FYI: Please note that it is the position of Tribe, et al., that the Constitution — thanks to a series of rulings on the Commerce Clause that have repeatedly pulled it away from its original intent and so has in perpetuity (under his reading) set in place conditions for its expansion and reach — is a document espousing limited government that by its own designs can do no such thing; consequently, it deconstructs under the weight of interpretations being (at once) ascribed to it and taken from it. It self-abnegates even as it “lives.” The government has no limits, under such a reading. Rights are not unalienable but are rather the province of government. And there is and cannot be any logical end to government power.
Might makes right. The only check on power is power itself.
That’s the left’s end game. It’s been that way with respect to how they (calculatingly) view language, and now they seek to finalize the defeat of classical liberalism and individualism through political power made manifest on a court that has over the years granted its own rulings superiority over the text of our founding compact. Wickard? Sacrosanct. The Constitution? Old and non-binding.
Hell yes. I’d go to war over this. Because I won’t live as a slave to Larry Tribe or any other unctuous would-be elite who thinks he can sweet talk his way into my permanent conscription.
(thanks to sdferr)
when two tribes go to war a point is all that you can score
Insty played Tabarrok’s joke up. I least, I hope it’s a joke.
Preach it, brother. However, I would like to avoid that at almost all costs. But push has been coming to shove for far too long. The left and unfortunately more than I like of the right has abandoned reason, so I’m not so sure the way forward.
Good link, sdferr. Thanks.
I had always thought this was a ridiculous hobbyhorse of Jeff’s. The more I read this stuff though, the more I am inclined to say that you have a pretty good series of points.
I once had a “living” egg salad sandwich. That was the worse case of simultaneous shitting and puking I ever had. I almost stopped living myself. A living constitution strikes me as something very bad.
Hell yes. I’d go to war over this.
You’re credentialed AND you don’t want your turn at the whip?
Jeff Goldstein delenda est.
The beauty of this liberal ploy is that it is so subtle that you almost don’t notice the gradual infinitesimal degradation of the language and your ability to present thoughts clearly without being misinterpreted (usually quite deliberately). That “antique” 100+ year old Constitution was self-evidently written to contain the monstrous power that is always on the side of the elite governing class.
I am not sure where we go from here, but I fear that at least some of us won’t like the ride or learn our places easily.
“[S]omeone who uses words to get things done needs to be kept honest not only about shifting from one word to another, but also about changing the meaning of the same from case to case.”
Preach it Sister!
That fearsome asymmetry, for there is no deratcheting once the ratcheting begins. It demands tactics and strategies tailored to check that monstrous power 24/7.
Instead, government has become first a servant — a service provider and thereby a hired thief — and then a master. We forgot just how monstrous that power can and will always be.
Nicely said, Hrothgar.
Didn’t Heinlein say that “Civil servant actually means civil master!”?
What is it about this that is so hard to understand? Do you think the founders of our nation were talking about regulating not trading between the parties listed? Do you think they were talking about regulating purchases that weren’t made?
I mean, the whole Wickard abomination, that “commerce” somehow extends to making, but not selling, something, and so too then Congress’ ability to regulate that activity is fantasy-land enough already; but the idea that it also can encompass deciding not to buy something is a left turn straight into the twilight zone!
Why is Justice Thomas the only one that seems to “get” the abuse of this clause since the New Deal?
All you attorneys amongst us: how in the frig can Stare Decis be legitimate if the previous finding is fundamentally flawed?
If a women is the sole arbiter of what’s right for her body, and can use abortion as birth control, then why can’t I decide to forego healthcare? Because doing so effects others? Does abortion effect the unborn child? How the heck does this contradiction work.
How can this be dealt with? Do we have to have a constitutional amendment? Convention? Go To The Mattresses!!!
Careful. Once you notice, you’ll see it everywhere.
When Wickard goes the way of Dred Scott, I’ll sleep a bit more soundly at night. Same with Raich, and Kelo, and others I’m sure I’m missing.
The trick, by the by, is getting 7 people on SCOTUS who understand what the Constitution is supposed to do. I figure once we’ve got 7, it won’t matter so much if one or two of them get squishy on some cases.
Now all we have to do is gain control of the White House and the Senate, and maintain that control ’til the statist Justices retire. Piece of cake!
“If a women is the sole arbiter of what’s right for her body, and can use abortion as birth control, then why can’t I decide to forego healthcare? Because doing so effects others? Does abortion effect the unborn child? How the heck does this contradiction work.”
Does abortion affect the father’s interests? If so, then abortion is not at the sole discretion of the woman, and the “impact to others” argument says buy that collective healthcare, but, if abortion does not impact the father, then as you say, why am I required to buy health care.
Think of it as simple bullshit, Roddy. Now it’s everywhere, isn’t it?
Something Wickard this way comes. Interstate Commerce is like gravity. You have to go to outer space to avoid it.
the “living constitution” needs a bullet
Only in the progressive mind can a) the Commerce Clause be interpreted to allow gov’t to control citizens right to NOT purchase something, and b)the clear and distinct ‘right to bear arms’ somehow DOESN’T mean that citizens have the right to own a weapon.
That’s some crazy prog cipher’in right there!
Enumerated powers and Rights are sub jet to the whim of the left. Made u Riggs are set in granite, nev to be touched.
Made u riggs? Made up rights … Fuck spellcheck.
Careful. Once you notice, you’ll see it everywhere.
No shit. I’m already OCD so I tend to parse stuff anyways and now it’s worse.
That’s a great way to put it.
That was also a great way to put it.
(I kid, I kid.)
Speaking of spell check… sign I spotted today: “Atlantic Seafood Coning Soon”
Pet peeve of mine. If their quality control permits that, WTF is in their food? No thanks.
Coning seafood sounds immoral and possibly obscene.
Yeah, and how is Wickard sacrosanct, but the Constitution old and non-binding. Another contradiction.
I must be missing some nuance…
Related…Are Health-Care Waivers Unconstitutional? The president cannot simply decide who does and does not have to follow the law.
http://www.nationalreview.com/articles/259101/are-health-care-waivers-unconstitutional-philip-hamburger
I dunno man. They’s precedent all up in that shit.
And before the precedent? Was the actual law as written in the documents themselves.
This idea that once a mistake is made we are forced forever to live with it — while pushing the idea that the Constitution itself is completely malleable — is nonsensical, and adherence to the idea surreal.
http://tehdailysqueak.blogspot.com/
Update!
I still think Obamacare gives the Court an excellent opportunity to overturn Wickard.
Or am I too optimistic?
This idea that once a mistake is made we are forced forever to live with it
I recommend we abort it. It’s all about choices. Tribe told me so.
so where in the constitution is congress prevented from declaring wickard repealed?
The president cannot simply decide who does and does not have to follow the law
Haaaa haaa haaa. You get the funniest commentors on this blog.
“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”
seems that the inferior courts could be directed not to use wickard.
“Hence the equivalent weight of the judiciary as a branch of government.”
supreme court yes. the inferior courts no because they are created by congress.
the tribe’s i wanna job baracky letter:
link
Obliquely OT. I noticed that Taranto commented on his continued jibes with Joseph Farah of “WorldNutDaily” over the birther movement. And I wondered whether Taranto would consider Tribe nuttier than Farah.
I looked on WNDs site for the first time in a while and noticed this link:
http://www.wnd.com/index.php?fa=PAGE.view&pageId=261033 (sorry, I can’t get the linky thing to work)
Apparently, 44 is using an SSN that was issued in Connecticut in 1890 – meaning the original recipient of the number is dead. The Social Security Administration doesn’t reissue the same SSN again. There is some historical precedent of fraudulent use of SSNs that were originally issued to people who have since died. Why 44 has a 049 SSN (Connecticut) and there are no records that he ever lived there is a possible mystery as well. If you know 44’s SSN you can plug it into the Selective Service web site along with his name and DOB and get a Selective Service number – even as of today.
I’m sure there’s a simple explanation for this.
One that will be soon forthcoming from Larry Tribe.
“And yet an inferior court holds your fascination in regard to HR 3962.”
that has what exactly to do with wickard?
seems that the inferior courts could be directed not to use wickard.
Why not? Courts direct legislatures on how to spend money all the time. Turnabout ought to be fair play.
That was one of the banned trolls, back yet again.
If he’d read here instead of looking to snipe he’d realize I already made the case that the judicial branch was co-equal (and should be; though I’d note that RD and his ilk weren’t making that case during the Bush presidency). Me, I made it with respect to this very case I believe: if Obama wants to flout the ruling, fine. But answer for it — and do so publicly.
“Why not? Courts direct legislatures on how to spend money all the time. Turnabout ought to be fair play.”
yea those inferior courts that are a creation of congress could be directed to ignore wickard, roe, dred et al in making their rulings.
for the democracy dontcha know.
It had been a while since one of this MPD trolls showed up.
I really cannot believe that Tribe is considered a legal heavyweight. Many commoners uncredentialed commenters on here can make a more compelling, and honest, argument than what he put forward in that steaming pile of sophistry.
” I already made the case that the judicial branch was co-equal ”
while i agree with that fdr pretty much shreded that concept in the progg way of doing things. me i’m just trying to work within the const. as constructed to push them back. i see the inferior courts as something congress has control of. do i like this? no. no.no. but wtf is left?
Probably better to repeal the law(s) underlying Wickard, dontcha think?
In fact, if we wanted to make it binding on future legislatures, we ought to amend the Constitution. If only there was a mechanism for doing so that doesn’t resemble the sacred college of priests consulting the haruspices.
For the Republic dontcha know.
stare decisis is fo’ suckas!
“Feddie” is now a Judge on the Georgia Court of Appeals. If only there were more Feddies on the court benches around this country.
Did you really spend your time today setting up various email accounts all so you could post your insipid comments here, RD — comments that I immediately delete from email accounts I then immediately ban?
So sad. Touching in a way, but still so sad.
Trolls like RD, meya, Yelverton, timmah, actus etc … Are truly remarkable in the amount of effort they put worth just to prove how pathetic they are.
thank you!
Happy birthday, happyfeet!?
I missed some of the troll fun, and yet I don’t feel that I’ve missed anything of substance.
BTW, I am pretty much buzzed on beer. Woohoo!
Wickard V Filburn is an evil decision what needs to be reversed post haste. Anyone who calls himself or herself a classical liberal who thinks that was a good decision needs to examine their heads for possible issues.
Like I said: been drinking.
Suez-i Q.
I heard that the Kearsarge Amphibious Ready Group arrived in the Red Sea, in the vicinity of the Suez Canal, a few days ago. There’s more than a few cans of whip-ass in that group, to be sure, and the ability to put it ashore amphibiously, inland by helo, or a combination of both.
It’s also worth noting that the Big E is in the eastern Med right now. And that some additional aviation assets have been deployed to peace-keeping bases in Sinai.
Now, it was said publicly on Friday that Marines were being sent to the area to guarantee the saftey of US citizens and State Department personnel. But it would appear to me that the Brass aren’t sure what’s going to happen, and are making sure all the bases are covered, so to speak.
Feets is celebrating his emergence from the birth canal?
How many?
I’m sorry, but going OT very OT:
Remember those clever videos by that guy on Criminal Minds (Matthew Gray Gubler)? Well, the guy who helped him make them, Andy Swan, died today of cancer. Mid-30s, left behind a wife and kid.
So a few minutes ago, Gubler tweets this, and then this.
Damn, now I’m gonna cry.
Anyone who calls himself or herself a classical liberal who thinks that was a good decision needs to examine their heads for possible issues.
99.99% of US lawyers: “Classical whutty? That’s like Beethoven, right?”
Hey Bob – do you think it’s Cairo right now or are they more concerned about what’s spilling out of Gaza into the Sinai?
Happy bday mr feets.
Wickard v. Filburn demonstrated that the only practical limits on the power of Congress are those it imposes upon itself. The 9th and 10th Amendments have been rendered moot by the 16th and 17th. Repeal of those latter two is a necessary component of any serious plan to restrain the growth of “Federal” power.
Another problem is that Congress routinely delegates to various Executive agencies the power to promulgate regulations that have the force of law. The Constitution says Congress has that power, and doesn’t say a word about delegating it. Congress can pass a law to overturn any Executive regulation it finds objectionable, but it requires both houses to agree on it, and then POTUS to sign it, which is hardly likely. I’m thinking we need an amendment on that issue as well:
That lets military commanders issue written orders to their own troops, and the FBI can allocate parking spaces without needing Congress to sign off on it, but no more of this crap of “The Secretary shall direct”. And Czars get no power at all.
Interesting. The preview respected my use of <center>, but the actual comment did not.
Truthfully MC, I think it’s Gaza/Sinai; but that they’re ready in case they need to get the embassy personnel out in a hurry.
In addition to the residual element of the Kearsarge’s usual complement of Marines, they have a whole lot of snake-eaters on board. It’s just my opinion, of course, but if the shit hits the fan, and pandemonium ensues in Egypt, I suspect that the Marines will “assist” the Egyptian military in controlling the Suez canal while the snake-eaters go after Hamas types and other Tangos that will be trying to assist in the insurrection or take control of key poitions along the canal themselves.
In short, they won’t let the crisis go to waste, and will use the opportunity to grease some of the bad guys as they try to infiltrate towards Cairo.
I’m counting on our guy’s good relationship with the Egyptian military, and praying to God that they don’t have to go into harms way.
My Regards
Nice rant. But I think you need to re-cast it in approved po-mo gibble-gabble. Otherwise, the cognoscenti will never respect you.
Yes, appears that the Egyptian military has moved/is moving to secure it’s internal assets with tanks and APCs deployed to city centers, airports, and refineries, etc. Leaving them spread thin for the Sinai.
What Hamas and possibly AQ cells see as an opportunity to take advantage of in the situation does provide fodder for our special ops snake eaters as you say Bob. Would be fantastic if we could draw out the MB snake into the light of day by exposing this Hamas incursion. Alas, it will likely all be covert.
Godspeed to our brave men. Keep them safe.
Second verse same as the first.
Today citing Thomas Sowell on the evoloving meaning of “judicial activist.”
Larry Tribe missed his chance when Bill Clinton didn’t appoint him to the SCT… I was a bit surprised anyone listens to him much anymore.
We (ILARNG) have a BN in the Sinai right now, 2/123 FA. Year long tour as UN observer force, bleah.