Skip to main content

View Diary: Surrender Dems (442 comments)

Comment Preferences

  •  And another thing - (none)
    Your "originalist" sentiment is not only anti-progressive, it's counter to the intent of the actual authors of the Constitution:

    Can one generation bind another, and all others, in succession forever? I think not. The Creator has made the earth for the living, not the dead. Rights and powers can only belong to persons, not to things, not to mere matter endowed with will...Nothing is unchangeable but the inherent and unalienable rights of man.

    (Thomas Jefferson, letter to John Cartwright, Monticello, June 5, 1824).

    Jefferson wrote extensively about making the Constitution a "living" document that should evolve with the people.

    So, yeah, there may be an argument for originalism with regards to the commerce clause, but they are patently Republican/originalist/anti-progressive arguments.

    I am the federal government.

    by mateosf on Wed Sep 21, 2005 at 11:09:58 AM PDT

    [ Parent ]

    •  OK, then maybe I'm a progressive, originalist-lite (none)
      Isn't it possible to be a progressive originalist if you believe in progressive ideals, but that there must be some relationship between the original intent and the current interpretation of the Constitution. I don't feel the the current interpretation must precisely match the original intent, but it must bear some rough resemblence.

      I just believe that there must be SOME limit to the Commerce Clause. If there is NO limit, then the 10th ammendment is completely invalid. Certainly the interpretation of the law can change over time, but not to the point where portions of the Constitution are rendered irrelevant because of it.

      What would you propose IS a reasonable limit for Commerce Clause power?

      Do you think that the more liberal judges on the court ever go beyond what is reasonable when invoking the Commerce Clause?

      •  Of course they do, (none)
        But that's not the point; Jefferson and his bros specifically intended to give judges the ability to "evolve" the Constitution to reflect the evolution of society.

        I think the "progressive" objections to the commerce clause are based on a couple specific concerns - like marijuana and rape - that can easily be addressed through the political process, and may be well on their way to getting there (keep in mind, the Supremes have never ruled on our current prohibition laws - just on the medical marijuana, which is a different issue legally).

        Pot should not be illegal, and is only so because of the political power of the prison lobby. As the economics of our prison system continue to tank, many Conservatives are coming around to the notion of decriminalization. No commerce clause re-interpretation necessary.

        On rape, well, I personally consider all violent crimes to be federal crimes in that they offend the values of all Americans, not to mention violate the Fourth Amendment, without question. The twisting of the commerce clause to include rape was a mistake, but no doubt it's a constitutional crime.

        I think the reasonable limit to the commerce clause is that which elevates the primordial goal of the Bill of Rights - that is, the greatest freedoms and fundamental protection of rights for the largest population of the American people possible at any given moment in time.

        So states can't legalize slavery, and the Feds can't arrest marijuana users, and abortion must be legal, and Utah can't pollute Colorado's air, because that's what most people want and they have a right to these things under the current interpretation of the Constitution.

        Mess with the Commerce Clause and you're opening a giant can of shit.

        I am the federal government.

        by mateosf on Wed Sep 21, 2005 at 11:31:19 AM PDT

        [ Parent ]

        •  What? (none)
          So states can't legalize slavery, and the Feds can't arrest marijuana users, and abortion must be legal, and Utah can't pollute Colorado's air, because that's what most people want and they have a right to these things under the current interpretation of the Constitution.

          The states can't legalize slavery because of the 13th Ammendment.

          Currently, the Feds CAN arrest marijuana users precisely BECAUSE of the too-broad interpretation of the commerce clause by the Supreme Court.

          And the Constitution doesn't give anyone the right to clean air.

          Personally, I think the Constitution SHOULD give people the right to clean air. But we need to ammend it to give people that right, not just claim that it does because that's what we want.

          •  Mississippi never ratified the 13th amendment (none)
            but your point is right, I guess I was trying to invoke the "states rights" argument that was used by the anti-abolitionists and is still used today by their closeted bigot descendants in the GOP. The philosophy behind the 13th amendment is the commerce clause, i.e. the feds' authority to regulate interstate commece in the form of the trade of slaves.

            Feds CAN NOT arrest someone for "using" marijuana, they only get involved in intent to distribute cases, and that is under pressure to go away because of the high cost of federal  incarceration. The only time you can get busted w/ federal charges for smoking pot is when you're on public lands or in a national park.

            And the Commerce Clause DOES give Americans the right to clean air because polluting an adjacent state's air hurts their economy by making their workers sick. Demonstrably.

            Good luck passing a clean air amendment, I suggest you start by dismantling the coal, oil, gas, automotive, agriculture and chemical lobbies. They're all down on K street, call when you're done ...

            The idea is that the Constitution is an ideal guiding document of principles that we can not go around amending all the time, but rather acknowledge that, by design, it was intended to be subject to currency reviews and interprative - not substantive - updates.

            You've actually just made my argument for me - you start by saying you want the content of the Constitution to be honored, then call for an amendment because it's not, in your eyes, complete.

            Square that up for me?

            I am the federal government.

            by mateosf on Wed Sep 21, 2005 at 04:40:22 PM PDT

            [ Parent ]

    •  It's not necessarily an originalist sentiment (none)
      to believe that the text of the Constitution means something, and that meaning is at least fairly static.

      I believe in a "living" constitution, but no amount of life can change "among the several states" to "wherever we feel like it".

      I think the Commerce clause allows for quite broad regulation by Congress (and I am quite concerned that Roberts will lead the court too far in preventing regulation), but it gets a little ridiculous sometimes.

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site