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View Diary: Occupy and the Constitution (169 comments)

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  •  Kennedy's comment on the ACA was horrible (12+ / 0-)

    When he asked the government's attorney - Doesn't the government have a "heavy burden" to justify that the law is constitutional?

    When I took constitutional law decades ago, I was taught that the statutes enacted by Congress were presumed to be constitutional, and it was the party seeking to have the law declared unconstitutional that had "heavy burden."  When did this change?  Isn't this just one symptom of the radicalism of these 5 ideologues?

    "We have always known that heedless self-interest was bad morals, now we know that it is bad economics." Franklin Delano Roosevelt, Jan. 20, 1937

    by Navy Vet Terp on Sun May 06, 2012 at 08:56:06 AM PDT

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    •  I disagree with this take on Kennedy's remark (3+ / 0-)
      Recommended by:
      Navy Vet Terp, 714day, notdarkyet

      but I have fleshed it out in previous diaries (and comments to Armando) and don't have the time to do so today.  I'll just say that I think the we liberals are dramatically overestimating our ability to make a rejection of the ACA mandate to look stupid, political, and craven.  I think that even I could write a decision rejecting it that would leave the public saying "ok, seems reasonable -- at least not frightening."

      Our bigger political problem is that upholding the mandate could be seen as an expansion of the power of federal government on the order of the Kelo decision -- which was rightly decided, but was a main contributor to the Tea Party because it just didn't seem like what the government should be able to do.

      To address NVT's statement: yes, there is a "presumption," but a presumption is generally rebuttable.  Part of this comes down to whether one thinks that the source of the power to enact a constitutional provision should (or should have to) be specified.  Liberals say: "no."  Conservatives say "yes" -- and while it's not a clear constitutional requirement, it's one of the more seemingly appealing parts of their mostly bogus and hypocritical "small government" philosophy.

      This case should not be about the Commerce power at all -- but liberals and moderates made it so.  It was not a wise move.

      Democratic Candidate for California State Senate, District 29, running on an Occupy platform. Also Civic Liaison for Occupy Orange County.

      "I love this goddamn country, and we're going to take it back." -- Saul Alinsky

      by Seneca Doane on Sun May 06, 2012 at 09:39:34 AM PDT

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