions I also agree. However, by that definition of “strict constructionist” who is one? I have always gone after principle of original intent based on sources from the players at that time and then done my best to apply those quite timeless principles to contemporary issues, which is what you’re saying. I have also considered myself a constructionist though I don’t use the actual term that often. If not then I can live with that.
The most theologically conservative Christians don’t even interpret the Bible with a “jot n tittle only” method like that. It’s, what is the being said to those people in that culture in that time and how does that same principle apply in today’s world? I have to be honest and say that I believe you’re being a bit semantically picky =] If there actually are significant numbers of people known as “strict constructionists” by your definition then I stand corrected and disagree with them.
[quote]thunderbolt23 wrote:
I agree with this, and I think my point above dovetails on this - but I do think it is important to recognize that what you are saying doesn’t fall under “strict constructionism”.[/quote]
Same as above.
[quote]pushharder wrote:
<<< All of this is unnecessary arguing and rather strained. The USAF was part of the US Army in its origins. In that regard one could still be a “strict constructionist” by your definition and justify the Air Force.[/quote]
All 3 of us agree here, but you can get really silly with this from the other side. What if we simply consider a manned flying machine a weapon? Which it is. If we are to entertain the idea that since no such machines nor a military framework for their deployment are specifically called for in the constitution that they are therefore unconstitutional, what about repeating arms for instance or self contained cartridges?
Now hold on there bucko, somebody will say. Those are just advancements in military weaponry to be used within the Army which IS constitutional. What the hell are airplanes? Because there is now a branch called by the term Air Force" (quite fitting I’d say) rather than Army, which utilizes these advancements, we need a constitutional amendment to use them with federal money? That is idiotic.
What if we simply continued to call it the Army Air Force or Airborne? That’s OK then? How bout Flying Army? I guess that wouldn’t work either. We’ll have to just stick with Army and Navy (Marines might be OK, but maybe not) and refer to flying weapons within their respective constitutional contexts. I forgot about the Coast Guard. I suppose they could come under naval forces, but then again “coast Guard” doesn’t appear in the constitution. Boy has our military structure ever shredded the constitution.
All of this is unnecessary arguing and rather strained. The USAF was part of the US Army in its origins. In that regard one could still be a “strict constructionist” by your definition and justify the Air Force.[/quote]
I don’t really disagree with this - my main point above was not to justify the Air Force on a “back then, we couldn’t have conceived of this, but now that we can conceive of it, that’s what makes it constitutional” - that is the same argument that has given us “social justice” outside of a legislative mandate.
All 3 of us agree here, but you can get really silly with this from the other side. What if we simply consider a manned flying machine a weapon? Which it is. If we are to entertain the idea that since no such machines nor a military framework for their deployment are specifically called for in the constitution that they are therefore unconstitutional, what about repeating arms for instance or self contained cartridges?
Now hold on there bucko, somebody will say. Those are just advancements in military weaponry to be used within the Army which IS constitutional. What the hell are airplanes? Because there is now a branch called by the term Air Force" (quite fitting I’d say) rather than Army, which utilizes these advancements, we need a constitutional amendment to use them with federal money? That is idiotic.
What if we simply continued to call it the Army Air Force or Airborne? That’s OK then? How bout Flying Army? I guess that wouldn’t work either. We’ll have to just stick with Army and Navy (Marines might be OK, but maybe not) and refer to flying weapons within their respective constitutional contexts. I forgot about the Coast Guard. I suppose they could come under naval forces, but then again “coast Guard” doesn’t appear in the constitution. Boy has our military structure ever shredded the constitution.[/quote]
I agree with this, and at some point common sense has to prevail and realize that the power to defend the nation includes the power to do it however the era demands (of course, even outside of airplanes, ICBMs and satellite guided missiles, etc. certainly are neither ‘armies’ nor ‘navies’, but essential to the defense of the nation).
This falls under that concept that “the Constitution cannot be read as a suicide pact” - a federal government has to be able to defend itself and the Constitution cannot be read to prevent a nation from doing so.
But, in other areas of federal purview, it stands to reason that the Constitution affords broad(er) powers than what some “strict constructionists” would prefer, and one can’t cherry pick where the sections that do and don’t. This isn’t an apology for a license to do whatever a federal government wants, but it does cause problems for “strict constructionists” who choose one section to be read more broadly (military power) than one who demands “jot and tittle” strictness (regulation of interstate commerce).
The problem we have is that the founders assumed, or at least hoped for a general character and mindset among the citizenry and those who would succeed them that is all but lost in the mists of revisionist history.
They hoped that there wouldn’t be a need for excruciating legal detail because the private instincts and sensibilities of the public, and by extension the officials they would elect, would keep national temperament within a range of not terribly precise, but nonetheless intuitively perceived boundaries.
A public voluntarily restrained by the 10 commandments has much less need of public supervision to very broadly paraphrase the general sentiment of the time.
People can jump up and down and scream their rewritten history til the sparrows return to Capistrano, but that was the foundation of limited government. 2000 page health care bills are a testament to how far we have fallen from that lofty ideal.
Rand Paul cancelled his scheduled appearance on Meet The Press today - only the 3rd guest to cancel in the show’s 62 year history. Looks like he’s not ready for prime time.
Oh, he’s ‘too tired’ so he cancelled. If he’s tired now, how well will he perform when he’s actually in the Senate? You can’t hide from the media and expect to win an election. Canceling makes him look even worse, and will only raise more questions. Now every reporter in America knows something fishy is up with Rand Paul: he has some non-mainstream views and he’s ducking interviews. It’s like sharks and blood in the water - he just attracted even more scrutiny. You can bet there are reporters pouring over his every word, looking for other oddball statements like his Civil Rights blunder.
I think it’s worth pointing out that he’s an opthamologist, he has no background in law. The funniest line I saw - it’s like if Sarah Palin completed medical school - that’s Rand Paul. That might be a little too cruel, but the point is that he doesn’t know what the fuck he’s talking about. Like when he bitched about the Americans with Disabilities Act, and how no small business owner should have to install an elevator so his wheelchair-bound employee can get to the 2nd floor - he doesn’t even know what the Americans with Disabilities Act actually says, he’s just talking out of his ass and trying to invent situations he thinks will strike a chord with people. But for people who really care about the disabled (that’s a lot of people) he just comes off looking like an asshole.
Best thing about Rand Paul - he’s going to surprise a lot of people when they finally find out what Libertarians and Tea Party leaders believe - for example that there should be no federal Minimum Wage, no Environmental Protection Agency, no Social Security or Medicare, no national food safety inspectors, and so on. For fucks sake, lets get these completely unworkable ideas out into the open, where they can be discussed and then rejected once and for all. And this will spike his Dad’s national chances as well. Lets make sure American voters understand what a fringe political ideology Libertarianism is, on a national level.
But if Rand should actually manage to win, it just deepens the internal divide in the GOP, because many (most?) establishment Republicans reject Libertarians and their cockamamie ideas. Any actual success Libertarians have just potentially fractures the GOP even further.
I guarantee you one thing, the guys that wrote, signed and ratified the Constitution would have tended to err on the side of strict constructionism.[/quote]
Stricter than our postmodern judicial progressivism? Sure. But not as strict as some modern “strict constructionists” would want. Madison - the “Father of the Constitution” - came around to supporting the National Bank.
Hamilton was certainly no “strict constructionist” (in the modern sense, but nor was he a believer in unlimited powers), nor was Washington (who urged Congress to create a national university). Even Jefferson, in practice, was not a “strict constructionist”. Nor was John Jay.
The Founding Fathers were no doubt believers in limited powers and would be aghast at what has been done in the name of federal power - but did they subscribe to the revisionist “strict constructionism” of, say, a Ron Paul? No, not even close.
[quote]K2000 wrote:
<<< for example that there should be no federal Minimum Wage, no Environmental Protection Agency, no Social Security or Medicare, no national food safety inspectors, and so on. >>>[/quote]
Given the choice between the versions of any of these we have now and none at all? I vote for none at all.
I’m pretty happy about the Rand Paul thing. He’d be the most libertarian senator we have currently, which will get some ideas on the table that haven’t been. A little fresh air couldn’t hurt. There really are functions of government that could be reduced or dismantled without too much harm.
He’s a radical, not a nut; a certain degree of radicalism has always been in the American DNA and isn’t out of place in our politics. I say huzzah.
On the Constitution, I recall that someone once asked Madison, by that time an old man, what precisely he had meant in some passage of the Constitution, and he said essentially, “It’s your job to interpret it.” That is, Madison himself rejected the strictest form of strict constructionism. So I believe there was a certain amount of flexibility built in.
[quote]AlisaV wrote:
<<< There really are functions of government that could be reduced or dismantled without too much harm. >>>[/quote]
Ya really sher it wouldn’t hurt TOO much?! LOL!!!
I do regard you as a serious and thoughtful person Alisa, not that you should necessarily care, but I do. Yes, there are such people very far to the left of myself. This statement is just SO telling. As I read this I was envisioning a cartoon with a line of tearful liberals dressed in black, kleenex in hand, approaching a coffin wherein lies a 10 dollar reduction in the increase to the budget of the department of health and human services.
[quote]0mar wrote:
Still, my point stands. A strict reading of the Constitution would mean that a separate branch consisting of the Air Force would be unconstitutional. Congress only has the powers to maintain an Army and a Navy. It’s right there, clear as day. Legislating an Air Force is above and beyond the duties delegated to Congress by the Constitution. You cannot win this point if you follow the Constitution to the letter. If, by going on what Paul has said, each point of legislation needs to reference where the Constitution grants Congress the power to do so, then the Air Force should not exist. The Constitution does not grant the power to form an Air Force. It specifically and wholly says “land and naval forces.”
Thankfully, our system of government has decreed that the Constitution is a framework and not a cage, as most in the Tea Party would like it. If you believe that the CRA is an overstep by the Federal Government, then to be absolutely consistent, the Air Force is also an overstep by the Federal Government.[/quote]
This is your argument? Paul should be critical of the constitution’s lack of specificity about the nomenclature of the air force? Based entirely on the provision section clause of Article 1, Section 8 and completely ignoring the common defense clause Article 1, Section 8 absed entirely on your definition ar “armies” as exlusionary of an air army based entirely on the common nomencalture of our air army as an Air Force? Seriously? that’s your argument?
[quote]AlisaV wrote:
<<< There really are functions of government that could be reduced or dismantled without too much harm. >>>[/quote]
Ya really sher it wouldn’t hurt TOO much?! LOL!!!
I do regard you as a serious and thoughtful person Alisa, not that you should necessarily care, but I do. Yes, there are such people very far to the left of myself. This statement is just SO telling. As I read this I was envisioning a cartoon with a line of tearful liberals dressed in black, kleenex in hand, approaching a coffin wherein lies a 10 dollar reduction in the increase to the budget of the department of health and human services.[/quote]
Thank you. I do appreciate it.
And that’s a pretty funny image.
You have to understand, I come from a very different world – by local standards I am a rabid anti-government loon.
[quote]AlisaV wrote:
<<< There really are functions of government that could be reduced or dismantled without too much harm. >>>[/quote]
Ya really sher it wouldn’t hurt TOO much?! LOL!!!
I do regard you as a serious and thoughtful person Alisa, not that you should necessarily care, but I do. Yes, there are such people very far to the left of myself. This statement is just SO telling. As I read this I was envisioning a cartoon with a line of tearful liberals dressed in black, kleenex in hand, approaching a coffin wherein lies a 10 dollar reduction in the increase to the budget of the department of health and human services.[/quote]
Thank you. I do appreciate it.
And that’s a pretty funny image.
You have to understand, I come from a very different world – by local standards I am a rabid anti-government loon. [/quote]
That is hard to believe unless you are from Nancy Pelosi’s district.
[quote]0mar wrote:
Still, my point stands. A strict reading of the Constitution would mean that a separate branch consisting of the Air Force would be unconstitutional. Congress only has the powers to maintain an Army and a Navy. It’s right there, clear as day. Legislating an Air Force is above and beyond the duties delegated to Congress by the Constitution. You cannot win this point if you follow the Constitution to the letter. If, by going on what Paul has said, each point of legislation needs to reference where the Constitution grants Congress the power to do so, then the Air Force should not exist. The Constitution does not grant the power to form an Air Force. It specifically and wholly says “land and naval forces.”
Thankfully, our system of government has decreed that the Constitution is a framework and not a cage, as most in the Tea Party would like it. If you believe that the CRA is an overstep by the Federal Government, then to be absolutely consistent, the Air Force is also an overstep by the Federal Government.[/quote]
This is your argument? Paul should be critical of the constitution’s lack of specificity about the nomenclature of the air force? Based entirely on the provision section clause of Article 1, Section 8 and completely ignoring the common defense clause Article 1, Section 8 absed entirely on your definition ar “armies” as exlusionary of an air army based entirely on the common nomencalture of our air army as an Air Force? Seriously? that’s your argument?
[/quote]
Going by a strict reading of the Constitution, yes, we can have an “air force”, but not an “Air Force”. If you truly followed what Rand and Raul believe, in terms of constitutionality, this argument would stand. When the air force was part of the Army and Navy, that is Constitutionally allowed, when the Air Force became a separate branch, Congress overreached with it’s powers and should be struck down. This is the sort of craziness that Raul and Rand embody.
So to everyone that supports federal control of patronage at a private business, Why stop there?
Why not put in a law that forbids someone denying access to their residence based on race? Surely if you deem it acceptable to tell a private owner who to allow on this property, civil liberties can’t stop at a residence. Surely making discrimination in one’s home illegal will prevent much racism.
What is being discussed is not public schools, or bathrooms, but a persons private property. Surely if the office of minority affairs at a school receiving public money can deny me membership based on skin color, a guy who uses his money to buy a floor space can deny admittance based on it.
What if I run advertising for a cosmetics line? Can I not deny a model work based on skin color?