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Once established, it is almost impossible to repeal a benefit or ‘public service’

The failure to repeal Obamacare is yet more evidence that Chief Justice Roberts was wrong not to stop Obamacare at the start – and wrong in his basic principles. The public rarely, if ever, ask for a new “public service” or benefit – but once such a government function is established it is almost impossible to repeal. People, and the system itself, grows used to the new government benefit or service – and it is incredibly difficult to get rid of it once it is established. This is why traditional Constitutions are written – to limit the powers of government at the start, to prevent these benefits and services being created in the first place.

However, a Constitution is only as good as the enforcement mechanisms to make sure it is obeyed – and as Luther Martin warned at the Constitutional Convention in Philadelphia, trusting government appointed judges to limit the powers of the very government that appointed them is a fatally flawed idea.

This is not a recent problem. Even in the 19th century the Supreme Court often ruled that the Federal Government has powers that the Constitution does NOT give it. For example the infamous “Second Greenback Case” where the Supreme Court, with newly appointed “justices” (appointed, in part, for this corrupt purpose) overturned the “First Greenback Case” where the court had declared, quite correctly, that the Federal Government has no power to print (or have printed) money – only to “coin money” (Article One, Section Eight of the Constitution of the United States) and that only gold or silver coin (not paper money) may be “legal tender” in any State (Article One, Section Ten of the Constitution of the United States). Nothing could be plainer than that paper money is unconstitutional – indeed the very reason the United States Constitution was written in the first place was to prevent the “not worth a Continental” paper money issued by the Continental Congress to finance its government – those who support the Articles of Confederation system forget that one of its fundamental flaws was that it allowed the government to print money, as it gave no reliable source of taxation to finance the United States Armed Forces. Without a large scale and professional armed forces there is no point in having a United States of America at all – and each State might as well go its own way till conquered by European powers in the 18th century or by the People’s Republic of China in the 21st century.

The modern PRC, not constrained by morality (ethics), would either wipe out or find unpleasant uses for (spare parts in surgery, Roman style entertainment killing, and so on) the present population of the various American States. Remember whose face is on the paper money of the PRC – Mao the largest scale mass murderer in human history (see Jung Chang “Mao: The Unknown Story” or the many historical works of Frank Dikotter such as “The Tragedy of Liberation” or “Mao’s Great Famine“). The PRC has rejected the economics of Mao – but it has not rejected his morality, or rather his Satanic inversion of morality. A PRC that rejected the inversion of ethics by Mao might as well declare itself the Republic of China (Taiwan) and hold free elections – the basic principle of the PRC regime is the seeking of ever greater power and conquests, without that there is no justification for the dictatorship. Prosperity is not a justification for the PRC dictatorship – Taiwan is prosperous. The justification for the PRC dictatorship is power and conquest – which appeals to the dark side of human nature as dictators, Julius Caesar, Philip II of Spain, Louis XIV (the “Sun King”), Frederick “the Great”, Napoleon, General Ludendoff, Hitler, Stalin, Mao… have always known.

To return to the Greenback Cases… – Chief Justice Salmon P. Chase (the former “slaves lawyer” famous for his anti slavery legal work before the Civil War) de facto ruled that the Treasury Secretary during the Civil War had acted unconstitutionally in having money printed, even though the the Treasury Secretary of the time was Salmon P. Chase (himself). It is not necessary to recuse yourself if you intend, de facto, to find yourself guilty. However, more “justices” were added to the court – and the judgement (and the Constitution) was overturned. The argument being that no more paper money was being printed – it would gradually go over time, so there was no need to make a fuss… still less to declare that the “United States Dollars” in the pockets of people were just bits of paper with ink on them (not “money”).

In 1935 the Supreme Court de facto ruled (by five votes to four) that the Federal Government could steal all monetary gold and void all private and public contracts that had gold (or silver) clauses in the contracts. There was no Constitutional basis for this decision (none whatever – just “lawyer’s cant”) and the Federal Reserve notes declared valid money came from an organisation (the Federal Reserve system created in 1913) that the Congress had no Constitutional power to create. The Supreme Court, led by the Chief Justice, might as well have chanted “Death to America!” and “Hail Satan!” as they announced their judgement – as some of the dissenting judges pointed out. Thus the unconstitutional Credit Bubble financial system was pushed forward. The doubts of Luther Martin at the Constitutional Convention were vindicated – government appointed judges sitting without a jury can not be trusted.

The private argument of the Chief Justice (he made no real public argument – just “lawyer’s cant”) being that the Supreme Court had just struck down the “National Industrial Recovery Act” and “National Recovery Administration” (the effort by President Franklin Roosevelt to turn the United States into a Fascist State – openly based on the model of Mussolini’s Italy, with the government deciding on prices and general production and distribution enforced by men in jackboots, such as General Johnson the leader of the Fascist “National Recovery Administration”, marching behind Blue Eagle signs), so voiding the gold confiscation and contract destruction would have been “too much” forcing President Franklin Roosevelt to resign. Why the potential resignation of Franklin Roosevelt should have influenced a judicial decision was not explained. The “logic” being that if someone in public office acts outside his constitutional powers – all he has to do is hint that he will resign in order to have his powers de facto expanded (unconstitutionally expanded). A President Jack Nance Garner from Texas (who would have been President on the resignation of Franklin Roosevelt) should have been nothing for the Supreme Court to worry about. And had Mr Roosevelt just carried on issuing unconstitutional orders the Court would not have needed to have him arrested by the U.S. Marshals (although that would have been nice), the Court would simply have declared that Mr Roosevelt’s ravings were of no importance and that public servants (who swear loyalty to the Constitution – NOT to the President of the day) should ignore them – as should gold owning members of the public.

There is no Constitutional basis for Obamacare – the “general welfare” is the PURPOSE of the specific powers listed in Article One, Section Eight of the Constitution of the United States of America. If there was a catch-all “general welfare spending power” there would be no need to list spending powers in the Constitution – and the Tenth Amendment (reminding people that the powers of the Federal Government are limited to what is actually listed) would be meaningless. And “regulate interstate commerce” means free trade over State lines – not “make people buy insurance” (or make people buy apples or oranges). Chief Justice Roberts knew all this – but let Obamcare (mostly) stand, although he did declare that State governments did not have to accept Federal money to expand “Medicaid” (another scheme for which there is no Constitutional basis) if they did not want to expand it – and, astonishingly, some States (led by Texas) did turn down the “free money” intended (by Mr Obama) to corrupt and destroy what is left of the Republic.

The argument of Chief Justice Roberts (his private argument – he did not really have a public argument other than “lawyer’s cant” which is what lawyers use when they are arguing positions they know to be false) was that the repeal of Obamacare was a political matter. One would have thought (one of hundreds of examples) that such things as the composition of State Senates was also a political matter – but that had not stopped the Supreme Court declaring that State Senates must be elected in proportion to population (thus destroying the very purpose of a State Senate – which is to balance the power of large towns and cities, who will dominate the lower house of a State Legislature, with the thinly populated rural areas). The Supreme Court had acted “politically” when it had no Constitutional power to do so as in the State Senate case (contrary to the lies so often trotted out, the 14th Amendment has nothing to do with this – it does not even mention how State Senates are to be elected, and the equal protection of the laws has nothing to do with ending the election by counties of State Senates, or the election by States of the United States Senate), but should NOT act “politically” when it did have the power (and the duty) to do so. For if the Supreme Court does not say “you can not create this new government scheme – you have no Constitutional power to do so” then there is no point in having a Supreme Court. As for relying on the government repealing new benefits and “public services” AFTER they have been established, that is obviously absurd (if that is the position of Chief Justice Roberts the man is a fool) – there would be no need for a Constitution limiting the power of government if the government could be trusted to repeal new public services or benefits. Creating something such as “Food Stamps” (1961 – basically “free food” after the Roman model, naturally “Food Stamps” started with a few people and is now tens of millions of people – this is how all government schemes, for example Medicare and Medicaid, ) is easy – repealing such things is essentially impossible (before economic and social collapse) which is why there are Constitutions limiting the power of power of government in the first place.

What Chief Justice Roberts was essentially saying, whether he knew it or not, was… “there is no way to limit the expansion of government spending and regulations till economic and cultural collapse occurs and people are killing and eating each other in the streets” in which case I suggest that Chief Justice Roberts volunteers himself as the first person to be eaten.

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84 comments to Once established, it is almost impossible to repeal a benefit or ‘public service’

  • John K

    I suspect that the all-seeing eye of the NSA might have been used to “persuade” Chief Justice Roberts to modify his views. Who knows which websites he visited that he would rather not be made public?

  • Alisa

    Without a large scale and professional armed forces there is no point in having a United States of America at all – and each State might as well go its own way till conquered by European powers in the 18th century or by the People’s Republic of China in the 21st century.

    NATO works, to the extent that it does, without the need the United States of Whatever, with the power of direct taxation. In North America it could only have been more so, thanks to geographical proximity and greater common interests.

  • Patrick Crozier

    Or to put it another way: if people don’t generally believe in the principles of the Constitution then it isn’t worth the paper it’s written on.

  • Laird

    PaulM covers a lot of ground in this post, and while I agree with much of it I disagree with some.

    His central thesis is that once created, a governmental program (welfare or otherwise) develops a constituency (bureaucrats, beneficiaries, private contractors, whatever) which has come to depend upon it and which resists its abolition. I think that’s a fairly commonplace observation; witness the continued survival of such entities as the California Raisin Board (which regulates the production and pricing of raisins, to the benefit of no one but the large raisin producers). Obama knew this well when he pushed through Obamacare with not a single Republican vote. He understood (and said publicly at the time) that once the Republicans were in a position to do anything about it they would lack the will to do so, as it would have become so entrenched that repeal would be politically impossible. He was right. Whatever else you may say about him, Obama is not stupid. I also agree with Paul about Justice Roberts’ incomprehensible decision to let Obamacare stand. It was one of the worst pieces of legal “reasoning” (or “clap-trap”, as Paul prefers) that I have ever read. He should have been impeached over that (not that he would have been convicted, given the makeup of the Senate at the time).

    But I’m not going to permit some of Paul’s other assertions to stand unchallenged. First, “Without a large scale and professional armed forces there is no point in having a United States of America at all.” The US Constitution specifically prohibits a large-scale army; hence the limitation on appropriations longer than two years to support one. (Art I, Cl. 8, Sec. 12.) The Framers were fearful of large standing armies, which they (correctly) viewed as the cause of the seemingly endless wars which wracked Europe. (Navies were OK, as they were less amenable to stirring up trouble; hence cl. 13.) And the Constitution intentionally gave the federal government “no reliable source of taxation” (limiting it to import duties and the like) precisely to keep it small and within its proper bounds. That limitation was destroyed by the 16th Amendment, and the result has been as destructive of the original constitutional order as it was predictable. The most charitable thing one can say about the voters in 1913 is that they were idiots with no conception of the structural damage which would be wrought by the 16th and 17th Amendments.

    And as to the Second Greenback Case, I’m not convinced that it was wrongly decided. I haven’t read it in a long time (I should rectify that), but the constitutional limitation on “coining money” (Art I.10.1), specifically applies only to the states, not the federal government. Yes the FedGov has the power to “coin” money (Art. I.8.5), but it also has to power “to borrow Money on the credit of the United States.” (Art. I.8.2.) And until 1964 all US greenbacks were “silver certificates” redeemable for specie. As such, they were simply “obligations” of the US, depository receipts against silver held by the Treasury, and not currency per se. In my judgment they were perfectly legal. It was only the elimination of the ability to convert them into silver on demand which rendered them unconstitutional.

    But I won’t defend Roosevelt’s confiscation of gold in 1935. That was blatantly unconstitutional, if sadly understandable given the political and economic situation at the time. It was just one of Roosevelt’s many unconstitutional programs and orders, and after its first few attempts to overturn them the Supreme Court succumbed to the political pressure (Roosevelt’s famous “court-packing” threat) and stopped fighting him. Cowardly acts it is true, but all too human.

  • Alsadius

    Laird is right on the topic of money. The relevant bit of the constitution is “No State shall…coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts…” – these are specifically limits on states(you can tell, because other items in that list are ones the federal government is expressly permitted to do), so they do not bind the federal government.

    As for Roberts, I think he was trying to kill Commerce Clause jurisprudence, and thought allowing Obamacare was less important than undermining the arguments for the legality of a big federal government generally. (It’s also one that was a lot less likely to undermine the legitimacy of the court generally, which will naturally, though unfortunately, be a consideration for a Supreme Court justice.)

  • Laird

    Good article, Alisa. Thanks for the link.

  • Paul Marks

    Laird I am astonished that you do not know (or rather have forgotten – a brief “mind slip” of which I have MANY, far more than you) that Article One, Section Eight of the Constitution refers to the powers of the Federal government – not the States. The Congress has the power to “coin money” not to “print” money – and that was quite deliberate, as the very point of the calling the Constitutional Convention in the first place was to stop the printing of the “Continentals” to finance the military – to find an alternative to paper money (via creating a government with the power to tax – mostly tax imports up to 1913). So of course the Second Greenback Case was “wrongly decided” – if it was correctly decided then the Continental Congress could have carried on printing money (no need for a Constitutional Convention).

    But you could have said “Ah but Section Eight does not say gold or silver coin – so there is nothing to stop the Congress minting copper coins, although no State may treat the copper coins as “legal tender”” and that would have been a good point, but certainly paper money is utterly unconstitutional – no doubt about that (none). Copper and other coins were indeed minted – but historically they were not used for large payments (certainly someone paying their taxes in copper coins would have got more than a funny look).

    “The Constitution does not authorise a large scale military” – I suggest you take that up with President Washington Laird. The provision that the Constitution vote on the funding of the military regularly (every year or two years) was taken straight from Britain. It was not about limiting the size of the army Indeed as far as Washington and the others were concerned funding the military (to deter European powers and so on) was what they were in that horrible hot hall in Philadelphia to do. Washington and the others would have been astonished to hear your view that the Constitution does not allow a large scale military – when the very purpose of writing the Constitution was to fund a large scale military (otherwise the Founders could just have gone home). HOWEVER, you may mean that Washington and the others did not see the United States as a “world policeman” – and you are quite correct, Washington (perhaps hypocritically given that he had fought against Britain) was quite content to have Britain looking after American interests around the world. But for better or worse Jefferson soon found that it was necessary for American to have land and naval forces that could reach as far as North Africa, Britain could not be relied on to do everything. And since World War II the balance between leaving things to Britain and America doing the job itself has moved very much to America doing the job (around the world – not just in North Africa) itself.

    Of course Rothbardians claim that there is no job to be done – that the world would be fine if it were not for evil Anglo-American intervention, and that even if the world was not fine then a world controlled by enemy powers would be no threat to the United States. Rothbardians claim this because, to use technical and scientific language, Rothbardians are (at best) idiots.

    Still Alisa makes the point that one can have a strong military without the present government structure – and I tend to towards an “alliance of States” view myself. No elected President (have the President appointed by the Senate and have him or her subject to dismissal) no House of Representatives, and a Senate elected simply by the States (and subject to recall). “Errr Paul that sounds like the New Jersey plan at the Convention” it does indeed – although perhaps the strongest voice for it was from Connecticut, Roger Sherman. General Sherman of the Civil War often pointed out to Southerners (especially those from Virginia) that his kinsman, Roger Sherman had argued against the “Virginia Plan” with its elected President and House of Representatives elected by population – and that he, General Sherman, was merely representing the strong Federal Government that they, the “gentleman of Virginia” (led by General Washington) had demanded.

    By the way I am not really making a “Public Choice” argument – it is not people who financially benefit for a government benefit or service that keep it in place. It is the general belief of disinterested people that keeps it place – by a sincere (although radically misguided) belief that it is morally good.

    Corrupt interests rarely (if ever) create large scale benefits or public services – well meaning members of the elite do, and these programs grow like cancers. And the cancers are held to the chests of the vast majority of people of good will.

    Ask the typical British person if they are in favour of getting rid of the National Health Service – but ask from a long distance (as their reaction may be violent).

    Statism is not really about corrupt interests – it is far more about habit and also the desire (the sincere desire) to do good.

    The one thing that the liar who wrote “Democracy in Chains” tells the truth about is her own motivation and the motivation of other statists – she is outraged (justly outraged) that the late James Buchanan could imply that the motivation of most statists is financial – it is not. They really do believe they are doing good – that is what makes them so dangerous.

    As Dr Johnson said “a man is seldom so innocently engaged as when he is after money” – when men are after other things, such as love or the desire to create a new society, they will do terrible things most of them would not dream of doing for some personal financial benefit.

    How do I know what they are like? I know because I am rather like them. I have handed in thousands of Pounds that I could have pocketed (not once – many times) and I can not bribed. But when it comes to political acts that involve the physical suffering or death of people – well I think I will “take the 5th” on that. So I understand the real left well – very well.

  • Shlomo Maistre

    Or to put it another way: if people don’t generally believe in the principles of the Constitution then it isn’t worth the paper it’s written on.

    Indeed. And so, what’s the point of a Constitution if it’s only worth the paper it’s written on insofar as people’s beliefs match its strictures? Perhaps it makes the people who write them feel good.

    Or to put it another way: if people don’t generally believe in the principles of the Constitution then it isn’t worth the paper it’s written on.

    True. And why? Because belief, not a Constitution, is what imbues the government with its power, limits the contours of its reach, and regulates the prerogatives of its administrators.

  • Paul Marks

    Patrick – quite correct.

    When Americans stopped being taught the Constitution and the PHILOSOPHY (that truth is OBJECTIVE and UNIVERSAL and that humans are moral agents, i.e. have the capacity to know moral right from wrong and the ability to choose between them) on which it is based, then things such as the re election of Franklin Roosevelt in 1936 (think about it – the man wiped his backside on the United States Constitution and was re elected with 60% of the vote) became inevitable, and the break was quite sudden.

    Only two years divide the birth of Calvin Coolidge in 1872 from that of Herbert Hoover in 1874 – but their education was quite different.

    I think it is plain from his early writings (for example his inaugural address in March 1929) that Herbert Hoover was not well versed in the Constitution and the philosophy it was based upon (Thomas Reid and so on – represented on into the 19th century by Noah Porter and James McCosh), Hoover did not HATE this view of government and of philosophy (as Woodrow Wilson did), it was more than that – he, Hoover, really did not know of it (he had never been taught it – so he did not have to rebel against it).

    When Calvin Coolidge said of Herbert “The Forgotten Progressive” Hoover “no one has given me more unsolicited advice – and all of it bad advice” he was talking of a man only two years younger than himself, but he might as well have been talking of someone from a different age or a different country.

    And it was not just Hoover – it was his generation, and all later generations.

    Ask Thomas Jefferson who Thomas Reid was – and he would have been astonished by your ignorance. Ask Calvin Coolidge (from an ordinary family – indeed he was even sworn in as President on the death of Warren Harding, in a house without electric light) and he would have answered your question somewhat sadly – and mentioned how the “Pragmatists” had taken over from the “Common Sense” school in philosophy in modern American universities (much to his regret) and how so called “Progressives” had taken over the instruction of civics.

    Ask Herbert Hoover?

    At least in his youth (in old age, and out of office, he changed) Herbert Hoover would not have known what you were talking about Patrick. Nor would most of his generation – or later generations.

  • Paul Marks

    For those who might object that Calvin Coolidge was an exceptional man – for example that he was the last President who could (and did) read Latin and Ancient Greek books in their original languages. In his own time, and before, Calvin Coolidge was NOT exceptional.

    There were mountain men with a Kentucky Long Rifle on their back a century before Calvin Coolidge who could, and did, read Homer in the original.

    The old Americans feared neither man nor beast – and they did fear God in the way people now think they did. They did not see God was cruel – so they did not “fear” Him in the modern sense. They feared disappointing God – in the same way they feared acting in a way that would disappoint their better selves.

    As for the Roman authors – every generation for two thousand years knew the “Consolation of Philosophy” by Boethius – Alfred the Great knew it in marsh lands of Somerset hiding from the Vikings, and he also knew that knowing such works (not gold or swords) was what made him and his people different from their enemies. And every generation knew “On Duties” by Cicero, and could recite at least the early pages of the “Meditations” of Marcus Aurelius.

    Paul are you really saying that some New England blacksmith or dirt farmer, would know about “the same law for all, a polity administered with regard to equal rights and equal freedom of speech, and he idea of a kingly government that respects most of all the freedom of the governed”.

    Yes that is exactly what I am saying – every generation knew of the ideal (even if they failed to practice it) – now people do not.

    Modern people people have heroin instead – including in little towns in New England that Calvin Coolidge would have known.

    To Alfred the Great it was not what people looked like or smelled like that mattered – fighting in a marsh everyone looks bad and smells bad, it was what people had their minds that marked “us” from “them”. It is hard not to come to the conclusion that he (and Calvin Coolidge to) would regard modern people as mostly “them”, and would not be exactly astonished to find them eating human flesh if they got really hungry.

  • Paul Marks

    One terrible mistake I made at the very start of my post was not explaining that the people did NOT ask for what has happened to them.

    No one in 1880s Germany was marching saying “we want old age pensions and we want them NOW!” – the state does not grow that way, it grows (in all countries) top-down.

    Frederick the Great in the 18th century decided that state education would be a good thing – people were NOT demanding it.

    Ditto with America in the 19th century – well meaning experts established state education is Mass and other States, and the literacy rate in Massachusetts was higher BEFORE the system was established than it is now (today).

    Much the same with old age provision and health care and everything else – everywhere. Nothing much to do with “interests” Laird – and everything to do with good intentions and then habit.

    Even the worst regulations become hallowed by time.

    Take the British Race Relations Act of 1965 – no “Jim Crow” laws to act as an historical excuse for its “counter balancing effect”, it was a savage attack on Freedom of Association and Freedom of Speech (speech – to, the American Civil Rights Act of 1964 “just” attacked Freedom of Association not Freedom of Speech as well), without being able to point at previous “Jim Crow” regulations (although the American argument does seem to be “two wrongs make a right”).

    I remember listening (via the wonders of television) to the Speaker of the House of Commons speaking in honour of the 50 anniversary of the 1965 Act – comparing it to Magna Carta and so on. I held a knife in my hand but, alas, I could not find the courage to cut my throat with it.

    Repeal the Act? Of course not – only a “racist” could want the Act repealed.

  • Shlomo Maistre

    Most of what Paul Marks says in this post and in his subsequent comments is true.

    He is certainly correct that it’s basically impossible to repeal a federal entitlement program in a modern Western democracy.

    He also suggests no viable solutions to this predicament.

    Joseph de Maistre:

    No government results from a deliberation; popular rights are never written, or at least constitutive acts or written fundamental laws are always only declaratory statements of anterior rights, of which nothing can be said other than that they exist because they exist.

    […]

    No nation can give itself liberty if it has not it already. Its laws are made when it begins to reflect on itself. Human influence does not extend beyond the development of rights already in existence but disregarded or disputed. If imprudent men step beyond these limits by foolhardy reforms, the nation loses what it had without gaining what it hopes for. In consequence, it is necessary to innovate only rarely and always moderately and cautiously.

    […]

    No free nation has existed which has not had in its natural constitution germs of liberty as old as itself, and no nation has ever succeeded in developing by written constitutional laws rights other than those present in its natural constitution.

    But man fools himself.

  • Chester Draws

    China is no more going to expand territorially than the US is. It isn’t in their culture to extend past the area they already have. (Compared to Russia, say, which has been trying to expand for centuries, including lands that are not culturally — and never have been — Russian.)

    China declined to annex the part of India they could easily have taken the last time they fought. They haven’t taken over North Korea, which they could do easily. They could have,, albeit with difficulty, taken Vietnam (as they have historically done).

    While the US whines about China taking a few islands in the South China Sea, they themselves have similar military bases across the whole Pacific. So I don’t consider China’s desire to protect their coast unreasonable, albeit that they go at it in an unreasonably aggressive manner.

    China will run a course we don’t consider ethical, I don’t doubt that. But physical expansion is most unlikely.

  • Laird

    Paul, you cover so much ground that I can’t (or at least, won’t) address it all here. Just a few observations:

    You didn’t read my post closely enough. I specifically said that the limitation in Art I.10.1 applied only to the states. As to I.8.5, yes it gives Congress the power to coin money but doesn’t say that’s the exclusive means. As I explained, I read I.8.2 as permitting it to issue silver certificates (or some equivalent form of “depository receipts”). You may disagree, but you didn’t respond to that.

    As to “large armies”, that may have been a bit of an overstatement, but it most certainly did prohibit “standing” armies, which the Framers (rightly) feared, and it’s difficult for a “non-standing” army to be very large. You are simply wrong that the Constitutional Convention wanted a large army; there was no need for one (the Revolution was long over by then). It relied primarily on the state militias.

    As to the impossibility of eliminating any established government program, I wasn’t speaking about their genesis (“good intentions” or otherwise), only that it is “interests” which preclude their abolition. I stand by that.

  • bobby b

    Shlomo Maistre
    July 29, 2017 at 9:10 pm

    “Because belief, not a Constitution, is what imbues the government with its power, limits the contours of its reach, and regulates the prerogatives of its administrators.”

    True.

    “Yet sworn word may strengthen quaking heart,” said Gimli.

    Our beliefs lie in our heart. But our written Constitution is the oath we all swear together, and having such a document strengthens our resolve.

  • Shlomo Maistre

    But our written Constitution is the oath we all swear together

    No we don’t. We swear at each other. We all interpret that document differently and we swear at each other for differences of opinion on anything from marginal tax rates to gay marriage to eminent domain to abortion to healthcare policy.

    Democracy makes the personal political because it permits everyone to impose their private opinions on everyone else. Democracy is slow motion war by other means as Clausewitz famously said. Democracy is faction, dissent, and breakdown of civil society. Constitution means nothing – effectively.

    and having such a document strengthens our resolve.

    No it doesn’t. Having such a document causes complacency regarding the growth of the federal government because it helps justify the mistaken belief that the American federal government is in any material sense limited by ink blots on a piece of paper.

    The US government has the highest per capita incarceration rate in the world, the most extravagant mass surveillance privacy-violating apparatus in human history, massive entitlement programs upon which a majority of the population rely for basic things like healthcare, food, housing, education etc, a monstrously reprehensible public debt that will enslave generations of unborn children, security agencies that harass Americans systematically in their daily life violating their civil liberties en masse, a digital printing press used to prop up unsustainable public spending upon which a majority of Americans rely for basic aspects of their lives, regulatory agencies that impede open market competition in every sector of the economy and weigh down the private sector with a regulatory burden so onerous and expensive that it serves as the primary barrier to entry for would-be start-ups in many industries and has regulated out of existence whole businesses.

    But we have this piece of paper called the US Constitution so we pat ourselves on the back and say we live in “the land of the free and the home of the brave”.

    Having the US Constitution weakens our resolve.

  • Shlomo Maistre

    Frog goes into a pot of water and he measures the temperature. It says 50 fahrenheit. He writes on a piece of paper “this water is 50 degrees fahrenheit – the coldest in the world!” and proudly pins it to the wall in front of him. And he is right – at that moment in time the water is 50 degrees and it is indeed the coldest water in the world. [And indeed America really was a quite free country when the US Constitution was written, with great liberties for its people, a golden age in relative and absolute terms]

    The temperature of the water rises to 60 degrees. And he feels a bit warm but he consoles himself because the piece of paper right in front of him says the water is just 50 degrees and it can’t be wrong!

    The temperate rises to 80 degrees. Frog feels rather hot now but knows that the piece of paper saying that his water is the coldest in the world can’t be wrong!

    The temperate rises to 90 degrees. And he feels hot but reflects happily that at least he is in the coldest water on earth! His children are born in the pot of water and he teaches his children about the eternal veracity of that piece of paper.

    The temperature rises to 120 degrees. He dies but his children live still. His children are used to 90 degree water and they do not even know what 50 degree water is like so they are as happy with 120 degree water as their father was with 80 degree water (only a 30 degree difference). The children feel rather warm but console themselves that they live in the coldest water in the world!

    Rinse. Repeat.

  • RRS

    The late Gordon Tullock noted the need to search for “a self-enforcing Constitution.”

    One step (for the U S) might be to take away from the inmates (legislators)the absolute authority to determine the manner of their obligations in their proceedings [Art. I; Sec. 5 “

    Each House may determine the Rules of its Proceedings . . . “

    and instead Constitutionally prescribe the procedural obligations to be followed by legislators.

    In other words, require procedures that will provide the effects (and protections) of what has been “Regular Order.”

  • RRS

    @ Chester D:

    China is no more going to expand territorially than the US is. It isn’t in their culture to extend past the area they already have. (Compared to Russia, say, which has been trying to expand for centuries, including lands that are not culturally — and never have been — Russian.)

    It might be more accurate to say “for the past 400 years or so, It has not been in their culture. . . “ whether that “culture” will “hold” in the new urbanizations remains to be seen.

    The historic territorial “expansions” of various “Russian” regimes can be seen as “defensive,” rather than for any purely “aggressive” objectives, particularly those to establish a South Eastern border “depth.”

    We should keep in mind Nichols II’s comment that he ruled a “collection of peoples” not a nation.

  • Shlomo Maistre

    The late Gordon Tullock noted the need to search for “a self-enforcing Constitution.”

    One step (for the U S) might be to take away from the inmates (legislators)the absolute authority to determine the manner of their obligations in their proceedings [Art. I; Sec. 5 “

    Each House may determine the Rules of its Proceedings . . . “

    and instead Constitutionally prescribe the procedural obligations to be followed by legislators.

    In other words, require procedures that will provide the effects (and protections) of what has been “Regular Order.”

    Translation: frog thinks that adding a second exclamation mark to the end of “this water is 50 degrees fahrenheit – the coldest in the world!” will make it true or at least prevent the temperature from rising further.

    Frog is wrong.

  • RRS

    If I am not mistaken, the U S Gov’t does not issue any currency other than coinage.

    It’s Printing Office prints banknotes for the several Federal Reserve Banks which are licensed (for a fee) by Congress to issue “Legal Tender.”

    Other banks can not issue banknotes because they are taxed at 100% of “face” value.

  • RRS

    @ S M:

    No. It is a matter of “authenticity.”

  • Shlomo Maistre

    RRS – huh? Are you actually claiming that the US Constitution is authentic? There are few documents ever devised by man in all of human history that are more misleading. I must be misunderstanding you here.

  • Laird

    I tend to agree with Shlomo on this.

    Hans-Hermann Hoppe has argued that no constitution can restrain the State. Once its monopoly on force has been accorded legitimacy, constitutional limits became mere fictions which it can safely disregard; nobody, neither state nor individual, can have the legal standing to enforce those limitations. The government itself would decide, by force, what the constitution “meant,” steadily ruling in its own favor and increasing its own power. And of course Lysander Spooner famously wrote (in The Constitution of No Authority) that “whether the Constitution really be one thing, or another, this much is certain – that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.”

    But even if one accepts those criticisms, that doesn’t necessarily mean there is no value to having a written* constitution. Even if not followed, or if judicially “interpreted” beyond the pointt of rationality, it nonetheless still provides a foundation to which we can aspire, and forces those who do not share that aspiration to go through the exercise of torturing the language with legal sophistries. The fence may not hold all the cattle, or through neglect may deteriorate to the point of ineffectiveness, but that doesn’t mean we shouldn’t build a fence at all: it simply means that we repair it, or even that we build a new and better one.

    * We have an example of the meaningless of a non-written one, in the experience of England where the legislature can change or override it at will.

  • bobby b

    Shlomo Maistre
    July 30, 2017 at 2:33 am

    “The US government has the highest per capita incarceration rate in the world, the most extravagant mass surveillance privacy-violating apparatus in human history, massive entitlement programs upon which a majority of the population rely for basic things like healthcare, food, housing, education etc, a monstrously reprehensible public debt that will enslave generations of unborn children, security agencies that harass Americans systematically in their daily life violating their civil liberties en masse, a digital printing press used to prop up unsustainable public spending upon which a majority of Americans rely for basic aspects of their lives, regulatory agencies that impede open market competition in every sector of the economy and weigh down the private sector with a regulatory burden so onerous and expensive that it serves as the primary barrier to entry for would-be start-ups in many industries and has regulated out of existence whole businesses.”

    One of our most serious political fights involves building a wall around our country to keep out the hordes who want in. Anyone can freely leave, but few do. I once spent a day or two in jail long ago, deservedly, but not since then, and no one else I know has been there. Who the hell would bother surveilling me? I travel all over the country, and so long as I stay on the right side of the road and don’t completely ridicule the speed limit, no one ever systematically harasses me. Welfare? Don’t know how I’d even apply, don’t know anyone who would. Made a good living for years, taxed but not overtaxed, plenty left over such that I rely upon myself, as do most people, or upon the public roads and infrastructure that I helped to build. Public education wasn’t something stolen from me, it was a shared obligation and a general benefit and I’m better for it, as are my children. I’ve been hearing about public debt sinking us since I was ten, and we’re all still afloat. Haven’t had to deal with an agent of government in months, and that last time was pleasant and to my benefit. Regulatory agencies suck, as they always have and always will until I move to _____ where they have no influence. (Don’t know how to fill in that blank. Antarctica?)

    Frog is pretty effin’ happy to live in the land of the free and the home of the self-interested, kept that way partially because of a set of written group aspirations that keep us on the same page and create a rallying point. In a land of 323 million people, you can build an impressive parade of anecodotal horribles, but most of it affects most of us not at all. Call me when you make a list that’s not simply theoretical. Hoo-rah!

  • Alisa

    Laird, if you are not familiar with Codevilla and his writings, I highly recommend them.

  • Mr Ed

    The clue is in the name ‘banknote‘.

    How good is the bank to honour it?‘ should be the first point that comes to mind when given a banknote; whereas with a coin, the question had long been, essentially ‘How much of what metals is in this?‘.

    Now of both coin and note, the only question is whether it will be honoured. For the time being, in transactions as a money, rather than the ultimate question about the bank, but that ultimate question will, one day, be posed, and few will understand how we got there.

  • bobby b

    Laird
    July 30, 2017 at 4:17 am

    “Hans-Hermann Hoppe has argued that no constitution can restrain the State. Once its monopoly on force has been accorded legitimacy, constitutional limits became mere fictions which it can safely disregard; nobody, neither state nor individual, can have the legal standing to enforce those limitations. The government itself would decide, by force, what the constitution “meant,” steadily ruling in its own favor and increasing its own power.”

    What does “enforce” mean? If you mean, take an issue to a government court and look for an anti-government ruling, you are likely correct.

    But it’s already become a general comment that we’re now in a cold civil war. We’ve elected an iconoclast who is (slowly, unsteadily, but progressively) doing away with regulations, programs, and governmental functions, at the behest of enough millions of citizens to have won his election.

    We retain, and seemingly inexorably expand, our Second Amendment right to keep and bear arms, and no one seriously argues that we do this for a love of hunting. We do it because we do not trust government, and we wish to remain powerful enough to do something about it.

    Our alt-right community – including a large pro-Constitutional community – is growing in numbers and volume and influence, having reached a point where polite acceptance of government overreach is no longer sufficient.

    Granted, we let unconstitutional government growth go on too long, but history shows that social change is cyclical, and our cycle seems to be changing. In my mind, this simply means that we’re looking to enforce our Constitution once more upon what our government has become.

    The people don’t look to the government to enforce the Constitution against the government. The people do it themselves. That’s our cold civil war. Our Constitution is our manual for waging that war.

  • […] Samizdata, Paul Marks discusses why it is so difficult to prevent governments from expanding their powers far beyond what […]

  • Paul Marks

    It is clearly not true that the United States Constitution is worthless – one need only think of the number of things that have been struck down by the courts for violating the Bill of Rights, for example the First Amendment.

    Someone who claims that a Constitution “can not” constrain government is clearly either ignorant of the basic legal history (which shows many occasions of this occurring), or is just a liar. Someone who does know that written Constitutions have limited government actions many times – but pretends they do not know.

    However, it is also not true that the United States Constitution is perfect. Most people, even most lawyers (and the word “even” is deliberate – after all a lawyer is, at least in part, a person who is trained to twist the truth in debate) will not break something that is very clearly stated – but if there is any vagueness in the words it will be exploited.

    For example, when the Tenth Amendment was drawn up the words “expressly” or “specifically” were suggested to make it clearer – and they were rejected on stylistic grounds (basically because they would make the Amendment sound inelegant when read out). As anyone who has read my writings knows I DESPISE elegance in speech or writing, I care only that is something is true. So I think I would have had harsh words with Mr Madison about this matter.

    Ditto the use of the words “regulate interstate commerce” – yes by context and by the debate one knows this means ensure free trade over State lines (a major worry in the 1780s – and still not in place today, for example one can not really freely buy health insurance over state lines). But the words “regulate interstate commerce” have a bit of vagueness in them – even in 18th century English, and one does not give lawyers any vagueness that they can exploit.

    Also the words “general welfare” – true this is clearly, from the context, the PURPOSE of the specific powers given to the Congress, THERE IS NO GENERAL WELFARE SPENDING POWER, but the words “general welfare” should not be in the document at all. As every good lawyer (and there are good lawyers – both professionally and morally) “never write preambles” for example never write “because my son David is such a good boy I leave him my house” as that invites a legal case by other relatives trying to show that David is not a “good boy” (that he is morally bad) – just write “I leave my house to …..” do NOT say why. Think of all the problems the bad 18th century habit of writing preambles has done in relation to the 2nd Amendment – the preamble “a well regulated militia…..” is something that evil people have tried to use to castrate the right (by pretending it is only for a “well regulated militia” – not that this is simply an example of the use of the right).

    There are degrees of evil – most people would NOT violate something that was simple and plain, but give people “wriggle room” (a preamble, or a bit vague language somewhere – a bit of “elegance” rather than plain speech) and you invite corruption. Especially given the idea of “precedents” – this idea being “I am not violating the Constitution – I am just repeating (and pushing a bit further) the judgement of this other guy, years ago, who violated the Constitution”. A text must be written with this in mind – even if that means the text is “code like” and lacks all “elegance”.

    “But Paul that means you end up with something like the Constitution of Texas or even the Constitution of Alabama” – well on length I do not think you do, after all removing words such as “general welfare”, “regulate interstate commerce” “well regulated militia”…. would make the Constitution shorter not longer, but I accept the general point.

    I do not agree with the John Adams that Constitution are written for a “moral and religious people” – why would such angels need a Constitution?

    Nor are Constitutions written for devils – who would ignore even the clearest and most plain statements (devoid of all “elegance” and “style”).

    Constitutions are, or should be, written for people who are neither angels or devils.

    People who will not violate a legal document it it is clearly written and gives them no (or as little as possible) “wriggle room”.

  • Paul Marks

    Of course, as Patrick pointed out, no Constitution will stand if the people forget (or no longer believe) in the basic philosophy upon which it stands.

    As the Ninth Amendment makes clear – the Bill of Rights is not a gift of the government, it is the statement of pre existing rights that exist whether government admits their existence or not. This made very clear in the Constitutions of many of the States – quite of a few of which are better written than the Federal Bill of Rights is. As they are written with more of an eye to clear meaning – and less of an eye to “elegance” and “style”.

    But what if someone is like Thomas Hobbes or Jeremy Bentham and does not believe in natural justice (or defines this term so that it means the opposite of its traditional meaning – which is what Hobbes did).

    And what if someone (again like Thomas Hobbes) claims that people can not CHOOSE to do what is morally right against their (our) base desires to do evil?

    While there are only a few people like Thomas Hobbes, David Hume (basically Hobbes in polite language), Jeremy Bentham…. and on and on, things will be fine.

    But what if they (those who seek to undermine the basic principles of moral and political philosophy – determinists, moral relativists and other such) become the MAINSTREAM and such thinkers as Ralph Cudworth, Thomas Reid, James McCosh, Harold Prichard and Sir William David Ross….. who answered back on the side of universal and objective truth and ordinary people (as moral agents) against the enemies of humanity, are forgotten or disregarded?

    What happens if the very schools and universities are dominated by the ideas of the ENEMIES of the Western tradition, and these enemies (Hobbes, Hume, Bentham…..) are presented as a sort of inverted intellectual cannon of their own, and taught (as “the Western tradition” – the very thing they actually despised) to the young?

    One can not get to the philosophy of the Bill of Rights from Hobbes, Hume and Bentham and…… – and that is no accident, it is “not a bug, it is a feature” it was their intention to attack the Western tradition (one can not get to Magna Carta or the Edict of Q of 877 A.D. from their philosophy either – and they knew that), indeed the universal tradition of humans as moral agents (who can know moral good from evil and choose to do what is morally right against our base desires) with natural justice (natural law) limiting the power of government.

    What if the followers of these “critics” (to use a mild word) of the West (indeed of the very idea of humans as having Free Will and government being limited by natural law – natural justice) take over the schools and universities – as they have.

    Well then, YES, civilisation may well be doomed – unless this can somehow be reversed.

    Someone such as Oliver Wendall Holmes (junior) hated the traditional philosophy of the West and the Constitution that was based upon it – and, of course, that influenced his judgements.

    Modern people may not need to hate traditional ideas of moral responsibility (free will – agency) and natural justice (to each their own) – as they may not have even heard of such things.

    Where are they going to learn them? School? University? The media?

    Yes, in the depth of their souls (for people do have souls – although perhaps not in a religious sense) they know they are doing wrong. But the quiet voice of conscience can be drowned out by the corrupted power of modern “education”.

    “I want it – so I am going to take it from the rich” might as well be written on the tombstone of civilisation.

    After all that is essentially what the schools, universities and media teach.

  • Thailover

    1. In my opinion, Chief Justice Roberts is a shill or a mole.

    2. “Public Service” is Owellian Left-Speak for forcing the general public to pay for things they don’t want. Otherwise they wouldn’t be forced to subsidize it. They would do so voluntarily. The writings of J.K. Rowling are a public service, because the public voted with their wallets to make her a billionaire. Oh, but public services are “free”, right? Well no. There’s no such thing as free pu*sy. …Er, I mean a free lunch.

    3. Paul Marks (last post), quite right. People are naturally inclined towards tribalism, whether that tribalism is religious in context or secular. As long as the zero-summers want to feed the rich to the poor, ruin western civilization (and our ability to CREATE wealth for all), by drowning it in third-world ne’er-do-wells who think they’re entitled to western welfare, western caretaking, and an endless supply of Swiss and English women to rape and abuse…then there can be no future for civilization.

    Civilization requires an abandonment of tribalism, and I don’t mean nations = tribes, i.e. no borders. I don’t mean that at all. I mean that collectivism is defunct and individual rights, and governments whose only job is to secure these rights, is the only path to common human flourishing. Capitalism, as a social system, not merely an economic system, is voluntary cooperation to mutual benefit and the political and legal recognition of property rights.

    Ayn Rand was right, any “mixed economy”, and putting multiculturalism along side “western values”is like mixing food with arsenic. Eventually those that imbibe will keel over, dead as a doornail.

    As she once remarked, she didn’t write her works to be prophetic, but rather to not be prophetic, and in that effort, she failed.

    As an aside, I, as an American, can’t fathom what transpired in Rotherham. I don’t mean the systematic rape and torture of over 1,400 English children while the police did nothing but help cover it up. I mean the rioting and bloodbath that DID NOT occur after it was exposed. I can’t imagine what it would be like to be so inured as to stand by and shoulder shrug at the whole affair.

  • bob sykes

    One might observe that today the US Government does not issue any currency in any form. US currency is issued by the Federal Reserve, an independent bank. It is merely printed by the US Treasury as a matter of convenience.

    I am old enough to remember silver coins and bank notes labelled “Silver Certificate,” which were redeemable in silver. My daughter actually got one in change a few years ago.

  • Laird

    Wow, someone really wound up Paul! 😆

  • Darin

    bobby b
    July 30, 2017 at 4:47 am

    Frog is pretty effin’ happy to live in the land of the free and the home of the self-interested

    TL;DR: Life is good, life is happy, life is getting more joyous. All what you wrote is true, and it is true about any developed country in the world, regardless of their constitution or lack of it.
    https://en.wikipedia.org/wiki/Developed_country#/media/File:IMF_advanced_economies_2008.svg

    Including countries with absolutely no “freedom” by American definition (no free speech, no guns) like UK and Japan. To play devil advocate, maybe “constitutions” “rights” and “freedoms” are not so important for living a good life?

  • RRS

    Laird & S M:

    Laird:

    The government itself would decide, by force, what the constitution “meant,” steadily ruling in its own favor and increasing its own power.

    That is surprising. “Government” is an instrumentality, not a person or personification {Louis XIV notwithstanding); the instrumentality does not decide anything – people do; a tyrant, a dictator, an oligarchy – even a mob (and sometimes a legislature).

    S M:
    NO (again) identifying or designating “A matter of authenticity” is not a claim of authenticity. We might well consider: “What is ‘authentic‘ in our (U.S. or U.K.) social structure?” What determines authenticity (OR – how is authenticity determined)?

    Closer consideration may be somewhat Popperian – what is authentic is that which remains after the removal of all that can be falsified; and we are a long ways from completing all the falsifications.

  • RRS

    To the many minds of the Paul Marks Organization (all of them good!):

    Carol Quigley noted that civilizations evolve. They evolve from fragments of other civilizations (which have not so much “declined” as “come apart” from various causes) and from bits and pieces of “cultures” that find cohesion amongst them in the sufficiencies of commonalities of motivations of their members.

    “European” civilization that became “Western” Civilization, whose center has constantly moved westward (and appears to be still moving toward the Pacific Rim)shows evidence of serious losses of cohesion and is probably fragmenting. It may recover (a 3d time!per Quigley); but with the trends of differentiations more easily resolved by conflicts than cooperation – conflict will probably wind things up as the next civilization is formed in other places out of the pieces left behind.

    It will be great not to see it.

  • Laird

    RRS (@8:02 PM), in theory, perhaps, but in practice no. An “instrumentality” (as you prefer) eventually takes on the characteristics of an organism. Yes, it acts through people, but because it is a continuing body, having perpetual existence, after time the specific individuals cease to matter; institutional momentum carries it forward and for all practical purposes it does “decide” things.

  • Paul Marks

    It is worth remembering that Thomas Hobbes, David Hume, Jeremy Bentham, even J.S. Mill in the 19th century never had a university position – and NOT just because of their atheism.

    For example J.S. Mill (like the rest of the Westminster Review group) was rather hostile to large scale private landownership (as he was influenced by the false economics of David Ricardo – both on land and on the labour theory of value) and believed that worker coops should replace private ownership of large scale industry. And like his father James Mill and family friend (and mentor) Jeremy Bentham held that a professional government bureaucracy (rather than the land owners) should take the leading role in society – it would have been considered odd to have someone with such political opinions in a university position. But it was not just the politics, the philosophy of J.S. Mill (attacked by James McCosh, he sort of person who did hold a university position in the mid 19th century – and for centuries before the 19th century, in his “An Examination of the Philosophy of Mr John Stuart Mill”) attacked principles of objective and universal moral truth, and humans as agents – able to choose our actions. Although this is only one side of Mill (the side that comes from Bentham and Hobbes – as well as from the darkness of Hume, which Mr Mill called the “light of Hume”) there was a much better side to John Stuart Mill.

    Today it would be quite normal for a supporter of Hobbes, Hume, Bentham …. to have a university position. Indeed it would be rather odd for an opponent of such ideas to have a university position. The West has been turned on its head – the “critics” (opponents) of the Western tradition, are now presented as the Western tradition.

    Today would even Harold Prichard or Sir William David Ross have any position at Oxford – where they both held Professorships in philosophy only a few decades ago?

    And if James McCosh returned to Princeton today – he would not even be allowed to speak. He would be shouted down and the university would most likely not allow the event anyway.

    To some extent this is their own fault – people like McCosh.

    After all when the Pramatists and Progressives (the philosophy and the Big Government politics are linked) started to rise up – he, and people like him, were models of gentle rationality.

    They did not even argue hard – they treated a mortal threat to civilisation as just people of another School of Thought. One does not need to shout down an opponent – but one does need to treat opponents as opponents (not as misguided friends).

    Enemies are not misguided friends – not a difficult point, but one that men such James McCosh did not grasp.

  • Paul Marks

    RRS – yes there will be new civilisations. Different in many respects from us, but sharing the basic principles of Civil Society – for example Freedom of Contract, and large scale private ownership of land and the other “means of production.

    There are no eternal defeats – just as there are no eternal victories.

  • Paul Marks

    That Freedom of Contract is based on the acceptance of the existence of humans as moral agents – capable of knowing moral right from moral wrong, and of choosing to do right (against the desire to do wrong) is an obvious point, but in these degenerate days I have to formally state it.

    In a sound civilisation – say where Kipling’s poem “The Gods of the Copybook Headings” did not have to be written, it would indeed be a statement of the obvious, and people would wonder why anyone would need to formally state it.

  • RRS

    Laird:

    Ah! you strike the chord of distinction where we part.

    For you the instrumentality “acts through people.” Taking Arnold Kling’s most charitable(not condescending) view of another’s position, that would infer that the accustomed use of an instrumentality (its “institutions”) so conditions the reflexes and responses of people that the “tool” determines the work. If what you have are a hammer and chisel , you do hammer and chisel work; until you come to something like infant care and WHY you do that.

  • bobby b

    Thailover
    July 30, 2017 at 11:46 am

    “In my opinion, Chief Justice Roberts is a shill or a mole.”

    I think he’s another timid Comey.

    Comey saw a point in time when he realized that it was going to be his decision – his ruling – that would determine the winner of our presidential election.

    The decision concerning Clinton’s e-mails was properly his to make, and it would indeed have determined the election had he made it, but he shrank from wielding that kind of power. Instead, he punted, and turned the situation into a mess. He went halfway where he should have gone, and then backtracked, muddied the waters, and stopped.

    Roberts, I think, did the same thing. He saw the Affordable Care Act as essentially a political question – not one to be decided upon technical grounds by an unelected court, but one to leave to the elected part of government to thrash out. It’s always been a canon of USSC thought that any case that can be decided upon non-Constitutional grounds should be – that rulings about the Constitution should only be issued when there is no other path to deciding a case – and Roberts has always been in favor of this canon.

    He seems to want to preserve the idea of the USSC as an above-the-fray intellectual process, and deciding the fate of the ACA would place the court squarely into the fight. So, like Comey, he punted.

  • RRS

    As we (whether from the us or UK) characterize and criticize the current SCOTUS Justices, let us reflect on the fact that they are all products of our legal system – they all “developed” entirely within it.

    That legal system has undergone a transition (perversion?)from the determination of obligations arising in relationships in terms of the circumstances in which they occur, to use as a means to economic, social and political ends. This seems to be the result of “popular” demand by a “litigious” society. But, who knows.

    I am now somewhat older than any of the living justices, other than John Paul Stevens (who is a few years older). I had never intended to “practice,” simply to learn how “Law” was becoming so intrusive in all “business.”

    The mentor (then a Professor of Taxation and Corporate Law)who convinced me to join him in his “part-time” practice (as Counsel to a prominent firm)
    some 63+ years ago, is now 101 and still in active practice in his own nationally prominent firm. I think he is still a firm believer in the role of “Law” and functions of the legal system in our society and not of the same allusions as I.

    But, to me, out of that time-scale, who desires to learn and continue to observe how the role of “Law” and its legal system function in our society, the system has continued to change, and the Justices who are now developed almost solely within it have those characteristics, which match (if not conform to) the popular preferences of our society.

    They are creatures of the system the “people” demand. They can be no other.

  • Alisa

    RRS, I am often baffled by your frequent use of quotation marks, but the “people” there is spot on, as far as I can tell… 😛

  • RRS

    “. . . . . ” (as I attempt to write)usually indicates subject to definition or interpretation; but, not always ! ! !

  • Julie near Chicago

    Alisa & RRS, speaking of ‘the “people”‘ —

    Richard Epstein has said that to him, the Constitution’s worst words are its first words:

    We the people

    .

    Why? Because they lump the many persons who will constitute “the United States” together into a single entity, which carries the suggestion that their individual differences disappear or are at least of no account when it comes to deciding about matters of the new Federal Government. That at least is my understanding of what he was getting at. (He did not go into it at any length.)

    He has said this on UT at least twice (sorry, don’t have the links). The second time, he mentioned that the phrase makes him think of “the People” as meant in, for instance, “the People’s Democratic Republic of” East Germany, North Korea, China, other less admirable places. And of what “the People,” or “the people,” means in various Communistic writings, where it so often occurs.

    One sees what he means. The “People” are either a lump of clay, or a cipher.

  • Alisa

    Julie, I see no reason to read it that way at all – as to me ‘people’ is a group of individuals, no more and no less. But in any case, what I chose to read into RRS’ formulation is something that is the opposite of ‘the people’ as commonly understood – such as ‘the right people’.

    RRS: then every single word should be enclosed in quotation marks, including ‘is’ 😀

  • bobby b

    Julie near Chicago
    July 31, 2017 at 4:09 pm

    “Richard Epstein has said that to him, the Constitution’s worst words are its first words:

    We the people”

    Huh. I always thought they were the best of the words, signifying that it was “we the people” who were the ultimate source of all powers and rights delineated within the Constitution – these were the words signifying the legitimacy of the document as having been constructed by those with the true power and right to construct it.

    Sort of like old proclamations beginning with “by order of the King . . . “.

  • Laird

    RRS, you are correct: it is my contention that, given time, the tool does determine the work. And the “instrumentality” determines its own ends (and, largely, means).

  • Someone

    The Anti-Federalist were right from the beginning. 😳

  • PeterT

    Including countries with absolutely no “freedom” by American definition (no free speech, no guns) like UK and Japan. To play devil advocate, maybe “constitutions” “rights” and “freedoms” are not so important for living a good life?

    In neither of those countries do/would I feel completely free to say what I really think about things. Also they are not counterfactuals to the US, as the good life might be less good without constitutions, rights and freedoms.

  • Shlomo Maistre

    Huh. I always thought they were the best of the words, signifying that it was “we the people” who were the ultimate source of all powers and rights delineated within the Constitution – these were the words signifying the legitimacy of the document as having been constructed by those with the true power and right to construct it.

    Sort of like old proclamations beginning with “by order of the King . . . “.

    Nice words mean nothing.

    Here’s the difference. In old-school absolute monarchies the King did have a hand in actually deciding what those proclamations were (though he did not contrary to popular belief have an absolute say in most cases as his power was always checked by the King’s court, his advisors, the aristocracy, nobles, etc).

    Meanwhile in modern Western democracies “the people” have virtually no hand in deciding what the law actually is. Congress barely does. For the important bills Congressmen are given mere HOURS to read hundreds of pages of regulations and vote on them. The lobbyists and bureaucrats write the law and Congress is there to approve of what the lobbyists and bureaucrats want.

    The bureaucracy decides which laws will be enforced and which will not. The bureaucracy decides who will be subject to which regulations and when they will be so subject. The people are not Kings. The people are teachers and farmers, plumbers and loggers, accountants and lawyers, software engineers and truck drivers. They vote for who CNN or Fox News or NYT or USA Today tells them to vote for then they go to work.

    We the people may arguably be where the government SHOULD get the power to do what it does but it does not in reality derive its power from the people to do what it does and the people certainly do not have a hand in actually deciding what the laws that are enforced in reality are because to govern and to be governed are plainly separate things and if you don’t talk about the government in terms of “we” then you are being ruled like the rest of us. That’s not how it should be but it’s how it is.

  • Shlomo Maistre

    Also pretty much everything Laird said in this thread I agree with.

    Tool determines not the intention of what is done but what is actually done.

    Democracy arguably works in theory. The USA is governed by the people in theory.

    Reality isn’t theory.

    https://en.wikipedia.org/wiki/Lobbying_in_the_United_States

  • bobby b

    “They vote for who CNN or Fox News or NYT or USA Today tells them to vote for then they go to work.”

    Certainly. Thus, President Trump.

    I think you discount the actual power of the people. Granted, we’ve chosen (out of indifference and apathy) not to wield it in the last few decades, but ultimately our government cannot disregard what we want when enough of us band together. We’ve been entirely too sheeplike recently, but that speaks to how we exercise our power, not to whether it exists.

    I remain convinced that having 600 million weapons scattered throughout our country makes a difference in the attitude of our representatives. When your Constitution itself secures the power needed to overthrow bad government, you cannot claim the populace is powerless.

  • bobby b

    ” . . . if you don’t talk about the government in terms of “we” then you are being ruled like the rest of us. That’s not how it should be but it’s how it is.”

    Entirely agree. If you speak of them in terms of “leaders” rather than “representatives” or “agents”, you are lost.

    Any power that you confer on your agent remains your own power and can be revoked at your own will.

  • Laird

    Shlomo is correct as a practical matter at the present time. But all power does truly reside with the people; as bobby says, we have simply chosen not to exercise it. If 300 million of us (or even half that number) chose to ignore what the federal government says it would be powerless to do anything about it. But of course that will never happen; most people are entirely too ignorant, apathetic or fearful to act. Which is precisely what our rulers depend upon.

  • Paul Marks

    Yes bobby b – with an armed population (and a free people should be armed – both Classical writers and the Common Law understand that, even some of the ancient Japanese held this view) what matters, in the end, is the opinions of the people.

    Either we believe that the ordinary person is CAPABLE (with effort) of understanding basic principles and choosing right (moral good) over the desire to do wrong, or we are lost. And it does not even matter that we are doomed – not if we are not really people (not agents – if the soul, Free Will, does not exist).

    Either Hobbes, Hume and Bentham (and the rest of the writers the modern education system pushes) were correct – the people are just machines (or brute beasts) in which case they will be slaves (or food – for each other, or perhaps the PRC) and it does not even matter what their fate is (as people are not really persons), or we stand with Thomas Reid and others (such as Harold Prichard in the 20th century).

    Either “We hold these truths to be self evident…..” (Thomas Jefferson – but really Thomas Reid) is correct – or nothing matters, as people are not really persons.

    Of course believing in the human person (free will, moral agency – the soul, in a religious or NON religious sense) does not mean that good will win over evil. But it means there is a chance – just a chance.

    It means that the ordinary person really does exist (as a person) – that potentially (just potentially) they (we) can understand.

  • Shlomo Maistre

    Shlomo is correct as a practical matter at the present time. But all power does truly reside with the people; as bobby says, we have simply chosen not to exercise it. If 300 million of us (or even half that number) chose to ignore what the federal government says it would be powerless to do anything about it. But of course that will never happen; most people are entirely too ignorant, apathetic or fearful to act. Which is precisely what our rulers depend upon.

    I agree entirely. Indeed, this is EXACTLY what Joseph de Maistre said in his famous essay “Study on Sovereignty”.

    It is certainly true, in an inferior and crude sense, that sovereignty is based on human consent. For, if any people decided suddenly not to obey, sovereignty would disappear; and it is impossible to imagine the establishment of a sovereignty without imagining a people which consents to obey. If then the opponents of the divine origin of sovereignty want to claim only this, they are right, and it would be quite useless to dispute it. Since God has not thought it appropriate to use supernatural agents in the establishment of states, it is certain that all developments have come about through human agencies. But saying that sovereignty does not derive from God because he has made use of men to establish it is like saying that he is not the creator of man because we all have a father and a mother.

    Inferior and crude truths are true but they don’t tell the whole story. I have a mother and a father but I am a child of God in a deeper, more intrinsic sense. Without the intrinsic understanding of governance we are reduced to merely the crude truths which do not permit us to fully understand how governance happens and why it functions as it does.

  • Shlomo Maistre

    “They vote for who CNN or Fox News or NYT or USA Today tells them to vote for then they go to work.”

    Certainly. Thus, President Trump.

    I think you discount the actual power of the people. Granted, we’ve chosen (out of indifference and apathy) not to wield it in the last few decades, but ultimately our government cannot disregard what we want when enough of us band together. We’ve been entirely too sheeplike recently, but that speaks to how we exercise our power, not to whether it exists.

    I remain convinced that having 600 million weapons scattered throughout our country makes a difference in the attitude of our representatives. When your Constitution itself secures the power needed to overthrow bad government, you cannot claim the populace is powerless.

    You are making my point for me!

    The GOP controls 33 of the 50 governorships. The GOP controls at least one state legislature in 38 states. The GOP controls BOTH state legislatures in 32 states. The GOP controls the House of Representatives. The GOP controls the Senate. A majority of the Justices on the Supreme Court of the United States have been appointed by Republican Presidents. And GOP controls the White House.

    What has been the result?

    The public debt is still rising dramatically year after year. Federal spending is still rising, in fact on track to cross $4 trillion for the first time in FY2017 (not even Obama could manage that kind of financial irresponsibility!). Medicare, Medicaid, social security are not being seriously scaled back. No federal agencies have been seriously rolled back. Obamacare is remaining in place, maybe with some minor temporary changes. Dodd-Frank is still remaining in place, maybe with some minor, temporary changes. The wall is not being built.

    The GOP controls the government of the USA on paper. The GOP controls the government in theory. The GOP controls the government by inhabiting the right seats in the right chambers in the right buildings in the right cities.

    The GOP controls the government of this country in every way except one: reality.

    Next up on the docket is probably universal family leave mandated by the federal government. Overton window shifts only one way in democracy.

    The Reagan Revolution mostly failed to enact any permanent change to the trajectory of the US government’s out of control spending, entitlements, debt, and regulations which are strangling the economy of this country. So did the Contract with America. So did the Tea Party. So is the current Trump brigade. Etc.

    In all seriousness the US healthcare system 30 years from now will make Obamacare look like a capitalist paradise.

    Best of luck “banding together”

  • Shlomo Maistre

    Shlomo Maistre
    July 30, 2017 at 2:33 am

    “The US government has the highest per capita incarceration rate in the world, the most extravagant mass surveillance privacy-violating apparatus in human history, massive entitlement programs upon which a majority of the population rely for basic things like healthcare, food, housing, education etc, a monstrously reprehensible public debt that will enslave generations of unborn children, security agencies that harass Americans systematically in their daily life violating their civil liberties en masse, a digital printing press used to prop up unsustainable public spending upon which a majority of Americans rely for basic aspects of their lives, regulatory agencies that impede open market competition in every sector of the economy and weigh down the private sector with a regulatory burden so onerous and expensive that it serves as the primary barrier to entry for would-be start-ups in many industries and has regulated out of existence whole businesses.”

    One of our most serious political fights involves building a wall around our country to keep out the hordes who want in. Anyone can freely leave, but few do. I once spent a day or two in jail long ago, deservedly, but not since then, and no one else I know has been there. Who the hell would bother surveilling me? I travel all over the country, and so long as I stay on the right side of the road and don’t completely ridicule the speed limit, no one ever systematically harasses me. Welfare? Don’t know how I’d even apply, don’t know anyone who would. Made a good living for years, taxed but not overtaxed, plenty left over such that I rely upon myself, as do most people, or upon the public roads and infrastructure that I helped to build. Public education wasn’t something stolen from me, it was a shared obligation and a general benefit and I’m better for it, as are my children. I’ve been hearing about public debt sinking us since I was ten, and we’re all still afloat. Haven’t had to deal with an agent of government in months, and that last time was pleasant and to my benefit. Regulatory agencies suck, as they always have and always will until I move to _____ where they have no influence. (Don’t know how to fill in that blank. Antarctica?)

    Frog is pretty effin’ happy to live in the land of the free and the home of the self-interested, kept that way partially because of a set of written group aspirations that keep us on the same page and create a rallying point. In a land of 323 million people, you can build an impressive parade of anecodotal horribles, but most of it affects most of us not at all. Call me when you make a list that’s not simply theoretical. Hoo-rah!

    So in your world a $20 trillion public debt that is a balance sheet item substantiated by trillions of dollars in international obligations traded on international markets and that is enslaving unborn children to pay for entitlement programs they had no hand in voting for (to take just one example) is THEORETICAL and your Declaration of Independence and Constitution which has been interpreted in sundry ways to suit literally whatever the fuck SCOTUS wants to decide is “law” is NOT THEORETICAL.

    In your world the highest per capita rate of incarceration in the world is theoretical but the piece of paper that has been blatantly misinterpreted to put so many Americans there is NOT theoretical.

    This is how (mostly 30 years old and older) Americans rationalize the unmitigated doom, absolute horror they have burdened future generations with.

    This is why younger Americans are increasingly looking to the alt-right instead of libertarianism to make government smaller.

    Totally and completely divorced from reality

  • bobby b

    Shlomo, right now there are at least two, and probably three, “GOP”s. There’s the party of Paul Ryan, there’s the party of Ted Cruz, and there’s the loose barfight entity that belongs to Trump. There’s no monolith there, and you’re talking about it as if there were. The Democrats are about equally divided, between the brain-dead and the radical brain-dead.

    We’re seeing shrinking regulatory reaches, shrinking immigration, and the economy is getting better. Our country turns like the Queen Mary – slowly – and even merely slowing the pace of the regulatory state’s growth as quickly as we’ve seen in the past six months is an accomplishment. It’s not enough to satisfy you, I know, but it represents an exercise of power.

    And the discussion was about power, not the proper or effective use of it. The power resides in the people (according to me) but the people are almost evenly divided between those who would like more control over, and less control from, government, and the brain-dead. This means that there really is no true wielding of power – there’s just a constant battle about in which direction we should go. I may have a powerful car, but if I’m pressing the gas while you’re pressing the brake, we go nowhere. My 400 hp becomes mere noise. But it’s still true power.

    In the face of that deadlock, no we haven’t accomplished what we (the 51%) wished, but we HAVE actually accomplished a great deal. The list of Trump’s accomplishments so far (here’s one list) is actually quite impressive when gathered together (but you’ll never see it gathered together in our media.) That list was accomplished through the people’s expressions of their desires to their agents in government. That’s what power is.

  • bobby b

    “This is why younger Americans are increasingly looking to the alt-right instead of libertarianism to make government smaller.”

    Hell, that’s why non-younger Americans like me are looking to the alt-right. Libertarian is what I crave, but alt-right has figured out the marketing that libertarians have completely missed, and I’ll gladly ride along to the same destination.

    I’ve never figured out the mechanism, but liberals seem to encompass the creative, persuasion-based community, even while their preferred politics is daffy. So, in spite of having a better plan, we’ve had a poor message, and have failed to ignite the masses like “free stuff!” does.

    And so we’ve been losing, steadily, for decades. “We the people” are still the source of all power, but we’re conflicted in the use of it, and the 51% that the liberals usually manage to scrape together has carried the day. I don’t see this conflict to mean that power resides in government – we still hold it, but “we” encompasses lots of dolts.

    Unlike you, I see the cycle as being a long slow one, and we seem to be gaining a bit lately. So, I am simply less pessimistic than you seem to be.

    But I am also very well armed. Sort of a “trust but verify” ideal.

  • Shlomo Maistre

    bobby b,

    To see what is in front of one’s nose is a constant struggle. Let me help you.

    Shlomo, right now there are at least two, and probably three, “GOP”s. There’s the party of Paul Ryan, there’s the party of Ted Cruz, and there’s the loose barfight entity that belongs to Trump. There’s no monolith there, and you’re talking about it as if there were. The Democrats are about equally divided, between the brain-dead and the radical brain-dead.

    The public debt is still rising dramatically year after year. Federal spending is still rising, in fact on track to cross $4 trillion for the first time in FY2017 (not even Obama could manage that kind of financial irresponsibility!). Medicare, Medicaid, social security are not being seriously scaled back. No federal agencies have been seriously rolled back. Obamacare is remaining in place, maybe with some minor temporary changes. Dodd-Frank is still remaining in place, maybe with some minor, temporary changes. The wall is not being built.

    We’re seeing shrinking regulatory reaches, shrinking immigration, and the economy is getting better. Our country turns like the Queen Mary – slowly – and even merely slowing the pace of the regulatory state’s growth as quickly as we’ve seen in the past six months is an accomplishment. It’s not enough to satisfy you, I know, but it represents an exercise of power.

    The public debt is still rising dramatically year after year. Federal spending is still rising, in fact on track to cross $4 trillion for the first time in FY2017 (not even Obama could manage that kind of financial irresponsibility!). Medicare, Medicaid, social security are not being seriously scaled back. No federal agencies have been seriously rolled back. Obamacare is remaining in place, maybe with some minor temporary changes. Dodd-Frank is still remaining in place, maybe with some minor, temporary changes. The wall is not being built.

    And the discussion was about power, not the proper or effective use of it. The power resides in the people (according to me) but the people are almost evenly divided between those who would like more control over, and less control from, government, and the brain-dead. This means that there really is no true wielding of power – there’s just a constant battle about in which direction we should go. I may have a powerful car, but if I’m pressing the gas while you’re pressing the brake, we go nowhere. My 400 hp becomes mere noise. But it’s still true power.

    The public debt is still rising dramatically year after year. Federal spending is still rising, in fact on track to cross $4 trillion for the first time in FY2017 (not even Obama could manage that kind of financial irresponsibility!). Medicare, Medicaid, social security are not being seriously scaled back. No federal agencies have been seriously rolled back. Obamacare is remaining in place, maybe with some minor temporary changes. Dodd-Frank is still remaining in place, maybe with some minor, temporary changes. The wall is not being built.

    In the face of that deadlock, no we haven’t accomplished what we (the 51%) wished, but we HAVE actually accomplished a great deal. The list of Trump’s accomplishments so far (here’s one list) is actually quite impressive when gathered together (but you’ll never see it gathered together in our media.) That list was accomplished through the people’s expressions of their desires to their agents in government. That’s what power is.

    The public debt is still rising dramatically year after year. Federal spending is still rising, in fact on track to cross $4 trillion for the first time in FY2017 (not even Obama could manage that kind of financial irresponsibility!). Medicare, Medicaid, social security are not being seriously scaled back. No federal agencies have been seriously rolled back. Obamacare is remaining in place, maybe with some minor temporary changes. Dodd-Frank is still remaining in place, maybe with some minor, temporary changes. The wall is not being built.

    Next up on the docket is probably universal family leave mandated by the federal government. Overton window shifts only one way in democracy.

    The Reagan Revolution mostly failed to enact any permanent change to the trajectory of the US government’s out of control spending, entitlements, debt, and regulations which are strangling the economy of this country. So did the Contract with America. So did the Tea Party. So is the current Trump brigade. Etc.

    In all seriousness the US healthcare system 30 years from now will make Obamacare look like a capitalist paradise.

    Best of luck “banding together”

  • bobby b

    There’s a difference between the people not having power, and our side losing the argument. We don’t have a systemic problem – we have an apathetic and uneducated polity. Perhaps instead of “banding together” I should speak of educating people to what is happening.

    The system doesn’t keep us from reform. Stupid people do. I recognize that, but I reject your apparent solution of pushing the people out of the decision loop. We remain free to be stupid as well as free to be smart. I see that as a higher value than to take that power away.

  • Shlomo Maistre

    So, in spite of having a better plan, we’ve had a poor message, and have failed to ignite the masses like “free stuff!” does.

    And so we’ve been losing, steadily, for decades. “We the people” are still the source of all power, but we’re conflicted in the use of it, and the 51% that the liberals usually manage to scrape together has carried the day. I don’t see this conflict to mean that power resides in government – we still hold it, but “we” encompasses lots of dolts.

    This is not a matter of a different marketing strategy or a better plan or a better message.

    The people have made very clear what they want. The people have elected the GOP. The GOP controls the entire federal government and vast majority of the state governments. The people elected the most populist, anti-bureaucracy presidential candidate in American history despite being told by the entire media establishment, political establishment, financial establishment, and academic establishment not to do so.

    The people could not make it more clear in any peaceful way what it is that they want. And the people will not get what they want. Because the people are not the source of government power in this country. Even the Congress only approves of whatever the lobbyists and bureaucrats want. The evidence supports my perspective and not yours.

    This is not a matter of a different marketing strategy or a better plan or a better message. This is about how governance works. The people cannot by nature rule themselves. You can rationalize it however you want but the evidence supports the realization that the people can rule in a crude sense (they can revolt) but they cannot rule in an intrinsic sense (see Maistre quote above) because by definition to rule means to rule over others, the majority. This is how it always has been and always will be.

    Seeing that the people cannot rule themselves is a necessary though by no means sufficient prerequisite to seeing why it is that the Overton window ONLY CAN SHIFT LEFTWARDS in democracy. Order (and long-term liberty springs only from order) is of the Right.

  • Shlomo Maistre

    There’s a difference between the people not having power, and our side losing the argument.

    I’ll leave you with two famous quotes and let your powers of reasoning figure out why winning the argument is completely irrelevant in democracy.

    “War does not determine who is right, only who is left.”
    “Democracy is war by other means.”

    We don’t have a systemic problem – we have an apathetic and uneducated polity.

    What is your evidence for this?

    The American people are sufficiently not apathetic and not uneducated to elect the most populist, anti-bureaucracy, anti-lobbyist, cut the red tape, “drain the swamp” Presidential candidate in American history despite the entire political establishment, media establishment, financial establishment, and academic establishment saying not to do so. The American people care. The problem is that the American people’s opinions are irrelevant. Congress is barely even relevant. What is enacted and enforced are what the lobbyists and bureaucrats want to be enacted and enforced. Period. The evidence supports me.

    Perhaps instead of “banding together” I should speak of educating people to what is happening.

    More talk about talking about how many angels dance on heads of pins.

    The American people did their job to make government smaller by electing the GOP and the most anti-lobbyist and anti-bureaucracy President in American history. Trump and the GOP failed to get the job done to repeal even PART OF OBAMACARE even with 52 Senators in the Senate and GOP control of the House and White House.

    The system doesn’t keep us from reform. Stupid people do.

    The American people did their job to make government smaller by electing the GOP and the most anti-lobbyist and anti-bureaucracy President in American history. Trump and the GOP failed to get the job done to repeal even PART OF OBAMACARE even with 52 Senators in the Senate and GOP control of the House and White House.

    A few days ago three Republican Senators joined Democrats in voting against repealing even just PART of Obamacare. Do you really think that Senators Murkowski, Collins and McCain who are Republican Senators scuttled Republican efforts to repeal Obamacare a few days ago out of STUPIDITIY? Really?

    I’m not saying that they are intelligent. Maybe they were blackmailed to vote as they did. Or maybe they were bribed. Or maybe they really like Obamacare. Or maybe they traded their votes on Obamacare for votes from Democrats on something else. Or maybe something else. The idea that this was because of their stupidity is preposterous. These are not stupid people.

    I recognize that, but I reject your apparent solution of pushing the people out of the decision loop. We remain free to be stupid as well as free to be smart. I see that as a higher value than to take that power away.

    When did I say that the people should be pushed out of the decision loop? Maybe I have, but they are already out of the decision loop effectively. By recognizing that fact we can strive to imagine what a more viable solution to out of control spending, debt, entitlements, bureaucracy, regulations, etc might look like. Or we can continue to bury our heads in the sand as you do.

  • RRS

    @ s M and certain others:

    S M observes”

    The GOP controls 33 of the 50 governorships. The GOP controls at least one state legislature in 38 states. The GOP controls BOTH state legislatures in 32 states. The GOP controls the House of Representatives. The GOP controls the Senate. A majority of the Justices on the Supreme Court of the United States have been appointed by Republican Presidents. And GOP controls the White House.

    That is the kind of misconception of what has bec0me of “Party” structures that infects the wordsmiths of what is called Journalism.

    While the Democrat Party has not yet escaped from the centralized structure of its (creaking?) oligarchy; based mainly on funding controls; the Republican structure, fractured by the Tea Party some time back, is now made up of differentiated, distinct (if comparable), de-centralized, regional oligarchies.

    You have only to look at example like Congressman Bratt who displaced Eric Cantor for an example. Further Virginia is not closely comparable to Ohio – or Kansas. As organizations, they have their hierarchies and oligarchies; but, they are NOT responsive to some “GOP” central (or troika)command.

    It is entirely possible that the regional Republicans have succeeded as an alternative to centralized command of coalitions of diverse interests.

  • bobby b

    “When did I say that the people should be pushed out of the decision loop?”

    Maybe when you said that democracy always ends in chaos? Aren’t you the monarchist?

    I guess I don’t understand what you’re proffering as an alternative, or if you even are proffering one.

    (And, no, 51% didn’t vote for the GOP or for smaller government. Most of that 51% voted for “Trump”, a lifelong Democrat, with little understanding of what they were electing. We’re getting the government and the policies and the values chosen by the people. And I roundly disagree with most of their choices, and look for ways to educate them.)

  • Laird

    First, “Democracy is war by other means” is not a “famous quote.” It is a deliberate corruption of a real famous quote, from von Clausewitz: “War is merely the continuation of policy by other means.

    Second, according to the article bobby b linked (and it provides the raw numbers so it seems accurate) the national debt appears to have declined by $103 billion during Trump’s first 7 months. So I question your repeated assertion that it keeps increasing even under Trump. In any event, it takes time for significant change to occur. Trump is only getting started. And of course, given the structure of our government there is only so much he can do on his own. Not being a seasoned politician he clearly doesn’t yet really understand how a president deals with Congress, even one controlled by his own party. He will learn. With luck he will take a few pages from Lyndon Johnson’s book.

    And as to “stupidity”, that is clearly the case with Collins, and it’s been obvious for years. For McCain it seems to be senility, coupled with a reflexive contrariness. With Murkowski I don’t know, but my suspicion is that she isn’t too bright, either; she won the seat on the strength of her father’s political machine, not her own merits (of which she seems to have few).

    The general public (aside from progressives) has been fairly apathetic in recent decades, but it seems to be awakening. Otherwise we wouldn’t be experiencing the serious red state / blue state divide, and levels of political acrimony unseen since (probably) the 1850s. The next few years should be interesting.

    We are the Little Folk – we!
    Too little to love or to hate.
    Leave us alone and you’ll see
    How we can drag down the State!
    We are the worm in the wood!
    We are the rot at the root!
    We are the taint in the blood!
    We are the thorn in the foot!

  • Angry Tory

    Reagan Revolution? one word: EMTALA.

    Just as unconstitutional as Osamacare.
    If there was one moment when the GOP gave in to communism, that was it.

    Communism has been beaten in Russia and China, but grows ever more stronger in the EU and US

  • Angry Tory

    Great arguments as to why the Framers (and thus any Constitutional Originalist) must absolutely hate the idea of a universal franchise – and why there is absolutely no right to vote in the US Constitution.

    But then when pretty much everything the federal government has done since 1935 is unconstitutional, what do you expect?

  • Darin

    Laird August 1, 2017 at 4:50 am

    The general public (aside from progressives) has been fairly apathetic in recent decades, but it seems to be awakening.

    Not really. The 40-50% couch potato vote is stable and unmoved by the whole circus, for more than century. Despite WWI, Great Depression and WW2.

    http://static4.businessinsider.com/image/585ae415f10a9acc1c8b473f-2400/bi-graphicsvoter%20turnout%20v02.png

  • PeterT

    There are a couple of obvious shortcomings in the Constitution, and in political systems generally.

    – Should be a little bit harder to pass laws than revoke them. Any law should require 55% to pass, and can be revoked with a 45% vote at any time. Give the executive the power to revoke laws (not the constitution of course) in their entirety (but not on a piecemeal basis) unilaterally. Basically a retroactive veto. Just imagine what Trump would do with this. Christmas every day.

    – Those who abuse power get away far too lightly, at least in the US system. Arguably half of the Obama administration should be serving time right how (well, at least the two attorney generals, Clinton, the head of the IRS; dunno about Obama himself, I suspect he is bright enough to have stayed at arms length from these things). Where I hesitate a bit here is that it is far too easy to see Trump indicted over some BS excuse.

  • Laird

    Angry Tory, I don’t entirely agree with that. Art I.2.1 states “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States . . .“, which certainly implies a popular vote (although not for Senators or the President; those came later). And Art. I.4.1 says “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof . . . .” Ditto. Of course, later Amendments were more explicit (the 14th speaks of “the right to vote at any election [of] male inhabitants of such State, being twenty-one years of age, and citizens of the United States“; the 15th states that “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.“; the 17th states that Senators are to be “elected by the people“; and of course the 19th gave women the vote, the 24th abolished poll taxes, and the 26th reduced the voting age to 18), but you’ll probably argue that those were not reflective of the intentions of the Framers. But even ignoring those, the Constitution does clearly contemplate the popular vote (although admittedly not universal suffrage).

    But I certainly agree with your last sentence.

  • Paul Marks

    It is not just democracy that depends on people being persons – it is any political system.

    If a monarch is not a person (if they can not tell moral right from moral wrong – and can not choose to do what is morally right over their desire to evil) then monarchy will not work. Ditto aristocracy or any other political system – mixed or not mixed. And it will not even matter that it does not work – as the subjects (or rather objects) ruled would not be persons either.

    For the record the United States is not and has never been, and was never intended to be, a democracy – after all the Bill of Rights is not up for majority vote, nor is “we hold these truths to be self evident….” in the Declaration of Independence. Which is why, for example, when the left say “but Donald Trump got less votes than Hillary Clinton” the correct answer is “so what – the President is not decided by a majority of the popular vote, the United States is supposed to be a Constitutional Republic NOT a democracy”.

    The 1964 Supreme Court judgement declaring that State Senates must be determined by population was an outrage – as the very purpose of States having Senates was to counter balance the large towns and cities with sparsely populated rural areas (large towns and cities would tend to dominate the lower house of State legislatures), just as the systematic undermining of the TENTH AMENDMENT by the courts, turning a limited Federal government into an UNLIMITED Federal government (there is no Constitutional “general welfare spending power” the “general welfare) is an outrage – but I am getting side tracked.

    Let us say that the view of Thomas Hobbes about humans is correct (which is really the view of David Hume as well – he just uses more polite language) – people are not persons, they are just machines or brute beasts who can neither tell moral right from moral wrong nor choose to do what is morally right against our base desire to do evil – “that discredits democracy!” say certain people, seemingly unaware that it would discredit everything else as well, including themselves.

    Let us stop this “them” stuff – if people are just machines or brute beasts unable to tell moral right from moral wrong, or to choose to do what is right against our desire to wrong, that is NOT just other-people, it includes Mr Hobbes and Mr Hume and Mr Bentham (and so on) as well – they are not some different species from other humans. And it includes everyone on this thread.

    People are not angels – we fail, we are sinners. But people are not devils either, or brute beasts or bits of clock work (try reading the work of Thomas Hobbes sometime, not summaries of them by academics, the actual works, he tries to “explain” human beings in the most vile, and crude, mechanistic terms) – people are persons, we can do good as well as evil, and even at terrible cost to ourselves.

    There is a chance – just a chance, but there is one.

    If people can come to understand basic principles and act upon them – then there is hope. People are capable of that (we really are) – if we make the effort.

  • RRS

    PMO:

    Is there not a well worn comment about doing the RTGHT thing

    AFTER

    We have tried everything else first?

  • Darin

    Paul Marks
    August 1, 2017 at 8:13 pm

    Let us say that the view of Thomas Hobbes about humans is correct

    And the bad news is that it is correct. Archaeologists and anthropologists tried as hard as possible to find noble savage man living in harmony, but no for no avail.

    https://ourworldindata.org/ethnographic-and-archaeological-evidence-on-violent-deaths/

  • bobby b

    Darin
    August 2, 2017 at 7:15 am

    “Archaeologists and anthropologists tried as hard as possible to find noble savage man living in harmony, but no for no avail.”

    But man eventually developed law and structured moral thought. Didn’t that require the nobility they were looking for? It just took longer than they predicted.

  • C.S.Lewis: “The savage is one who has forgotten, or else never learned, what the rest of us now know.”

    Though luck and circumstance play a part, the odds are that any noble savages there were in the past would have given rise to less savage cultures over time, so any savages around in the modern world are disproportionately likely to be ignoble ones.

  • Paul Marks

    Darin – you miss the point, Mr Hobbes was saying that human beings do-not-exist. That people are not persons (that humans are just flesh robots – not beings at all). As I have pointed this out several times, I have to assume that you are deliberately missing the point (missing the point on purpose). In short that you are “trolling”. I have not said anything about a “noble savage” or “living in harmony” – so clear off (to put my request in polite language).

    As for whether people make the effort to use their reason – well not as often as we should (the word “we” is deliberate – we are not some different species from other people, and neither were Mr Hobbes or Mr Hume or Mr Bentham – if people are not persons then Mr Hobbes and Mr Hume and Mr Bentham were also without souls, just robots or brute beasts and their rights were “nonsense” and “nonsense on stilts” not just the rights of OTHER PEOPLE being nonsense because these OTHER PEOPLE were not really people – not really persons).

    Sometimes it is hard not to be cynical, indeed to despair. For example, “TennCare” (the effort by the government of Tennessee to make sure everyone had health insurance) was an utter disaster – everyone admitted it was a disaster. But it was NOT fully repealed – it was just changed, and then changed again.

    This is a common problem – not so much “resistance to change”, as “resistance to admitting that a change was a mistake” – people do not like just reversing a policy (a new scheme or benefit). There are always efforts to “fix” things that can not be fixed – rather than just admitting “this was a mistake”.

    I think I am right in saying (others will correct me if I am mistaken) that more (not less) money is spent on “Tenncare” every year. Ditto all other Welfare State schemes everywhere.

  • Paul Marks

    Even when the citizens move to limit the state the unelected elite (the “educated”) often move in to overrule the people.

    For example Proposition 187 was directly voted for by the citizens of California – it cut off benefits and government services to illegal immigrants and might have saved California. As the benefits and services act as a magnet for a vast tide of illegal immigration from the Third World (California had no real border defences in the 1950s – but did not really need any, as there were no “Food Stamps” and “emergency” health care, and so on, being handed out to illegal immigrants – and, contrary to the law, these illegals often vote now).

    However the unelected judged turned the Constitution inside out and upside down – in order to void the attempts of the citizens to save California (to save themselves and their families).

    As so often the fault was NOT with the ordinary citizens – the fault was with the “educated” “liberal” elite. Their judges, their media (such as the Economist magazine), their education system and so on, the rest of the “institutions” captured by the “liberal” left.